Amicus Curiae Brief — Roe v. Norton

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IN THE ICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OcToBER TERM, 1973

No. 73-6033

SHARON Rog, Et Au., Appellants

NicHoLas Norton, Commissioner of Welfare of the

State of Connecticut, Appellee

On Appeal from the United States District Court for the

District of Connecticut

MOTION FOR LEAVE T® FILE BRIEF, AMICI

CURIAE AND BRIEF AMICI CURIAE

———

MariIAN WrIGHT EDELMAN

JUSTINE WIsE POLIER

Frern L. NeEsson

Children’s Defense Fund

1746 Cambridge Street

Cambridge, Massachusetts 02138

Attorneys for Amici

Of Counsel:

NorMAN DoRSEN .

New York University School of Law

40 Washington Square South

New York, New York

LEO PFEFFER

15 East 84th Street

New York, New York

Press or Byron S. ApamMs Printine, Inc., WASHINGTON, D. C.

HES 9

— sa cae ARETE SAORI ENT FORINT SNS Ae ANN eMASRI aE

For the American Academy of Child Psychiatry; the

American Association of Psychiatric Services for

Children; the American Orthopsychiatrie Associa-

tion; the American Parents Committee, Inc; the

Center for Community Change; the Child Welfare

League of America, Inc.; the Connecticut Child

Welfare Association; the Consortium on Early

Childbearing and Child Rearing; the Council of

Jewish Federations and Welfare Funds; the Day

Care and Child Development Council of America,

Ine.; the Family Service Association of America;

the Interreligious Foundation for Community

Organization; the National Association for the

Advancement of Colored People; the NAACP

Legal Defense and Educational Fund, Inc.; the

National Association of Social Workers; the Na-

tional Conference of Catholic Charities; the

Catholic Charities of Norwich, Connecticut; the

Catholic Charities of Bridgeport, Connecticut ; the

National Council of Churches of Christ in the

United States of America; the National Federa-

tion of Settlements and Neighborhood Centers; the

National Urban League, Inc.; the Puerto Rican

Legal Defense and Education Fund, Ince.; the

Salvation Army; the United Church of Christ,

Board of Homeland Missions, Health and Welfare

Division; the United Presbyterian Church in the

United States of America, Heaith and Welfare

Development Unit; the Young Women’s Chris-

tian Association of the United States of America;

and the Children’s Defense Fund of the Wash-

ington Research Project, Inc.

ert, #-

ct nae IP me

IN THE

Supreme Court of the United States

OcroBER TERM, 1973

No. 73-6033

SHARON Rog, ET AL., Appellants

NicHoLas Norton, Commissioner of Welfare of the

State of Connecticut, Appellee

On Appeal from the United States District Court for the

District of Connecticut

MOTION FOR LEAVE TO FILE

BRIEF, AMICI CURIAE

For the American Acadeiny of Child Psychiatry; the

American Association of Psychiatrie Services for

Children; the American Orthopsychiatrie Associ-

ation; the American Parents Committee, Inc.; the

Center for Community Change; the Child Welfare

League of America, Inc.; the Connecticut Child

Welfare Association; the Consortium on Early

Childbearing and Child Rearing; the Council of

Jewish Federations and Welfare Funds; the Day

Care and Child Development Council of America,

> TREE ENTE SOFTER RE ERENT a

Inc.; the Fam ily Service Association of America;

the Tuterre} gious Foundation for Community

Organization; the National Association for the

Advancemen} of Colored People; the NAACP

Legal Defense and Educational Fund, Inc.; the

National Asgpciation of Social Workers; the

National Conference of Catholic Charities; the

Catholic Char}ties of Norwich, Connecticut; the

Catholic Charifies of Bridgeport, Connecticut ; the

National Counkil of Churches of Christ in the

United States ¢ America; the National Federa-

tion of Settlenlynts and Neighborhood Centers;

the National t ban Leagme, Inc.; the Puerto

Rican Legal Defense and Education Fund, Inc.;

the Salvation Ari i hy ; the United Church of Christ,

Board of Homelhind Missions, Health and Wel-

fare Division; the United Presbyterian Church in

the United Stated of America, Health and Wel-

fare Development| Unit; the Young Women’s

Christian. Associah jon of the United States of

America; and the te ildren’s Defense Fund of the

Washington Researgh Project, Inc.

The organizations list}d above, all of which have

shown a continuing, substantial interest in child wel-

fare, respectfully move this Court, pursuant to Rule

42(3), for leave to file a\\brief amicus curiae iu this

action. The attorneys fo { appellants have consented —

to the filing of the attachdl brief.

THE INTEREST OF AMICI

The Washington Resea tt Project Ine. was €s-

tablished in 1968. The Chilren’s Defense Fund was

established by it in 1972. \The Children’s Defense

Bund focuses principally on the area of children’s

rights, where it seeks systematic reforms on behalf of

all the nation’s children, but with particular attention

' to the special problems of minority and poor children.

} The Children’s Defense Fund’s work to vindicate the

, rights of all children, depends, among other things, on

eliminating the vestiges of discrimination against par-

ticular children at all levels of governmental policy-

making. The statute involved in this case constitutes

such discrimination.

The Children’s Defense Fund is joined in this

amicus brief by national and Connecticut organiza-

tions dedicated to the welfare of children, as follows:

The American Academy of Child Psychiatry is a

professional society of physicians who are members

of the American Psychiatric Association and who are

qualified in child psychiatry. Its purpose is to stimu-

late and advance medical contributions to the knowl-

edge and treatment of psychiatric problems of chil-

- dren. The issues raised by this case are of importance

} to the Academy because of their relationship to the

' healthy emotional development of infants and children.

' The American Association of Psychiatric Services

' for Children comprises 180 organizations with a prin-

| ¢ipal interest in providing and/or planning mental

health services to children. Among other purposes,

it seeks to represent the clinical perspective in those

areas which bear upon the emotional development of

children. The Association is concerned with the is-

sues in this case because it is aware disruption of

mother-child relations presents a serious threat to the

inteliectual, emotional and social development of in-

fants and young children.

ee ee

The American Orthopsychiatric Association is a

national professional asscciation of psychiatrists,

psychologists, social workers and other professionals

in the mental health field. Its purpose is to foster re-

search and spread information concerning scientific

work in the field of human behavior. The Association

is concerned with the issues in this case and the threat

they pose to the illegitimate children affected.

The American Parents Committee, Inc. was in-

corporated in 1947 as a non-profit, non-partisan public

service association whose purpose is to work for fed-

eral legislation on behalf of the nation’s children in the

fields of education, child health, child welfare, juvenile

delinquency, day care and family planning. The in-

stant case raises an issue of concern to the Committee

since research has shown that materral deprivation

impairs the healthy development of children, under-

mines the essential parental role of their mothers and

leads to disruption rather than the strengthening of

family life.

The Center for Community Change is a national or-

ganization devoted to assisting community develop-

ment in low income, inner city areas. Its concern in

this case arises out of its awareness of the need to as-

sist families in low income inner city areas, rather

than subjecting them to additional discriminatory dis-

abilities.

The Child Welfare League of America, Ine. is a

national organization with 380 local child welfare

agency affiliates, devoted to securing publie under-

standing, interest and support of programs that en-

hance the well-being of children and that insure the

rennet —_ _

a aon

, ae oot Na ap TERENAS AME 2

——

protection and services they require. Its interest in

this case arises from its concern that Conneticut, in-

stead of assuring protection and services to those fami-

lies most in need and so enhancing the well-being of

children, threatens the mother-child relationship and

the security of the child.

The Connecticut Child Welfare Association is a

statewide organization dedicated to child advocacy and

the advancement of child welfare for all children in

Connecticut. Asa child advocate in Connecticut, it has

special concerns about the issue raised in this case.

The Association regards the statute as likely to chill

applications for public aid for children entitled to such

aid, and as creating discriminatory, cruel state action

against children who are poor and illegitimate.

The Consortium on Early Childbearing and Child

Rearing is a cooperative organization devoted to re-

search utilization and information sharing geared to

helping communities improve services to adolescent

school-age mothers, young fathers and their infants.

The issues raised in this case are vital to working with

young parents and their infants. Since the Connecti-

cut statute would impede constructive efforts to help

such parents and children and would discriminate

against many of them by reason of poverty and il-

legitimacy, the Consortium is interested in this case.

The Council of Jewish Federatiors and Welfare

Funds is the membership association and joint instru-

ment of 225 local Jewish Federations, Welfare Funds

and Community Councils in the United States and

Canada. These organizations provide a wide range of

services to parents and children. Through the Council

they work together on common regional, national and

overseas problems. The Council is deeply concerned

with the effects of this Statute upon services to young

families most in need and the new discriminatory bar-

riers to the rendering of such services which are raised

by it.

The Day Care and Child Development Council of

America, Inc. is a national organization devoted to

promoting high standards and adequate provision of

day care for all children who need and could benefit

from it. The issues in this case are of special con-

cern to the co:: il because their resolution will deter-

mine whether a state can be permitted to intervene in

the development of a child by removal of his sole

guardian at the time in his life when maternal care is

most crucial.

The Family Service Association of America is a

membership federation of more than 340 community

supported and community serving family agencies,

each of which exists to aid families and individuals

with personal or social needs and to advocate action

for the needs of families under stress. The Associa-

tion’s interest in this case stems from its commitment

to aid families with such needs. No group is more in

need than that represented by the children in this ease.

The Interreligious Foundation for Community Or-

ganization is an organization engaged in the field of

social action to effect sound public policy in regard to

social issues. It supports this challenge to the Con-

necticut statute because it regards the statute as unjust

and oppressive and as leading to a cycle of poverty

through denial of support to children in their natural

homes.

= er, a

The National Association for the Advancement of

the Colored People is a non-profit association repre-

senting the interests of approximately 500,000 mem-

bers in 1,800 branches throughout the United States.

Since 1909, the NAACP has sought to establish and

protect the civil rights of minority citizens. In this

respect, the NAACP has often appeared before the

Supreme Court as amicus in cases involving school

desegregation, employment, voting rights, jury selec-

tion, capital punishment and other *ases fundamental

human rights. It joins in this brici vecause this case

threatens the civil rights of mothers and their children

to remain together and not be subjected to threats of

separation by reasons of poverty, illegitimacy or race.

The NAACP Legal Defense and Educational Fund,

Ince. is a non-profit corporation incorporated under the

laws of the State of New York in 1939. It was formed

to assist blacks in securing their constitutional rights

by the prosecution of lawsuits. Its purposes include

rendering legal aid gratituously to blacks, suffering in-

justice by reason of race, who are unable, on account

of poverty, to employ legal counsel on their own behalf.

For many years, its attorneys have represented parties

in this Court and participated as amici in this Court in

eases involving many facets of law, including the rights

of welfare recipient.s The present case is of par-

ticular importance to the Legal Defense Fund becaus

it cen‘ers around a state effort to place a stigmatizing

burden upon a group of children most of whom are

poor and non-white.

The National Association of Social Workers is the

professional association of social workers with 52,000

members in 172 chapters. Its purposes include the

improvement of social conditions as well as activities

designed to strengthen the profession. The issues in

this case are of importance to the NASW because they

reflect a trend to further impair the development and

treatment of illegitimate children who are poor and in

need of services.

The National Conference of Catholic Charities is the

central national organization for Catholic charities in

the United States. It is joined by two of its affiliates,

Catholic Charities of Norwich, Connecticut and

Catholic Charities of Bridgeport, Connecticut. This

ease is of importance to the Catholic Charities because

the Connecticut statute threatens the only family unit

for a child born out of wedlock and may deprive the

child of the care and protection of his mother. Such

action violates the sanctity of the family.

The National Council of Churches of Christ in the

United States of America is a federation of 33 Prot-

estant and Eastern Orthodox denominations, com-

prising 139,962 churches with 42,278,990 members.

The NCC has long been concerned that everyone should

be able to enjoy a decent standard of living without

regard to race, color or religion and has expressed dis-

tress at various restrictions place upon public assist-

ance programs such as that embodied in the Con-

necticut statute challenged in this case.

The National Federation of Settlements and Neigh-

borhood Centers is the national association of 447

centers in 90 cities and 20 states, founded in 1911 by

Jane Addams. Settlement houses work for com-

munity change affecting families, individuals, com-

munity groups and their social environment. As heirs

to the pioneering work of Jane Addams, they are con-

cerned with achieving constructive community

OPP NEALT IE HEE REET IT NM

ene : sa

change. This case is of great importance to the Fed-

eration because the Connecticut statute constitutes

harsh, hostile and discriminatory coercion of those who

are poor and powerless.

The National Urban League, Ine. is a national or-

ganization, with affiliates in 98 cities, devoted to as-

sisting urban communities with minority group prob-

lems that develop out of segregation, discrimination

and neglect in overcrowded population areas. This

ease is of great significance to the League because the

Connecticut statute places further burdens on those

already faced with problems that result from segrega-

tion, discrimination and neglect of their social needs.

The League views this statute as one more shocking

attempt to chill welfare applications from the poor.

The Puerto Rican Legal Defense and Education

Fund, Ine. is an organization devoted to protecting

and promoting the legal rights of Americans of Puerto

Rican background. Its interest in this case is due to

the steady and mounting attacks on indigent Puerto

Ricans which seek to deprive them of entitlement to

aid under Federal law. It sees the Connecticut statute

as an effort to chill applications for welfare.

The Salvation Army is a religious and charitable or-

ganization carrying out a variety of programs de-

signed to promote the spiritual life and material well-

being of all people. Its interest in this case stems from

its view that the Connecticut statute is an attempt to

avoid and cast aside illegitimate children if they are

poor and need public aid. It regards this approach

to human problems as violating the right of all in-

habitants of this land to assistance when in need.

The United Church of Christ, Board of Homeland

Missions, Health and Welfare Division is the central

agent for the United Church of Christ’s activities in the

fields of health and welfare. Its concern is for im-

provement of the health and welfare of all people, with

special concern for poor and minority groups. It

opposes any state action like Connecticut Statute 52-

440b which separates or segregates those who are en-

titled to assistance or seeks to demand of recipients of

aid conditions that are humiliating or coercive.

The United Presbyterian Church in the United

States of America, Health and Weliare Development

Unit, is the central organization for agencies and in-

dividuals primarily interested in issues of health, edu-

cation or welfare. The membership includes com-

munity centers and neighborhood houses, and health

agencies—including hospitals, nursing and convales-

cent homes, out-patient clinics, chaplaincies, services to

children and families, and services to the aging. Its

interest in this case springs out of concern for services

to children and their families. The Connecticut statute

undermines equal access to services, segregates and

coerces applicants and denies full access to benefits to

poor children.

The Young Women’s Christian Association of the |

United States of America is a national organization ,

with 1,463,000 individual members and 6,800 local units.

Its common goal is that of helping all women and girls

make their full contribution to society. Its interest in

this case stems from its opposition to the imposition of

conditions of aid on those who need it on the ground of

birth, status and poverty. It believes that the Con-

necticut statute fails to promote the welfare of all

children and equal justice for all under the law.

—7

This case raises serious questions as to the constitu-

tional right of illegitimate children to be raised by

their natural mothers. The above organizations,

dedicated to the welfare of children, believe that this

brief will be of assistance to the Court in its con-

sideration of the issues involved.

Respectfully submitted,

MARIAN WRIGHT EDELMAN

JUSTINE WIsE POLIER

Fern L. NEsson

Children’s Defense Fund

1746 Cambridge Street

Cambridge, Massachusetts 02138

Attorneys for Amici

Of Counsel:

NorRMAN DOoRSEN

New York University School of Law

40 Washington Square South

New York, New York

Lro PFEFFER

15 East 84th Street

New York, New York

a PONT OE EEL OLLI ELLY LE LET DPE ILE OLE IL PI EE LM PEIEER AS

TABLE OF CONTENTS

Page

EE NBA kien a s'cnnus sean buds cnsensecensaces 2

QUPREONE PROMNTED 2... cee cc ceescesccecccceens 2

Re OO FI Soin vies Sew stecwonseesicccsseces 3

STATEMENT OF THR CaSE .... 2.2... wees cence cesceenes 3

SUMMARY OF ARGUMENT ...........c. cece ee cee eeeee 7

ND Vo SEER EeK We a ee 65 ho asned cbongecnebs Kus 9

I. The enforcement of Connecticut Statute 52-440b,

without careful individual consideration of the

actual best interests of the children involved,

deprives illegitimate children of the funda-

mental rights and liberties guaranteed to them

by the Fourteenth Amendment .............. 9

A. The right of a child to be raised by his

natural parents is a fundamental right im-

plicit in the concept of liberty that may not

be deprived without due process .......... 9

B. While the states are not precluded from leg-

islating in areas which abridge some family

interests, they may do so only if the interest

to be served concerns the actual welfare of

children, where that interest outweighs the

family interest, and where the legislation is

narrowly drawn to express only legitimate

state interests. Connecticut Statute 52-440b

meets none of these criteria .............. 10

(1) Unconstitutional Presumption ........ 12

(a) Coercion creates tension and

anxiety for the mother which is

harmful to her child ............. 14

Table of Contents Continued

Page

(b) Forced disclosure and prosecution

threatens the father-child relation-

GE Rela abavntendeensascieakaces 14

the child’s psychological and

emotional adaption to the fact of :

Be CT xv stacncancanases 15 i

(d) The incarceration of the mother

will interfere with the child’s emo-

tional and psychological develop-

BRAINS eh b64 nackbKa san cenemriens 16

(2) The statute is unconstitutionally over

ME Oi acc Fcdn Coban caked bs taney 27

II. Connecticut Statute Section 52-440b, as enforced,

constitutes invidious discrimination on the

basis of wealth against indigent illegitimate

children in violation of their right to equal

protection of the laws that (a) the statute is

applied only to mothers of illegitimate children

who are receiving public assistance and (b)

the sentencing judge has no discretion to miti-

gate or give less than the maximum penalty to

an indigent defendant ..................... 30

A. The court below erroneously rejected the

plaintiff’s claim that the statute, unconstitu-

tutionally applies only to the class of mothers

of illegitimate children who are receiving

public assistance ..............cceeeeeees 31

B. The statute creates an invidious discrimi-

nation against mothers of children receiving

public assistance because it invests no dis-

cretion in the judge to punish indigents ex-

cept by imprisonment .................... 34

III. Incarceration of the mothers of illegitimate

children, pursuant to Connecticut Statutes 52-

440b, constitutes cruel, unusual and dispropor-

tionate punishment of these children in violation

of their rights under the Eighth and Four-

teenth Amendments ...............ceeeeeees 36

Table of Contents Continued iii

Page

A. The Court should look beyond the state’s

assertion that it is only punishing the

mother by the enforcement of this statute.

Connecticut is punishing the child .........

B. Punishment of the child is unconstitutional

in this case because (1) it constitutes punish-

ment for the ‘‘status’’ of being an illegit-

imate child of a woman receiving welfare

assistance; (2) the child’s conduct is not

morally blameworthy; and (3) a civil con-

tempt sanction, which does not allow the

child control over his mother’s release, is a

disproportionate punishment ............. 37

CE ee Ne ee a beeehwauns 38

TABLE OF AUTHORITIES

CasEs:

Bell v. Bareom, 408 US. G85 . wi ccc ccc cece scccscces 25

Boddie v. Connecticut, 401 U.S. 220 ................ 34

Carrington v. Rash, 380 U.S. 89 .................... 25

Cleveland Board of Education v. La Fleur, 94 8.Ct.791 9

Doe v. Harder, 310 F.Supp. 302 (D. Conn.), appeal

dismissed, 399 U.S. 902 .......... cece ween eee 5, 33, 36

Doe v. Shapiro, 302 F.Supp. 761 (D. Conn.) appeal

dismissed, 396 U.S. 488 ........ ccc ccc wc cence 5, 33

Doe v. Norton, 365 F.Supp. 65 (D. Conn.) ........ 6, 10, 13,

25, 31, 35, 37

Frazier v. Jordan, 457 F.2d 726 (CA5) ..............

I, RO, SN, EI, BE nn nos. 4 0s cn twennenodiee 34

Griswold v. Connecticut, 381 U.S. 479 ............... 9

Harper v. Virginia Board of Elections, 383 U.S. 663.. 34

eR OE ee kk Gaus snes cs saa cancaasa 9

Loving v. Virginia, 388 U.S. 1................00 000 9

Meyer v. Nebraska, 262 U.S. 390 ................... 9, 10

Morisette v. United States, 342 U.S. 246 ............ 37

Morris v. Schoonfield, 399 U.S. 508 ................. 35

Pierce v. Society of Sisters, 268 U.S. 510, 925 ........ 9

Powell v. Texas, 392 U.S. 531 ..... 0... eee eee eee 37

Prince v. Massachusetts, 321 U.S. 158 ........ Vakieke 9,11

_—_— rede a a ea nk eae ieee bean

iv Table of Contents Continue

\ Page

Robinson v. California, 370 U.S. 661 ...... Ls Sinwa sues 37

oe v. Wade, 410 U.S. 155 .... 0... ee. ee ee

iro v. Thompson, 394 U.S. 618 .......

Shi itani v. United States, 384 U.S. 364 ...\\)........

Skinner v. Oklahoma, 316 U.S. 535 .........\I)........

Snyder v. Massachusetts, 291 U.S. 97 ...... a

Stanley v. Illinois, 405 U.S. 645 ........... aad

Tate v. Short, 401 essa, cad ae

Vlandis v. Kline, 93 ‘S Le RARE

Weber v. Aetna Casualty Co., 406 U.S. 164 .

Weems v. United States, 217 U. EE nine ecied.a

Williams v. Illinois, 399 U.S. 391 ............. 4 Ter

Wyman v. James, 400 U.S. 309 ............... ay

Yick Wo v. Hopkins, 118 U.S. 356 ............ eyes

STavTuTEs:

Connecticut Statute 17-62d ..............0cceedlbeee

Connecticut Statute 17-62f .......... ccc cece eeee |

Connecticut Statute 45-274 ..........e.ccceeees I: 13

Connecticut Statute 46-26b ............ccc eee edhe 21

Connecticut Statute 52-440a ............ ccc eee ollee 16

Connecticut Statute 52-440b .......... 0.0... ce eee m. 8

OTHER AUTHORITIES

Ainsworth & Boston, Psychodiagnostic Assessments ¢

a Child After Bie Separation in Ea

—s—<

Childhood, 25 Brit. J. Med. Psychol. 170 (1952) .\\ 18

Bowlby, Attachment and Loss (1969) .............. 18

Bowlby, Child Care and the Growth of Love (1953)...\\ 18

Freud, Goldstein, and Solnit, Beyond the Best Interests

OF I CHEE i cea a dua cetidis se¥dacccdpese 17

er 5) Glueck, Unraveling Juvenile Delinquency

Maceoby rat hiastaen *‘Atteoshdaaet aud Depeniianey”” |

Manual of Child Psychology EROUND wecabcsasons

Table of Contents Continued Vv

Page

Rheingold & Bayley, The Later Effects of an Experi-

mental Modification of Mothering, 30 Child Devel.

DEE (cic d ec adutiakinns@haneiaeshasenes ees

Robertson, ‘‘Young Children in Brief Separation’’,

a Study of the Child, Vol. 26

(1 EAS CTE Ea aa

Scott, The Effects of Separation from the Mother in

Early Life, 1 Lancet 624 (1956) ................

Spitz, ‘‘Anaclitic Depression’, The Psychoanalytic

Study of the Child, Vol. 2 (1946) ............4..

Spitz, The First Year Of Life (1965) ...............

United States Bureau of the Census, Characteristics

OF GO TONEN CRITE) onc cascccccccccccccces

United States, Department of Health Education and

Welfare, Characteristics of Recipients (1970) ......

White, Federal Programs for Young Children (1973)..

Wiltse, Foster Care, 1973 A Reappraisal, Public Wel-

SAEED Sanaa ds ee cdeb tows adedakWs 6sctbe Oe

Williams, Chidren Who Break Down in Foster Care:

A Psychological Study of Patterns of Personality

Growth im Grossly Deprived Children, 2 Child

Psychol. Psychiat. 5 (1961) .......cccesdevccees

Yarrow, Maternal x Hepsi eb Toward an Empirical

and Conceptual Re-evaluation, 58 Psychol. Bull.

SE EL 6 phase neesekedi cbs beadecedinthaaeess

Toy HORTONS LNA EE ERMINE TAR UU MRE NTE sare T oO"

IN THE

Supreme Court of the United States

OcroBEeR TERM, 1973

No. 73-6033

SHaron Ror, et At., Appellants

Vv.

NicHoLtas Norron, Commissioner of Welfare of the

State of Connecticut, Appellee

On Appeal from the United States District Court

for the District of Connecticut

BRIEF AMICI CURIAE

For the American Academy of Child Psychiatry; the

American Association of Psychiatric Services for

Children; the American Orthopsychiatric Associa-

tion; the American Parents Committee, Inc.; the

Center for Community Change; the Child Welfare

League of America, Inc. ; the Connecticut Child Wel-

fare Association; the Consortium on Early Child-

bearing and Child Rearing; the Council of Jewish

Federations and Welfare Funds; the Day Care and

Child Development Council of America, Inc.; the

Family Service Association of America; the Inter-

religious Foundation for Community Organization;

the National Association for the Advancement of

Colored People; the NAACP Legal Defense and

Educational Fund, Inc.; the National Association

of Social Workers; the National Conference of

Catholic Charities; the Catholic Charities of Nor-

wich, Connecticut; the Catholic Charities of Bridge-

port, Connecticut; the National Council of Churches

of Christ in the United States of America; the Na-

tional Federation of Settlements and Neighborhood

Centers; the National Urban League, Inc.; the

Puerto Rican Legal Defense and Education Fund,

Ine.; the Salvation Army; the United Church of

Christ, Board of Homeland Missions, Health and

Welfare Division; the United Presbyterian Church

in the United States of America, Health and Welfare

Development Unit; the Young Women’s Christian

Association of the United States of America; and

the Children’s Defense Fund of the Washington

Research Project, Inc.

INTRODUCTION

We present this brief in support of the appellants

and with their consent.

We rely on the appellants’ treatment of this Court’s

jurisdiction, of the facts as to the individual appellants

and of the opinions below.

QUESTIONS PRESENTED

1. Whether the Fourteenth Amendment of the

United States Constitution forbids the enforcement of

Connecticut Statute 52-440b absent individual consid-

eration of the actuzl best interests of the children af-

fected by it.

—_

2. Whether the Fourteenth Amendment of the

United States Constitution forbids the discriminatory

enforcement of Connecticut Statute 52-440b against

nly one class of people, based on their indigency.

3. Whether the Fourteenth Amendment of the

United States Constitution forbids the imposition of

he penalty of incarceration, pursuant to Connecticut

Statute 52-440b, where the judge has no discretion, be-

cause of the defendants’ indigency, to give less than the

naximum penalty.

4, Whether the Eighth and Fourteenth Amend-

nents of the United States Constitution forbid the in-

arceration of the mothers of illegitimate children,

yursuant to Connecticut’Statute 52-440b, as cruel, un-

isual and disproportionate punishment of these chil-

lren.

INTEREST OF THE AMICI

The Interest of the Amici is set out, supra., in the

Motion for Leave to File this brief. .

STATEMENT OF THE CASE

Connecticut Statute Section 52-440b' forces the

1 Section 52-440b reads:

§ 52-440b. Compelling disclosure of name of putative father

and institution of action.

a. If the mother of any child born out of wedlock, or the

mother of any child born to any married woman during

marriage which child shall be found not to be issue of the

marriage terminated by a divorce decree or by decree of

any court of competent jurisdiction, fails or refuses to dis-

close the name of the putative father of such child under

oath to the welfare commissioner, if such child is a recipient

of public assistance, or to a selectman of a town in which such

child resides, if such child is a recipient of general assistance,

or otherwise to a guardian or a guardian ad litem of such

~ TEER Hr

mother of an illegitimate child to disclose to the state

the name of her child’s natural father, and then to

prosecute a paternity action against him. If the mother

fails to comply either with the duty to disclose or prose-

cute, she is punishable under the statute for contempt

of court. The penalties provided by the statute are a

fine of not more than $200 and/or imprisonment for

not more than one year.

This statute is the outgrowth of two prior unsuccess-

ful attempts by the state of Connecticut to coerce

mothers of illegitimate children who are receiving wel-

fare to name and prosecute the children’s natural

fathers.

Connecticut’s initial attempt was a welfare regulation

which provided that if a mother failed to make dis-

closure of the father’s name to the Welfare Departm *nt

she would be denied Aid to Families with De-

pendent Children (hereafter AFDC) benefits for her

children. This was challenged on the grounds that

punishing the children in order to coerce compliance by

the mother violated the terms of the AFDC program

and the federal Constitution. A three-judge federal

district court, reaching only the statutory issue, de-

elared that this provision conflicted with federal eligi-

child, such mother may be cited to appear before any judge

of the circuit court and compelled to disclose the name of the

putative father under oath and to institute an action to

establish the paternity of said child.

b. Any woman who, having been cited to appear before a

judge of the circuit court pursuant to subsection (a), fails

to appear or fails to disclose or fails to prosecute a paternity

action may be found to be in contempt of said court and may

be fined not more than two hundred dollars or imprisoned not

more than one year or both.

PLR LLRLMOTS SE OLS SEIN eS

bility criteria established by Congress for the AFDC

program and permanently enjoined its operation. Doe

y. Shapiro, 302 F. Supp. 761 (D. Conn.), appeal dis-

missed, 396 U.S. 488.

The state Welfare Department changed its regula-

tion after the decision in Shapiro to provide that if

the mother failed to make disclosure, her own AFDC

benefits would be cut off. The Shapiro court enjoined

the new regulation and held that its enforcement con-

stituted contempt of the prior injunction because it

had the same harmful effect on the children. Doe v.

Harder, 310 F.Supp. 302 (D. Conn.), appeal dismissed,

399 U.S. 902.

Connecticut did not give up. It passed the present

statute which differs from the old schemes in two ap-

parent respects. First, it appears to apply across the

board to all mothers of illegitimate children, not just

AFDC recipients. In fact, however, this appearance is

illusory. The state has applied this statute only to

mothers receiving public assistance, and has (as set

forth more fully below) forced mothers who have

refused to disclose the name of their children’s father

to choose between relinquishing AFDC benefits and

going to jail.

Second, the new statute purports to punish the

mother, not the child, and to offer the cotirt a con-

tinuum of possible punishments, from modest fines to

imprisonment (or both). This, too, is illusory. Since

the statute has been applied only to mothers receiving

public assistance, the choice of a fine is meaningless be-

eause they have no money to pay. The de facto sanction

of the statute as applied to them, then, is impris-

onment. Thus while purporting to punish only the

mother, the statute in this case has the devastatingly

perverse effect of making the illegitimate child an

orphan, a far more serious result than the prior

schemes that were invalidated.

The psychological consequences of such separation

to the child could be enormous. Specialists in child de-

velopment and psychiatric medicine are in unanimous

agreement that maternal deprivation could stunt the

child’s psychological, emotional and social develop-

ment.

The state of Connecticut claims two underlying pur-

poses for this statute: (1) protection of the state’s

coffers by mitigating the financial burdens imposed in

supporting impoverished illegitimate children; and

(2) protection of the children’s best interests by estab-

lishing their paternity ‘‘so that they might enjoy the

long term psychological and economic advantages to

be gained thereby.’ (Doe v. Norton, 365 F. Supp. at

73.) Yet the statutory scheme applies (1) even though

there is no possibility of financial recovery from the

father, for example, where the statute of limitations

has run, and (2) regardless of proof that disclosure of

the father’s name in a given circumstance may be ut-

terly contrary to the best interest of the child. Indeed,

neither the mother nor the child are allowed an oppor-

tunity under the statute to make such a showing. The

statute simply presumes that coercion of the mother

and disclosure of the father’s name will always serve

the child’s best interest.

The Children’s Defense Fund and twenty-seven

other organizations committed to the welfare of chil-

dren, concerned with the cruel treatment of indigent

illegitimate children under this staute, offer this brief

in support of the appellants’ constitutional challenge to

‘

_—

it. The Amici focus particularly on the constitutional

rights of the children which are abridged by this

statute. They demonstrate herein that § 52-450 is un-

constitutional because (a) it creates a false, but irre-

butable, presumption that forced disclosure or incar-

ceration of the mother is in the child’s best interest;

(b) it denies the illegitimate children of impoverished

mothers the equal protection of the laws; and (c) it

imposes upon such children a cruel, unusual and dis-

proportionate punishment.

SUMMARY OF ARGUMENT

This is a case which touches a most fundamental in-

terest embodied in the concept of liberty protected by

the Fourteenth Amendment: the right of a child to

remain with and be raised by his parents. To be sure,

that Amendment does not totally bar the states from

legislating in this area. But this is a case in which the

state has gone too far.

The state of Connecticut has enacted a statute pur-

porting to serve the best interests of illegitimate chil-

dren by establishing their paternity through legal ac-

tion. Its means of enforeement—coercion and/or incar-

ceration of the child’s mother—demonstrates that it is

precisely the child’s interest that the statute destroys.

The Statute does not permit a case-by-case review of

the child’s best interests but operates on the basis of an

irrebutable presumption that the child’s interests will

be served best by the coercion and incarceration of his

mother as a means of establishing paternity. The state’s

insistence on this presumption, despite persuasive evi-

dence that it is harmful to the children in whose name

it is used, is unconstitutional.

Moreover, the state applies this statute in cases where

no legitimate interest of the child (or the state) can

conceivably be served by it. To coerce or incarcerate the

child’s mother so indiscriminately is a violation of the

child’s rights under the Fourteenth Amendment.

Connecticut statute 52-440b, as drafted, applies to all

mothers of illegitimate children. It is not applied as

written; the state prosecutes only the mothers of il-

legitimate children who are receiving public assistance.

The unequal impact of the manner of enforcement is a

violation of the children’s rights to equal protection of

the laws. This violation is compounded by the fact

that the statute operates against the poor. The Con-

necticut legislature has established penalties for the

mother’s refusal to disclose the father’s name—from

fines to imprisonment. Where the mother is poor,

the judge cannot exact a fine and must send her to

prison. Thus the child’s mother is singled out because

she is poor and incarcerated because she is poor all in

violation of the Fourteenth Amendment.

Finally, the incarceration of mothers of illegitimate

children works an obvious punishment upon these chil-

dren. This punishment is severe and without justi-

fication and it violates these children’s rights to be free

from cruel and unusual punishment as guaranteed by

the Eighth and Fourteenth Amendments.

nla b bos

_—

I. THE ENFORCEMENT OF CONNECTICUT STATUTE 52-

440b, WITHOUT CAREFUL INDIVIDUAL CONSIDER-

ATION OF THE ACTUAL BEST INTERESTS OF THE

CHILDREN INVOLVED, DEPRIVES ILLEGITIMATE

CHILDREN OF THE FUNDAMENTAL RIGHTS AND

LIBERTIES GUARANTEED TO THEM BY THE FOUR-

TEENTH AMENDMENT.

A. THE RIGHT OF A CHILD TO BE RAISED BY HIS NATURAL

PARENTS IS A FUNDAMENTAL RIGHT IMPLICIT IN THE

CONCEPT OF LIBERTY THAT MAY NOT BE DEPRIVED

WITHOUT DUE PROCESS.

The due process clause of the Fourteenth Amend-

ment is a constitutional guarantee of respect for those

personal immunities which are ‘‘so rooted in the tradi-

tions and conscience of our people to be ranked as

fundamental.’’ Snyder v. Massachusetts, 291 U.S. 97,

105 (Cardozo, J.).

The interest of parents and children ’ in establishing

and maintaining a coherent, private family unit, free

from domination by the state, is indisputably a para-

mount and protected interest.*

2 Of course, most cases which deal with the fundamental interests

of family life were brought by and for parents to protect their

rights to privacy in family life and child rearing. The court has

dealt with the issues as they regard these parental rights. Within

the purview of both Meyer v. Nebraska, infra. and Pierce v. Society

of Sisters, infra. however, are expressions consistent with a holding

that a child has a fundamental interest in the protection of his

family as well. Cf. In re Gault, 387 U.S. 1, which states:

[N]either the Fourteenth Amendment nor the Bill of Rights

is for adults alone. [where the state directly abridges a child’s

rights,] it is necessary that the basic requirements of due proc-

ess and fairness be satisfied.

8 Cleveland Board of Education v. La Fleur, 94 S.Ct. 791;

Roe v. Wade, 410 U.S. 155; Loving v. Virginia, 388 U.S. 1, 12;

Griswold v. Connecticut, 381 U.S. 479; Pierce v. Society of Sisters,

268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390. Cf. United States

v. Orito, 413 U.S. 139, 142; Prince v. Massachusetts, 321 U.S. 158,

165; Skinner v. Oklahoma, 316 U.S 535.

; a

B. WHILE THE STATES ARE NOT PRECLUDED FROM LEGIS.

LATING IN AREAS WHICH ABRIDGE SOME FAMILY INTER-

ESTS, THEY MAY DO SO ONLY IF THE INTEREST TO BE

SERVED CONCERNS THE ACTUAL WELFARE OF CHILDREN,

WHERE THAT INTEREST OUTWEIGHS THE FAMILY INTER- |

EST. AND WHERE THE LEGISLATION IS NARROWLY .

DRAWN TO EXPRESS ONLY LEGITIMATE STATE INTER- ,

ESTS. CONNECTICUT STATUTE 52-440b MEETS NONE OF

THESE CRITERIA.

Legislation restricting the liberty and privacy of

family life must have a demonstrable relationship to

valid state purposes:

The essential doctrine is that these liberties may

not be interfered with, under the guise of protect-

ing the public interest, by legislative action which

is arbitrary or without reasonable relation to some

— within the competency of the State to ef-

ect.

Meyer v. Nebraska, 262 U.S. 390, 400.

Where such legislation specifically restricts the free-

dom of parents to make decisions affecting the welfare

of their children, the Court has imposed an even heav-

ier burden on the state—that it demonstrate that the

legislation benefits substantially the welfare of the

children affected. *

*Of course, the fiscal interest of the State is not disregarded

either by the Attorney General or the court below. See State’s

brief at 4; Doe v. Norton, supra., at 73 n. 10.

Neither this interest nor the interest of the state in obtaining, by

the most efficient means, the name of the father [see State’s brief

at 1] we submit, is sufficient to establish constitutionality where the

statute is detrimental to the welfare and best interests of the chil-

dren it affects. Where the legislation specifically restricts the free-

dom of parents to make decisions affecting the welfare of their

children, the Court has imposed a heavy burden on the state. The

state must demonstrate not merely that the legislation serves a per-

missible state purpose, but it must prove that the restriction is

_—

In addition to the Constitutional requirement that

the state show a demonstrable, actual relation between

the welfare of children and the challenged legislation,

the state must demonstrate that the legislation is nar-

row enough to ‘‘express only the legitimate interests

at stake.’’ Roe v. Wade, 410 U.S. 155 (1973). Connec-

ticut Statute Section 52-440b palpably fails to do this.

It restricts the child’s right to remain with his parents

but does not serve the best interests of the child in all

necessary for and actually promotes the welfare of the chidren

affected by it. For example, in Wyman v. James, 400 U.S.

309, a New York statute which permits AFDC caseworkers to

make unannounced home visits to determine if dependent children

are being abused or neglected was upheld against the mothers’ chal-

lenge that it restricted their privacy. The Court recognized the

mother’s rights to privacy and to make decisions for her child but

it held that her rights were properly limited by this statute.

Where the state clearly proved a countervailing interest in the

welfare of the child, the Court said:

The public’s interest in this particular segment of the area

of assistance to the unfortunate is protection and aid for the

dependent child. The focus is on the chiid, and, further, it is

on the child who is dependent. There is no more worthy object

of the public’s concern. The dependent child’s needs are para-

mount, and only with hesitancy would we relegate those needs,

in the scale of comparative values, to a position secondary to

what the mother claims as her rights. Wyman v. James,

supra. at 318.

Likewise, in Prince v. Massachusetts, supra., the Court upheld

the state’s power to prevent children from selling religious news-

papers on the streets at night. The Court recognized the ‘‘[i]t is

cardinal with us that the custody, care and nurture of the child

reside first in the parents.’’ Jd. at 169. But it found that in this

instance the family interest was outweighed by the overriding need

to safeguard the children’s welfare:

{The parent claims the right to] authority in her own house-

hold in the rearing of her children . . . . Against these sacred

private interests, basic in the democracy, stand the interests of

society to protect the welfare of children.

Prince v. Massachusetts, supra. at 165.

— a al al Nac DOVES ES EE OLD. reece FI TTR

eases. Instead it creates an irrebuttable presumption

that coercion of the mother and disclosure of the name

of the putative father are in the best interests of the

child, though it can be demonstrated that in many, if

not most, cases the child’s best interests will not be

served thereby. Moreover, the statute is not drawn

narrowly to express only the legitimate interests of the

state in advancing each child’s welfare. Rather, it

applies to a wide range of situations in which the child’s

interests cannot conceivably be served.

(1) Unconstitutional Presumption

The state has, in its enforcement of this legislation,

created an unconstitutional presumption that in all

cases the child’s best interests are served by the statute.

It has alleged, and the District Court below found, that

in all cases the primary purpose of the statute is the

protection and establishment of the present and future .

interests of the illegitimate child 1) by establishing

his paternity shortly after his birth and 2) where the

mother does not volunteer the father’s name, by her

forced disclosure and prosecution of the father for

non-support. The state argued inter alia,

Aside from the matter of support, there are

other valuable, existing and potential rights, that

the illegitimate child has, or may have, that de-

mand the ascertaining and establishing of his pa-

ternity.

He has the potential right to share in the social

security benefits and Veterans Benefits . . ., and

the rights of the illegitimate child to be treated

without discrimination. .. .

The status of legitimacy, or of having knowledge

and proof of one’s paternity is a real and substan-

tial asset to a person. ... It means for example,

that when an application for employment, or se-

curity clearance, or a passport or any of the myriad

of forms that we file in our daily lives, are filled

- out by an illegitimate child, he can fill in the blanks

| pertaining to “FATHER” ....

Next we must consider the question of rights

that ... may attach in the future with respect to

inheritance... .°

There exists ... the valuable status of being the

child of an individual male. ... [T]Jo have one’s

paternity established by whatever suitable means,

probably confers upon the child membership in a

lass of children who can take estates under docu-

ents of testacy.

’s brief at 5-7.

The Court below expressly accepted the state’s char-

tion of the purpose of the statute:

[T]he scope of this statute was intended not

to protect the state’s coffers but also to estab-

the paternity of all illegitimate children so

they might enjoy the long-term psychological

1 emotional advantages to be gained thereby.

Doav. N orton, supra, at 73 n.10.

and it found that disclosure would invariably be in the

interests\of the child, stating that ‘‘[i]nstead of op-

erating to the disadvantage of children born out of

wedlock the statute operates to their benefit.’’ Id. at 79.

This assumption is patently incorrect and is directly

in conflict, with the psychological and factual data

available oh this subject. In many, and we think most

5 Connecticyt Statute 45-274 permits an illegitimate chiid to in-

herit from his\father only if his natural parents later intermarry.

Thus, an illegitimate child who establishes his paternity stands to

gain nothing, under Connecticut law, from his natural father’s

estate,

SHE ARE ONE HR PTR! PES ae ohare en

sashes ——

eases, the advantages which may be gained by the

identification of the putative father are far outweighed

by the detrimental psychological effects on the child of

coercion and/or incarceration of his natural mother.

(a) Coercion creates tension and anxiety for the mother which

is harmful to her child.

Where the state compels the mother to disclose the

father’s name against her best judgment, it will in-

evitably be creating tension and anxiety for the mother.

This tension and anxiety will be especially destructive

for a child who is already suffering from the handicap

of an absent parent. The mother may blame the child

for creating strain between her and the father.

Where this occurs, the harm to the child will be com-

pounded because the anxiety felt by the mother may

find its expression as anger and resentment at the child

for being the cause of mother’s embarrassment. Af-

fidavit of Edward Zigler, Ph.D., Children’s Exhibit 5

at 5, Joint Appendix.

(b) Forced disclosure and prosecution threatens the father-

child relationship.

If the natural father has some tenuous relationship

with his child, the fact of disclosure (and prosecution)

by the mother may serve to permanently alienate him

from both the mother and the child.

[T]he father would avoid contact with the child

which otherwise he might maintain and he might

avoid contact with the mother ... if he feels that

the condition for the relationship is one required

by the law in order to provide economic support

for the child.

Deposition of Albert J. Solnit, M.D., Children’s Ex-

hibit 1 at 7, Joint Appendix.

—

logical and emotional adaptation to the fact of h's illegitimacy.

Where the child does not know his father, psycholog-

ical and emotional adaptation to his status of illegit-

imacy may actually be threatened by the disclosure of

the father’s identity. Child psychiatrists have found

that the child can best adapt to the father’s absence by

“imagin[ing] a father who is larger than life to help

overcome his sense of loss at not having a father pres-

ent in his home. Part of this idealization includes a

belief that the father wants to come live with the

family and the child but for some reason is unable to.

This creation of an idealized image of a father is fre-

quently the most suecessful adjustment possible for a

child.’’ Affidavit of Edward Zigler, supra. at para. 6.

Learning the father’s identity is likely to impair his

psychological adjustment.

When a child learns who his father is, he has to

cope with the knowledge that his father is not ideal

but may be . . . someone the child is ashamed to

have for a father. In such a situation the child’s

self-image will be severely damaged. ... [He]

may model himself after his image of his real

father [which is] likely to be bad—to coincide with

society’s image of men who are unwilling to sup-

port their families and desert their children. ...

The child’s self-image will also be severely dam-

aged . . . where [the knowledge of his father’s

identity] brings home the fact of the father’s fail-

ure to live in the home. A young child will assume

that his father is absent because the child is un-

erga in some way or because his father hates

im.

Affidavit of Edward Zigler, supra, at para. 7, 8.

ek ede ¢ *) ™ yew Gore .

In sum, ‘‘disclosure—and particularly compelled dis-

closure—of the identity of a child’s father .. . will in

many cases be extremely destructive to the child’s

emotional well-being.’’ Jd. at para. 3.

(d) The incarceration of the mother will interfere with the

child’s emotional and psychological development.

In cases where the mother refuses to disclose the

father’s name,’ and where she is incarcerated pursuant

to Section 52-440b, the potential for psychological and

emotional harm to the child is greatly increased.

The statute of limitations applicable to paternity ac-

tions is three years.’ Thus, in most cases, the child

whose mother is incarcerated will be under three years

of age. Leading child development authorities have

shown that maternal deprivation during the crucial

® And where, as in Connecticut, the reasons for her failure to do

so are not considered. See infra. at 21-26.

* Connecticut Statute Section 52-440a provides, in pertinent part,

No petition [to establish paternity] shall be brought after three

years from the birth of such child, or after three years from

cessation of contribution toward support of the child by the

putative father, whichever is later. .. .

The transcripts of hearings in the Connecticut Cireuit Court, Ninth

Cireuit show that, in all cases, the children were under three years

of age.

Date of Hearing

April 2, 1973 Maria Harcega born 2/16/72 1 year +. 6 weeks

Ann Abasea 18 months

Susan Bilodeau 1/12/71 26 months

Cynthia Iverson 7/ 4/72 9 months

May 7, 1973 Phyllis Clarke 1/ 3/73 4 months

Oct. 2, 1973 Sharon Burr 8/31/71 2 years + 6 months

Rosalyn Carr 1l/ 1/71 1 year + 5 months

[The complete transcripts of these hearings are attached as Appen-

dix A hereto. |

——————

—

early years of a child’s life may be psychologically and

emotionally disastrous:

Disruptions of continuity have different conse-

quences for different ages. In infancy ... any

change in routine leads to food refusals, digestive

upsets, sleeping difficulties and crying .. . Change

of the caretaking person for infants and toddlers

further affects the course of their emotional de-

velopment. Their attachments at these ages are as

thoroughly upset by separations as they are effec-

tively promoted by the uninterrupted presence of

a familiar adult. When infants and young children’

find themselves abandoned by the parent, they not

only suffer separation distress and anxiety but

also setbacks in the quality of their next attach-

ments, which will be less trustful. They tend to

grow up as persons who lack warmth in their con-

tacts with others... . Adults who as children suf-

fered from disruptions in continuity may them-

selves treat their children as they were treated—

continuing a cycle costly both for a new generation

of children as well as for society itself. (emphasis

added. )

Freud, Goldstein and Solnit, Beyond the Best Interests

of the Child at 31-34 (emphasis added).

Among the growth processess of the child which may

euffer the greatest damage are those which society and

the state should do most to engender and support, e.g.,

educational ability, cognitive development and the

capacity to work productively in society:

Certain findings point to the likelihood that ma-

ternal deprivation has a specially adverse effect

on particular processes. Among intellectual proc-

esses, the most vulnerable seem to be language and

abstraction. Among personality processes, the

— ;

most vulnerable seem to be those underlying the

ability to establish and maintain deep and mean-

ingful interpersonal relations and the ability to

om impulses in the interests of long range

goals.

Bowlby, Child Care and the Growth of Love at 219.°

The court below erroneously stated that enforcement

of Section 52-440b will not harm the child because the

consequences of maternal deprivation will be mitigated

®In cases where the child has no other parent (as bere) even

more severe consequences may result. In a study done for the

United Nations, a psychiatrist found that of children in orphenages

who received adequate health and nutritional care, many young chil-

dren died or became mentally retarded without any medical expla-

nation. The psychiatrist concluded that this syndrome, anaclitic

depression, was caused by the deprivation of the child’s mother:

We discovered that all children in our sample population who

developed this syndrome had one experience in common: at

some point between the sixth and eighth month of life all were

deprived of the mother. This separation took place for uns-

voidable external »dministrative reasons.

Spitz, The First Year of Life at 271.

For other discussions of the harmful psychological and emo-

tional effects on children of maternal deprivation, see White, Fed-

eral Programs for Young Children; Maccoby and Masters, ‘‘ At-

tachment and Dependency.’’ Manual of Child Phychology, at 73-

157; Bowlby, Attachment and Loss; Williams, Children Who Break

Down in Foster Homes: A Psychological Study of Patterns of Per-

sonality Growth in Grossly Deprived Children, 2 J. Child Psychol.

Psychiat. 5; Yarrow, Maternal Deprivation: Toward an Empirical

and Conceptual Re-evaluation, 58 Psychol. Bull. 459; Rheingold &

Bayley, The Later Effects of an Experimental Modification of

Mothering, 30 Child Develpm. 363; Seott, The Effects of Separation

from the Mother in Early Life, 1 Lancet 624; Ainsworth & Boston;

Psychodiagnostic Assessments of a Child After Prolonged Sepa-

ration in Early Childhood, 25 Brit. J. Med. Psychol. 170; Glueck

& Glueck, Unraveling Juvenile Delinquency ; Spitz, ‘‘ Anaclitie De-

pression,’’ Psychoanalytic Study of the Child, Vol. 2 at 313.

styrene.

igt

(but not prevented) by the state’s obligation to provide

for alternate care for these children. Even so,’ the

effects of foster care are demonstrably not beneficial

for all children. Psychological studies of children in

foster care homes and in institutions demonstrate that

young children who are separated from their mothers

suffer acute distress regardless of the ‘‘circumstance

and quality of substitute care.’’ *°

| *In fact, the transcripts of state cases show that the state refuses

to make arrangements for children whose mothers are to be detained.

See, for example, the transcript in Welfare Commissioner v. Rosalyn

Carr (Circuit Court, 9th Circuit, Middletown, Connecticut, October

2, 1973, Hon. Eli L. Cramer, Judge.) In pertinent part, it reads:

THE Court: You be back here two weeks from

today ..., Mrs. Carr, and you have

arrangements made if you do not dis-

close at that time, you have arrang-

ments made to take care of your child.

See also the Transcript in Welfare Commissioner v. Elizabeth Stone

(Cireuit Court, Ist Cireuit, Norwalk, Connecticut, January 28,

1974, Hon. G. Sarsfield Ford, Judge.)

THE Court: I accept her declining to identify the

punitive [sic] father. I will continue

the matter until next Monday at two

o’clock . . . I find her refusal, through

you, is an act of contempt at this time.

Rather than place her in custody at this

time I will give her until next Monday

at two o’clock to purge herself from

contempt. ...

I would suggest she get everything in

order by next Monday ... if she is going

to be continuing in this position and I

have to restrain her, that someone is able

to take care of her child and so forth.

Mr. GERLIN : And if there is no one?

THE Court: Then that will be her problem.

Appendix A.

10 J. Robertson, ‘‘Young Children in Brief Separation’’, The

Psychoanalytic Study of the Child, Vol. 26 at 265.

— —

There is nothing in the record to show that quality

foster care is available for these children and it is un-

likely that they will have access to the most desirable

foster or temporary care. The women affected by the

statute are poor; their immediate relatives are not

likely to have the financial resources to be able to care

for an additional child during the mother’s absence,

The children will have to be placed, in all probability,

in institutions and outside their natural families.

There is substantial risk that under the Connecticut

law the fracture of the mother-child relationship will

never be healed. Connecticut law requires the Court to

place guardianship of a child whose mother is incar-

cerated in the Department of Welfare until the child

becomes 18 or until the order of guardianship is re-

voked.” For the mother to regain guardianship, she

must prove that it is in the best interest of the child to

be returned to her custody.” The fact of her imprison-

ment, with the probable loss of the home she had with

her child, would hardly prepare her to meet this

burden. Studies have shown that the image of foster

care as a temporary source oriented to short-term treat-

ment of a family or child is no longer correct. Instead

as things stand now, the majority of children who enter

foster care are likely to spend their growing years

there. This has been shown to be especially true of chil-

dren who are poor or belong to minority groups, the

objects of the Connecticut statute, so that their place-

11 Connecticut Statute Section 17-62d.

12 Connecticut Statute Section 17-62f.

LIT IE GORE OLE LICL OREN IEEE RENE EE EP Cale si

x ean

;

’

—

ment of them in foster care or institutions carries with

it an additional danger of permanent separation from

their natural families:

Poverty and living arrangements operate against

early return to natural parents... It is as if foster

care can well be temporary only if the child or

parents are tenacious in being visible . . . the de-

sired placement seems least likely to be carried

out for the poorest families . .. Children in foster

care take their chances; poorer children take a

greater chance.*

Where it is clear or can be shown that the child’s best

interests vary with the facts of each family situation,

the state cannot constitutionally create an irrebuttable

presumption that coerced disclosure or imprisonment

is in the best interest of all children.

Assistant Attorney General Higgins stated at oral

argument that Connecticut presumes that th> enforce-

ment of Section 52-440b will be in the besc interests of

children in all eases and the state should not allow the

mother or the child “ to rebut this presumption in spe-

cific instances.”

13 Wiltse, Foster Care, 1973: A Reappraisal, Public Welfare at

at 7.

14Tn other instances where the actual harm or benefit to the child

is considered relevant by the State, Connecticut statutes provide

for the appointment of an attorney to represent the child’s inter-

ests. See, e.g., Connecticut Statute Section 46-26b.

In his argument to the District Court, the State Assistant

Attorney General was asked to clarify this point:

JupcE NEwMAN: Do you take the position that in the con-

tempt proceeding the woman has the

right to present facts bearing on whether

disclosure is in the child’s interest? .. .

In fact, Mr. Higgins has accurately described the

actual praciice of Circuit Court judges as they have

applied this statute throughout Connecticut. Excerpts

from the transcripts of two cases decided under.

Section 52-440b illustrate the practice: ;

The case of Welfare Commissioner v. Elizabeth

Stone, Circuit Court, 1st Cireuit, Norwalk, Connecti-

cut, January 28, 1974, Hon. G. Sarsfield Ford, Judge:

Mr. GERLIN: Your Honor, we have a situation

here, I think, where the law is

hard ... [t]he father of this child is

Can she litigate that issue in the con-

tempt hearing?

Mr. Hiaerns: No, I don’t believe that she can, under

the statute.

JupDGE NEwMAN: Well, when you say the Circuit Court

judge will exercise his discretion what

will he exercise it on if she can’t litigate

that issue?

Mr. Hiearns: He would litigate it on whether or not

she would be held liable to the imposi-

tion of one of the penalties provided.

JupDGE NEwMAN: Yes. But what issue would he have to

resolve to get to that ultimate conse-

quence ?

Mr. Hieerns: Well, the issue as in the case I stated,

that it was impossible for her to disclose,

{that she didn’t know the father’s

name}.

RN SOPOT TY Rt FD

JupGE NEwMAN: That is one. That is really standard-—

knowledge. What about the more cur-

rent problem of desirability of disclo-

sure? ... Would you oppose them liti- !

gating that?

Mr. Hieerys: ~— I would oppose them litigating that issue

of desirability.

Transcript of the Argument before District Court at 43-45.

RENT CERES ER TT RENE IM CO ELIE bl aati: 5 . 7

THE CouRT:

a man who has been arrested for

narcotics violations, for assault and

battery, apparently has been diag-

nosed as a schizophrenic . . . Now

my client is terrified of this man

...L believe the court should have

discretion to examine .. . the Sta-

tute should be read so the court

does have discretion. The law, I

think, is hard.

It may even be harsh. I assume by

reason of this citation that...

[t]here is a child born which is

living with her and is the recipient

of Welfare Assistance ... And to

date Elizabeth Stone has failed to

voluntarily disclose the name of the

punitive (sic) father ... Then un-

der the Statute... I will order that

she disclose the name of the puni-

tive father ... I have compassion

for her too, but I can’t let that

shade my obligation to my oath to

do what this law says I should do.

The case of Welfare Commissioner v. Robin Janes,

Circuit Court, 16th Cireuit, West Hartford, Connecti-

cut, November 27, 1973, Hon. Henry J. Goldberg,

Judge:

Mr. ALDEN:

Ms. JANES:

[D]o you want to tell your Honor

why you refused to [disclose the

name of the father] ?

He’s threatened my life and my

daughter’s life. He’s threatened me

physically with his own hands and

he has come after me with a gun

and he has been on drugs charges

and he’s also threatened my daugh-

ter’s life with a gun and I feel that

it’s just a danger to me and my

daughter’s life to state his name

THE Court: I simply want to tell you that we

have a statute which in essence

states that the mother of a child,

your situation, born out of wedlock,

may be cited .. . to disclose who the

father is and if that person refuses

to disclose the putative father, that

person may be found in contempt

of court ....

Ms. JANES: Well, .. . I’m afraid of him and

I’m going to be getting married in

the Spring and my fiancee is going

to be adopting my daughter and I

think it would be harmful to state

his name right now because I’m

afraid of him.

THE Court: [T]he statute does give the court

the authority to compel you to name

the father and if you still refuse,

the court here wouldn’t have any

alternative except to fine you up to

$200 and imprison you for not more

than one year or both."*

Such application collides with 1e long standing view

of this court that

the wholesale condemnation of a class to... an

invasion of personal liberty, without opportunity

6 Appendix A. See also affidavit of Frances Foe, Plaintiff, who

was cited for contempt despite the fact that:

“‘the child was conceived either under incestuous conditions

or by a person who is emotionally unstable and whose where-

abouts [were] unknown to her.’’

Affidavit of Frances Foe, para. 3(b).

to any individual to show that his is not the case

which would justify resort to it... is lacking in

the first principles of due process.

‘kinner v. Oklahoma, 316 U.S. 535, 544-45 (Stone,

.J., concurring). Vlandis v. Kline, 93 S.Ct. 2230;

ttanley v. Illinois, 405 U.S. 645; Bell v. Burson, 402

1.8. 535; Carrington v. Rash, 380 U.S. 89.

A similar case to this was presented in Stanley v.

Uinois. There, an Illinois statute purportedly oper-

ted ‘‘to protect the moral, emotional, mental and

hysical welfare of the minor and the best interests of

he community.’’* It provided that upon the death of

heir mother, illegitimate children would be declared

lependents and be placed in foster care. The state re-

used to allow the natural father to prove his fitness

o have custody of his children. This court held that

he state could not, consistently with due process re-

juirements, presume that the child’s best interests

vould not be served by giving his father custody. It

stated :

[T]he State has made its interest quite plain.

Tllinois has declared that the aim of the Juvenile

Court Act is to protect the welfare of the minor.

_.. But we are here not asked to evaluate the legit-

imacy of the state ends, rather, to determine

whether the means used to achieve these ends are

constitutionally defensible. . . . We observed that

the State registers no gain toward its declared

goals when it separates children from the custody

of fit parents. Indeed, if Stanley is a fit parent,

the State spites its own articulated goals when it

needlessly separates him from his family... .

17 Stanley v. Illinois, supra. at 1213; compare State’s argument

in Doe v. Norton, 356 F. Supp. 202, 207 (D. Conn.) and Doe v.

Norton, supra. at 73 n.10.

— SLAIN. SRDS ET PERE ENCE IIS BE IINRES Oe Te

It may be, as the State insists, that most un-

married fathers are unsuitable and neglectful

parents. It may also be that Stanley is such a

parent and that his children should be placed in

other hands. But all unmarried fathers are not in

this category; some are wholly suited to have cus-

tody of their children...

Procedure by presumption is always cheaper

and easier than individualized determination. But

when, as here, the procedure forecloses the deter-

minative issues of competence and care, when it

explicitly disdains present realities in deference to

... formalities, it needlessly risks running rough-

shod over the important interests of both parent

and child .... It therefore cannot stand. (empha-

sis added)

Stanley v. Illinois, supra. at 1213-15.

Under the standards established by the Court in

Stanley, Connecticut’s enforcement of Section 52-440b

unconstitutionally deprives illegitimate children of

their right to remain with their natural parent without

the individual determination required by due process

of law. First, the state categorically assumes that the .

child’s best interests lie in coercion or incarceration

of his mother despite significant persuasive evidence

that this is demonstrably false in some cases. Supra. |

at 12-21. Second, the state has impermissibly refused |

to allow consideration of the individualized particular

interests of each child in each case. Supra. at 21-24.

As in Stanley, the state of Connecticut ‘‘insists on

presuming rather than proving the child’s interests”

(Id. at 1216) despite strong indications that they may

not be served by uniform enforcement of Section 52-

440b. And as in Stanley, the due process clause requires

a different approach.

P;”

and

get ;

— — _ comconesnah TREES

(2) The Statute is U itutionally Over-Inclusive.

The state has unconstitutionally failde to narrow

the application of this statute to express only the legit-

imate state interests at stake in prosecuting paternity

actions. Section 52-440b applies to all mothers of ille-

gitimate children regardless of whether

a) the father can be identified ; =

18 While the State Attorney General stated at argument that a

mother would not be punished where she could not identify the

father, the application of this statute in specifie cases has demon-

strated that this is not so. See, for example, the case of Welfare

Commissioner v. Rosayln Carr, Circuit Court, 9th Cireuit, Middle-

town, Connecticut, October 2, 1973, Hon. Eli L. Cramer, Judge:

Tue Court: T am giving you fair warning, Mrs. Carr,

that I don’t want any games played.

Disclose the name. You are under oath.

No you have five minutes, I don’t want

any speeches, just disclose the name.

THE DEFENDANT: I do not know. I am under oath in the

court of the State of Connecticut and I

ean truthfully say I do not know the

name of my child’s father.

THE Court: Well, I’m going to order you. This is no

gross intrusion. Legislature has deter-

mined it is not and the United States

District Court. Disclose the name and

whether it intrudes on your privacy is

something you can come forth yourself

on later. If you don’t I will exercise the

penalty by law and I am going to send

you to jail.

THE DEFENDANT: Your Honor, you are trying to make me

say something that I don’t know .. :

[H]aving to be here is a gross intrusion

of my privacy.

THe Court: If you wish to discontinue it, discontinue

being a ward of the State of Connecticut

and they will have no right to compel

you ... You be back here two weeks from

today, Mrs. Carr, and you have arrange-

a PRLS ETN FE ELE PLY LT ETE

b) the statute of limitations for paternity actions

has run;

ec) the child has a formal acknowledgement of

paternity ; or

d) the state has another, less intrusive means of

establishing the identity of the child’s father.

In eases where the father cannot be identified, and

the state’s enforcement is futile, the child’s interest can-

not be served in anyway. Thus, the potential harm to

the child of coercion and/or imprisonment of his

mother clearly outweighs any benefit to the state. In-

deed the import of the statute seems purely punitive

in these cases. Similarly, in cases where the statute of

limitations has run, no paternity action may be insti-

tuted by either the mother or the state. Thus, the asser-

tion of state’s fiscal interest in obtaining support money

is nullified and the child’s interest in legally establish-

ing paternity for future benefits is nonexistent.

Where the child has formal acknowledgment of

paternity, the child’s interest in receiving support or

future financial benefits can be enforced by him at his

election. This Court has indicated that an illegitimate

child’s recovery of benefits due his father does not

depend on proof that there has been a formal court

adjudication of paternity. Weber v. Aetna Casualty

Co., 406 U.S. 164.

Moreover, the Connecticut legislature could demon-

strate its professed claims of concern for illegitimate

ments made if you do not disclose at

that time, you have arrangements made

to take care of your child.

OTR TY a oS

children by legislating away any formal disability of

a child to recover benefits from his natural father

where credible proof of paternity exists.

Where the state has another, less intrusive means of

establishing the identity of the child’s father, it should

use it rather than be permitted to coerce and/or in-

earcerate the mothers of young children. The identity

of the father can, in some cases, be obtained by mere

examination of the birth certificate. This seems a sim-

ple step to take. But the state has conceded that it does

no independent investigation to determine the identity

of the natural father other than to question (and

coerce) the mother.*® It should be required to do so.

Even if the state could show its present methods are

more efficient, which we doubt, this statute, as applied,

still could not stand:

[T]he Constitution recognizes higher values than

speed and efficiency. Indeed, one might fairly »»)

In the deposition of John A. Nadolski, an employee of the Wel-

fare Department of Connecticut, whose responsibility was to estab-

lish the paternity of illegitimate children in his district, Mr.

Nadolski described the extent of his investigation as follows:

[Knowledge of the existence of an illegitimate child would

come to my attention] at the time of application, through an

intake worker, or during an annual review of existing welfare

mothers. .. .

[T]he welfare worker would ask the mother who the father of

the child is. If at that time the [mother] refuses to name the

father . . . I would . . . ask the mother who the father of the

child was. I would inform her that under welfare laws, if

she refuses to name the father of the child we can .. . cite

her to appear before a judge of the Circuit Court ... . If she

still refuses to name the father of the child, I would turn it

over to an attorney .. . to cite her.

Deposition of John A. Nadolski, Children’s Exhibit 3, Joint Appen-

dix at 4-6. Accord, Deposition of Joseph Mancin:, Children’s

Exhibit 4, Joint Appendix at 4-7.

OEE TOI, OER YRE I Sie to teReNOR

ORT VES

of the Bill of Rights in general, and the Due Proe-

ess clause in particular, that they were designed

to protect the fragile values of vulnerable citizenry

from the overbearing concern for efficiency. . . .

Stanley v. Illinois, supra. at 1215.

Where, as here, there exists severe threat of harm to

children from coercion and incarceration of their

mothers, the state must demonstrate that it has used

all other reasonable means to establish paternity prior

to embarking on such a drastic course.

The public interest in this particular segment of

the area of assistance to the unfortunate is pro-

tection and aid for the dependent child whose

family requires such aid for that child. The focus

is on the child, and, further, it is on the child who

is dependent. There is no more worthy object of

the publie’s concern. The dependent child’s needs

are paramount.

Wyman v. James, 400 U.S. 309, 318 (1971).

II, CONNECTICUT STATUTE SECTION 52-440b, AS EN-

FORCED, CONSTITUTES INDIVIDEOUS DISCRIMI-

NATION ON THE BASIS OF WEALTH AGAINST IN-

DIGENT ILLEGITIMATE CHILDREN IN VIOLATION

OF THEIR RIGHT TO EQUAL PROTECTION OF THE

LAWS IN THAT P

A. THE STATUTE IS APPLIED ONLY TO MOTHERS :

OF ILLEGITIMATE CHILDREN WHO ARE RECEIV- —

ING PUBLIC ASSISTANCE.

AND

B. THE SENTENCING JUDGE HAS NO DISCRETION

TO MITIGATE OR GIVE LESS THAN THE MAXI-

MUM PENALTY TO AN INDIGENT DEFENDANT.

. THE COURT BELOW ERRONEOUSLY REJECTED THE PLAIM-

TIFF’S CLAIM THAT THE STATUTE UNCONSTITUTIONALLY

APPLIES ONLY TO THE CLASS OF MOTHERS OF ILLEGIT-

IMATE CHILDREN WHO ARE RECEIVING PUBLIC ASSIST-

ANCE.

The Court held:

This statute which imposes a duty upon an un-

wed mother to disclose the name of the putative

father of her child does not distinguish between

unwed mothers who receive public assistance and

those who do not. The statute permits the com-

pelled disclosure of the name of the putative father

from any mother of an illegitimate child.

loe v. Norton, supra. at 81.

This statute, while neutral on its face, has in fact

een applied only to mothers of welfare recipients.

ndeed, the state could not cite a single case brought

nder Section 52-440b against a mother not receiving

ublic assistance. Transcript of Argument below at

0-41,

This statute was passed by the legislature only after

he repeated efforts of the state welfare department to

stablish administrative procedures for identifying the

utative father were rejected. Doe v. Norton, supra. at

1. As the State conceded in its brief,

For a long time prior to the decision in Doe v.

Shapiro, 302 F.Supp 767 (D. Conn.), .and

Doe v. Harder, 310 F.Supp. 302 (D. Conn.) the

defendant welfare commissioner handled the prob-

lem of the non-disclosing mother of an illegitimate

child by terminating the public assistance benefits

of the mother and the child. After this decision,

the defendant commenced to cut off benefits to the

mother but not the child. These procedures were

held invalid by the Federal courts basically on the

Bix: oa ead

theory that by so acting the commissioner was add-

ing a condition to AFDC eligibility not provided

for in the Federal Social Security Act, and, in

ea was Visiting the sins of the mother upon the

¢ has

The severance of welfare benefits having been

precluded as a means of ascertaining the identity

of the father of a illegitimate child, the legislature

determined that it would be proper to cause these

women to be cited in before the Circuit court to

disclose the name of the putative father (emphasis

added).

State’s brief below at 1-3.

Contempt cases heard subsequently show conclusively

that State judges have refused to apply the statute to

mothers who have discontinued public assistance or

who agree to discontinue it rather than disclose the

name of the father.

In the case of Welfare Commissioner v. Susan Bilo-

deau (Circuit Court, 9th Circuit, Middletown, Connecti-

eut, April 2, 1973 Hon. Nicholas F. Armentano,

Judge.) the judge held the mother could not be cited

for contempt unless she was receiving welfare:

Mr. Carta: Are you willing to disclose the

name of the father?

THE DEFENDANT: No....

Mr. Carta: Do you know what the statute

says? Anyone who refuses to

disclose the name of the father

could be held in contempt of

court... Do you understand

that?

THE DEFENDANT: Yes.

Xj GOEL ALLE FOP OER PREETI ON,

;

_—

Mr. CARTA:

THE DEFENDANT:

THE Court:

And the child is presently a re-

cipient of the State welfare?

No... You know I’m working.

[C]heck whether this child is

a recipient now ... Check that

because she would have a right

to refuse, ...if the child is not

presently a recipient.

The following colloquy occurred in the case of Welfare

Commissioner Vv. Rosalyn Carr, (Cireuit Court, 9th

Circuit, Middletown, Connecticut, October 2, 1973) :

THE Court:

THE DEFENDANT:

THE Court:

THE DEFENDANT:

Well, I’m going to order you

to disclose [the father’s name].

I feel that it is... a gross in-

trusion of my privacy.

If you wish to discontinue it,

discontinue being a ward of the

State of Connecticut and they

will have no right to compel

you.

AJlJ right. I will do that if that

is what the Court wants, then

that is finished.”

This court consistently has held that a statute which

appears on its face to make a rational classification is

unconstitutional if, without a rational basis, it is

*® Bilodeau transcript at 6-10; Carr transcript at 27-28. Appen-

dix A. Thus, disclosure has become equivalent to another eligibil-

ity requirement and should be prohibited by the prior decisions in

Doe vy. Shapiro, supra., and Doe vy. Harder, supra.

ee SOR

actually applied only to one class of individuals. In

Yick Wo v. Hopkins, 118 U.S. 356, ‘it was stated:

Though the law itself be fair on its face, and

inipartial in appearance, yet, if it is applied and

administered by public authority with an evil eye

and an unequal hand, so as practically to make un-

just and illegal discriminations between persons

in similar circumstances, material to their rights,

the denial of equal justice is still within the pro-

hibition of the constitution.

Yick Wo v. Hopkins, supra. at 573-74.

This principle has been applied to cases where the

discriminatory application of the statute was based

on the invidious classification of indigency. Boddie

v. Connecticut, 401 U.S. 220; Williams v. Illinois,

399 U.S. 391; Harper v. Virginia Board of Elec-

tions, 383 U.S. 663; Griffin v. Illinois, 351 U.S.

12. Cf. Shapiro v. Thompson, 394 U.S. 618.”" It should

be applied here.

B. THE STATUTE CREATES AN INVIDIOUS DISCRIMINATION

AGAINST MOTHERS OF CHILDREN RECEIVING PUBLIC

ASSISTANCE BECAUSE IT VESTS NO DISCRETION IN THE

JUDGE TO PUNISH INDIGENTS EXCEPT BY IMPRISONMENT.

2 GER YON

In his coneurring opinion in the District Court,

Judge Newman stated that a balance should be struck

21 Of course, classification by indigency implies classification by

race. In the separation of children from their natural families, now

threatened by Connecticut Statute 52-440b, one finds a dispropor-

tionate percentage of children from poor non-white families. The |

1970 Census shows that the population of Connecticut is six per-

cent black and ninety-three percent white. United States Bureau —

of the Census, Characteristics of the Population, 1970, Vol. 1, Pt. 8.,

Connecticut, Table 18 at 39. However, of the 8,600 recipient fami-

lies of AFDC in Connecticut, 5,400 were black. HEW, ‘‘ Character-

istics of Recipients’’ (1971).

POE ONE 0

PTL CLOTTED SAREE, OF,

in each case between the mother’s ‘‘constitutionally

protected interest . .. in making decisions to maintain

the harmony of her family unit’? and the state’s in-

terest in enforcement of the father’s obligations to

support his child. He concluded that Section 52-440b

permits such a balance to be made: ”

The statute accords the state judges ample dis-

eretion to determine the appropriateness of con-

tempt remedies in specific cases.

Doe v. Norton, supra. at 86.

But the statute is applied only to welfare mothers.

Thus discretion allowed by the legislation as to

stringency of penalties is nullified by the fact that the

mothers cannot afford to pay fines. A judge, faced

with a recalcitrant welfare mother, must either dis-

regard his duty under Section 52-440b or give the maxi-

mum penalty prescribed imprisonment.”

The Constitution should not permit the arbitrary

imposition of jail sentences on indigents where the leg-

islature has provided for the imposition of a fine un-

der appropriate circumstances. To impose prison sen-

tences in such cases is an invidious discrimination based

on wealth which constitutes a denial of equal protection

*2 But see supra. at 21-26.

23 See Morris v. Schoonfield, 399 U.S. 508, 509 (White, J., con-

curring). In fact, state judges have indicated that where any

penalty will be imposed on the mothers, it will be a jail term. See

Transcript of Welfare Commissioner v. Robin Janes, supra. at 27.

(Appendix A).

of the law. Cf. Tate v. Short, 401 U.S. 318; Wil-

liams v. Illinois, supra.; Frazier v. Jordan, 457 F.2d

726 (CA 5) (Wisdom, J.).

Ill. INCARCERATION OF THE MOTHERS OF ILLEGITI.

MATE CHILDREN, PURSUANT TO CONNECTICUT

STATUTE 52-440b, CONSTITUTES CRUEL, UNUSUAL

AND DISPROPORTIONATE PUNISHMENT OF THESE

CHILDREN IN VIOLATION OF THEIR RIGHTS UNDER

THE EIGHTH AND FOURTEENTH AMENDMENTS.

A. THE COURT SHOULD LOOK BEYOND THE STATE’S ASSER-

TION THAT IT IS ONLY PUNISHING THE MOTHER BY THE

ENFORCEMENT OF THIS STATUTE?! CONNECTICUT IS

PUNISHING THE CHILD.

As shown earlier, the incarceration of the mother

will have its most drastic and harmful effects upon the

psychological and emotional well-being of the child.

Supra. at 13-21. And the child who will suffer

in these circumstances has power to neither rebut the

state’s presumption that the statute works to his best

interests nor to control his mother’s behavior so as

to prevent her incarceration. Where the greatest

punishment falls on the child, the Court must look

beyond the nominal designation of the mother as ‘‘de-

fendant’’ to examine whether its potential impact on

the child is consistent with the Eighth Amendment.

See Taylor v. Martin, 330 F.Supp. 85, 89 (N.D. Cal.)

aff’d. sub nom, Carleson v. Taylor, 404 U.S. 980;

Doe v. Harder, 310 F.Supp. 302, 303 (D. Conn.), ap-

peal dismissed, 399 U.S. 902.

24The amici in no way intend to derogate the plaintiffs’ argu-

ment that they are unconstitutionally subjected to this statute be-

cause their right to remain silent is protected by the First, Fifth,

Ninth and Fourteenth Amendments. Rather, we assert that even

if the court rejects the plaintiffs’ right to privacy in this matter,

it must hold that punishment by incarceration is unconstitutional

because it constitutes disproportionate and cruel punishment of

children.

B. PUNISHMENT OF THE CHILD IS UNCONSTITUTIONAL IN

THIS CASE BECAUSE (1) IT CONSTITUTES PUNISHMENT

FOR THE “STATUS” OF BEING AN ILLEGITIMATE CHILD

OF A WOMAN RECEIVING WELFARE ASSISTANCE; (2) THE

CHILD’S CONDUCT IS NOT MORALLY BLAMEWORTHY;: AND

(3) A CIVIL CONTEMPT SANCTION, WHICH DOES NOT

ALLOW THE CHILD CONTROL OVER HIS MOTHER’S RE-

LEASE IS A DISPROPORTIONATE PUNISHMENT.

This Court has held that punishment may not be

imposed, consistent with the Eighth Amendment, upon

persons who have not committed any criminal act.

Robinson v. California, 370 U.S. 661. Cf. Powell v.

Texas, 392 U.S. 531.

Where the child has committed no criminal act but

is deprived of his mother solely because he is the il-

legitimate child of a mother receiving public assistance,

the child is being punished for the accident of his birth,

a result not tolerable under the Eighth Amendment.

Further, the child, unlike the mother, has no control

over the outcome of the disclosure proceeding or over

the length of incarceration: He does not ‘‘ecarry the

keys to [his] prison in [his] own pocket.’’ Doe v.

Norton, supra. at 83. It is that very element which

has been held to be the necessary justification for

punishment for civil contempt. Shillitani v. United

States, 384 U.S. 364.

Second, the state may not constitutionally punish a

person whose conduct is not morally blameworthy.

Morissette v. United States, 342 U.S. 246. In the in-

stant case, the child’s conduct is morally blameless.

Indeed, it is not considered at all. Nor ean the

mother’s conduct be deemed conclusively blameworthy

where Connecticut refuses to allow her to present any

defenses for her refusal to disclose the father’s name.

-é ——

”

See supra. at 21-26. Indeed, her concern for her

child’s best interests may dictate her refusal to co-

operate.

Finally, the punishment is disproportionate. In the

state’s view the child stands to benefit from the knowl-

edge of his father’s name and from future possible

benefits which he may gain from the knowledge of his

paternity. In contrast, where the child cannot benefit,

because of the father’s unavailability (supra. at 27-29),

because of psychological reasons (supra. at 13-21) or

because his mother refuses to disclose, the state has

seen fit to deprive the child of the most substantial

benefit he has—the right to remain with his mother, the

only available caring parent. This extreme, harsh

punishment far outweighs the seriousness of the

mother’s offense and it cannot be imposed. Trop v.

Dulles, 356 U.S. 84; Weems v. United States, 217 U.S.

349.

CONCLUSION

Under the Connecticut statute only illegitimate

children dependent on public assistance are threatened

by the loss of their mothers. These children are poor

and largly non-white.

The fundamental rights of the child in this class

are violated by the statute which subjects him to re-

moval from his sole caring parent and to the

psychological and emotional harm which this removal

may engender. For this class alone, the statute under-

mines established standards for the separation of nat-

ural families based both on knowledge and law, which

require that the best interests of the child must in all

eases be considered paramount. Such state action

violates constitutional guarantees and requires tlie

RIOR ESO LGPES TY Ee BE OE

ELT LE LOLI DELI LIT LI III AE

most careful scrutiny by this Court since those who are

most powerless are subject to the deprivation of their

constitutional rights.

Marra WRIGHT EDELMAN

JUSTINE WISE POLIER

Fern L. NEsSSON

Children’s Defense Fund

1746 Cambridge Street

Cambridge, Massachusetts 02138

Attorneys for Amict

Of Counsel:

NorMAN DorsEN

New York University School of Law

40 Washington Square South

New York, New York

Lro PFEFFER

15 East 84th Street

New York, New York

APPENDIX

APPENDIX A

CIRCUIT COURT

lst CIRCUIT, AT NORWALK

January 28, 1974

WELFARE CoMMISSIONER

vs.

EizasetH SToNE

BerorE: Hon. G. Sarsrietp Forp, Judge

AppEARANCES: ALLAN P. Cramer, Esq.

38 West State Street

Norwalk, Conn.

Rosert GEer.in, Eso.

Keeler Building

Wilton, Conn.

2 Tue Court: Welfare Commissioner versus Eliza-

beth Stone.

Mr. Cramer: Your Honor, I believe the defendant is

here. We have asked her to name the punitive (sic) father

in the situation.

Tue Court: You are here in behali of the Commissioner?

Mr. Cramer: Cor-ect, your Honor.

Tue Court: All right.

Mr. Gertry: Your Honor, we have a situation here, I

think, where the law is hard. The law is very hard in a

situation where it is deserving of compassion. Now, we

have sought compassion from the Court before and we have

received it and the matter was put off for a prolonged pe-

riod while I was able to appeal to the Commissioner of

Welfare. Frankly, I have done that. I have received

communication from him and I was stressing sympathy.

The Commissioner of Welfare is saying he has no discre-

tion in this matter. Well, I tend to disagree. I think he

does. However, if he says he doesn’t wish to exercise it—

Now, I will very briefly go over the facts and explain to yon

where we are now. i

The father of this child is a man who has been arrested = +

for narcotics violations, for assault and battery, apparently

has been diagnosed as a schizophrenic, and has not

3 been in the State of Connecticut for two and a half

to three years. He is a fugitive from Connecticut

right now. He can do the State of Connecticut no good.

Now, my client is terrified of this man. He has come here

the last time he was in the area. It is a very serious situa-

tion. My client is organizing herself well. She works part

time, does not have a job but has been working part time

while the child goes to nursery school and acquires put''c

assistance. She does not admit on the legal record this

man is the father of the child. She doesn’t want him to

have a reason to come back.

Now, she tells me if the law insists she speak the name

of this child’s father that she will leave the Welfare roll.

Tue Court: She has that choice.

Mr. Gerry: I have tried to convince her because she

requires the assistance to stay on Welfare and reveal the

name of this man. She insists she will not do so. She won’t

even tell me who it is. I would like a short continuance of

the matter for me to try to convince her to reveal the name

of the father or to resign from the Welfare rolls.

Mer. Cramer: Your Honor, if I may comment. First of |

all I don’t think she has the alternative.

Tue Court: Not now since she has accepted the Welfare.

Mr. Gerurn: I am not arguing that point.

4 Mr. Cramer: So even if she does go off, I think she

has a clear obligation to reveal the name.

Tue Court: Well, a preliminary finding must be made.

Mr. Cramer: May I speak, your Honor?

Tue Court: Yes.

Mr. Cramer: I think the problem here which I certainly,

you know, personally feel compassion for, is possibly a bit

greater than the defendant or her attorney think it is, or I

48 *

1 R, SEW eM PMA “ORS Po AORN GIES 4 , wand Dad .

-_-~—7"~

should say, it is a lesser problem than they think it is. My

understanding is if this is true, nothing would be done.

Obviously, if they don’t know where he is, there wouldn’t

be any objection. Obviously, we can’t control when he will

show up. But there has been no cooperation here and

cooperation is really the purpose of the legislature enact-

ment.

I woud just add, we can’t control when he might show

up but if he did, the Welfare Department at that point

would like to—

Mr. Gertin: The man is a fugitive. I believe frankly,

this a problem. I believe the Court should have discretion

to examine. It does not under the Statute. I believe the

Statute should be read so the Court does have discretion.

The law, I think is hard.

Tue Court: It may even be harsh. I assume by

5 reason of this citation which places Elizabeth Stone

before the Court that the underlying factors have

been met. There is a child born which is living with her

and is the recipient of Welfare assistance.

Mr. Cramer: No objection to that, is there?

Mx. Geruin: That is correct.

Tue Court: And to date Elizabeth Stone has failed to

voluntarily disclose the name of the punitive father.

Mr. Gentin: Correct.

Tue Covet: Then under tle Statute, number one, I have

to deny your request and number two, under the Statute,

I will order that she disclose the name of the punitive

father.

Mr. Gertin: We can’t have a week, your Honor, for her

to resign the Welfare rolls and perhaps the State in its

wisdom would leave her alone if she did do that?

Tue Court: I doa’t know if it would make any difference.

Mr. Cramer: I can assure you it won’t.

Tue Court: She was a recipient already. She chose

assistance at the time the aid was sought, as I would see it

and you are presumed to know the law.

—_— ,

Mr. Gertin: The law has changed. I believe it was

attacked constitutionally. It has been amended.

Tue Court: Probably. It could very well be true

6 but I am powerless to do anything. I have compas.

sion for her too, but I can’t let that shade my obli-

gation to my oath to do what this law says I should do. The

legislature is the place to attack it, not here. As far as I see

it.

Mr. Gertin: And if Elizabeth refuses she is in contempt!

Tue Court: She would be, I assume.

Mr. Gertin: I would very much like—I think the situation

is so serious, I think that we should have some time to

consider what she is to do about the situation. She has a

child. She might even go to jail if she refuses to speak.

Tue Court: Well, that will come up when she refuses to

speak.

Mr. Gertin: Are you going to require her presence on

the stand today or—

Mr. Cramer: If your Honor please, if it would make any

difference to Counsel or be of any assistance to them, I

have the necessary forms acknowledging paternity if they

wished nothing be put on the court record at this time. It

could be done that way in the alternative.

Tue Court: If you want to accept Counselor’s offer it is

perfectly all right with me. The alternative is, I would ask

the young lady to disclose the name right here and '

now.

7 Mr. Geruin: May we have a short recess?

THe Court: I am going to take up another matter

and you may discuss it with your client but be assured that

I will follow the law.

Mr. Geruin: Yes, your Honor.

(Recessed and then resumed.)

Mr. Gertix: Your Honor, my client tells me that when

she went on Welfare she was asked for the name of the

father and she refused to provide it and they said, ‘‘Okay, '

PIE OI TENY OE IE 7 LEI POOLE LOT van j

—

you don’t have to give it.’’ A couple of times after than they

again requested the name and then said, ‘‘Okay, you don’t

have to.’’ Now she brings up the point, the law was

changed. I guess it was in 1971. Now she sees herself

after they have been on Welfare and now they say, ‘‘ You

have to tell.”’ or as Mr. Cramer suggests, pay back the

money. Of course, that is ridiculous. She has a three year

old infant child.

If in fact the Welfare Department did upon that number

of occasions, your Honor, tell her she did not have to tell

and now comes and tells her you must tell, it must seem—

there must be an estoppel why she—why they would mislead

her to detriment of rights. Now they are lowering the

boom on what is, in fact, a defenseless person, that is a poor

one. And, I think maybe we should—

Tue Court: Multiply that a thousand times. Where are

we? There are a thousand girls in the same situa-

tion.

8 Mr. Geruin: Are they terrified of the father or are

they trying to cheat the State of Connecticut?

Tue Court: How can we test the mental attitude?

Mr. Gertin: We can talk to the applicant and question

her.

Tue Court: I am not allowed to. The law is clear. I

have indicated to you, I have directed your client to dis-

close the name.

Mr. Gertin: Now, I wonder what the rights of appeal are

in this matter because I think there may be a question as to

whether the State has estopped itself from exercising its

right.

Tue Court: You are looking to me for advice?

Mr. Gertrn: No, I am not.

Tue Court: I have directed you to disclose the name. I

am asking you to direct that inquiry to your client and

report to us forthwith.

Mr. Geruin: I have spoken to her quite extensively and I

find no alternative but to say she declines to provide that

information and I take exception to the State’s insistence

on that information on the grounds the State is estopped

from asserting its rights to have misled her a number of

times in accepting welfare while not revealing the name of

the punitive father.

Tue Court: All right. I accept her declining to

9 identify the punitive father. I will continue the

matter until next Monday at two o’clock. I would

ask she concern herself with her position and to be back

here at two o’clock next Monday. I find her refusal, through

you, is an act of contempt at this time. Rather than place

her in custody at this time, I will give her until next Monday

at two o’clock to purge herself from contempt. If she does,

not do it by next Monday at two o’clock, I will take it up.

Mr. Geruin: Thank you, your Honor.

Tue Court: I would suggest she get everything in order

by next Monday if she is going to be continuing in this posi-

tion and I have to restrain her, that someone is able to

take care of her child and so forth.

Mr. Gerurn: And if there is no one?

Tue Court: Then that will be her problem.

Mr. Gertin: Thank you, your Honor.

(Adjourned.)

2 Tue Court: State of Connecticut and Elizabeth

Stone.

Mr. Cramer: Your Honor, I just received a memoranda

- of law in this matter so if I don’t have a memoranda today

to respond it is only because I wasn’t aware there would

be one to respond to.

Mr. Geruin: Well, I told\the secretary on Friday there

was a time period and I finished it this morning. Your

Honor—

Tur Court: Yes?

Mr. Geruin: Part of our appeal to you today, your

Honor, is for a stay on the basis that the case of Doe v.

_-_

Norton, the 3rd District Court case is presently on appeal to

the Supreme Court of the United States on the constitu-

tional issues. Today I have with me Frank Cochran of the

Connecticut Civil Liberties Union who is counselor for the

plaintiff or the appellant in the class action that is now

before the Supreme Court of the United States. He will

be available if we have any questions on that case, its

present status of any of the constitutional issues raised

here. He will be glad to help us.

My client is here. We are prepared to take testimony on

any points that you want us to take testimony on or I can

run through the papers now and point out to you

3 what each point that we are raising is or discuss it

with you if you would like, however you care to

proceed.

Now, I will be very frank with your Honor. When last

her I didn’t envision getting into the position where we had

to in effect, fully litigate this matter because I felt that

since my client is attempting a desire to work and become

self-supporting and plans to go off the child assistance,

the matter would become moot. However, last week you

ordered her to speak the name of the father of the child

and Counsel indicated that the State’s position would prob-

ably be that they might want to go after him for past pay-

ment irrespective of whether or not she has left or still is

receiving assistance. I felt it necessary to protect her

interests which I believe are very deep and very important

that we had to prepare a full case on the matter including a

memoranda of law and motions to dismiss.

Mr. Cramer: Your Honor, I don’t think I have read the

memoranda of law and I don’t think anything raised in it

his Honor is not aware of. I think it is important to keep

in mind that the Federal Court for the District of Connecti-

cut has clearly decided there is no right in this situation and

the majority so ruled. I believe, Mr. Gerlin, is relying

on concurring opinion by Judge Newman which I

4 believe was Judge Newman’s opinion only and I still

en»

don’t think there is anything in here in Judge New.

man’s opinion which gives any support here.

Also, Judge Henebry’s decision, attached to the memo-

randa of law, as I read it has absolutely no relevance here.

‘t is a totally different situation where a person in fact,

1 e basis of Judge Henebry’s decision was in fact the State

was not supporting the child, in fact the voluntary payment

made by the husband.in this situation and the payment

going to the mother, in fact for the mother and not the child

and therefore, the Statute did not apply. So, I don’t really

see anything here which gives Mr. Gerlin anything to

contest this claim.

I must say that it would seem that under the cireum-

stances cited here, this claim could be very prevalent. I

don’t think any mother in a situation like this wishes to

reveal the name of the father. On the other hand, there

are interests in the State that have been a legal enactment

with this court, as I see it, is bound to follow and under the

circumstances Miss Stone is forced to follow that legisla-

tive enactment and her argument if it is an argument,

should not be with this court which is bound to be with legis-

lative enactment and I would respectfully ask you—

5 Tue Court: I took an oath to enforce the law. Now,

we are here under 52-440b. I want to know whether

you have any feeling that this, at this present point in time

is [e] ffective in any way at all?

Mr. Cramer: No, I don’t your Honor.

THe Court: Can you tell me why you feel that you are

on solid ground to move as you have?

Mr. Geruix: Well, I will respond to Counselor’s points

first.

Tue Court: No, respond to mine first.

Mr. Gerun: Judge Henebry’s and the District Courts

both say you have discretion to exercise of what this

Statute calls for. Therefore, you can hear or are

empowered to hear testimony or to take testimony on the

questions that are raised with respect to the rights of

—

privacy, the constitutional right to privacy that this mother

has with respect to her child’s rearing and her sexual life.

Judge Henebry makes that very clear in his opinion as to

the majority in footnote fourteen, not just in the concurring

opinions, and I have quoted from that on page three of my

memorandum. It states, both opinions state, that what must

be weighed are the interests of the state against the

interest of privacy of the mother and child. Here we have

told the Court and we are prepared to support it, we

have supported with and are prepared with testi-

6 mony that the punitive father has not been seen in

two and one half years that this man is a drug addict,

a thief, and a schizophrenic.

Also we show your Honor that the Statutes of Limitations

well may have run on bringing a paternity action.

Tue Court: That may be but is that effective against

the order of this Court asking her to disclose the name and

failure to do so in turn because this Court had to find her in

contempt?

Mr. Gerurn: Yes, your Honor, because you are empow-

ered to listen to what she has to say, listen to what Counsel

has to say and to determine whether or not the sanction or

the discretion of the Statute and if she refuses to obey the

directions under the Statute whether the sanctions pro-

vided under the Statute should be applied in this case. You

are empowered to do that. Now, we raise other issues. We

raise constitutional issues. They are all on appeal to the

Supreme Court. I can say she has resigned from Welfare

and is no longer receiving payment. Therefore, the State

ean no further be damaged if it has been in any way by

‘ther staying or certainly not by dismissing it because if

she was out of the State, the Statute—

7 Tue Court: All I have is a memoranda for a mo-

tion to dismiss. Is there a motion?

Mr. Geri: I filed it on Friday.

Tue Court: Then I should have it, shouldn’t I?

10a

Mr. Geruin: Yes, there is also an affidavit with the mo. —

tion. '

Mr. Cramer: Your Honor, if I may quote just briefly

from Judge Blumenfield’s decision on privacy, as Counsel

has indicated, and in fact in the majority opinion, I believe

that Judge Blumenfield’s comments were as follows, there

was a claim, apparently made that there was invasion of

privacy, forcing a wife to testify against her husband. The

relationship which these unwed mothers seek to protect

from disclosure is emphatically different. There is no privi-

lege to withhold testimony of a parent. I think Judge

Blumenfield clearly disposed of it and I think your Honor,

the case has been stated. I feel, under the circumstances,

and fortunately I think this case has got to be differentiated

from Judge Henebry’s decision where your Honor, it

doesn’t rise or fall at all on anything. I think your Honor

can recognize there is a reluctance to testify for fear of

action by the punitive father.

8 Tue Court: I will rule on it today. I haven’t had

an opportunity to read this, of course you just gave

me the memoranda and I haven’t read them so I will take

a short reces and I am going to read these. When I read

them I am going to come out and I will have your client

who I already have in contempt, take the stand and I will

inquire of her myself.

Mr. Geruin: As I recall you ordered her to return today

and speak but that you have not held her in contempt.

Tue Court: I clearly found her in contempt last week.

T said I made a finding that she was in contempt and I will

give you until two o’clock next Monday to purge herself

but I would like to inquire of her myself.

Mr. Geruin: There is another possible suggestion.

Tue Court: No, this is what I am going to co so we will

pass it for now and I will take it up later and I would like

to read this and come back and I will move from that

point.

Me. Gerurn: Fine.

ener

lla

(Passed and then resumed.)

Tue Court: This case is pending in the Supreme Court

of the United States.

Mr. Cocuran: The appeal was documented in January,

I believe it was January 4th. No action to my knowl-

9 edge has been taken on it to date. The jurisdictional

statement has been submitted. The Court has neither

noted probable jurisdiction nor made any other rulings on

the case.

Tue Court: I have read your motion and I have read

the memoranda. I deny the motion to dismiss and I deny

the request for stay.

Now, to inquire of you—

Mr. Gertin: Your Honor, excuse me, has she been put

under oath?

Tue Court: I am going to tell her why and wher I finish

we will have her sworn and I will take it from there.

I am going to inquire of you what your situation is,

what you have done, what you are trying to do, and I will

_ advise you that you have to— The Statute requires you to

answer the Court. That is different than answering every-

body else because I have a power to hold you in contempt.

If I am not satisfied with the way the matter is developing

I ean, by your merely asking, or the failure to answer, I

can have you remanded into custody and stay here at my

wish until I see fit to release you with a term not exceeding

ayear. Okay? I will ask the clerk to put you under oath

and I am going to ask you what the background of

10 this matter is. Okay? Not only with respect to the

name of the punitive father but to any other matters

that I may inquire.

Mr. Gertin: We will be entitled to inquire as well?

Tue Court: I don’t know what reason you would have.

Mr. Gertin: We would like to make a factual record if

we may.

Tue Court: I would suggest that you see what develops

then we will take it up at that time. As I said to you, I

12a

have read your memoranda, read the motion and I will

take it from there, rule on it and take it from there.

11 Elizabeth Stone having been duly sworn was exam-

ined and testified as follows:

By tHE Court:

Q. Miss Stone, at one time or another, were you inquired

of by the Welfare Department as to the parentage of your

offspring? A. Yes.

Q. How long ago was that? A. The first time they asked

me was when I applied and I refused to do it and they told

me I was not required to.

Q. Who told you that? A. The Welfare Department.

Q. Who in particular? A. I don’t know, one of the social

workers at the office.

Q. This was at the time you applied for assistance? A.

Before I went on Welfare.

Q. Were you afforded assistance at the time? A. After

my daughter was born. I was only eligible until her birth.

Q. And you were both eligible after the birth? A. After

the birth but I applied before she was born. |

Q. Your daughter was born and then thereafter were you

again inquired of by the Welfare Department as to \the

father of the child? <A. Yes.

Q. And when was that? <A. I don’t know exactly but I

believe it was once a year or a couple of times and

12 again they told me I did not have to name the father.

Q. Who told you that? A. Social workers.

Q. Do you know who they were? A. I don’t know off

hand but I do have a record, papers that they sent me.

They have a person who reviews my case.

Mr. Gerurn: May it please the Court, could the witness

raise her voice?

Tue Court: They would like to hear you.

a ual NM, al ei Ree Lk ei REGS AP yee Kh

ee ee ee

13a

Q. So, that you indicated at least three times someone in

the Welfare Department told you there was no need for you

to disclose the name of the punitive father? A. Yes.

Q. What is your age? A. Twenty-four.

Q. What? A. Twenty-four.

Q. And how old is your child?) A. Three and a half.

Q. And where is the father of your child? <A. I don’t

know.

Q. When is the last time you saw him? A. Just before

her first birthday which was about two years ago.

Q. Where cid you see him? A. He was at my house.

Q. And you haven’t seen him since then? <A. No, I

haven’t.

13 Q. Do you know where he is? A. No, I don’t.

Q. Do you have any indication? <A. I have heard

rumors but nothing legitimate.

Q. What is you background? A. My background?

Q. What is your education? A. I completed Wilton High

School I haven’t gone to college but I have been a ballet

dancer since I was seven years old and—

Q. Are you employed? A. Not at the moment but I am

seek ug employment.

Q. When is the last time you were employed? A. About

three years ago.

Q. Where do you live?’ A. Right now in Norwalk, 27

Rambler Avenue.

Q. Who do you live with? A. My girlfriend.

Q. Do you have a family? <A. Yes, I do.

Q. Mother and father? A. Yes.

Q. Where do they live?’ A. Norwalk.

Q. Did they assist you? <A. If I am broke they would

give me a few dollars but nothing regular.

Q. Are you indebted to the Welfare Department? Do

they have an account in your name which is for you per-

sonally? A. Do you méan—

Q. Have you, yourself, received benefits from the

14 Welfare Department? A. For my daughter.

l4a

Q. The answer to you is negative? To you, you have

never received anything? A. I guess so, yes.

Q. And your daughter, I notice from the papers issued to

the attorney, you have resigned? A. Yes.

Q. You indicate that you have resigned from Welfare

benefits? A. Right.

Q. And you did that as of February 1? A. Yes.

Q. How much were you receiving? A. Two hundred and

four something a month.

Q. And how long have you been receiving that? <A. Since

my daughter was born, 1970.

Q. You haven’t seen the father of your child in three

years? You have no idea of his whereabouts? A. No.

Q. Will you tell me how, with that fact in your mind,

how it concerns you at this time? A. Because he has family

here. I believe that if he had any excuse to come back here

he would come back and this would be a good excuse for

him to come back. It has taken me seven or eight years to

get him out of my life, out of my*mind and to set myself

straight and it is appalling to me to have the thought of him

coming back into my life.

Q. Well, that is a conclusion on your part, I want to

know why! I want to know why? He has not returned

here in three years and he has everything else that

15 you have in your mind except for this fact that you

have not told me his name and you haven’t seen

him in over three years.

I am concerned about it because it is a mandate of legis-

lature for me to act and I have a right to act. As I told

you last week I am going to. Now, you have to show me

some justification for me to not to. In three year the same

set of facts existed in your mind and have been true. He

doesn’t know whether or not you have disclosed the name

of his—his name to anybody during the course of that time.

And, his family ties were here and yet he has not seen fit

to bother you, communicate with you in any way. What I

would like to know is what makes you think, not just what

lda

emotionally affects you, that there would be a change

toward you if you were to comply with the Statute and tell

me two words? A. Well, because—

Q. Which may never go any further than this? A. It

might.

Q. We have any indication by the State, if what you s«'d

is true and jt’s verifiable which they are entitled to, they

_ probably would not proceed. A. But then again they might.

Q. Well, I don’t know. It is speculation. If you are

telling me the truth, | have no reason to believe you are

not, then what they would determine is exactly what you

have been saying and if they said to you that is the end

of the matter, then I would assume you are in good faith.

A. They also told me I wouldn’t have to give his name.

Now I am in court.

16 Q. I have a Statute that says that you have to do

this. Now, you are telling me on occasions this hap-

pened but you are not telling me who. You have a copy of

a letter from a woman but you have to be more specific.

They may be unauthorized to say that.

Mr. Gertin: Your Honor, may I speak?

Tue Ceurt: No,

Tur Wrrness: The type of person that he is, and I feel

knowing him for eight years can sort of qualify me to speak

on how he is. He is a schizophrenic personality. He will

i be one way for a certain amount of time and you have him

figured out and you can react to his emotions and then he

will turn around and do something completely opposite so

that there is no guidance by him. You can’t tell how to

act. He has been violent with me. He has threatened me

with a knife and in a publie area and he is a drug user,

which you are familiar with. It has taken me so long to

get away from this type of life, this type of person, and to

set myself up straight with my daughter that I don’t know

how else to put it into words. To sink back into that situa-

tion again is something that I don’t know how to handle

and by my refusing to give his name is keeping my head

oem

l6a

above it. I am not trying to gyp the State out of anything

that is coming to them. I don’t like being on Welfare

17 anyway but it was something I felt was necessary

in order to take care of my daughter the best way |

could.

Q. There is no shame of being on Welfare. Listen, you

yourself were not, your daughter was? A. My daughter.

Q. And I forget whether you responded and, if you did,

what your answer was about the last time you worked!

A. The actual last job I wasn’t being paid for but I was

getting experience as a bartender.

Q. How long ago? A. Six months or so but it wasn’t

actually a job. Before that I was working while I was

pregnant. I was working.

Q. That was three and a half years ago? I want to know

what you have been doing for the last six months? A. Rais-

ing my daughter.

Q. You have been going only on the allotment that your

daughter has? A. Yes.

Q. Taking care of you, too? A. Yes.

Mr. Gertix: Your Honor, if I might, I can see you are

puzzled on this.

Tue Covrt: I haven’t asked my last question yet.

Me. Geruw: All right.

Q. When is the last time you were asked to disclose your

child’s father name? A. Before these proceedings?

18 Q. Yes. A. It was the last review that I had and

I think it was at least six weeks ago.

Q. No, I will ask you to disclose to me, under oath you

understand that, and I will ask you to disclose to me the

name of the father of your child? A. And if I refuse?

Q. If you refuse to do so you have a number of things

that will happen. The best that can happen is nothing.

The worst that can happen is you will be incarcerated.

You can be fined. That’s about it. That is your decision.

A. Lam not sure. I guess what I am supposed to do is if

I refuse, is taking my chances. Is that what you are saying?

_ —

17a

Q. No, you can be confined not exceeding a year and you

can be fined—[t]hat is up to me. I told you last week what

it would be. I gave you a week to think about it, that the

situation was to purge yourself if you liked. Now, I have

listened to those comments that you made. I wanted to

hear them myself. A. Okay, if it is a point of going to jail,

naturally I am going to tell you. I don’t know if there is

anything more that my lawyer has to say before we make

a final decision. Can I have a minute to speak to him?

Q. No. I have an obligation to follow the Statute. It is

hard but I have an obligation. It is not easy sitting up

here. I have asked you under the Statute to tell me and

either you tell me his name or you can remain mute and

say you are never going to say it and that is up to you.

Mr. Gekurx: I think I take exception to you

19 asking that question at this point on the grounds

that if the testimony is her uncontradicted testimony

and is accurate, there is no reason for the State to know

the name of this man.

Tue Covet: I don’t know that but you may have an

exception to my asking her that. May we ask if the State

has had any evidence bearing on her credibility to produce,

bearing on the witnesses credibility?

Mr. Cramer: No, I have no evidence.

Tue Court: The credibility, the problem as I see it,

doesn’t go to her problems as to what the father of her

child is like. The problem I have is that she is here in _

front of me and as a judge of the Cireuit Court and she is

to disclose to me and if she doesn’t that is contemptuous

to me, to the Court. That is where I have to take action.

Mr. Gertrx: Assuming the other circumstances of law—

Tue Court: There are other issues I will take into effect

when she fails to answer or she answers.

Mr. Gertiw: As I read Judge Henebry’s decision—

Tur Court: I am not concerned with his decision. I am

concerned with what I have to do. I am not unmeaningful

of that decision. I am unmeaningful that she is going to

———

18a

answer or is not. Depending on what she does I will have

to take any action. It is very clear to me in my mind,

20 I will try to be very fair. But, I am spending a little

more time than I should on this. This girl can

answer or she will tell me that she is not. All right?

Mr. Gertix: When you have completed your examina.

tion, may I ask a couple of questions?

Tue Court: I have completed. I have asked her to dis.

close the name. If she does, she will do so soon or she wil]

tell me she is not going to do it.

Mr. Geruin: May T inquire of her now before she is

required—

Mr. Cramer: I object to any further questioning. The

issue has been totally framed.

Tue Covrr: This is the problem. I can appreciate your

problem. I can appreciate this. But, the answer to your

problem is in the legislature as far as I can see it.

Mr. Gertin: As to our point on the Statute of Limita-

tions having run on paternity actions—

Tue Court: She has already indicated he is out of the

state. She returned home to have the baby.

Mr. Gerurw: In so far as she is concerned he is out of

the state.

Tue Cover: That is his burden. That is the problem of

the state in the next action. I cannot be guided by it in

this action. That is my reading of the Statute and I don’t

think there is much to quarrel with.

21 Mr. Gerurn: I only have a couple of questions to

ask for the record.

Tue Court: I have asked the name and I have asked her

to tell me. Either she tells me or she is not. If she tells

me, depending on her answer and if you then want to ask,

which, I believe go to the merits of what I do, I have no

qualms and I think all your questioning and argument has

to do with how I exert my d secretion.

It is up to you.

_—

Tur Witness: May I ask you a question? If I refuse at

his time to give the name, can I reverse that action at

iny time? .

Tue Court: Well, if you refuse and I confine you, you

vill stay there until you purge yourself. That will be at

iny time you care to make delivery of that name. You will

surge yourself from contempt and I will release you. You

are asking me that and in so doing you get an impression

as to what my ultimate judgment may be. That is one way.

You can’t refuse to tell me and ask me to come back tomor-

row because I gave you a week to do that. I gave your

Counsel a week to consider it with you and you are here.

Mr. Cocuran: May I be heard?

Tue Court: I would like to but it is just one more issue

as to whether your appearance is in the file and whether

you are involved in it. At this point it is not. I

22 don’t want to be unfair but he is doing a fine job.

Mr. Geruin: I would like to take exception to your

refusal to let me question the defendant prior to your ask-

ing her the question.

Tue Cover: You may have an exception.

Tue Witness: Well, I don’t want to go to jail so I guess

there is only one thing left for me to do. Do I have to

say it right here?

Tue Court: You have to tell me.

Tue Witness: Wayne Murray.

Tuer Court: I will convey it to the State and I think that

will probably be the end of it.

Mr. Cramer: Your Honor, might I inquire for some

further information? First, I did not hear the name.

Tue Court: I will convey it to you as she has been

brought here, as I read the Statute, to disclose it to me.

Mr. Cramer: I hope, your Honor, the court reporter was

able to hear it. I need a transcript of this.

Tue Court: Well, I don’t think you do. All you need

is the name. I will give you the name. I don’t know of any

necessity to give it publicly.

19a

20a

Mr. Cramer: I wonder if I might inquire or his Honor

might inquire as to the family situation here, are they in

Norwalk? So, in the event there does have to be an

23 attempt to locate him we are familiar—

Tue Covrr: I have to be fair to everybody and I

am trying my darndest and the Statute merely says that

before the Judge of the Cireuit Court you are compelled to

disclose the name of the punitive father under oath.

Mr. Cramer: Your Honor, the only reason I would ask

is that, obviously, it would only be for the purpose of being

sure the person the State pursued is the correct person by

that name.

Tue Court: Okay. Do you have anything further that

you want to ask this young lady?

Mr. Gert: Are you going to let Counsel inquire?

Tue Court: No, I don’t think there is any question. The

Statute told me to ask the name. She gave me the name.

I will give it to you people. You will then, under the Stat-

ute, she must cooperate in the institution of a paternity

action if you deem it necessary.

Mr. Cramer: Correct, your Honor.

Tue Court: I think you have made it erystal clear last

week, if what this young lady was saying was true, and if

it was verifiable, and it couldn’t be done until you knew

who it was, the State would probably realize the futility of

trying to find or collect anything from him.

Mr. Cramer: But I am going on the basis of testimony

she has made in the court to the effect the family is living

in the town.

Tur Court: What family?

Mr. Cramer: His family.

Tue Court: She didn’t say that.

Mr. Cramer: Yes, she did. May it please the court.

Tue Court: In Norwalk or her town?

Mr. Cramer: She indicated Norwalk in her testimony.

Tue Court: Are these people involved in this case? The

disclosure for the record was Wayne Murray. That is the

—,

21a

end of my inquiry as far as I am concerned. Do you have

any feelings in regard to that? That is the end of my

inquiry.

Mr. Gertin: We have further questions and we would

object to Counsel inquiring further into this matter. I be-

lieve the Statute has been fully met and that he not inquire

further here.

Tur Court: I would tend to agree. I, too, agree and I

will tell you why. Because, as I view the problem here, it

is my hope that this young lady won’t have any further

concern with what she has conjured up, and I don’t mean

to say she made it up. She may have good reason to think

he could cause her difficulty but I have in no way deter-

mined whether or not that was true.

Now, you have it in this file and of course, on record,

signed by this girl, and if there is an arrest record and now

that you know who it is—I would have no difficulty in locat-

ing and identifying that person within an hour based on

the affidavit. If he was convicted in our court system and

given a conditional release or was in a drug program home

—You can find out these things. It would be a lot easier,

I know, if she would very quietly and cooperatively tell

you this but as to whether or not you have a right to in-

quire of her in respect to that facet of the case in open

court I would sustain the objection of the young lady’s

counsel.

Mr. Cramer: Thank you for your patience.

22a

CIRCUIT COURT

SIXTEENTH CIRCUIT

WEST HARTFORD

November 27, 1973

PATERNITY PETITION

CV-16-7311-13598

Strate or Connecticut

vs.

Rosin JANES

BEFORE: Honorable Henry J. Goldberg, Judge

APPEARANCES: Richard H. Alden, Esq., For the Welfare

Department

2 Tue Court: Any other case I haven’t called?

Mr. Autpen: You called us and I was out in the hall.

This is the matter of the State Welfare Commissioner and

Robin Janes. It’s one of these petitions to——

Tue Court: That’s the last thing on the list, I believe.

Oh, the paternity division.

Mr. Atpen: Yes.

Tue Court: Allright. It had previously been marked off,

it’s ready.

Mr. Aupen: She is here. I can put her on the stand I

suppose. The reason that she has told me she didn’t want

' to give the name is because she is under physical threat.

Tue Court: She is what?

Mr. Avpen: She is under physical threat.

3 Robin Janes having been duly sworn was examined

and testified as follows:

By THe CLERK:

Q. State your name and address. <A. Robin Janes, 85

Dyer Avenue, Collinsville, Connecticut.

23a

Tue Court: May I ask how old are you?

Tue Witness: Highteew.

Tue Court: All right.

Drect ExaMINation BY Mr. ALDEN:

Q. Miss Janes, are you the mother of a child born out

of wedlock on May 267? A. Yes.

Q. And, is that child on welfare? A. Yes.

Q. State of Connecticut? A. Yes.

Q. Receiving support from the State of Connecticut. And,

have you been asked to disclose the name of the father of

that child by the Welfare Department? A. Yes.

Q. And have you refused to do so? A. Yes.

Q. And, do you want to tell your Honor why you

4 refused to do so?’ A. He’s threatened my life and

my daughter’s life. He’s threatenzd me physically

with his own hands and he has come after me with a gun

and he has been on drugs charges and he’s also threatened

my daughter’s life with a gun and I fee] that it’s just a

danger to me and my daughter’s life to state his name.

Tue Court: What section is that?

Mr. Atpen: That’s Section 52-440b. 52-440b General Stat-

ute 1971, your Honor.

Tue Court: Do you have that statute available?

Mr. Atpen: I could let you—This is from the Welfare

Department, down at the bottom, 52-440b.

Tue Court: Well, what are you requesting of the court?

Mr. ALpen: Well, this is—I just learned of this partieular

problem about fifteen minutes ago for the first time.

Tue Court: What is that?

Mr. Atpen: I just learned of this problem that she has

fifteen minutes ago. I don’t have any contact at this point

with somebody in the Welfare Department that can make

a decision whether they want to withdraw this thing or go

forward, this is the problem I had. We are required to cite

them in here.

5 Tue Court: What is your name, again, please.

Tue Wirness: Robin Janes.

Tue Court: I simply want to tell you that we have a

statute which in essence states that the mother of a child, |

your situation, born out of wedlock may be cited in court

to appear before a judge and to disclose the paternity, to

disclose who the father is and if that person refuses to |

disclose the putative father, that person may be found in |

contempt of court and the court could fine you as much as_

$200.00 or imprison you in jail for a year or both. So, you

see, young lady, we are in a pretty serious situation.

Tue Witness: Well, you know, I’m afraid of him and I’m

going to be getting married in the Spring and my fianvee

is going to be adopting my daughter and I think it would

be harmful to state his name right now because of I’m

afraid of him. I’m afraid he’s going to disturb everything

for my future this Spring. My fiance is going to school

now and he will be graduating pretty soon.

Tue Court: The statute doesn’t say that she shall

6 be found in contempt, it simply states that she may

be found in contempt.

Mr. Aupen: One suggestion, if she is going to be married

and if some other man is going to adopt this child

Tue Court: That would resolve—

Mr. Aupen: This would resolve it. Of course this man has

no obligation to support this child at this time until he

adopts him but once she is off, once the child is off welfare

of course that takes care of this whole problem and I don’t

know whether that is a possible solution for her.

Tue Court: Where do you live right now?) Who do you

; live with?

: Tue Witness: My fiance, right now.

Tue Court: When did you expect to be married?

Tue Wirness: This Spring.

Tue Court: The Spring?

THe Witness: Yes.

Tur Court: We have quite a few months to go.

Tue Witness: He will be graduating in a month and

then he has to go for—

24a

Biwsecie

—

25a

Tue Court: He is graduating from where? F

7 Tue Wirtvess: C.P.I., Computer Processing Insti-

tute.

Tue Court: Well, Counsel, I’ll consider any suggestion

that you have.

Mr. Aupen: I’m thinking. Your Honor, could this matter

be continued to some time so that we could make, maybe

check into it a little bit more so that we could see if we

could work out an arrangement with her. The department

learned today of this problem, maybe we could work out

something to be satisfactory for both parties, if it would

be continued.

Tue Court: Well, all right. I just simply want to

straighten one thing out. I think the statute speaks of may

be found in contempt rather than shall. But the statute

does give the court the authority to compel you to name

the father and if you still refuse, the court here wouldn’t

have any alternative except to fine you up to $200.00 and

imprison you for not more than one year or both. Now, you

are requesting to have this continued?

Mr. Atpen: Yes, your Honor. I think that maybe some-

thing can be worked out.

8 THe Court: Well, how much time has elapsed? We

are not going to run into the statute of limitations?

Mr. Aupen: No, this child was born last May so a year

hasn’t even elapsed. We do have time.

THe Court: All right. We’ll continue this matter in other

words, it may go off now and if you want to reclaim it again

you can reclaim it. ;

Mr. Atpen: Why don’t we have it go off, then.

Tue Court: You understand the matter is just simply

going off at this time and subject to being brought up again

to allow the state to work out something with you. All right.

Mr. Atpen: Thank you, your Honor.

* * * * * * * * * *

26a

CIRCUIT COURT

NINTH CIRCUIT

MIDDLETOWN, CONN,

ORDER TO SHOW CAUSE

Nicwoias Norton, Welfare Commissioner

State of Connecticut

BEFORE :

The Honorable Nicholas F, Armentano, Judge

The Honorable Henry J. Goldberg, Judge

The Honorable Eli L. Cramer, Judge

The Honorable Daniel F. Spallone, Judge

APPEARANCES ;

For the Plaintiff:

John J. Carta, Jr., Esquire

547 Main Street

Middletown, Connecticut

INDEX

APRIL 2, 1973. By: The Honorable Nicholas F. Armentano,

Judge.

MAY 7, 1973. By: The Honorable Henry J. Goldberg, Judge.

OCTOBER 2, 1973. By: The Honorable Eli L. Cramer,

Judge.

DECEMBER 31, 1973. By: The Honorable Daniel F. Spal-

lone, Judge.

et mee 5s

27a

2 April 2, 1973, Middletown, Conn.

Before #The Honorable Nicholas F. Armentano, Judge.

Tue Cuerk: At this time we have those show cause

orders.

Tur Court: Maria Harcega.

Tux CirerK: Will you identify yourself for the record?

Mr. Carta: Attorney John J. Carta, Jr. I think you called

Harcega.

Tue Court: Yes. You represent the commissioner?

Mr. Carta: Representing the Commissioner of Welfare.

Tue Court: Are you represented by counsel?

Tur Derenpant: No.

Tue Court: You may proceed,

Mr. Carta: Basically, your Honor, I think the Statute

52-440b provides that whenever a child is born out of wed-

lock to a mother and that child then receives public as-

sistance from the State of Connecticut the mother is com-

pelled to identify the father of the child. And Maria Harcega

here the respondent in this case, I guess, was requested by

the State Welfare Department in New Britain and

3 refused and still continues to refuse to disclose the

identity of the father of the child. That is the reason.

for the citation this afternoon.

Tuer Court: Do you wish to put on any evidence?

Mr. Carta: Yes. The only evidence is Mrs. Harcega.

Tue Court: Are you willing to disclose the name of the

father?

Tue Derenpant: Sure.

23a

MARiA HARCEGA, 42 Farmington Avenue, New Britain,

Connecticut, called as a witness, being duly sworn by the

clerk, testified as follows:

By tre Court:

First of all, the child’s name is Sire Harcega, born

February 16, 1972? A. Yes.

Q. And the child is receiving State aid? A. Yes.

Q. And you are willing to name the putative father of

the child? A. Yes.

4 Q. You do so voluntarily? A. Yes.

Q. What is the name of the father? <A. David

Negri.

Q. Where does he reside? A. He lives in New Britain,

Connecticut.

Q. What street? A. 198 Elm Street, New Britain,

Q. How old a man is he, about? <A. He is twenty-five.

Tue Court: Any questions?

Mr. Carta: I have no further questions.

Tue Court: You may step down.

(Whereupon, the witness was excused and the matter was

concluded.)

Ann Abascal

April 2, 1973, Middletown, Conn.

THe Court: Ann Abascal, how old are you?

THe Drerennant: Twenty-five.

Tue Court: Is this lady willing to disclose the name of

the father?

Mr. Murpny: Your Honor, as you probably know there is

currently pending in the Federal Court an action on

5 Section 52-440b. In fact, today is the date of the

hearing on the matter. I would respectfully ask this

29a

Court to continue this matter pending the outcome of the

case.

Tux Court: Is this the United States Court in Hartford?

Mr. Murpny: Yes, it is, and the issue of this case

Tue Court: The only trouble is that their decision may

not be binding on this court. I will continue it for a week or

a short stay. I’ll give you a short stay because we are not

going to wait until that case goes to the Supreme Court of

the United States. There are various district courts and

may differ throughout the country on your decision. I found

that on the Court of Appeals. They are not binding on my

court unless I agree with it.

Mr. Murruy: I don’t believe the State of Connecticut is

going to be adversely affected by the continuance. The child

is only eighteen months old and there is exactly a year and

a half to [run] on the statute, the limitation to a paternity

action. Your Honor, I would ask at least one month.

6 Tur Court: I will give you a month. But if that

decision is unduly delayed, as I have said before,

unless I agree with the decision it is not binding on me

because it is a trial court level collection. What particular

date?

Tur CierK: May Ist.

(Whereupon, the matter was continued to May Ist, 1973.)

Ann Abascal

May 7, 1973, Middletown, Conn.

Mr. Carta: Ann Abascal, your Honor, that may go off.

That person is no longer receiving state aid.

Tue Court: May go off.

(Whereupon, the matter was concluded.)

30a

Susan Bilodeau

April 2, 1973, Middletown, Conn.

Mr. Carta: Are you willing to disclose the name of the

father?

THE Derenpant: No.

Tue Court: You are not?

Tue Derenpant: No.

7 Txe Court: All right, take the witness stand.

SUSAN BILODEAU, 67 Collins Street, New Brit-

ain, Connecticut, being duly sworn by the clerk, testified as

follows: ‘s

By Mr. Carta:

Q. Miss Bilodeau, are you the mother of a child born

on January 21,1973? A. January 12.

Q. 1973? A. 1971.

By tHE Court:

Q. Steven Bilobeau? A. Right.

Q. When was he born? A. January 12, 1971.

By Mr. Carta:

Q. Have you had a child born this year, January of this

year? A. No.

Q. That’s your only child? A. Yes.

Q. Now, Miss Bilodeau, have you been on public assist-

ance from the State of Connecticut? A. Yes.

8 Q. Are you presently on public assistance? A. I

was supposed to get a check on the first of the month

_and I didn’t because I’m working.

Q. When did you start working? A. Last Thursday.

Q. Have you been on public assistance in the past? A.

Yes.

Q. Now, have you been as a result of the birth to you of

this boy? A. Yes.

eR ITT EN GENIN LA EEE LION EI ITE LIT

FS CNT Nee om

3la

Q. Now, you reside at 67 Collins Street, New Britain? A.

Yes.

Q. That is still your present address? A. Yes.

Q. Have you been questioned by the Welfare Department

in New Britain concerning the father of the child? A. Yes.

Q. Will you tell his Honor the identity of the father of

the child? A. No.

By tHe Court:

Q. You will not? A. No.

Q. Do you know what the statute says? Anyone

9 who refuses to disclose the name of the father could

be held in contempt of court and could be fined not

more than $200 and imprisoned not more than one year or

both. Do you understand that? A. Yes.

Q. And you still refuse? A. Yes.

Q. And the child is presently a recipient of the State

Welfare? A. No.

Q. You didn’t get one the first of this month. Was it ever

terminated? Did you get the last check? A. No. You know

I’m working. They found me a job and I was supposed to

have the check on the thirty-first.

Q. Do I understand now that you are working this child

is going off welfare? A. Yes.

Tue Court: Well, why don’t you check that matter out,

check waether this child is a recipient now. The statute

says at the present is a recipient. You ought to amend your

petition.

Mr. Carta: I think at the time I received notice—you just

began working?

10 Tue Derenpant: Yes.

Tue Court: Continue this also to May first. Check

that because she would have a right to refuse even if the

statute is constitutional if the child is not presently a re-

cipient.

(Whereupon, the matter was continued to May 1, 1973.)

5 | a

32a

Cynthia Iverson

April 2, 1973, Middletown, Conn.

Tue Court: Miss Iverson, are you willing to disclose the

name of the father?

THe Derenpant: Yes.

Tue Cierk: Take the stand, please.

CYNTHIA IVERSON, 53 South High Street, New Brit-

ain, Connecticut, being duly sworn by the clerk, testified as

follows:

By Mr. Carta:

Q. You have a daughter Stacy Ann Iverson? A. Yes.

Q. What is the date of her birth? A. July 4th, 1972.

11 (). And is that child presently on public assistance?

A. Yes.

Q. And do you know the identity of the father? A. Yes.

Q. Are you wiiling to disclose that identity? A. Yes.

Q. What is the identity of the father? A. His name?

Q. Name and address. A. Jack Rust.

By tHe Court:

Q. R-U-S-T? A. I believe it is. I’m not too positive.

Q. Is his name Jack or John? A. I don’t know. I have

always called him Jack.

Q. Where does he reside? A. Stratford, Connecticut.I —

don’t know the street.

Q. Do you know how old a man he is, about? A. Thirty

or thirty-one.

Q. Do you know where he is employed? A. I believe he

is a fireman.

Q. He is a fireman in the Town of Stratford? A. Right.

Q. Do you know what make of car he drives? We

12 want to get the right person, that is, the State does.

It’s not funny. There are several people known by

_——

33a

the same name. If you know, that is only as an aid so that

the State can locate him. A. I don’t know the make of

the car; its a white car. That’s all I know.

Mr. Carta: Thank you, your Honor.

Tue Court: You may step down.

(Whereupon, the witness was excused and the matter was

concluded. )

Linda Dunphy

May 7, 1973, Middletown, Conn.

Before: The Honorable Henry J. Goldberg, Judge.

Tue Court: Show cause in the case of Linda Dunphy.

Mr. Carta: Attorney DeFrancisco from Meriden has ap-

parently asked for a continuance and this, and I have no

objection.

Tue Court: Any particular date?

Mr. Carta: I have no particular date, your Honor. I leave

that up to the Court.

Tue Court: Suppose we continue this—I don’t know

what date it will be. You will hear from the clerk’s

office.

13 Mr. Carta: I have to check with the clerk on other

matters anyway, your Honor.

Lisa Hall

May 7, 1973, Middletown, Conn.

Tue Court: Lisa Hall.

Mr. Carta: Your Honor, she called me this morning and

said although she had arranged to be here somehow the

arrangement fell through and asked for a continuance. She

stated Wednesday would be all right for her at two o’clock.

THe Court: May ninth at two o’clock.

(On May 9, 1973, the matter went off, settled.)

(Whereupon, the matter was concluded.)

34a

Phyllis Clarke

May 7, 1973, Middletown, Conn.

PHYLLIS CLARKE, 141 Mansfield Avenue, New Brit-

ain, Connecticut, being duly sworn by the clerk, testified

as follows:

By Mr. Carta:

Q. Miss Clarke, did you on or about January 3rd

14 of this year, did you give birth to a child? A. Yes,

I did.

Q. What is the name of the child? A. Tyrone Timothy.

Q. That is the date? A. Yes.

Q. Was the child born out of wedlock; are you married!

A. No, separated.

Q. Are you and the child presently receiving state aid!

A. Yes.

Q. Are you, Miss Clarke, willing to identify the father

of that child? A. Yes.

Q. And could we have the name of the father of the

child? A. Tyrone Howard.

Q. Tyrone? A. Yes.

Q. Howard? A. Yes.

Q. H-O-W-A-R-D? A. Yes.

Q. Do you have his address? <A. No.

15 Q. Do you know? A. Springfield is all I know.

Q. Springfield, Mass? <A. Yes.

Q. Do you know where he is employed? A. No.

Q. Or any other fact which might help the State in ob-

taining his address or finding him? A. I believe it’s State

Street. I believe that is the street he lives but I don*i know

where he works.

Q. You dont’ know where he works? A. No.

Mr. Carta: I have no further questions, your Honor.

Tue Court: All right, you may step down.

(Whereupon, the matter was concluded.)

ill

BLP OWI TIEN ott

35a

Noella Cote

May 7, 1973, Middletown, Conn.

Mr. Carta: Noella Cote, your Honor, that matter may go

off. She called me and already identified the father.

Tue Court: That may go off.

(Whereupon, the matter was concluded.)

16 Sharon Burr

: October 2, 1973, Middletown, Conn.

Before: The Honorable Eli L. Cramer, Judge.

Tuer Court: The matter of Sharon Burr, 363 Main Street,

Portland, Connecticut, this is an order to show cause under

the provisions of Section 52-440b.

SHARON BURR, 363 Main Street, Portland, Connecti-

cut, being duly sworn by the clerk, testified as follows:

By Mr. Carta:

Q. Is that Miss Burr? A. Yes.

Q. Miss Burr, you are presently residing at 363 Main

Street, Portland, Connecticut? A. Yes.

Q. And you were served with the order to show cause?

A. Yes.

Q. Now, Miss Burr, did you on or about March 31, 1971,

give birth to a daughter named Melisa? A. Yes.

Q. Are you able and willing to identify the father

16-A of that child? A. Yes.

Q. And could you please give me the name of the

father of that child? A. Richard Coburn.

Tur Court: Spell it.

Tue Derenpant: C-O0-B-U-R-N.

Tue Court: His address.

Tue Derenpant: It’s New London.

Tue Court: You have no knowledge of the street?

Tue Derenpant: No.

36a

By Mr. Carta:

Q. Could you please spell the last name? A. C-O-B-U-R-N.

Q. You say the address, as far as you know, is New Lon-

dont A. New London, Connecticut.

Tue Court: You have no further questions?

k. Carta: I have no further questions.

HE Court: Do you have any questions, Mr. Miller?

r. Mrtter: Your Honor, we originally had objected to

the proceeding. And it was, in fact, stated sometime

ago based upon the that the three judge Federal

panel was looking into the constitutionality of this

dure. Just recently the panel decided—do you have a

copy of that decision? Do you, Mr. Carta?

Mr. Carta: I don’t. |

Tx Court: We took the matter up at our Circuit Court

meeting but copies were not are to anyone of us.

Anything further?

Mr.\Mruter: Yes, your Honor. The reason we objected in

this particular instance——

Tue Court: Isn’t it academic at thig time?

TILLER: No, it is not, because \I would like at this

order restraining the putative father of this child.

urr for reasons which I can bring out her failure

to answer questions, she is afraid Mr. (oburn will retaliate

against her in any manner whatsoever ih a paternity action.

I would Jike to pass the motion to the| Court, restraining

order restraining him to make any effort to—

Tue Curt: This isn’t within the jurisdiction ef it here

18 2 Mrutsr: If the Court can compel Miss Burr to

testify, I would submit that the Court has the power ;

- to protect her.

Tue Coupt: I have no power at this time. I see nothing

in the pregent hearing. I would like to oblige you but I

can’t oblig¢ on the basis—let me put it \in the following

way: If Mr, Coburn for any reasons threatens, there is «

statute on threatening which provides amply. It’s a crim-

inal statute. If you at this time would make complaint to

the prosecuting attorney, I will at that time indicate to the

prosecuting attorney that he should take action. I can’t do

anything more than that. I can’t restrain him from some-

thing which he is under no execution. This is under no

criminal statute. I appreciate Miss Burr’s insistence with

you. I see no legal power that I have to restrain something

which hasn’t happened and only speculative. I fully ap-

preciate this but if there is any form of threat, it is in

the nature of a criminal action and you call the police im-

mediately. People do not have the right to threaten

19 you in any way. If in any way he comes near you or

threatens you by felony, you call the police. If that

isn’t satisfactory, you come into the prosecutor of this

court, either Mr. Kane or Mr. Natalie and they will take

care of your situation.

Mr. Miuuer: I think that would be sufficient.

Tae Court: I can’t issue a restraining order about some-

thing that hasn’t happened.

Mr. Mruuer: Very well. Thank you.

Tur Court: Do you want the record to show the name of

the putative father?

Mr. Mriter: I don’t think it’s necessary.

Tue Court: All right. You may leave Miss Burr. You

need not proceed any further. Thank you.

37a

(Whereupon, the matter was concluded.)

Rosalyn Carr

October 2, 1973, Middletown, Conn.

Before: The Honorable Eli L. Cramer, Judge.

ROSALYN CARR, 248 Bunker Avenue, Meriden, Con-

necticut, being duly sworn by the clerk, testified as foi-

lows:

20 Tur Court: Do you have counsel, Miss Carr?

Tue Derenpant: No, I haven’t.

EST . RR TF Fic ARERR IE EES NE FOE PES YEE ee

38a

Tue Court: Do you want counsel?

Tuer Derenpant: No, I don’t believe it’s necessary.

Tue Court: You don’t feel it’s necessary? ;

Tue Darenpant: No.

Tue Court: And you wish to appear at this time on your

own behalf without counsel?

Tue Derenvant: Right.

Tue Courr: And you don’t wish counsel appointed for

you?

Tue Derenpant: No.

Tue Court: Allright. Do you wish to consult with a law-

yer? There is a lawyer present and I can ask him to give

you advice.

Tue Derennaxt: I don’t believe it is necessary.

Tue Court: You don’t wish a lawyer to act as a friend

of the court and this gentleman is here and is very familiar

with the subject if you want to discuss it for a moment.

Do you want to take a few moments to discuss it!

21 Mr. Carta: I think that would be a good idea. I

discussed this matter with this lady.

Tur Cowort: This gentleman is a lawyer who is familiar

with statutes, familiar with their implications. Your name,

for the record.

Mr. Mutter: Donald Miller, your Honor.

Tue Court: And a member of the Middletown Bar is

g0ing to discuss this matter with you. You are not being

appointed but merely as amicus curiae in this case. We

will take a few minutes.

(At 2:45 o’clock a ten minute recess was take.)

Arter Recess

Tue Cierk: Miss Carr, do you want to step down here

please?

Tue Court: She has been sworn?

Tue Curkk: Yes, she has been sworn, your Honor.

ae WERE PRA RNRCRRREREENTI RS Cte

39a

By Mr. Carta:

Q. Miss Carr, is your present address— A. My name

is Mrs. Carr.

Q. I beg your pardon, Is your present address

292 248 Bunker Avenue, Meriden? A. Yes, it is.

Q. Are you presently on State aid? A. I receive

$106.89 a month from the State.

Q. Mrs. Carr, on or about November 1, 1971, did you

give birth to a daughter? A. On November the first, 1971,

yes.

Q. Mrs. Carr, are you able today to identify or are you

willing and able today to identify the father of your

daughter? A. I would be willing if I knew. But I don’t

know so I can’t.

Q. Is it your testimony therefore that you do not know?

A. I do not know the name of my child’s father.

Q. Mrs. Carr, the birth date of Jennifer was November

1, 1971. Is that correct? A. Yes.

Q. That would place the date of conception somewhere

around January of 1970? A. Yes, January.

Q. It was January, 1971? A. Yes.

Q. Do you recall some of your male companions

23 = during that period of time? A. No. I can iruthfully

say that I do not remember. It was an affair that I

have wanted to put out of my mind and I do not know.

Q. You don’t know this individual’s namet A. No, I

don’t. I believe at the time that it was a false name.

Q. Well, do you recall the name that he did give you?

A. No, I don’t.

Q. Do you recall the address of this individual? <A. No,

I don’t.

Q. Where were you living at the timet A. In Meriden

at the same address that I’m at at present.

Q. Did you know that he was living in Meriden? A. No,

I knew that he was living somewhere in the Wethersfield

area or I was told that is where he lived.

Q. And you have no remembrance, no memory at this

FO oe ES 3 i ee ee oes

40a

time of the identity, the name of that person? A. No, I do

not.

Q. Can you describe that person? <A. Well, I could de.

scribe him. He was about forty-six, forty-seven, approxi-

mately five feet eleven, light complected, light hair, reddish,

sort of auburn hair, and other than that I couldn’t say too

much about him.

24 Q. Well, Mrs. Carr, you have described him fairly

well considering the length of time that has passed.

Is it your testimony now——_ A. Let me say this, I mean,

the type of a person that is an unpleasant person, I might

remember this name. I will associate a person I can recall

them by sight but never be able to hook a name to that

person.

Q. Mrs. Carr, how frequent, how many times did you see

this person, was he a frequent companion? A. I saw hin

four times.

Q. And you can’t remember what he was known by that

or the name that he gave you? A. No, 1 certainly do not.

I wish I did but I don’t.

Q. You recall the discussion I had with you yesterday

in the lawyers’ lounge in this building? A. I certainly do.

Q. Didn’t you indicate to me that even if you knew the

name you wouldn’t sive the name? A. I didn’t say I

woridn’t give the name; I said I would consider it a gross

intrusion of my privacy to have to give the name.

Tue Covrt: Mrs. Carr, let’s stop playing games. I’m

going to read to you the law under which I am pro.

25 ceeding which compels disclosure of the putative

father. I will read it to you and you listen carefully.

You just listen.

I will read it so it will be a matter of record. The mother

of any child born out of wediock, or the mother of any

child born to any married woman during marriage which

child shall be found, if you know, not to be issue of the

marriage terminated by a divorce decree or by decree cf

any court of competent jurisdiction, fails or refuses to dis-

close the name of the putative father of such child under

4la

oath to the welfare commissioner, if such child is a re-

cipient of public assistance, or to a selectman of a town in

which such child resides, if such child is a recipient of

general assistance, or otherwise to a guardian ad litem of

such child, such mother may be cited to appear before any

judge of the Circuit Court and compelled to disclose the

name of the putative father under oath and to institute an

action to establish the paternity of said child. And this is

why you are here. Now (b) any woman having been cited

to appear before a judge pursuant to subsection (a),

26 ~=—s fails to disclose or fails to prosecute a paternity ac-

tion may be found to be in contempt of Cireuit Court,

fined not more than $200 and imprisoned not more than

one year or both. This is an act of the Legislature and we

are not here to play games. It has been upheld by the three

judge pane}—and I am giving you fair warning, Mrs. Carr,

that I don’t want any games played. Disclose the name.

You are under oath. Now, you have five minutes to do it.

I don’t want any speeches, just disclose the name.

Tue Derenvant: I do not know. I am under oath in the

court of the State of Connecticut and I can truthfully say

I do not know the name of my child’s father.

Tue Court: What was the name under which he was

known wken you went with him?

Tue Derenvant: That I can truthfully say I do not recall

either.

Tue Court: Counsel, was there some information given

to you yesterday that this lady said she wouldn’t disclose

the name?

Mr. Carta: No, your Honor.

27 Tue Court: Did you tell this te the lawyer yester-

day that you wouldn’t disclose the name?

Tue Derenpant: I didn’t say I wouldn’t. I said if I did

know, I would consider it a gross intrusion of my privacy

to have to do so.

Tae Court: Well, I’m going to order you. This is no

gross intrusion. Legislature has determined it is not and the

United States District Court. I do not consider it a gross

OO 8. CRE eth ne ae Saree

intrusion, nor the Legislature of the United States. Disclose

the name and whether it intrudes on your privacy is some-

thing you can come forth yourself on later. If you don’t,

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.