Lavertue v. Niman

• Decision Date: 04 June 1985
• Parties: Gail A. LAVERTUE v. Mark NIMAN.
• Court: Connecticut Supreme Court

Page 213

493 A.2d 213

196 Conn. 403

Gail A. LAVERTUE v. Mark NIMAN.

Supreme Court of Connecticut.

Argued March 12, 1985.

Decided June 4, 1985.

Claudine Siegel, Westport, with whom was Kathy L. Bert, Middleton, for appellant (defendant).

George S. Szydlowski, Asst. Atty. Gen., with whom, on the brief, were Joseph I. Lieberman, Atty. Gen., and Sandra Henderson, for appellee (state).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and SANTANIELLO, JJ.

PETERS, Chief Justice.

The sole issue on this appeal is whether an indigent defendant in a state-initiated paternity suit has a constitutional right to court-appointed counsel. At behest of the state and with the state's assistance, the plaintiff Gail A. Lavertue sued the defendant Mark Niman, pursuant to General Statutes § 46b-160, naming him the father of her child Sherry Ann Lavertue. Prior to trial, the defendant filed a financial affidavit reflecting his indigency ¹ and moved for the appointment of counsel. The trial court, Kremski, J., denied the motion. The defendant was tried to the court, Spear, J., found guilty and ordered to pay weekly child support until the child's eighteenth birthday. He appeals from the judgment, claiming that the court erred in refusing to appoint counsel to represent him. We agree.

The events at trial provide the necessary background to this appeal. The plaintiff was represented, at state expense, by Attorney Robert Chase. On direct examination, the plaintiff testified that, when her child was conceived in November, 1979, she was having sexual relations only with the defendant and that he was the child's father. She also testified that the state was contributing to the child's support.

The defendant, appearing pro se, was able to do little to weaken or to contradict the plaintiff's case. Counsel for the plaintiff successfully objected to the defendant's effort to cross-examine the plaintiff about her sexual relations with other men and about the existence of other potential fathers. Although a blood grouping test had been authorized, its results were not introduced into evidence. ² The defendant belatedly sought judicial assistance to procure the presence of an absent witness, but was not permitted to delay the trial for that purpose. His attempt to testify in his own behalf was cut short by his mistaken attempt to resume questioning the plaintiff.

At the close of the evidence, the court found the defendant guilty and proceeded to a determination of the amount of child support to award. An employee of the state department of human resources testified that the state had incurred a total of $6777.81 in expenses, which included child support as well as attorney's fees, costs and a blood test. The defendant testified that he was twenty-three years old, had completed two years of high school education, was unemployed and had no income. The court ordered the defendant to pay $5 a week child support until the child's eighteenth birthday and $5 a week arrearage until the state's past expenses had been fully reimbursed, all payments to be made directly to the state.

The defendant's only claim on this appeal is that he has a right to court-appointed counsel under the due process clause of the fourteenth amendment to the United States constitution and under article first, § 10 of the Connecticut constitution. ³ Because his claim relies upon a showing of state action and upon the unique configuration of paternity actions in this state, ⁴ it is important at the outset to clarify the background of this litigation. See Little v. Streater, 452 U.S. 1, 9, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981). We will then consider the test that determines whether a court is obligated to provide counsel to indigent defendants.

I

Whether state involvement in paternity actions is of sufficient significance to trigger constitutional rights to counsel depends upon whether the child whose paternity is in question is receiving public assistance. Absent public assistance, a paternity suit is simply a private action brought by the child's mother against the putative father. When public assistance is at stake, however, the state plays a dominant role in the initiation and the prosecution of the paternity suit.

The state's interest in a paternity action concerning a child on public assistance is manifest and enduring. See Little v. Streater, supra, 9, 101 S.Ct. 2207. The mother of such a child is required, on pain of contempt, to identify the child's father and, in the event he does not acknowledge paternity, to bring an action against him. General Statutes §§ 17-82b, 46b-160, 46b-169; Regs., Conn. State Agencies §§ 17-82e-4 through 17-82e-6. The state assists the plaintiff in finding an attorney and pays the plaintiff's legal fees and costs. Regs., Conn. State Agencies §§ 17-82e-4, 17-82e-6. The attorney general is automatically a party to such a paternity action, and no such action can be settled without the approval of a state official. General Statutes §§ 46b-160, 46b-170. If the paternity action is successful and results in an award of child support, the moneys so awarded are paid directly to the state because the mother of a child on public assistance must assign her rights of support to the state. General Statutes § 17-82b. ⁵ The attorney general is in fact the only party defending this appeal.

The significance of the state's involvement in actions involving the paternity of children receiving public assistance is enhanced by the fact that all paternity proceedings have " 'quasi-criminal' overtones." Little v. Streater, supra, 10, 101 S.Ct. 2207. A paternity action results in a finding of "guilt" or "innocence," and nonpayment of support orders attendant to a finding of "guilt" may lead to contempt and imprisonment. General Statutes §§ 46b-171, 46b-215, 53-304. Nonetheless, the plaintiff in a paternity proceeding need only prove her case by a fair preponderance of the evidence. Terrasi v. Andrews, 3 Conn.Cir.Ct. 449, 453, 217 A.2d 75, cert. denied, 153 Conn. 729, 214 A.2d 130 (1965). Furthermore, she establishes a prima facie case by remaining constant in her accusation. ⁶ In sum, the state has the capacity to insist on the initiation and prosecution of a paternity action in which a defendant is at considerable risk.

II

The test that governs the due process right to court-appointed counsel is whether the absence of counsel deprives an indigent defendant of " 'fundamental fairness.' " Lassiter v. Department of Social Services, 452 U.S. 18, 25, 101 S.Ct. 2153, 2158, 68 L.Ed.2d 640, reh. denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981). That test, in turn, involves an analysis of three separate factors: "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Id., 452 U.S. 27, 101 S.Ct. 2159, citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Once we identify the analytic components of this test, we must then determine what weight to attach to each of its elements, and whether any supervening presumptions tilt the balance in favor of or against a right to counsel. Lassiter v. Department of Social Services, supra, 452 U.S. 27, 101 S.Ct. 2159.

The private interests that are at stake in this litigation involve both the putative father and the child. See Little v. Streater, supra, 13, 101 S.Ct. 2209. The putative father faces a possible loss of liberty if he is found "guilty" and subsequently fails to pay court ordered child support. General Statutes §§ 46b-171, 46b-215, 53-304. In addition, both father and child have substantial financial and property interests at stake. The father is liable for past, present and future child support. General Statutes § 46b-171. In later years the child may be liable for the support of its father; General Statutes § 53-304; and may eventually have claims upon the father's estate. The child's interests also extend to its health, which may depend upon an accurate family medical history. See Kennedy v. Wood, 439 N.E.2d 1367, 1370 (Ind.App.1982).

In addition to these particularized private interests that militate in favor of procedural safeguards, we also recognize the more general interest that is implicated when what is "at issue is the creation of a parent-child relationship." Little v. Streater, supra, 452 U.S. 13, 101 S.Ct. 2209. The family relationship is so significant as to be accorded constitutional protection. At stake for both parent and child are the rights to companionship, care and custody. Little v. Streater, supra, 13, 101 S.Ct. 2209; Cappetta v. Cappetta, 196 Conn. 10, 14, 490 A.2d 996 (1985); McGaffin v. Roberts, 193 Conn. 393, 400-401, 479 A.2d 176 (1984), cert. denied, --- U.S. ----, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985). Obviously, both the father and the child in a paternity proceeding have an interest in seeing that these rights are accurately adjudicated. The child's interests in this regard are particularly strong. "Any determination that a particular individual is a child's biological father may have profound sociological and psychological ramifications.... It is in the child's interest not only to have it adjudicated that some man is his or her father and thus liable for support, but to have some assurance that the correct person has been so identified." (Emphasis in original.) Salas v. Cortez, 24 Cal.3d 22, 33-34, 593 P.2d 226, 154 Cal.Rptr. 529, cert. denied, 444 U.S. 900, 100 S.Ct. 209, 62 L.Ed.2d 136 (1979).

In contrast to these strong private interests, the state has two somewhat conflicting concerns. On the one hand, in its role as parens patriae, it must protect the welfare of the child and thus shares the child's interest in accurately identifying the father and making that person responsible for its support. ⁷ On the other hand, the state has a substantial economic stake in the adjudication of paternity. Since the child is being supported at state...