Wake County ex rel. Carrington v. Townes

• Decision Date: 15 September 1981
• Docket Number: No. 8010DC1024,8010DC1024
• Citation: 281 S.E.2d 765,53 N.C.App. 649
• Court: North Carolina Court of Appeals
• Parties: WAKE COUNTY, ex rel. Evelyn CARRINGTON v. Daniel TOWNES.

Page 765

281 S.E.2d 765

53 N.C.App. 649

WAKE COUNTY, ex rel. Evelyn CARRINGTON v. Daniel TOWNES.

No. 8010DC1024.

Court of Appeals of North Carolina.

Sept. 15, 1981.

Wake County Atty. by Shelley T. Eason, Raleigh, for plaintiff-appellee.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Henry H. Burgwyn and Associate Atty. Gen. Clifton H. Duke, Raleigh, amicus curiae brief for plaintiff-appellee.

BECTON, Judge.

The sole issue in this appeal is one of first impression in North Carolina: whether an indigent defendant in a paternity suit instituted by the State has a constitutional due process right to court-appointed legal counsel. Based on the Fourteenth Amendment due process requirements of the United States Constitution, and on the Law of the Land provision in Article I, Section 19 of the North Carolina Constitution, ¹ we hold that an indigent defendant has a right to appointed counsel in paternity suits instituted by the State.

I

Due process must be afforded when a State seeks to deprive an individual of a protected liberty or property interest. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). Once a fundamental interest is placed in jeopardy by State action, a court of review must focus its inquiry on the sufficiency of the procedures involved to ensure fairness to the potentially aggrieved individual. Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). At its minimum, then, due process requires that every individual forced by the State to resolve claims of right, duty and liability through the judicial process be afforded a meaningful opportunity to be heard. Little v. Streater, --- U.S. ----, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); State v. Parrish, 254 N.C. 301, 118 S.E.2d 786 (1961). Indeed, the touchstone of due process is the presence of fundamental fairness in any judicial proceeding adversely affecting the interests of an individual.

Right to counsel cases analyzed in terms of constitutional mandates of due process require the application of a balancing test to determine the amount of process due an indigent to ensure fundamental fairness. Lassiter v. Department of Social Services, --- U.S. ----, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The old distinction of appointing counsel only in criminal cases and never in civil cases was abandoned by the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In In re Long, 25 N.C.App. 702, 214 S.E.2d 626 (1975), this Court quoted with approval the Tenth Circuit's statement that "(i)t matters not whether proceedings be labeled 'civil' or 'criminal' or whether the subject matter be mental instability or juvenile delinquency. It is the likelihood of (a grievous loss) ... which commands observance of the constitutional safeguards of due process." Id. at 706, 214 S.E.2d at 628, quoting Heryford v. Parker, 396 F.2d 393, 396 (10th Cir. 1968).

The analysis utilized by the United States Supreme Court in the recent decision of Lassiter to determine the right of indigents to appointed counsel in termination of parental rights hearings is useful to our inquiry. The Lassiter analysis begins with "the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured." --- U.S. at ----, 101 S.Ct. at 2159, 68 L.Ed.2d at 649 (emphasis added). The Supreme Court then applies a balancing test, first propounded in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), which requires the evaluation of three distinct factors in determining what procedures are necessary under the Fourteenth Amendment to ensure fundamental fairness. The test is also helpful in applying the due process protections of our State constitution. The three factors are:

first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

424 U.S. at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33. See also Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97

S.Ct. 2094, 53 L.Ed.2d 14 (1977). Finally, the Court in Lassiter balances these Mathews v. Eldridge factors against one another "and then set(s) their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom." Lassiter, --- U.S. at ----, 101 S.Ct. at 2159, 68 L.Ed.2d at 649.

II

An action to establish paternity is civil in nature, Bell v. Martin, 299 N.C. 715, 264 S.E.2d 101 (1980), with no immediate threat to personal liberty. It is not a crime in North Carolina to sire an illegitimate child or to be adjudicated the father of the child. Id. The civil nature of a paternity action then raises the presumption that there is no right to appointed counsel in such a proceeding. Lassiter. The ramifications of a paternity determination, however, are decidedly criminal in nature. ² The failure of the defendant in a paternity suit to make subsequent support payments based on the adjudication of his parentage can, and often does, result in civil or criminal enforcement proceedings being brought against him. The penalty imposed in these proceedings is incarceration. See G.S. 49-2 (1979 Cum.Supp.), 49-8, 49-15, 50-13.4(f)(9) (1979 Cum.Supp.). Hence, we analyze the due process requirements of Mathews v. Eldridge against, at best, a weakened presumption that court-appointed counsel is not necessary in a paternity proceeding.

A. Interests of the Defendant

The first prong of the Mathews v. Eldridge test the determination of the amount of due process necessary to ensure fundamental fairness concerns the private interests of the defendant that are placed in jeopardy. The personal freedom of the defendant is the most significant and steadfastly-guarded interest to be considered.

1. Liberty Interest

The defendant contends that his freedom is at stake in this civil paternity proceeding because a judgment of paternity will be res judicata in any subsequent proceeding to enforce his obligations to make support payments or to punish him for refusing to make support payments. Under North Carolina law, a defendant's liberty interest may be adversely affected in two ways by a civil adjudication of paternity. First, G.S. 49-15 provides that once paternity has been determined, the duties and obligations of the adjudicated father may be "enforced in the same manner, as if the child were the legitimate child of such father." The parental obligations owed a legitimate child may be enforced in a proceeding for civil or criminal contempt under G.S. 50-13.4(f) (9). Therefore, once adjudicated the father of the illegitimate child and ordered to pay child support in a proceeding without benefit of counsel, defendant may be incarcerated under the contempt provisions of G.S. 50-13.4(f) (9) for failure to make such payments. Second, it is a misdemeanor for a parent to fail to adequately support his or her illegitimate child, G.S. 49-2 (1979 Cum.Supp.), and the penalty for this offense may be a prison term "not to exceed six months." G.S. 49-8(1). Moreover, failure to make the court-ordered support payments is a continuing offense which may result in successive six month terms of imprisonment. See State v. Green, 277 N.C. 188, 176 S.E.2d 756 (1970). ³

The County argues on the other hand that an indigent defendant in a paternity suit has no liberty interest at risk. It argues further that the mere fact that an adjudicated father may face a criminal prosecution for subsequent failure to make support payments has no bearing on the parental adjudication proceeding. According to the County, a due process right to counsel does not depend upon the hypothetical and remote possibilities of future enforcement actions for nonsupport. The County also points out that defendant would have court-appointed counsel in a criminal nonsupport prosecution, State v. Lee, 40 N.C.App. 165, 252 S.E.2d 225 (1979), and would be entitled to counsel in a criminal contempt proceeding. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Moreover, the County contends, based on Tidwell v. Booker, 290 N.C. 98, 225 S.E.2d 816 (1976), that the civil adjudication of paternity would not be res judicata in a subsequent criminal proceeding and that defendant would be able to raise the issue of paternity again.

Our reading of Tidwell and the more recent decisions of this Court in Withrow v. Webb, --- N.C.App. ---, 280 S.E.2d 22 (1981) and Williams v. Holland, 39 N.C.App. 141, 249 S.E.2d 821 (1978), convinces us that the adjudication of paternity in this action will be res judicata in a subsequent criminal proceeding. Tidwell is distinguishable from, and therefore not controlling on, the case sub judice because of the lack of identity of parties in the two proceedings in Tidwell. In that case, the issue of paternity had first been raised in a criminal prosecution. The plaintiff-wife swore out a warrant against the putative father for nonsupport and the State successfully prosecuted the case. In that trial, defendant was found to be the father and therefore criminally liable for nonsupport. Over ten years later the plaintiff-wife filed a civil Complaint in her name alleging the paternity of the defendant and requesting additional support payments of fifty dollars per week....