Child Support Services v. Smart
Filed 12/17/12 County of San Diego Dept. of Child Support Services v. Smart CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
COUNTY
OF SAN DIEGO DEPARTMENT OF CHILD
SUPPORT SERVICES,
Plaintiff and Respondent,
v.
GREGORY A. SMART, SR.,
Defendant and Appellant.
D060695
(Super. Ct.
No. DF228496)
APPEAL from
an order of the Superior Court
of
County, Kelly C. Doblado, Commissioner. Affirmed.
In an
action initiated by the County of San Diego Department of Child Support
Services (the Department) to recoup public expenditures for child support
provided to his two minor sons, Gregory A. Smart, Sr. appeals a pendente
lite order directing him to pay $136 in monthly child support to the
(CSDU). Smart contends the order
violates his federal constitutional rights because he was not provided counsel
at public expense. Because Smart has no
in this action, we affirm the challenged order.
BACKGROUND
The
Department commenced an action against Smart in which it sought, among other
relief, an order requiring him to pay child support of $136 per month for two
minors alleged to be his sons (hereafter, the recoupment action). In its complaint, the Department alleged it
had been providing public assistance to the minors and sought an order
requiring Smart to make monthly payments to CSDU as reimbursement.
Smart filed an answer in the
recoupment action in which he denied paternity and asserted he "need[ed
an] attorney appointed." Smart also
moved for an order for genetic testing, claiming he was not living with his
wife when the minors were conceived and neither resembled him.
Smart was also involved in three
related family law matters, including a marital dissolution action with his
wife, all of which the court ordered heard with the recoupment action. In the marital dissolution action,
the court appointed counsel to represent Smart on the paternity issue;
and in the recoupment action, the court ordered genetic testing "for
informational purposes."
In the
recoupment action, Smart executed a form labeled "PATERNITY: RIGHTS AND OBLIGATIONS, ADMISSION, COURT'S
FINDINGS," in which he waived his rights to a court trial, to confront and
cross-examine witnesses against him, and to "the aid of counsel
(court-appointed, if necessary) during these proceedings." Smart also admitted the two minors were his
sons.
Based on Smart's waivers and
admissions, the court in the recoupment action found Smart was the father of
the minors, relieved appointed counsel, and ordered Smart to pay monthly child
support of $136. Eight days later, Smart
filed a notice of appeal from the
order "dismissing attorney/not granting attorney."
DISCUSSION
Smart
contends he "is 'innocent' per se but does not know how to establish his
innocence without the assistance of counsel." He complains "there are no checks and
balances in place" because he "is not trained in the science of
law" and "cannot afford to hire an attorney," but the Department
"has dozens of full time attorneys that are assigned exclusively to
handling cases such as [this one]."
Under these circumstances, Smart contends the "[f]ailure to appoint
counsel is a violation of [his] sixth and fourteenth amendment rights and is
just plain wrong." We disagree.
As an
initial matter, we address the Department's argument that Smart forfeited his
constitutional arguments. The Department
contends Smart did not adequately raise the arguments below, expressly waived
his right to appointed counsel, and did not object when the court relieved
counsel after Smart admitted paternity.
We are not persuaded.
The Department correctly points out
that Smart signed an express waiver of his right to counsel. That waiver, however, concerned only the
right to counsel as to the determination of paternity. The Department also correctly points out that
the record does not indicate Smart objected when the family court relieved
counsel after Smart admitted paternity, or specifically requested counsel on
the child support issue. The record does
indicate, however, that Smart requested appointment of counsel in his answer to
the Department's complaint, in response to the Department's motion for
judgment, and in his own motion for an order directing genetic testing. "We assume for sake of argument that
this was sufficient to preserve the issue for appeal [citation]; however, we
determine [Smart] had no right to appointed counsel in any event." (People
v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942; accord,
Cal.App.3d 1403, 1412.)
The Sixth
Amendment to the
States Constitution gives Smart no right to appointed counsel in the
Department's civil action to collect child support. As pertinent here, the Sixth Amendment
provides: "In all criminal prosecutions, the accused shall enjoy the
right . . . to have the assistance of counsel for his
defence." (U.S. Const., 6th Amend.,
italics added.) The United States
Supreme Court has held this Sixth Amendment right is applicable to the states
through the due process clause of the Fourteenth Amendment, and requires states
to appoint counsel for indigent defendants in
felony cases and other criminal cases resulting in a prison sentence. (Alabama
v. Shelton (2002) 535 U.S. 654, 661-662; Gideon v. Wainwright (1963) 372 U.S. 335, 344-345.) Thus, the Sixth Amendment right to counsel
"is guaranteed specifically in criminal
prosecutions. The guaranty does not,
by virtue of the specific language of [this] provision[], apply to civil
proceedings." (Borror v. Department of Investment (1971) 15 Cal.App.3d 531,
539-540; accord, Chevalier v. Dubin (1980)
104 Cal.App.3d 975, 978.) In short,
"the Sixth Amendment does not govern civil cases." (Turner
v. Rogers (2011) ___ U.S. ___, ___ [131 S.Ct. 2507, 2516].)
Nor does
the Fourteenth Amendment's due process clause, apart from its incorporation of
the Sixth Amendment right to counsel, require the appointment of counsel for
Smart in this action. "[T]he
general rule is that there is no due process right to counsel in civil
cases." (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116; accord
Cal.App.4th 1500, 1508 (Iraheta);
supra, 35 Cal.App.4th at p. 942;
White v. Board of Medical Quality
Assurance (1982) 128 Cal.App.3d 699, 707.)
The right of an indigent litigant to appointed counsel generally
"has been recognized to exist only where the litigant may lose his
physical liberty if he loses the litigation." (Lassiter
v. Department of Social Services (1981) 452 U.S. 18, 25 (
When loss of physical liberty is not at stake, factors relevant to the
determination whether due process requires appointment of counsel for an
indigent litigant are "the private interests at stake, the government's
interest, and the risk that the procedures used will lead to erroneous
decisions." (Lassiter, at p. 27.)
Courts "must balance these elements against each other, and then
set their net weight in the scales against the presumption that there is a
right to appointed counsel only where the indigent, if he is unsuccessful, may
lose his personal freedom." (
Applying the Lassiter balancing test, our colleagues in Division Three held that
indigent parents have no due process right to be provided with counsel at
public expense in actions seeking reimbursement of welfare payments received by
their children through the establishment and enforcement of monthly child
support obligations against the parents.
(Clark v. Superior Court
(1998) 62 Cal.App.4th 576, 581-587 (Clark).) The Clark
court reasoned: (1) the private
interest at issue, namely money, did "not weigh much" in favor of
providing counsel at public expense (id.
at p. 583); (2) the risk of an erroneous decision was "a
less-than-average risk in terms of how it is affected by the quality of legal
representation," because the calculation of the amount of child support is
based upon a statutory mathematical formula (id. at p. 585); and (3) the government's interest was
"particularly strong," because "elimination of expense was
[enforcement of child support obligations] program in the first place" (
and determining their net weight, the court concluded there was "certainly
not enough weight to overcome the presumption against counsel at public expense
in civil cases" and "reject[ed] the [parents'] claims that due
process entitle[d] them to attorneys at public expense." (Id.
at pp. 586-587.) We agree with
no due process right to the appointment of counsel in this action.
Finally, Smart's unsupported
assertion that it "is just plain wrong" not to provide him with
counsel at public expense does not constitute a persuasive legal argument for
reversal of the challenged order. As
another court has noted, "there presently exists no statutory authority,
explicit or implicit, to spend public moneys to pay counsel to defend indigents
in actions brought by a county . . . to recoup expenditures
for child support. [Citation.] Allocation of liability for payment of
attorneys' fees in such causes is the prerogative of the Legislature and not of
the courts." (County of Los Angeles v. Superior Court (1980) 102 Cal.App.3d 926,
930.) "If the Legislature wants to
use tax dollars [to] supply free lawyers for deadbeat dads and
moms . . . [,] then the Legislature must do so. But the state and federal Constitutions do
not require it." (
policy matter it "is just plain wrong" not to provide him with
counsel at public expense, we have no legal basis for reversing the court's
order in this case.
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
HALLER,
Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] We grant the Department's unopposed request for judicial
notice of certain records from the marital dissolution action, because the
records are helpful to an understanding of the case. (See Evid. Code, §§ 452, subd. (d),
459, subd. (a); Morson v. Superior
Court (2001) 90 Cal.App.4th 775, 780, fn. 4.)
name="_ftn2" title="">[2] See Salas v. Cortez (1979)
24 Cal.3d 22, 34 (Salas) ("in
proceedings to determine paternity in which the state appears as a party or
appears on behalf of a mother or child, indigent defendants are
constitutionally entitled to appointed counsel").
