Salas v. Cortez

• Decision Date: 26 April 1978
• Citation: 145 Cal.Rptr. 727,80 Cal.App.3d 427
• Court: California Court of Appeals Court of Appeals
• Parties: Julia Ann SALAS, Plaintiff and Respondent, v. Miguel Martinez CORTEZ, Defendant and Appellant. David Joseph MORALES, a minor by Frank J. Adamich, his guardian ad litem, and County of Ventura, Plaintiffs and Respondents, v. David Duran CASTELLANOS, Defendant and Appellant. Civ. 49976 and 49977.

Page 727

145 Cal.Rptr. 727

80 Cal.App.3d 427

Julia Ann SALAS, Plaintiff and Respondent, v. Miguel Martinez CORTEZ, Defendant and Appellant.

David Joseph MORALES, a minor by Frank J. Adamich, his guardian ad litem, and County of Ventura, Plaintiffs and Respondents, v. David Duran CASTELLANOS, Defendant and Appellant.

Civ. 49976 and 49977.

Court of Appeal, Second District, Division 5, California.

April 26, 1978.

Richard A. Weinstock and John A. Lefcourte, Ventura (Legal Aid Association of Ventura County), for defendants and appellants.

James O. Barney and George Chaffey, Pittsburg (Contra Costa Legal Services Foundation), Rosalyn M. Chapman, Los Angeles (California Rural Legal Assistance Cooperative Legal Services Center), Erica Hahn and Joseph Charney, Los Angeles (Legal Aid Foundation of Los Angeles), as amici curiae on behalf of defendants and appellants.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Criminal Division, S. Clark Moore, Asst. Atty. Gen., Lawrence P. Scherb, II, Andrew D. Amerson and Pamela Nelson, Deputy Attys. Gen., for plaintiffs and respondents.

ASHBY, Associate Justice.

In these paternity and enforcement of child support proceedings, appellants, Miguel Martinez Cortez and David Duran Castellanos, were each found to be fathers of minor children and were ordered to pay child support. In consolidated appeals they argue that they were constitutionally entitled to have a court appointed attorney represent them at public expense.

In No. 49976, Julia Salas, the mother of a child, Miguel Martinez, born out of wedlock on January 28, 1972, brought an action to establish that appellant Miguel Martinez Cortez is the father of the child and to enforce his obligation to support the child. Salas was represented in the action by the District Attorney of Ventura County; she had received welfare benefits from the county (Aid to Families with Dependent Children, AFDC).

In No. 49977, the plaintiff is the minor child, David Joseph Morales, through his guardian ad litem, a family support officer in the office of the Ventura District Attorney. The minor was born out of wedlock to Cathy Morales on February 6, 1973. The action sought to have appellant David Duran Castellanos declared the father of the child. In the first cause of action, the minor sought child support. In the second cause of action, the County of Ventura sought reimbursement for support which it had provided to the minor. The minor and the county were represented by the district attorney.

California law authorizes the district attorney on behalf of the county to bring actions to enforce the child support obligations of an absent parent of a child receiving welfare benefits and for reimbursement of benefits provided. (Civ.Code, § 248; former Welf. & Inst.Code, §§ 11350, 11475, 11488.)

Such actions received added impetus in 1975 when Congress enacted Public Law No. 93-647 and appropriated money "(f)or the purpose of enforcing the support obligations owed by absent parents to their children, locating absent parents, establishing paternity, and obtaining child support . . .." (42 U.S.C. § 651 et seq.) The federal law requires the states to adopt a plan for enforcing such obligations, and reimburses the states for 75 percent of certain expenses involved in such enforcement activity. (42 U.S.C. §§ 654, 655.) The regulations authorize such 75 percent reimbursement for the expenses of cooperative agreements with courts and law enforcement officials such as district attorneys for the enforcement of the act. (45 C.F.R. §§ 304.20, 304.21.)

California has enacted new legislation to conform to the federal program. As a condition of eligibility for AFDC benefits, the parent receiving aid must assign to the county any rights to support from any other person and cooperate in establishing the paternity of a child born out of wedlock with respect to whom aid is claimed. (Welf. & Inst.Code, § 11477.) It is the duty of the district attorney to investigate nonsupport or paternity and take all steps necessary to obtain support for the needy child and determine paternity in a case of a child born out of wedlock. (Welf. & Inst.Code, § 11476.) The district attorney may bring an action to establish paternity, to enforce the absent parent's child support obligation, and to seek reimbursement to the county of support which the county has provided to the family. (Welf. & Inst.Code, §§ 11350, 11350.1, 11475 et seq.) The district attorney's child support enforcement services are, however, available to all individuals whether or not they are recipients of public social services. (Welf. & Inst.Code, § 11475.1.)

According to a declaration submitted to the trial court below, federal financial support for the district attorney's paternity and child support enforcement services has apparently led to a significant increase in such activity by the Ventura County District

Attorney. This increase has, in turn, apparently led to increases in work loads of agencies who represent indigent defendants. The Legal Aid Association of the County of Ventura represents appellants on this appeal and seeks to establish a constitutional right of indigent defendants in paternity actions to have counsel appointed for them at public expense. ¹ While we recognize the potential difficulties faced by these individual appellants and the Legal Aid Association, there is no authority which requires or authorizes the court to appoint counsel for indigent defendants in such proceedings, nor is there a constitutional right to such appointment.

NO. 49976, SALAS v. CORTEZ

The complaint to establish paternity and provide child support in Salas v. Cortez was personally served on appellant Miguel Martinez Cortez on September 29, 1975. He answered the complaint in propria persona on October 27, 1975, denying all allegations of the complaint.

On February 17, 1976, appellant Cortez submitted a declaration requesting that the court appoint counsel for him. The Legal Aid Association of Ventura County assisted him in preparation of the declaration. It stated: That he is not the father of the child; that he does not speak, read, or write English and does not understand numerous documents filed by the district attorney's office; that he needs the assistance of an attorney but is unemployed and cannot afford one; that the offices of California Rural Legal Assistance in Santa Maria and the Legal Aid Association of Ventura County in Oxnard informed him that they could not advise or represent him because, although he qualified for their services, they do not have enough attorneys to advise or represent defendants in this type of matter; and that private attorneys had requested fees of $500 to represent him, which he could not afford. The court impliedly denied the appointment of counsel.

On March 15, 1976, Cortez appeared before the court. An interpreter was appointed, and Cortez was ordered to answer the district attorney's interrogatories. Cortez never answered the interrogatories nor did he answer the district attorney's request for admissions pursuant to Code of Civil Procedure section 2033 (see now, § 2030, subd. (e)): "1. That defendant is the father of Miguel Martinez, born January 28, 1972. (P) 2. That defendant is able to pay child support in the amount of seventy-five dollars ($75.00) for support of Miguel Martinez . . .." The district attorney sent a letter to Cortez warning him that "(u)nless you take proper legal steps prior to trial, it is our intention to obtain a court order in accordance with matters contained in the request for admissions."

Cortez did not appear for trial May 12, 1976, nor did counsel appear for him. Julia Salas testified, the court took judicial notice of the request for admissions, and the district attorney's letter was admitted into evidence. The court found Cortez to be the father of the child and ordered him to pay child support of $75 per month and $300 in past temporary support ordered, all payable through the district attorney's office.

The notice of appeal and designation of record on appeal were filed on Cortez' behalf by the Legal Aid Association.

NO. 49977, MORALES v. CASTELLANOS

The complaint to establish paternity, to provide support, and for reimbursement of welfare funds was personally served on appellant David Duran Castellanos on September 25, 1975. He answered the complaint in propria persona on November 7, 1975, denying all the allegations of the complaint and requesting that the court appoint an attorney for him. On November 18, 1975, the Legal Aid Association filed on his behalf a motion for appointment of counsel and declarations and points and authorities in support thereof. Castellanos declared that he is unemployed and cannot afford an Richard Weinstock, executive director of the Legal Aid Association of Ventura County, declared: That the Legal Aid Association of Ventura County employs 7 attorneys and represents approximately 3,000 persons per year "in all areas of Civil Law, including (paternity actions such as this one), consumer complaints, garnishments, wage claims, welfare, social security, veterans benefits, unemployment insurance, landlord/tenant, public housing, dissolutions, guardianships, adoptions, immigration, driver's license revocations, employment discrimination, housing discrimination, education, housing code violations, real property transactions, income taxes, probate and occupational health and safety"; that the association currently represents 10 defendants in paternity actions such as this; that the number of district attorney filings in such matters is expected to increase in 1975-1976 to 1,900 paternity actions and 5,000 civil complaints as a result of the federal subsidy; that "(t)hese increased filings by the District Attorneys Office have resulted in our office being involved in a disproportionate number of such cases to the detriment of our representation in other areas of Civil Law. ...