# Amicus Curiae Brief — Roe v. Norton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1632%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1975 - **Citation:** 422 U.S. 391 ## Text ree ope Supreme = - ILE s : ) 14 IN THE ICHAEL RODAK, JR., CLERK Supreme Court of the United States OcToBER TERM, 1973 No. 73-6033 SHARON Rog, Et Au., Appellants v. 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 v. 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 3 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 4 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 —_ _ aR a aon , ae oot Na ap TERENAS AME 2 —— 5 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 6 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 >" 7 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 8 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 9 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. 10 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. : i —7 11 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 (c) Identification of the father prevents t 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—> 5 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 6 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 \ ? i ‘ i : _— 7 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. es 8 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 _— 9 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 _— 11 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 12 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, 13 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 —— 14 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. — 15 (c) Identification of the father prevents the child’s psycho- 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 . 16 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. | 7 —————— — 17 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 — ; 18 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. : 4 7, of igt pa 19 (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. — — 20 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 | ' ; ’ — 21 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? .. . 22 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: 23 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 24 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). 25 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 26 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. i - P;” and get ; — — _ comconesnah TREES | : 27 (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 28 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 4 29 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 30 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. 31 . 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 32 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, i ' ' 4 ; ' _— Mr. CARTA: THE DEFENDANT: THE Court: 33 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 34 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, =~ 35 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). 36 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. 37 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 —— oe a 7 ” 38 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 39 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 la 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— 2a 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 - 4 48 * 1 R, SEW eM PMA “ORS Po AORN GIES 4 , wand Dad . -_-~—7"~ 3a 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. —_— , 4a 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. 3 | j ' a (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 — aaa uM GUY WO EID cg ccc ccc eccupacceceusean 4 Comm, Gem. Bieta $4543 2. cece cees 3, 4, 28, 38 Conn. Gen. Stats. §45-54 ...0......... ccc cues 4, 30, 38 i cape eeeaamacsaee 14 CR. IGM, UNO, UMD nice cent ew cnwceccces 24 Comm. Clem. Stats. 653-43Se '... 0)... otras: 3 ee Se ae re 3 Conn. Gen. Stats. §52-440b ............002 ee eee passun Conn. Gen. Stats. §52-442 0... ccc cee nec e eens 3, 21 Comm. Grom. Donte. 52-4420... icc c ree nec ccnncss 14 i ee, ee inn ik eae ow h 060 0 on cael 3 8 Ea eee Other Authorities: Rules for the Juvenile Court, Conn. Practice Book (1963), §1122 (effective July 1, 1974) .........085. 30 Conn. Law Journal, April 30, 1974, Rules for owe and Procedure, Courts of Probate, Rule ‘ Tribe, “Forward: The Supreme Court, 1972 Term,” BP Me eR EEUOED 6k ss ieee ens ceenresess 13 S. Kaplan, “Support from Absent Fathers in Aid to Dependent Children,” Social Security Bulletin, ee 6 £ SE rrr rer eee 25 — (vii) US. Department of Health, Education & Welfare, Findings of the 1971 AFDC Study, Part III, DHEW Publication No. (SRS) 73-03759 (1973)... .. 20,23 Handbook of Public Assistance Administration, Part IV, U.S. Department of Health, Education & IN THE Supreme Court of the Anited States OCTOBER TERM, 1973 No. 73-6033 SHARON ROE and DOROTHY POE, on behalf of themselves and others similarly situated, Appellants, NICHOLAS NORTON, individually, as Commissioner of Welfare of the State of Connecticut, and on behalf of others similarly situated, Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT BRIEF OF CHILDREN OF APPELLANTS QUESTIONS PRESENTED 1) Conn. Gen, Stats. §52-440b requires each mother of an illegitimate child on welfare to make public disclosure of the name of the child's putative father and to prosecute the father in a paternity action, presuming irrebuttably that disclosure and prosecution serve the child’s interest. Does the failure of the statute to sta PRE RRR Le Oe EEE fee 5 provide a hearing on this issue deprive the child of his right to family privacy and autonomy without due process of law? 2) Does Section 52-440b deprive those illegitimate children who are poor of the equal protection of the laws by providing that only a poor child is subject to compelled disclosure and prosecution of his father without regard to the impact of compulsion on the child? > "Ti STATUTES INVOLVED Conn. Gen. Stats. §52-440b provides: 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 disclose 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 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. ye. ee ee ee ee ee ee. ee, ee oe ee oe i It is now established that the right \of& Bracy to which the Constitution extends “special safeguards,” United States v. Orito, 413 U.S. 139, 142\(1973), “encompasses and protects the personal intimacies of the home, the family, marriage, mptherhood, procreation, and child rearing. Cf. Fi Baird, 405 U.S. 438, 453-54 (1972); id., 463-465 (White, J., concurring); Stanley». Georgia, [394 U.S. 557], at 568 [1969]; Virginia, 388 U.S. 1, 12 (1967); Griswold ». Connecticut, [381 U.S. 479], at 486\ (1965); fracturing an amicable father-child relationship harming the child by inflicting upon it protection than the decision whether to educate at a public or private school. Cf. Pierce ». Sisters, 268 U.S. 510, 45 S.Ct. 571,-69 L. Ed. (1925).” Doe v. Norton, 365 F.Supp. 65, 85 (concurring opinion). 1] Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); The \concept of family privacy embodies the fundamental notion that childrearing is, absent extra- ircumstances, the business of parents and not of the State. As the Court recently said in Wisconsin vy. 6 U.S. 205, 232 (1972): “The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary \role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.” Children,\ as well as their parents, have a strong stake in the preservation of the autonomy of their family lives from |state interference. The child’s interest in having his parents rather than the State make the crucial decisions concerning his family life is entitled to fully as much constitutional protection as other aspects of the right of privacy. It is established that ‘“‘neither the Fourteenth Amendment nor the Bill of Rights is for adults alone,” In re Gault, 387 U.S. 1, 13 (1967), see Tinker v. Des Moines School District, 393 U.S. 503, 506-507 (1969), and that the protection of family life from state control is in large measure the right of the child as well as of his parent. Levy v. Louisiana, 391 U.S. 68, 71 (1968); Prince ». Massachusetts, 321 U.S. 158, 165-166 (1944); see Keyes v. School District No. 1, 413 U.S. 189, 247-248 (\1973). (Powell, J., concurring in part and dissenting in\ part). The Court jhas_ recently recognized both the importance of family relationships and the special eels i sagen OMNES IT EI RONE EINE A O° SR TRE RRR! og Ce character of the child’s interest in these relationships, In Stanley vy. Illinois, 405 U.S. 645 (1972), the Court struck down a statute that abridged, without a hearing, the fundamental interest of a father in the care and custody of the illegitimate children he had “sired and raised,” 405 U.S. at 651. In Rothstein v. Lutheran Social Services, 405 U.S. 1051 (1972), the Court remanded a case factually similar to Stanley “for further consideration in light of Stanley y. Illinois, ante, p. 645, and with due consideration for the completion of adoption proceedings and the fact that the child has apparently lived with the adoptive family for the intervening period of time.” /bid. The Court recognized in Rothstein that the funda- mental right of a father to care and custody of his natural child might be outweighed by his child’s interest in membership in a different family. Family privacy and integrity, in short, is at least as much the right of a child as of his parent. The reasons for extending special constitutional protections to family life apply as fully to children as to their parents. The special protection accorded family privacy stems in large measure from a recognition of the importance of the family to its members. The bonds between family members, especially between children and the parents who nurture them, have a strength to which the State must defer; courts and legislatures must recognize that, for example, the rights to care, custody and the companionship of one’s children are “far more precious [to parents] than property rights.”’ May ». Anderson, 345 U.S. 528, 533 (1953). Moreover, in a society of families, the composition and conduct of one’s own family affects every aspect of daily life and fundamentally shapes each person’s life cycle. See, e.g. Roe v. Wade, 410 U.S. 113, 153 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972). As family life and family — Ts relationships are vital to parents, so are they at least as vital to children, for whom the family is their entire universe. As a theoretical matter, the autonomy of the family is a vital part of the freedom of association protected by the First Amendment, Griswold v. Connecticut, 381 U.S. 479 (1965), and the child has a vital stake in the continuity and autonomy of his family as a member of a “communit[y] ... characterized by shared under- standings and values.” Tribe, “‘Forward: The Supreme Court, 1972 Term,” 87 Harv. L. Rev. 1, 34 (1973). One principal reason for affording special protection to the family is that it serves as the primary agency for fostering important interests of the child. The Court has protected family autonomy against invasions which jeopardize the development of the child in matters of religion, Wisconsin v. Yoder, 406 U.S. 205 (1972), thought and expression, Meyer v. Nebraska, 262 U.S. 390 (1923), and individuality and autonomy as a person, Pierce v. Society of Sisters, 268 U.S. 510 (1925). Ordinarily, judicial protection of family autonomy is invoked in the service of these other interests. But in this case, the threat is to the continuity of the child’s family itself, which is the foundation and prerequisite for all the other values protected by family autonomy. If the Constitution recognizes the fundamental role of the family in our society and in the advancement of important rights of the child, it must accord the child protection against State-sponsored dismemberment or disruption of his family. The evidence in the record illustrates the kinds of disruption to which children’s families are exposed when their mothers are subjected to state compulsion under Section 52-440b. 1. “A”? testified that she planned to marry the father of her illegitimate child. She testified further that (App. 39). Appellants and other women who gave testimony in affidavit form used pseudonyms, which are indicated here by otation marks. a 14 her child’s relationship with its father might be threatened if she were compelled to sue the father in a paternity action.* If “A’’ married the child’s father, the child would be fully legitimated, a result a successful paternity action could not achieve. Conn. Gen. Stats, § 45-274. 2. “Mary Brown,” (App. 40) testified that she planned to marry a man who is not the father of her illegitimate child but who is acting as a father to the child and would be in a position to adopt the child after the marriage. For her to name the biological father and prosecute a paternity action would jeopardize the child’s interest in being adopted and in avoiding the stigma of illegitimacy for the rest of its life. “Mary Brown” resists disclosure, therefore, in order to spare her child “the social opprobrium suffered by these hapless children. ...’’ Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 176 (1972). Both “A” and “Mary Brown” have protected whatever interest their children might have in estab- lishing their paternity by obtaining written acknow- ledgments of paternity from the children’s fathers.° “The Department of Health, Education and Welfare has observed that “A’s” plight is not unusual: “*... Legal action taken by the parent to meet the agency's conditions may result in additional strains in relationships within the home, or may unwisely force the permanent severance of relationships with the absent parent.” Hand- book of Public Assistance Administration, Part IV, at 3422.5(2). See also, Bridges v. Secretary, CCH Unemployment Ins. Rep. q 16,480, at 2499-463 (E.D.N.Y. 1971). SSuch an acknowledgment accompanied by the mother’s acknowledgment has, when filed with the Circuit Court, the force of a final judgment of paternity. Conn. Gen. Stats. §52-442a. Since no action need be brought when paternity is established by acknowledgment, the three-year statute of limitations does not apply. 1S Many other children are harmed in equally profound ways by this type of state intrusion into family privacy. Two experts in the fields of child psychology and child psychiatry gave uncontradicted testimony concerning the likely consequences to children of Section 52-440b’s invasion of the autonomy of the family.° Dr. Edward Zigler confirmed Judge Newman’s apprehension of the danger of “distressing knowledge”, 365 F. Supp. at 85, of paternity: “The child’s self-image will also be severely damaged when he knows who his father is where this knowledge brings home the fact of the father’s failure to live in the home. A young child will assume that his father is absent because the child is unworthy in some way or because his father hates him.” (App. 127). Dr. Zigler went on to analyze the harm caused a child by compulsion of his mother in this intimate area of family life: “Particularly in strained situations such as father absent homes, it is important to a child for his mother to feel free and confident in her relationship with the child. State compulsion and intrusion into one aspect of that relationship—the information the mother imparts about the father— may be expected to leave a mother less sure of *Albert Jay Solnit, M.D., is a child psychiatrist and psychoanalyst who is director of the Yale Child Study Center and President of the American Academy of Child Psychiatry, as well as past-President of the American Psychoanalytic Association. (App. 63). Edward F. Zigler, Ph.D., is a child psychologist who is Professor of Psychology and Chairman-designate of the Depart- ment of Psychology at Yale, as well as former director of the Office of Child Development in the Department of Health, Education and Welfare. (App. 125). iis lia SSR PI ET NRE GS ATE PRN FT Tee ORR 16 herself as a mother. She will feel less in control of her relationship with her child; and as a result the child will feel less secure and sure of himself and who he is. Because the State is making an important decision about family life the mother, and hence the child, will also to some extent shift responsibility for parenting from the mother to the State, an effect which increases a sense of dependency on the State in both mother and child.” (App. 128). The court below rejected the claim that the statute interferes with the right of privacy, on the ground that the right of privacy protects certain activities relating to marriage and procreation but it does not protect information about those activities. 365 F. Supp. at 73-77. On this view, information about private conduct is protected only by the Fifth Amendment privilege against self-incrimination, and by non-constitutional common law evidentiary privileges. As Judge Newman’s concurring opinion makes clear, however, the constitutional protection of private conduct may also require protection of information about that conduct. 365 F. Supp. at 84-85, citing NAACP vy. Alabama, 357 U.S. 449 (1958); Bates y. Little Rock, 361 U.S. 516 (1960). See also Merriken v. Cressman, 365 F. Supp. 913 (E.D. Pa. 1973). Moreover, even if mere information were outside the protection of the right of privacy, that would not dispose of this case. For §52-440b authorizes the State to compel the mother of an illegitimate child not only to disclose the identity of the father, but also to institute a paternity action against him. The mother is compelled to be not only a witness but also a plaintiff. Indeed, the compulsion of this hostile act by the mother against the father is one of the most important aspects of the intrusion of this statute on the privacy, and stability, of the child’s family life. — — » It is now established that “where certain ‘funda- mental rights’ are involved... regulation limiting these rights may be justified only by a ‘compelling state interest,’)...and that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake,” Roe v. Wade, 410 U.S. 113, 155 (1973); and that the right to privacy is one of these ‘fundamental rights.’ /bid. See also Stanley v. Illinois, 405 U.S. 645, 651 (1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Kovacs v. Cooper, 336 U.S. 77, 95 (1949) (Frankfurter, J., concurring). It is necessary, therefore, to analyze the state interests advanced in support of the statute and the means by which the statute purports to advance those interests. B. The State purports to justify its invasion of children’s rights to privacy and autonomy in family life by means of insubstantial interests and an irrebuttable presumption, depriving the children of liberty without due process of law. The State advanced two distinct interests in support of the statute: that of the State, and that of the children. According to the District Court, In the absence of any legislative history, che court inquired and was informed that the score of this statute was intended not only to prcetect the state’s coffers but also to establish the paternity of all illegitimate children so that they might enjoy the long term psychological and economic advan- tages to be gained thereby. 365 F. Supp. at 73n. 10. (Citation omitted). State court application of Section 52-440b_ has focused almost exclusively on the statute’s function as a recoupment device, and has recognized that “‘[t] he primary purpose of the statute is to protect the State’s ; coffers.’’ Norton v. Larracuento (Br. App. 47a). Likewise, OP ILS yan NDP ENE TUE CLT RALLY ET NET BR G0 EY eo +n ti. on “ . I eye 18 in Welfare Commissioner yv. A. Ar. (Br. App. 27a. Initials are used ‘o protect privacy.), the court observed, “The State is entitled to be reimbursed for the money they expended for the support of the child. ... That is all the State is interested in, the reimbursement. ...If nothing can be worked out {to repay the State], you’re going to have to go to jail.” The history of Connecticut’s efforts to extract the names of putative fathers from the mothers of illegitimate children on welfare shows the primacy of the fiscal purpose. That history is detailed by the District Court. 365 F. Supp. at 71-72. Connecticut made disclosure a requirement of eligibility for welfare, first for entire families and then only for their mothers. Doe vy. Shapiro, 302 F. Supp. 761 (D. Conn. 1969), appeal dismissed, 396 U.S. 488, rehearing denied, 397 U.S. 970 (1970); Doe v. Harder, 310 F. Supp. 302 (D. Conn.), appeal dismissed, 399 U.S. 902 (1970). This enforcement device snugly fits a fiscal recoupment rationale but is plainly incompatible with a state claim to protect the interests of the children it proposes to deprive of subsistence. See Doe v. Shapiro, 302 F. Supp. at 766. We will turn, ten, to this primary purpose, “the protection of the State’s coffers.” 1. The State’s financial interests are too insubstantial to justify invasion of important constitutional rights of children. The State’s fiscal claim is simply put: fathers, including adjudicated fathers of illegitimate children, are obligated to support their children. The State supports illegitimate children who receive AFDC, and therefore it is entitled to reimbursement from the father for its expenditures on behalf of the dependent illegitimate child. This statute facilitates that reimbursement. But this _ 19 claim must be weighed against the claim of mothers and children to family privacy, and to freedom from dis- ruption of family life. The Court has in a long series of equal protection decisions rejected rationalizations that a particular state policy saved the State money as an adequate ground on which to uphold a statute which worked a hardship on a particular class of people or penalized exercise of a constitutional right. Thus in Graham vy. Richardson, 403 U.S. 365 (1971), and Shapiro v. Thompson, 394 U.S. 618 (1969), very substantial economies were held inadequate to justify the discrimination against aliens and new residents, respectively. See also Rivera v. Dunn, 329 F. Supp. 554 (D. Conn. 1971), affirmed 404 U.S. 1054 (1972). In Harper vy. Virginia Board of Elections, 383 U.S. 663 (1966), fiscal gains were held inadequate to withhold from the poor access to a right deemed “fundamental.” So here the State seeks to protect its coffers by invading the rights of mothers and children to family privacy. As the State’s fiscal claim does not justify invasion of the right to travel or to vote in state elections on an equal basis with those who can pay a poor tax, so it cannot justify deprivation of the fundamental right of privacy. This point is particularly clear with respect to children, as distinct from mothers who resist disclosure. The children are not in a position to advance the State’s fiscal interest by giving information, and they depend on the State for their subsistence through no choice of their own. As to them, the State has recognized and asserted below its paramount interest in protecting their well-being. See, e.g., Wyman v. James, 400 U.S. 309 (1971). The State cannot simultaneously —— A ROR 5 ay 20 claim a right to undermine that welfare in the interest of the State’s coffers. Moreover, the practical effect of Section 52-440b on the State’s interest is so slight as to defy recognition as a justification for the’ statute. Disclosure of the father’s identity is not likely to produce support payments in most cases. Very few fathers of welfare children have sufficient resources to provide support payments. And even those who can pay are likely to evade enforcement of new support obligations. In AFDC cases involving married fathers, only one-fifth of the fathers con- tributed support during 1971. U.S. Department of Health, Education and Welfare, Findings of the 1971 AFDC Study, Part III, DHEW Publication No. (SRS) 73-03759 (hereinafter AFDC Study), table 6. It is unlikely that in the case of unmarried’ fathers the State could match even this unimpressive collection record. It appears, moreover, that in most cases the mother of an illegitimate child gives the welfare department the name of the child’s putative father. Deposition of Joseph Mancini (App. 112). Those who refuse, as the affidavits submitted in the District Court show, frequently do so in part because of the unsavory, unstable or unreliable nature of the putative father (App. 37, 45-46, 51). These fathers may be expected to be the least likely subjects of successful support proceedings. Realistically, then, the State has a weak claim of injury to its fiscal integrity. It would reap greater financial rewards by using its limited resources to collect support from absent husbands, rather than from absent illegitimate fathers. In fact, however, the State does not pursue absent husbands with the vigor reserved for unknown putative fathers. Mothers of legitimate children cannot be compelled by statute to institute a support action, while Section 52-440b compels prosecu- tion of a paternity adjudication. Conn. Gen. Stats. it - N od og rasep te Ae oan Fe Ne Aan chase 21 §52-442. The State therefore claims fiscal necessity with respect to a requirement it does not apply to mothers of legitimate children. This discrimination diminishes the plausibility of the State’s fiscal claim, and suggests that the statute may be a penalty for giving birth to an illegitimate child as much as a financial measure. To the extent it is punitive, the punishment falls on the child at least as much as on his parents, and this Court has firmly and unmistakably forbidden vicarious punishment of illegitimates for the supposed sins of their parents. Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175-176 (1972); see New Jersey W.R.O. v. Cahill, 411 U.S. 619 (1973). Even were the State’s fiscal claim sufficient in principle to justify intrusion into the rights of mothers and children, Section 52-440b fails the “least drastic means” test with respect to the State’s fiscal claim. Compulsion is permitted by the statute and sought by the Commissioner in a variety of situations in which benefit to the State is unlikely or even impermissible while harm to the children and their mothers is quite likely. For example, as Judge Newman pointed out below, the statute permits compelled disclosure of the father’s identity, even if the statute of limitations for a support action has run. 365 F. Supp. at 86. The statute permits compelled disclosure even if the mother can show that the putative father is in a category of men who virtually never provide support, such as prison or mental hospital inmates. See AFDC Study, table 16. In short, the statute permits invasion of fundamental privacy rights of children and their mothers in instances where the invasion will not even advance the state fiscal interest asserted to justify it. Viewed as a fiscal measure, therefore, the statute ‘“‘needlessly, arbitrarily, [and] capriciously impinge[s] upon this vital area of... constitutional liberty...’ Cleveland Board of Education v. LaFleur, ___ U.S. at ___, 94 S. Ct. at ls 796, and is unconstitutional. | COLL ETE ee Pe a If Section 52-440b is to~be sustained, then, it must be on the basis of the secondary statutory purpose asserted below: the parens patriae interest of the State in the children subject to the statute. 7 - 2. The State’s interest in the well-being of children cannot justify its invasion of children’s rights. The District Court accepted the State’s contention that “[i]nstead of operating-to the disadvantage of children born out of wedlock, the statute operates to their benefit.”” 365 F. Supp. at 79. Mothers who resist naming and prosecuting the putative fathers of their chilcren, in this view, harm those children, while state compulsion secures “long term benefit...to the children by the early’ establishment of _ their paternity....” 365 F. Supp. at 80. In fact, however, analysis of the potential benefits and harms to children from compulsory disclosure and prosecution shows that the interests of children vary with their individual circumstances. Most children are. more likely to be harmed than helped by enforcement of the statute against their mothers. a. The interests of the child are not served by the Statute in many cases. Financial Interests Compulsory disclosure and prosecution of the father may conceivably produce financial benefits for the child in the form of present support payments or future benefits from insurance or other sources. In many cases, however, the likelihood that the child will in fact realize any net financial benefit from the proceeding is negligible. Se PREETI IE EI, ELE EI Sa pare te oe ret P = 4 23 The child will realize no present benefit from a successful paternity adjudication if his father cannot be compelled to make support payments, a situation which exists if the father is impecunious, eludes efforts to collect support,’ or is not amenable to process® or successful prosecution. Indeed, even if support pay- ments are forthcoming, the child will realize no financial benefits unless the father can be compelled to make support payments on his behalf which exceed the amount he and his mother receive in welfare benefits. This follows from the fact that the family welfare allotment will be reduced in precisely the amount of any support payments. See Norton v. Larracuento, Br. App. at 40a. With respect to the various benefits that may be payable at some future time, such as Veterans’ benefits, the child can ordinarily establish his rights by proving paternity at the time when payments fall due even if there has been no prior adjudication of paternity.’® See . 7The AFDC Study discloses that even among fathers whose whereabouts were known, lived in the same state as the mothers receiving AFDC, and were not institutionalized, two-thirds paid no monthly support whatever. AFDC Study, table 16. ®The whereabouts of 61.4% of all unmarried fathers of AFDC children are unknown and another 9.3% do not live in the same state as the mother. AFDC Study, table 4. While the number of fathers whose whereabouts were unknown would be somewhat reduced by the operation of Section 52-440b, it would remain very substantial; the number of married fathers whose where- abouts were unknown exceeded 50% for the sample period. /bid. °The Veterans’ Administration Act, 38 U.S.C. §101(4\C), provides that illegitimate children may recover benefits if they can show paternity by 1) a written acknowledgment of paternity, or 2) an adjudication of paternity, or 3) can “otherwise establish [paternity] to the satisfaction of the administrator.” If no paternity action has been brought, the child stil has an opportunity to prove paternity before the 24 Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972). In this way his financial interests are protected and the harmful and disruptive effects of a Section 52-440b proceeding may be avoided or at least deferred.'° administrator. A child whose mother has an acknowledgment does not need a §52-440b proceeding to get Veterans’ benefits. Sone benefit programs require a showing of “dependency” in order to recover benefits. See, eg, 33 US.C. §902(14) (Longshoremen’s and Harbor Workers’ Compensation Act); 46 U.S.C. §761 (Federal Death on the High Seas Act). Connecti- cut’s Workmen’s Compensation Act has such a provision, Conn. Gen. Stats. § §31-275, 31-306. Use of Section 52-440b does not determine eligibility for these programs. There can be depend- ency without an adjudication of paternity, Piccinim ». Connecticut Light and Power Company, 93 Conn. 423 (1919), and dependency is not established by the existence of an obligation to support; there must be actual support, /ngalls Shipbuilding Corp. v [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_1632%3A3. Public record. Not legal advice.