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U.S. v. KERLEY

January 28, 2004.

UNITED STATES OF AMERICA,
v.
CLIFFORD KERLEY, Defendant



The opinion of the court was delivered by: BARBARA JONES, District Judge

Opinion

Defendant Clifford Kerley is charged with violating 18 U.S.C. § 228 (a)(3), (c)(2), which criminalizes the willful failure to pay a past due child support obligation for a child residing in a different state. Defendant has made a motion to dismiss the information in this case because of various alleged due process violations, including that he was not assigned counsel during the paternity proceedings that resulted in the underlying support order that now forms the basis of this criminal prosecution. This Court heard argument from counsel on November 7, 2003 and, in an Order dated November 17, 2003, directed the parties to submit further briefing on the issues of (1) whether, according to the plain language of the statute and/or the legislative history, Congress intended to allow a defendant to collaterally attack a support order underlying an 18 U.S.C. § 228 prosecution on the basis that he was not afforded Page 2 counsel during the paternity proceeding; and (2) whether Defendant had a due process right to counsel under the United States Constitution in his New York State paternity proceeding.

Having now read the further submissions by counsel, this Court finds that Defendant Kerley did not have a due process right to counsel in his New York State paternity proceeding. The Court also rejects the additional alleged due process violations raised by Defendant. As this Court concludes that Defendant's due process rights were not violated in the underlying New York State Family Court proceedings, this Court need not reach the issue of whether a defendant may collaterally attack a support order underlying an 18 U.S.C. § 228 prosecution on the basis that he was not afforded due process during the paternity proceeding. Defendant's motion is DENIED.

  FACTS

  Mr. Kerley is charged with willful failure to pay a child support obligation, which was imposed in New York Family Court after a default finding of paternity on July 6, 1990. Mr. Kerley received a summons in Spring 1990 to appear in New York Family Court to respond to allegations of paternity made by the New York City Commissioner of Social Services on behalf of a woman named Judith Lopez ("petitioning mother"), who claimed that she gave birth to twin girls in March 1999 and that Mr. Kerley was the girls' father. (Def. Mem. at 2-3). Page 3

  Mr. Kerley appeared before a hearing examiner in New York Family Court ("the Examiner"), contested paternity and requested that the Examiner order blood and genetic marker tests ("blood tests") to determine whether he could be medically excluded as the father of the children. (Def. Mem. at 3). The Examiner granted Mr. Kerley's request and issued an order requiring the parties to undergo blood tests. (Def. Ex. B). The Examiner did not assign Mr. Kerley counsel, and Mr. Kerley did not request the appointment of counsel. Mr. Kerley claims to have been indigent at the time in question. (Kerley Aff. ¶ 9).

  The Examiner's order required Mr. Kerley, the petitioning mother, and her children to appear at a specified laboratory on May 2, 1990 at 2:00 p.m. to undergo blood tests. Mr. Kerley did not appear for his blood test appointment' and does not allege that he attempted to contact the Examiner or the laboratory before the appointment to inform them that he would be unable to appear. The petitioning mother and her children appeared at the blood test appointment*fn1 but did not undergo testing after Mr. Kerley failed to appear. (Kerley Aff. ¶ 4). Mr. Kerley claims that he attempted to contact Family Court after he missed his blood test appointment, but was simply directed to appear at his Page 4 next scheduled court date.*fn2

  Mr. Kerley also failed to appear for his next scheduled court date in July 1990. He claims that he did not entirely fail to appear, but merely "arrived late" to his court date, at which time he learned that default orders of filiation and support had been entered against him. (Kerley Aff. ¶ 8). After the state orders were entered, Mr. Kerley moved to Indiana. (Def. Mem. at 4). Mr. Kerley made a motion to vacate these orders in March 1995; the motion, which was filed well after the one-year time limit prescribed by statute expired, was unsuccessful. (Def. Ex. F.; Gov. Ex. E).

  Mr. Kerley has failed to pay child support to the petitioning mother since November 1992. (Gov. 10/22/03 Letter Br. at 1). In 2002, Defendant Kerley was arrested in Indiana for the willful failure to pay court-ordered child support.

  DISCUSSION

  In determining whether due process requires the state to Page 5 provide Defendant with counsel for the civil paternity proceeding, this Court is guided by the Supreme Court's decision in Lassiter v. Department of Social Services, 451 U.S. 18 (1981).*fn3 The Lassiter Court found that due process does not require the appointment of counsel for indigent respondents in every parental status termination proceeding, but rather whether to appoint counsel must be determined in each individual proceeding by the trial court, subject to appellate review. The Lassiter Court further held that the Due Process Clause creates a presumption that an indigent litigant has a right to appointed counsel only when an adverse decision would result in his or her deprivation of physical liberty. The other elements of a court's due process decision — enumerated in Matthews v. Eldridge, 424 U.S. 319, 335 (1976) — namely the private interest at stake, the government interest, and the risk that the procedures used will lead to erroneous decisions, must be balanced against each other and then weighed against the presumption.

 A. Presumption of Right to Counsel

  The Due Process Clause creates a presumption that an indigent litigant has a right to appointed counsel only when an Page 6 adverse decision would result in his or her deprivation of physical liberty. E.g. Lassiter, 452 U.S. at 26-27; see also in re Pi Bella, 518 F.2d 955, 959 (2d Cir. 1975) (extending right to counsel to a contempt proceeding, "where the defendant is faced with the prospect of imprisonment"). Here, as in Lassiter, Defendant's paternity proceedings could not have resulted in the deprivation of a litigant's liberty. Defendant's paternity proceedings could — at most — result in an ...


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