United States District Court, S.D. New York
January 28, 2004.
UNITED STATES OF AMERICA,
CLIFFORD KERLEY, Defendant
The opinion of the court was delivered by: BARBARA JONES, District Judge
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
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.
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).
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
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.
In determining whether due process requires the state to
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
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 order
requiring Defendant to pay child support.*fn4 Therefore, there is a
presumption that Defendant was not entitled to counsel at his paternity
B. Private Interests
The private interests at stake in a paternity proceeding are
significant. As explained by the Supreme Court in Little v. Streater:
This Court frequently has stressed the importance of
familial bonds, whether or not legitimized by
marriage, and accorded them constitutional
protection. Just as the termination of such bonds
fairness, so too does their imposition. Through the
judicial process, the State properly endeavors to
identify the father of a child born out of wedlock and
to make him responsible for the child's maintenance.
Obviously, both the child and the defendant in a
paternity action have a compelling interest in the
accuracy of such a determination.
452 U.S. 1, 13 (1981).
C. Government Interest
The state has a legitimate interest in the welfare of a child born out
of wedlock who is receiving public assistance, as well as in securing
support for the child from those who are legally responsible. Little, 452
U.S. at 14. Although the state shares the interest of the child and the
Defendant in an accurate and just determination of paternity, it has a
countervailing financial interest: to determine paternity actions as
economically as possible The appointment of counsel will clearly add to
the state's costs in determining paternity.
Although this financial concern might otherwise prove persuasive, at
the time this paternity action took place, New York State had enacted a
statute providing counsel to indigent respondents in paternity actions.
N.Y. Fam. Ct. Act § 262(a) (McKinney 1990). Indeed, it appears that
the family court hearing examiner's failure to provide Defendant with
counsel during his paternity proceeding may have been an oversight rather
than the sort of due process determination contemplated by the
Lassiter Court.*fn5 See Lassiter, 452 U.S. at 32 (leaving the decision
whether due process calls for the appointment of counsel for indigent
parents in termination proceedings to be answered in the first instance by
the trial court).
D. Risk of Erroneous Decision
The third Eldridge factor to be weighed is the risk that a putative
father will be erroneously adjudged a child's parent because the putative
father is not represented by counsel at the paternity proceeding. When
faced with a similar question-whether the Due Process Clause or the Equal
Protection Clause of the Fourteenth Amendment requires the state to
provide counsel for indigent inmates in paternity proceedings initiated by
the state and the mother the Tenth Circuit reached different
conclusions for proceedings prior to the blood test stage and
proceedings that continue past: the blood-test stage. In Nordgreen v.
Mitchell, 716 F.2d 1335 (10th Cir. 1983), the Tenth Circuit found that
the availability and reliability of paternity blood tests obviated the
need for appointment of counsel in paternity proceedings "prior to the
time the [blood] tests are given." Nordgreen, 716 F.2d 1337. In
contrast, the Nordgreen Court noted that paternity cases that proceed
past the blood test stage may require pre-trial investigation, discovery,
expert opinion, and/or cross-examination. Id. at 1337-38. The court found
that to deny an indigent putative father counsel would result in an
"imbalance of litigative power" and thus concluded that "the provision of
counsel in cases that proceed after the blood tests have been taken would
help ensure the correctness of paternity decisions." Id. at 1338.
Here, the Examiner ordered Defendant, the petitioning mother, and the
children to submit to blood tests. Defendant's failure to appear for the
blood test appointment and subsequent failure to appear at the next court
date resulted in a judgment of paternity being entered against him.
Defendant argues that, had counsel been appointed, "counsel could have
explained the importance of the blood tests to Mr. Kerley, assisted him
in rescheduling those? tests if that were required, and appeared at the
family court hearing at which the default orders were
entered.*fn6 (Def. Supp. Reply at 5). This Court reads the third prong
of the Eldridge balancing test as an inquiry into whether an attorney's
legal skills or training would alleviate the risk of erroneous
decisions. See, e.g., Lassiter, 452 U.S. at 32-33 (discussing the legal
and evidentiary issues presented at a parental rights termination
proceeding and the difference, if any, the assistance of counsel would
have made with respect to those issues). Although, as a practical
matter, the mere presence of an attorney may have helped Mr. Kerley to
avoid a default judgment of paternity,*fn7 Mr. Kerley could have equally
avoided a default judgment had he kept his blood test appointment or
appeared at his court date. Any assistance that an attorney could have
provided would not have been legal in nature, and thus this Court
concludes that: the appointment of counsel would not: have enhanced the
fairness or reliability of paternity
proceedings in the pre-blood test stage in this case. Nordgreen, 716 F.2d
E. Balancing of Factors
The Court begins with the presumption that Defendant was not entitled
to counsel at his paternity proceedings. There are strong private and
public interests in ensuring an accurate determination of paternity;
however, the appointment of counsel before the completion of blood tests
would not have enhanced the fairness or reliability of the proceedings.
Having balanced the Eldridge factors with the presumption against
appointing counsel, the Court finds that the Defendant had no due process
right to the appointment of counsel at his paternity proceedings.
F. Additional Due Process Violations
Defendant alleges that the Examiner's failure to require the
petitioning mother and children to undergo blood tests even though Mr.
Kerley did not appear for the blood test appointment violated his due
process rights. Defendant also alleges that the Examiner's refusal to
allow him the opportunity to reschedule his appointment violated his due
process rights. The Court disagrees.
1. Failure to Enforce Order
At Defendant's request, the Examiner ordered that blood tests be
performed on Defendant, the petitioning mother, and the children. (Def.
Ex. B). Defendant failed to appear for the
blood test appointment, and although the mother and children did appear,
the laboratory did not conduct the test in Defendant's absence. Defendant
argues that the order did not permit the petitioning mother to refuse to
submit to the blood test in the event that Mr. Kerley did not appear for
the appointment. (Def. Mem. at 18-19). Defendant equates the failure to
require the petitioning mother and her children to submit to the blood
tests Defendant's own absence notwithstanding with a failure to
enforce a court order, which, Defendant argues, violated his due process
The real obstacle to the enforcement of the Examiner's order for a
blood test was the Defendant's failure to appear for the blood test, and
Defendant's failure to appear was an indisputable violation of the order.
Defendant cites no authority for the proposition that a court's failure
to enforce it's own order violates due process rights. Moreover, as the
order for blood tests could not be enforced due to Defendant's own
absence, the Court does not find that the Examiner's failure to force the
petitioning mother and her children to undergo blood tests violated
Defendant's due process rights.
2. Refusal to Reschedule
Defendant argues that because he was "never given an opportunity to
reschedule the single appointment made by the hearing officer for the
administration of blood and genetic
marker tests," his due process rights were violated. (Def. Mem. at 18).
Defendant argues that "[a] review of New York State Family Court case law
reveals that common practice of the Family Court was to provide the
parties at least two dates for the administration of medical tests before
imposing a penalty as a result of non-appearance." (Def. Mem. at 19).
Defendant provides no legal support for the proposition that a "common
practice," without more, can create a due process right. Cf. Regents of
University of Michigan v. Ewing, 474 U.S. 214, 224 (1985) (a due process
property interest "cannot be inferred from a consistent practice without
some basis in state law"). Moreover, here Defendant failed to appear for
the court-ordered blood appointment: and his next scheduled court date.
Under these circumstances, this Court does not find that the Examiner
violated. Defendant's due process rights by failing to order a second
blood test: appointment before entering a judgment of paternity.
Having established that the Defendant's due process rights were not
violated at his paternity proceedings, the Court need not reach the
issuer 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 his paternity proceeding. Defendant's
motion to dismiss the information on the basis that the underlying family
court orders violated his due process rights is denied.
The parties are directed to appear before the Court on February 9, 2004
at 4:00 p.m. for a pre-trial conference.