Right to counsel

The Connecticut Supreme Court has held there is a right to counsel under the state and federal constitutions in paternity cases where the child is receiving public assistance (and therefore the state is the plaintiff).

In the principal case of Lavertue v. Niman, the Connecticut Supreme Court engaged in a lengthy federal law analysis, but ultimately relied on both the federal and state constitutions to find a due process right to counsel. 493 A.2d 213 (Conn. 1985).  In Lavertue, the court considered whether either the United States or Connecticut Constitution entitled an indigent defendant to a court-appointed attorney in a state-initiated paternity suit. The court first held, as a threshold matter, that paternity actions involve state action sufficient to trigger the federal Due Process Clause only where “the child whose paternity is in question is receiving public assistance.”  The court reasoned, “[a]bsent public assistance, a paternity suit is simply a private action brought by the child’s mother against the putative father” whereas, “[w]hen public assistance is at stake…the state plays a dominant role in the initiation and the prosecution of the paternity suit.” Id. at 215.[1]  The court explicitly chose not to decide, however, whether state action is always a requirement under the state constitution. Id. at 219 n.4.

The Lavertue court articulated and applied the test governing the due process right to court-appointed counsel, to determine “whether the absence of counsel deprives an indigent defendant of ‘fundamental fairness,’” as announced by the United States Supreme Court in Lassiter v. Dep’t of Social Services, 452 U.S. 18, 25 (1981). Id. at 216.  Accordingly, the court employed the Matthews v. Eldridge balancing test (424 U.S. 319, 335 [1976]), which involves an analysis of three separate factors: (i) the private interests at stake, (ii) the government’s interest, and (iii) the risk that the procedures used will lead to erroneous decisions. Lavertue, 493 A.2d at 216 (citing Lassiter, 452 U.S. at 27).

Applying the factors, the court found the private interests at stake in the matter involved both Niman and the child. Lavertue, 493 A.2d at 216.  Niman faced a possible loss of liberty if he was found to be the child’s father and subsequently failed to pay court-ordered child support. Id.[2]  Additionally, both father and child had important financial and property interests at stake. Id. While Niman would be liable for past, present and future child support, the child, later in life, could be liable for the support of its father under Connecticut statute, and may eventually have claims upon Niman’s estate. Id. Finally, the child’s interests also extended to their health as an accurate family medical history is an important tool in any person’s health care. Id.  Moreover, the court noted there are more general interests implicated when what is at issue is “the creation of a parent-child relationship.” Id. at 217.  As the family relationship is so paramount as to be afforded constitutional protection in Connecticut, the parent and child’s rights to companionship, care and custody were also a private interest at stake in the matter. Id.

In contrast to the significant private interest at stake, the court found the state’s interest in Lavertue to be one of conflicting concerns.  On the one hand, in its role as parens patriae, the state had an interest in the welfare of the child and, therefore, shared the child’s interest in accurately identifying the father and holding that person responsible for child support.  On the other hand, the state had a substantial economic interest in the determination of paternity.  As the child was being supported at state expense, the court opined that the state’s interest in “find[ing] any man it can hold financially liable to reimburse it…may undermine its interest in an accurate outcome.” Id. at 217 (internal citations omitted).  Moreover, the state’s interest in keeping the costs of such paternity actions to a minimum could also have a negative effect on achieving an “accurate outcome.” Id. at 217.  Accordingly, when comparing the private interest of Niman and the child to those of the state, the court found the state’s monetary interest was not nearly significant enough to overcome private interests at stake in this case. Id.

In assessing of the significance of the risk of error, the court stated that the issue to be considered was “the extent to which the provision of a lawyer to indigent [defendants] would enhance the fairness and reliability of the paternity procedure.” Id. at 218.  In so doing, the court found the role of an attorney in paternity proceedings to be a very important factor. As the court explained:

The use of scientific evidence itself may contribute to the risk of error because it increases the complexity of the litigation. The state’s provision of counsel for the mother is, in part, a recognition of this fact. [citations omitted]. Moreover, the defendant still bears a heavy evidentiary burden and must face the state as an adversary. Both of these factors skew…the outcome of the case. …Counsel would alert the defendant of his right to have blood tests performed, advise him about the kinds of tests available and inform him of the procedures that must be followed to obtain accurate results. Counsel would also be able to challenge test results submitted by the state. An attorney would develop defenses independent of the blood test evidence, such as lack of access to the mother or the existence of another potential father. An attorney would conduct discovery, counsel the defendant on the possibility of reaching a pretrial settlement, subpoena witnesses and conduct cross-examination. The record in this case discloses the likelihood that a pro se defendant’s own inartful questioning and failure to obtain witnesses will substantially impair the truth-finding function of the trial court.

Id. at 218.

The court then weighed these combined factors against the Lassiter presumption against court-appointed counsel, noting that “the direct risks to which the defendant is put are primarily psychological and financial”, and that while paternity suits are characterized in Connecticut as “quasi-criminal”, “the threat of imprisonment is only indirectly implicated in the paternity suit itself.” Id.  However, the court continued on to announce, “Our appraisal of this mix of factors is governed by our interpretation of the requirements not only of the federal constitution but also of article first, § 10, of the Connecticut constitution” and that “[f]rom that vantage point, taking account of the unique configuration of paternity actions in this state, we conclude that indigent defendants in state-supported paternity actions have a constitutional right, under both the United States and Connecticut constitutions, to court-appointed counsel at state expense.” Id. at 218-19.  The court did not explain how or why the state constitution affected the application of the presumption, but did note that several pre- and post-Lassiter courts in other states arrived to similar conclusions based on their state constitutions.[3]  The court also noted that some states had chosen a case-by-case approach, but that “We decline to follow such an approach, not only because of the unique evidentiary problems of our paternity proceedings, but because ‘[i]t is often difficult to assess the complexities which might arise in a given paternity trial before that trial is held; thus, a case-by-case approach would necessarily require an after-the-fact evaluation of the record to determine whether appointed counsel could have affected the result reached in a paternity proceeding.’” Id. at 219 (internal citation omitted).

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[1] Regarding the role of the state in the proceeding, the court explained, “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. . . . The state assists the plaintiff in finding an attorney and pays the plaintiff’s legal fees and costs. . . . 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. . . . 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. . . . 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.” Lavertue v. Niman, 196 Conn. 403, 406-07 (1985) (internal citations omitted).

[2]  In Doe v. State, the court pointed out that in Lavertue, it had acknowledged that “the threat of imprisonment is only indirectly implicated in the paternity suit itself”, but that “based upon ‘the unique configuration of paternity actions in this state,’ the defendant was entitled to court-appointed counsel … When describing the ‘unique configuration’ of paternity actions, we stated, ‘[t]he 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 …  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. …” 579 A.2d 37 (Conn. 1990).

[3]  The U.S. Supreme Court’s decision in Turner v. Rogers, 131 S.Ct. 2507 (2011), would likely have little effect on the Lavertue decision, given that a) it has an arguable independent state constitutional basis; b) Lavertue was about paternity, not civil contempt; and c) Lavertue did not rely on the threat to physical liberty (in fact, it acknowledged that such threat was more remote in a paternity proceeding).