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filed: October 1, 1982.


No. 412 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 2303 of 1978.


F. Charles Petrillo, Wilkes-Barre, for appellant.

Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellee.

Chester B. Muroski, District Attorney, Wilkes-Barre, for participating party.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Cavanaugh

[ 305 Pa. Super. Page 181]

In this appeal we are asked to decide whether indigent defendants in civil paternity actions have a constitutional due process right to appointed counsel.

On October 5, 1978, appellee, Cleoria Corra, filed a complaint*fn1 in the Court of Common Pleas of Luzerne County seeking support for Lawrence Paul Corra from appellant, Raymond Coll, Jr., the alleged father of her son. On February 13, 1979, appellant, represented by Legal Services of Northeastern Pennsylvania for the limited purpose of pursuing appellant's request for counsel,*fn2 filed a motion for the

[ 305 Pa. Super. Page 182]

    appointment of a Public Defender. In support thereof, appellant filed an affidavit of indigency*fn3 and also a Statement of Defense indicating that he planned to deny paternity and required legal representation. Trial was delayed pending resolution of appellant's motion and, on August 2, 1979, the Luzerne County Court of Common Pleas en banc denied appellant's request for a Public Defender. In a per curiam order of February 14, 1980, this Court granted appellant's petition for interlocutory review by permission. Hence this appeal.*fn4 For the following reasons, we reverse.

The Fourteenth Amendment to the United States Constitution provides, in part, that "No state shall . . . deprive any person of life, liberty, or property, without due process of law."*fn5 Due Process is a concept incapable of exact definition. Rather it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). In Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971), the Supreme Court held that "due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through

[ 305 Pa. Super. Page 183]

    the judicial process must be given a meaningful opportunity to be heard."

This is a case of first impression in this Commonwealth and we, therefore, are without decisional or statutory guidance in determining whether indigent defendants have a due process right to court-appointed counsel in civil paternity actions. It is clear, however, that a resolution of this question cannot be reached by applying a wooden civil/criminal distinction. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings). That approach has long since been abandoned in favor of emphasis on the nature of the threatened deprivation. See In re Hutchinson, 279 Pa. Super. 401, 421 A.2d 261 (1980) (allocatur granted) (civil commitment hearings). As Judge Hoffman commented in Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 171-172, 339 A.2d 764, 772-773 (1975), cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976): "Euphemistic terminology is not determinative of the application of the Due Process Clause . . . We must consider the reality of the lower court's commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between 'criminal' and 'civil' proceedings meaningless." Recently summarizing the decisional law on the right of indigents to appointed counsel, the Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649, rehearing denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981), noted:

In sum, the Court's precedents speak with one voice about what "fundamental fairness" has meant when the Court has considered the right to appointed counsel; and we thus draw from them 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.

[ 305 Pa. Super. Page 184]

In Lassiter, the Court considered the inverse of the problem presented by the instant appeal: whether indigent parents in every parental termination proceeding have a due process right to court-appointed counsel. In upholding the decision of the North Carolina Court of Appeals that they do not, the Court weighed the presumption of the right to counsel in situations potentially involving the deprivation of liberty against three due process factors enunciated in the case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976):

     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.

The Mathews v. Eldridge balancing test was also employed by the Supreme Court in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) wherein it was held that the failure to provide a blood grouping test for indigent defendants in paternity actions violated due process.

Three recent decisions in similar right-to-counsel actions, rendered subsequent to Lassiter and Little, and using the Mathews v. Eldridge test, provide support for the viewpoint that counsel is not constitutionally required. In Nordgren v. Mitchell, 524 F.Supp. 242 (D.C.Utah 1981), the U.S. District Court declined to adopt a blanket due process ruling requiring the appointment of counsel for indigent defendants in paternity actions. Instead, it held that the decision should be vested in the state trial court, subject to appeal, on a case-by-case basis. A similar conclusion was reached by the Supreme Court of North Carolina in Wake County ex rel. Carrington v. Townes, 53 N.C.App. 649, 281 S.E.2d 765 (1981), rev'd, 306 N.C. 333, 293 S.E.2d 95 (1982). Finally, in State ex rel. Adult and Family Services v. Stoutt, 57 Or.App. 303, 644 P.2d 1132 (1982), the Oregon Court of Appeals

[ 305 Pa. Super. Page 185]

    concluded that federal and state due process were not violated by the lower court's refusal to appoint counsel for an indigent defendant in a state-initiated paternity action. Employing an after-the-fact analysis of the record, the Court found that an attorney could have had little effect on the result reached in that proceeding. The Court specifically declined to decide whether due process ever requires the appointment of counsel in Oregon filiation proceedings. Id., 644 P.2d at 1137 n. 7.

We have carefully reviewed those opinions and are nonetheless convinced that an evaluation of the Mathews v. Eldridge factors support the conclusion that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process.

Before applying those factors to the case sub judice, we first address the argument, raised by the Public Defender, that, since an adjudication of paternity cannot directly result in the deprivation of physical liberty, there can be no presumed right to counsel. As we have noted, the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required. Thus it is of no moment that paternity actions, once governed by criminal statutes, are now civil in nature.*fn6 See generally, Williams v. Wolfe,

[ 305 Pa. Super. Page 186297]

Pa. Super. 270, 443 A.2d 831 (1982). This jurisdiction does not make criminal, and hence punishable by incarceration, the fathering of a bastard child. Commonwealth v. Page 187} Strunk, 256 Pa. Super. 213, 219, 389 A.2d 1089, 1092 (1978) (dissenting opinion by Cercone, J.). An adjudication of paternity may, however, result in the future loss of physical liberty. Once paternity has been established, and a support order entered, a defendant who willfully fails to comply with said order when he has the financial ability to do so shall be guilty of a summary offense punishable by up to ninety days imprisonment. 18 Pa.C.S.A. § 4324. We cannot agree with the Public Defender's position that this threatened deprivation of liberty is too remote to justify the appointment of counsel at the hearing at which paternity is established. But see Wake County ex rel. Carrington v. Townes, supra; Sheppard v. Mack, 68 Ohio App.2d 95, 427 N.E.2d 522 (1980).

A contrary result is not mandated by either Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), involving the Sixth Amendment right to counsel in criminal cases where imprisonment is not actually imposed, or Lassiter, supra. Proceedings to extinguish parental rights do not commonly raise the spectre of a loss of physical freedom;*fn7

[ 305 Pa. Super. Page 188]

    on the other hand, paternity actions, the object of which is to establish liability for support of an illegitmate child, always raise the potentiality of such loss. Due Process is, as we have said, a flexible concept the application of which varies according to the particular situation involved. It is our belief that the creation of a parent-child relationship is an example of the type of situation which demands a flexible application of due process. Accordingly, we analyze the due process requirements of Mathews v. Eldridge against a strong presumption that court-appointed counsel is constitutionally required for indigent defendants in a paternity proceeding.

The first factor -- the private interests of appellant affected by the paternity action -- weighs heavily in favor of the appointment of counsel. Not the least of those interests is the familial. The Supreme Court in Lassiter found "plain beyond the need for multiple citation that a parent's desire for and right to 'the companionship, care, custody and management of his or her children'" is an important, protectible, interest. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 649-650, quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551, 558 (1972). The termination of that interest works a deprivation so "unique" that "a parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore,

[ 305 Pa. Super. Page 189]

    a commanding one." Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 650. The Pennsylvania Supreme Court recognized this when it held, in Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976), that unwed fathers have a right, coequal to that of unwed mothers, to consent to the adoption of an illegitimate child. See also Commonwealth ex rel. Peterson v. Hayes, 252 Pa. Super. 487, 381 A.2d 1311 (1977) (natural parent of illegitimate child entitled to visitation rights).

The creation of a parent-child relationship involves equally substantial and protectible familial interests. It is, therefore, unquestionable that "[j]ust as the termination of such [parent-child] bonds demands procedural fairness . . . so too does their imposition." Little, 452 U.S. at 13, 101 S.Ct. at 2209, 68 L.Ed.2d at 637. (citation omitted).

The need for procedural safeguards at a paternity hearing is apparent in the light of the significant liberty interests placed in jeopardy at that juncture. Once paternity is established, that finding is res judicata and cannot be relitigated in a subsequent proceeding. Norris v. Beck, 282 Pa. Super. 420, 425, 422 A.2d 1363, 1365 (1980); R.J.K. v. B.L., 279 Pa. Super. 71, 74-75, 420 A.2d 749, 751 (1980); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa. Super. 171, 175, 384 A.2d 1285, 1287 (1978).*fn8 As we have stated above, an adjudged father, financially able yet unwilling to comply with a support order, faces a possible deprivation of physical liberty. 18 Pa.C.S.A. § 4324. Consequently, denial of court-appointed counsel at the initial paternity proceeding may result in defendants being sent to jail without ever having had a meaningful opportunity to be heard on the issue of their paternity.

[ 305 Pa. Super. Page 190]

An adjudication of paternity impacts property interests as well. For example, an illegitimate child has rights to an adjudged father's estate, 20 P.S. §§ 2107(c), 2514(8), 3538, 6114(5) and workmen's compensation benefits, 77 P.S. § 562. See Lehigh Foundations, Inc. v. Workmen's Compensation Appeal Board, 39 Pa. Commw. 416, 395 A.2d 576 (1978). In addition, the wages, salary or commissions of any person owing a duty of support may be attached in order to meet court-ordered support payments. Pa.R.C.P. 1910.22. See also, 48 P.S. § 167(b)(3) (For purposes of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined . . . if there is clear and convincing evidence that the man was the father of the child which may include a prior court determination of paternity).

In short, the familial, liberty and property interests at stake are significantly weighty that they alone may justify the appointment of counsel in paternity actions. We nonetheless evaluate the remaining factors set forth in Mathews v. Eldridge to determine whether they shift the due process balance away from awarding indigent defendants this important procedural protection.

Our next consideration is the risk that an uncounselled paternity proceeding will lead to an erroneous determination of parentage. In analyzing this second factor of the Mathews v. Eldridge test, the Supreme Court in Little considered the "not inconsiderable risk" of an erroneous adjudication of paternity which is faced by an indigent defendant denied free blood grouping tests. Acknowledging the "recognized capacity [of blood grouping tests] to definitively exclude a high percentage of falsely accused putative fathers," the Court found that "access to [those tests] would help insure the correctness of paternity decisions . . ." Little, 452 U.S. at 14, 101 S.Ct. at 2209, 68 L.Ed.2d at 637. Pennsylvania conceded the importance of blood evidence in cases of disputed paternity by adopting the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S.A. § 6131 et seq. The question before us is whether merely granting access to those tests provides an adequate procedural safeguard

[ 305 Pa. Super. Page 191]

    against an incorrect determination of paternity. The District Court in Nordgren v. Mitchell, 524 F.Supp. at 245, considered this issue and found the statutorily-granted right of indigent defendants in Utah to free blood tests to be sufficient.

We cannot agree that the right to a free blood test is alone sufficient. Rather, as pointed out by the Supreme Court of Minnesota in Hepfel v. Bashaw, 279 N.W.2d 342, 347-348 (Minn.1979) (footnote omitted), "the importance of blood tests magnifies the necessity for the timely assistance of counsel, to ensure that the defendant is apprised of his right to request blood tests and to inform him of their significance." We are also persuaded that the right to blood grouping tests granted indigent defendants in Little, and provided by statute in 42 Pa.C.S.A. § 6131 et seq., would indeed be emasculated were indigent defendants denied advocacy at a paternity hearing.

We, therefore, find that the second part of the Mathews v. Eldridge balancing test, coupled with the importance of the private interests affected, literally mandates the appointment of counsel in paternity proceedings.

Our resolution of this second factor in favor of indigents is further strengthened by the fact that, here in Pennsylvania, a complainant in a support action at which paternity is disputed shall, "upon the request of the court or a Commonwealth or local public welfare official" be represented by the district attorney. 42 Pa.C.S.A. § 6711(b).*fn9 A paternity proceeding often becomes an adversary contest

[ 305 Pa. Super. Page 192]

    between a complainant,*fn10 backed by the resources of a skilled attorney, and the uncounselled accused father. Under these circumstances, the contest is undeniably tilted in favor of the complainant. Since many indigent defendants may be illiterate and unfamiliar with courtroom procedure, that imbalance is exacerbated yet further. As pointed out by the Supreme Court of California in Salas v. Cortez, 24 Cal.3d 22, 31, 154 Cal.Rptr. 529, 535, 593 P.2d 226, 232 (1979), cert. denied, 444 U.S. 900, 100 S.Ct. 209, 62 L.Ed.2d 136 (1980) (footnote and citations omitted):

A judgment rendered in this manner is not only unfair, it is unreliable. Recognizing the complexity of these proceedings and the importance of their outcome to the state, the mother and the child, the Legislature has afforded the mother and child the assistance of counsel in prosecuting their claim. However, by intervening heavily on behalf of one side in what has traditionally been a private dispute, the state has skewed the outcome of the case. The chances that the significant consequences of fatherhood will be imposed on an innocent man obviously increase dramatically if, because he is unable to afford counsel, the defendant offers no defense. They increase still further if counsel for the plaintiff is a specialist in prosecuting such claims . . . . Unless the rights of indigent paternity defendants are protected, courts risk finding not the right man, but simply the poorest man to be the father of a child. If paternity is to be determined in an adversary proceeding at the behest of the state, surely the interests of all concerned demand that the defendant be able to defend fully and fairly. He cannot do so when his indigency prevents him from obtaining counsel.

[ 305 Pa. Super. Page 193]

The third-and final-factor of the Mathews v. Eldridge test is the government interest involved in a paternity action. A primary interest of the state, as the Lassiter court noted, is that an accurate and just decision be reached. Lassiter, 452 U.S. at 27, 101 S.Ct. at 2160, 68 L.Ed.2d at 650. We have already concluded that the presence of counsel at the paternity proceeding helps insure the correctness of a paternity adjudication. Thus, not only the defendant's interest but also the state's interest is best served by a hearing at which a defendant accused of parentage is represented by an attorney. It is furthermore clear that the state's future administrative burdens would be lessened since a correct determination of paternity increases the chance that the adjudged parent will comply with support obligations. Accordingly, while the state will incur the added expense of providing indigents with court-appointed counsel, this expense is outweighed by the salutary aspects of having counsel present at the paternity proceeding.

At last we balance the three due process factors of Mathews v. Eldridge -- the private interests of the defendant, the risk of an erroneous adjudication of paternity and the government's interest -- against the presumption that counsel is required for indigent defendants who face a potential loss of physical liberty as a result of an adjudication of their paternity. In so doing, we are left with the inescapable conclusion that the due process clause of the Fourteenth Amendment to the United States Constitution requires the appointment of counsel for indigent defendants in civil paternity actions in Pennsylvania. Due process is an elastic concept which must be adapted to fit the exigencies of the particular situation at hand.*fn11 There is no situation of more

[ 305 Pa. Super. Page 194]

    monumental importance, or more worthy of due process protection, than the creation of a parent-child relationship. In recognition of this, the legislature has conferred legal representation on a complainant upon the request of the court, or a Commonwealth or local public welfare official. We find no reason why an indigent defendant, accused of parentage, should not also be provided with the assistance of experienced counsel.*fn12

Other jurisdictions presented with the same issue have likewise granted indigent defendants the right to appointed counsel in paternity suits. See Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977) (state due process); Salas v. Cortez, supra, (state and federal due process); Artibee v. Cheboygan Circuit Judge, 397 Mich. 54, 243 N.W.2d 248 (1976) (state due process); Hepfel v. Bashaw, supra (declined to decide due process and equal protection issue; right to counsel granted pursuant to court's supervisory power); M. v. S., 169 N.J.Super. 209, 404 A.2d 653 (1979); In re Madeline G. v. David R., 95 Misc.2d 273, 407 N.Y.S.2d 414 (Family Ct. 1979) (state and federal due process); Cheryl B. v. Alfred W.D., 99 Misc.2d 2085, 418 N.Y.S.2d 271 (Fam.Ct.1979) (statutory right); State ex rel. Graves v. Daugherty, 266 S.E.2d 142 (W.Va.1980)

[ 305 Pa. Super. Page 195]

(state due process).*fn13 In some of these cases, the right to counsel has been conditioned upon the State playing an active role on behalf of the complainant, see, e.g., Reynolds v. Kimmons, supra, and Salas v. Cortez, supra, but other cases have not expressly made state involvement a prerequisite to granting the right of counsel. See, e.g. Artibee v. Cheboygan Circuit Judge, supra. The right to counsel has also been embraced by the National Conference of Commissioners in the Uniform Parentage Act § 19(a) (1973) and in several state statutes. See Hartung, The Right to Appointed Counsel in Paternity Actions, 19 Journal of Family Law 497, 502-503 n. 28 (1980-1981). See generally, 4 A.L.R. 4th 363-372.

For the foregoing reasons, we reverse the Order of the lower court and remand for a paternity hearing at which appellant is represented by appointed counsel. We do not retain jurisdiction.*fn14

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