Mangus v. Britton

16 Pa. D. & C.3d 43, 1980 Pa. Dist. & Cnty. Dec. LEXIS 280
CourtPennsylvania Court of Common Pleas, Dauphin County
DecidedJuly 2, 1980
Docketno. 2119 Domestic Relations 1979
StatusPublished

This text of 16 Pa. D. & C.3d 43 (Mangus v. Britton) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Dauphin County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mangus v. Britton, 16 Pa. D. & C.3d 43, 1980 Pa. Dist. & Cnty. Dec. LEXIS 280 (Pa. Super. Ct. 1980).

Opinion

CALDWELL, J.,

This case involves the parentage of a child who is receiving public assistance. In order to secure support from the child’s father, and to alleviate the demands made upon the taxpaying public, the mother, at the request of the Department of Welfare, commenced this action against defendant, whom she claims is the child’s true father. On April 7, 1980 defendant was determined to be the father of plaintiff’s child in a non-jury trial and was ordered to pay $10 a week for support. He was not represented by counsel at the hearing and subsequently Central Pennsylvania Legal Services entered the case on his behalf by filing exceptions to the court’s finding of paternity and the entry of a support order. Legal Services has focused on defendant’s poverty and his alleged inability to retain counsel or to have blood tests performed as a basis for reversing the determination of paternity.

Defendant first contends that an indigent defendant has a due process right to appointment of counsel in paternity actions. He has cited a number of cases from other jurisdictions to support his claim (see e.g., Reynolds v. Kimmons, 569 P. 2d 799 [45]*45(Alaska 1977); Salas v. Cortez, 24 Cal. 3d 22, 593 P. 2d 226, 154 Cal. Rptr. 529 (1979); Artibee v. Cheyboygan Circuit Judge, 397 Mich. 54, 243 N.W. 2d 248 (1976)), but we are not convinced that such a right is constitutionally mandated.

While he has submitted a lengthy brief detailing the “fundamental and far-reaching rights at stake,” defendant in the instant case is simply attempting to avoid the entry of a financial obligation. The possibility of imprisonment, which is advanced as supporting his request, is only indirectly and remotely involved in this action, since a finding of paternity establishes the identity of the child’s father and a consequent right to obtain support from the judicially-determined father. While defendant here and the court in Salas, supra, speak in impassioned terms of the “sociological and psychological” implications of a paternity determination for the child, they do not elaborate on these alleged implications.1

A comparison between the instant case and In re Adoption of R.I., 455 Pa. 29, 312 A. 2d 601 (1973), reveals the true nature of the interests at stake here. In In re Adoption of R.I., appellant mother’s parental rights were terminated after a hearing where she was not represented by counsel and was indigent. The Supreme Court, noting that the natural mother had a fundamental right in her concern for her child’s liberty and the control and care of the child, held that an indigent was entitled to ap[46]*46pointment of counsel in proceedings to terminate parental rights.

Although the court did not elaborate on the meaning of “liberty,” “control” and “care,” it is clear that they entail the parent’s right to guide the development of, among other things, the child’s personality and morals in accordance with the mother’s own convictions. This type of parental tie is rightly accorded the safeguard of representation by counsel in a proceeding where the issue is whether parental control over a child should be terminated.

Conversely, defendant is not claiming that he needs assistance of counsel to make a knowing, intelligent and understanding waiver of his parental rights. He has already decided that he wants no fatherly ties to the child and seeks the assistance of counsel to avoid the establishment of paternity and a consequent order of support. His interest in the outcome of the paternity suit is, therefore, essentially monetary, and we believe his reliance upon In re Adoption of R.I., supra, is therefore misplaced. Except for the obligation of support, defendant has no responsibility to the child and can effectively preclude inheritance and all other normal incidents of this unwanted relationship to which he refers. In short, defendant in the instant case is no different from any other defendant in a civil case in that a money obligation may be entered against him. While we certainly do not disparage the importance of the interests asserted by defendant, we decline to hold that, as a matter of due process or equal protection, he is entitled to free counsel.

Defendant also contends that due process required that he should have been informed of his right to blood tests sufficiently ahead of the time of trial to permit the performance of the tests and that [47]*47free blood tests should have been administered for him as an indigent defendant. We find that we do not have to decide the constitutional issue raised by defendant since the statutory law under normal circumstances adequately insures that a defendant desiring blood tests will be able to obtain them for use at trial.

Section 2 of the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S.A. §6133 et seq., provides, in pertinent part, as follows:

“In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests.”

Thus, defendant already had the statutory right to blood tests if the request had been timely made. Additionally, the court is statutorily empowered to impose costs on the county where appropriate. See 42 Pa.C.S.A. §6135. We need not decide a constitutional issue when defendant’s lack of diligence, as will be discussed below, prevented him from availing himself of the statutory scheme.

Defendant next maintains that the court erred in refusing to grant two motions he made immediately before trial. Defendant moved for a jury trial and, apparently, moved orally for a continuance although the latter motion does not appear in the record. Since defendant made a written motion for a continuance, however, we will consider his entire contention.

Defendant was not entitled to assigned counsel. [48]*48He knew of his right to a jury trial and was advised to get counsel when this matter was first listed in January of 1980, approximately three months prior to trial.2 On March 24, 1980 defendant again appeared in court and announced that he had not yet retained counsel. A hearing on the paternity issue was then rescheduled for April 7,1980, and defendant was warned that the case would proceed at that time whether or not he had obtained counsel.3 On April 7, 1980 defendant appeared with motions drafted by Central Pennsylvania Legal Services although no attorney was there to represent defendant.

Under these circumstances there was no error in denying his motions for a jury trial or a continuance. Defendant had known for at least three months that he could obtain counsel. When he did not appear with one on April 7, it was an exercise of our discretion to proceed with the trial instead of delaying even further. At some point, while allowances can be made, cases must be moved forward to resolution. Defendant was given ample time to obtain representation and the case could not be continued indefinitely.

Finally, defendant, as a recipient of welfare, contends that the court erred in entering a support order because as a matter of law a support order cannot be entered against a person receiving public assistance. While it is true that the Superior Court in Com. ex rel. Valentine v.

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Related

Salas v. Cortez
593 P.2d 226 (California Supreme Court, 1979)
Reynolds v. Kimmons
569 P.2d 799 (Alaska Supreme Court, 1977)
Artibee v. Cheboygan Circuit Judge
243 N.W.2d 248 (Michigan Supreme Court, 1976)
Commonwealth Ex Rel. Valentine v. Valentine
405 A.2d 933 (Superior Court of Pennsylvania, 1979)
In Re Adoption of R. I.
312 A.2d 601 (Supreme Court of Pennsylvania, 1973)

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Bluebook (online)
16 Pa. D. & C.3d 43, 1980 Pa. Dist. & Cnty. Dec. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mangus-v-britton-pactcompldauphi-1980.