Opposition Brief — Kitchens v. Oregon ex rel. Adult & Family Services Division

{

No. 88-1677 i} JUL 3 1989

) | « DUPFEMe VOUIL, Vive

7 4 ~ FILED

F, SPANIOL, J§

CLERK

———

in the Supreme Court

of the United States

OCTOBER TERM, 1988

RONNIE O. KITCHENS, et al.,

Petitioners,

Vv.

STATE OF OREGON ex rel. ADULT

AND FAMILY SERVICES DIVISION,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF OREGON

BRIEF FOR RESPONDENT IN OPPOSITION

DAVE FROHNMAYER

Attorney General of Oregon

JAMES E. MOUNTAIN, JR.

Deputy Attorney General

*VIRGINIA L. LINDER

Solicitor General

TIMOTHY A. SYLWESTER

RIVES KISTLER

Assistant Attorneys Genera!

400 Justice Building

Salem, Oregon 97310

Phone: (503) 378-4402

Counsel for Respondent

*Counsel of Record

\-

QUESTIONS PRESENTED

1. Does the state court’s judgment rest on an independent

and adequate state procedural ground?

2. Is the state court’s judgment final within the meaning

of 28 U.S.C. section 1257(3) (1982)?

3. Does the Due Process Clause require a state to notify a

putative father when the mother applies for public assistance?

4. Does the Equal Protection Clause preclude a state from

distinguishing those parents whose legal obligation to provide

child support has been established from those parents whose

obligation has not been established?

TABLE OF CONTENTS

Page

I ID gc cee ace e aces ons absebacessascnecsane i

Brief for Respondent in Opposition ...................2.005- l

a RG Ae a a 1

og I a ae 1

I. The Procedural Posture of this Case .............. 1

er ee Ohaus 6 dae 8 ae a Oe 2

ensoms for Denying Certiorari ..... 0... ccc cece cc cececes 6

I. The Court of Appeals’ Decision Rests on an

Independent and Adequate State Procedural

SG er ean an ae 6

II. Even If the State Court’s Judgment Rests on

Federal Grounds, the Judgment Is Not Final ....... 9

III. The Putative Fathers’ Due Process Claims Are

et Cee Al eg wld eon W489 es 11

IE 6.) (nuke sade vssivcantea wus an 14

V. The Procedure Established by the Court of

Appeals’ Decision Does Not Deprive the Putative

GE ga 17

eee a a hy kG.d owes eee bn dh Kaae een 18

lll

TABLE OF AUTHORITIES

Page

Cases Cited

ASARCO Ine. v. Kadish, __. U.S. ___ , 109 S.Ct. 2037

SOE bs.deeede heheh cetacean 7

Butchko v. Butchko, 43 Or. App. 199, 602 P.2d 672

i: Seat treet aN Dae Matern Bie Faryad A Ramey aria 14

Construction Laborers v. Curry, 371 U.S. 542 (1963) ......... 10

Cooper v. Eugene Sch. Dist. No. 4J, 301 Or. 358, 723

P.2d 298 (1986), appeal dismissed, 480 U.S. 942

CED 3a eh eee ee ee eee ee eo 10

Cox Broadcasting v. Cohn, 420 U.S. 469 (1975) ............ 9,10

DeShaney v. Winnebago Social Services, ___ U.S. ____ ,

109 S.Ct. 998 (1989) ....... Tit satus rae yal eee tens 12

Employment Div., Department of Human Res. v. Smith,

485 U.S. 660, 108 S.Ct. 1444 (1988) ................ 9-10

Haxton and Haxton, 299 Or. 616, 705 P.2d 721 (1985) ........ 14

King v. Smith, 302 US. 300 (1966).. .. ccc ccc scnscnes 15

Lehr v. Robertson, 463 U.S. 248 (1983) ................ Pree) Fe

Lewis v. Martin, 397 U.S. 552 (1970) .........-.ccceceees 15,16

Lloyd Corp. v.. Whiffen, 307 Or. 674, __._ P.2d __

CORUS bck duds cpouw es vasbsen se eau eneed ese ee 8

Meier v. Hess 23 Or. 599, 32 P. 755 (1893) .................. 14

Michel v. Louisiana, 35C U.S. 91 (1955) ..................... 8

Miner v. Gillette Co., 459 U.S. 86 (1982) ................... 10

Miner v. Gillette Co., 87 Ill.2d 7, 428 N.E.2d 478 (1981) ....... 10

New Orleans v. Dukes, 427 U.S. 297 (1976) ................. 16

North Dakota Pharmacy Bd. v. Snyder’s Stores, 414

SE, BPM ROD oro kdod sd bee ees oacubasaeedseeebeetas 10

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ............ 10

Pope v. Atlantic Coast Line R. Co., 345 U.S. 379 (1953) ........ 9

ie ”

TABLE OF AUTHORITIES—Continued

Page

Cases Cited—Continued

Radio Station WOW v. Johnson, 326 U.S. 120 (1945) ......... 9

Rivera v. Minnich, 483 U.S. 574, 107 S.Ct. 3001 (1987) .... 12-13

Seeborg v. General Motors Corporation, 284 Or. 695, 588

ue RAO GOTO 6 oo kak eo encd soe coe 3

State ex 121. AFSD v. Kitchens, 93 Or. App. 685, 763

Fin SAD CRUD oc cca. Oracec neues eee 2,6-7

State ex rel. AFSD v. Lester, 45 Or. App. 389, 608 P.2d

Oe COND he coos vinkeacceekee eee ee 14

State ex rel. Hansen v. McKay, 31 Or. App. 631,571 P.2d

PPO LONT ED Na ceccesbedians iar ee ee ee 14

State Farm Ins. v. Pohl, 255 Or. 46, 464 P.2d 321 (1970) ....... 14

State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) ......... 10

Zablocki v. Redhail, 434 U.S. 374 (1978) .................... 16

Statutory Provisions

S08 USO. § ISG70S) (IGOR) vw nono ccna avas ccna cevccecsc cs 1,9

42 U.S.C. § GOB(a)(7) (19GB). on cc ceca cecccuccusccesy 15

Or. Rev. Stat. § 109.010 (1987) ........................... 14

Or. Rev. Stat. § 416.410(1) (1987) ..............0.2.----... 14

Administrative Regulations

SUR. § S3300 0H) 3... see ee ee 15

1

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent State of Oregon accepts, as adequate for

review, petitioners’ statement of the opinions below and their

statement of the constitutional and statutory provisions

involved.

JURISDICTION

Although petitioners filed a timely petition for certiorari,

this Court lacks jurisdiction for two reasons. First, the state

court’s judgment rests on an adequate and independent state

procedural ground. Second, the state court’s judgment is not

final within the meaning of 28 U.S.C. section 1257(3)

(1982). Both of these issues are discussed below as reasons for

denying the petition for certiorari.

STATEMENT OF THE CASE

This brief will first discuss the procedural posture in

which this litigation arises. It then will discuss the applicable

facts. .

I. The Procedural Posture of this Case.

This litigation arises out of three suits that were consoli-

dated in state court. The state initiated separate proceedings

against Ronnie Kitchens, John Moore, and Robert Dickinson

(the “putative fathers” or “‘petitioners”) to establish that each

was the father of an illegitimate child and responsible for that

child’s support. Each petitioner answered denying that he

was the father. Each petitioner also raised affirmative

defenses in which he alleged that the state failed to notify him

that it was providing support to the child and that the mother

had named him as the father of the child when she applied for

public assistance. Each petitioner claimed that this failure

violated the Oregon Constitution, the Due Process Clause,

and the Equal Protection Clause. Finally, each petitioner

alleged that, as a matter of state law, the state was estopped or

barred by laches from establishing his paternity at this point.

2

The putative fathers moved for summary iudgment on

their state and federal constitutional affirmative

defenses. The state opposed the motions on two

grounds. Based on affidavits it filed, the state argued that

summary judgment should be denied because there were dis-

puted issues of material fact. It also argued that it should

prevail as a matter of law. The trial court found that there

were no disputed issues of material fact, and that the putative

fathers were correct as a matter of state and federal constitu-

tional law.

The Oregon Court of Appeals reversed. State ex rel. AFSD

v. Kitchens, 93 Or. App. 685, 690, 763 P.2d 1196 (1988). It

held, as a matter of state procedural law, that there were

disputed issues of material fact that made summary judgment

improper. It reasoned that there was no need to reach the

putative fathers’ constitutional defenses until the trial court

resolved whether they were the biclogical fathers—a factual

question that remained in dispute. Jd., 93 Or. App. at

690-91. If on remand the trial court found they were, then it

would need to decide those defenses. /d. at 691.

The court of appeals’ decision does not reach the putative

fathers’ state or federal constitutional claims. Nor does its

opinion bar the trial court from considering those claims on

remand. Its opinion merely establishes the sequence in which

the trial court should consider the non-constitutional and

constitutional issues presented in this litigation. The Oregon

Supreme Court denied review,'! 307 Or. 340, 760 P.2d 400

(1989) and the putative fathers have petitioned for certiorari.

II. Facts.

Because this litigation arises on the putative fathers’

motions for summary judgment, the following facts are set out

' Oregon Supreme Court review, like the Court’s review by writ of cer-

tiorari, is discretionary.

3

in the light most favorable to the state. See Seeborg v. General

Motors Corporation, 284 Or. 695, 699, 588 P.2d 1110 (1978)

(under Oregon procedure, “[t]he record on summary judgment

is viewed in the light most favorable to the party opposing the

motion”). Although the facts in each of the three consolidated

cases are parallel, it is appropriate to discuss briefly the facts

concerning each putative father.

A. Ronnie Kitchens.

Ronnie Kitchens was having sexual relations with Rhonda

Marsh. (Resp. to Summary Judgment, Ex. 2, Depo. of Ronnie

Kitchens at 11-12). In December 1981, Ms. Marsh told Mr.

Kitchens that she was pregnant with his child. (Resp. to

Summary Judgment, Ex. 3, Aff. of Rhonda Marsh

Kastel). Ms. Marsh asked Mr. Kitchens to marry her, but he

refused and told her to have an abortion. (Jd.). She refused to

do so. (/d.). In April 1982, Mr. Kitchens ended his rela-

tionship with Ms. Marsh. (J/d.). He told her to go on welfare if

she needed money. (Jd.).

Two weeks after the baby’s birth in September 1982, Mr.

Kitchens visited Ms. Marsh and the infant. (/Jd.). He has

never shown any other interest in the child, nor has he paid

any support for the child. (Jd.). Ms. Marsh testified in her

affidavit:

I have stayed in the same place thinking he might

change his mind and come back. He has always known

where to find us. Even when the baby was sick and his

family told him the baby nearly died, he never came to

see us. He also has bragged to me that about how no

one will ever make him pay [child support].

(Id.)

After Mr. Kitchens refused to visit the child or pay sup-

port, Ms. Marsh applied to the Oregon Adult and Family

Services Division for Aid to Families with Dependent Chil-

dren (“AFDC”). As part of her application, she named Mr.

4

Kitchens as the father of her child. Ms. Marsh also assigned

her right to child support to the state. The state welfare

agency did not notify Mr. Kitchens that Ms. Marsh named

him as the father. The state initiated proceedings in 1986 to

have Mr. Kitchens declared to be the father of the child and to

recover past and future child support from him pursuant to

the assignment.

B. John Moore.

Mr. Moore had a “casual” relationship with Barbara Sim-

ington. (Motion for Summary Judgment, Ex. D, Aff. of John

Moore). When Ms. Simington found out that she was preg-

nant, she told Mr. Moore that he was the father. (Resp. to

Summary Judgment, Ex. 3, Aff. of Barbara Simington). Mr.

Moore said that he did not want another child and told her to

get an abortion. (/d.). Ms. Simington refused. (Jd.).

Mr. Moore came to the hospital after the child was born on

July 31, 1974. (/d.). He visited the child sporadically and

attended her first birthday party. (Jd.). He knew at the time

that Ms. Simington was receiving public assistance to support

the child. (/Jd.). Since the child’s first birthday party, Mr.

Moore has “had no relationship, contact or communication

directly with the child.” (Motion for Summary Judgment, Ex.

D, Aff. of John Moore). He has not contributed to the child’s

support. (/d.).

Ms. Simington applied for AFDC payments on July 9,

1974. She did not name Mr. Moore as the father because of

his concern that he would be accused of statutory rape. (Resp.

to Summary Judgment, Ex. 3, Aff. of Barbara Sim-

ington). Ms. Simington, however, later disclosed Mr. Moore’s

name. (/d.). As part of her AFDC application, Ms. Simington

assigned her right to child support to the state welfare

agency. The agency did not notify Mr. Moore that he had

been named as the father. The state initiated proceedings in

1985 to have Mr. Moore declared to be the father cf the child

5

and to recover past and future child support from him pur-

suant to the assignment.

C. Robert Dickinson.

Robert Dickinson “saw [Bonnie Cowden] socially during

New Years Eve of 1980-1981.” (Motion for Summary Judg-

ment, Ex. B, Aff. of Robert Dickinson). He “saw” Ms. Cow-

den once or twice during the following

week. (Jd.). Approximately three weeks later Ms. Cowden

told Mr. Dickinson that she suspected she was pregnant and

that she was going for e pregnancy test the next day. (Resp. to

Summary Judgment, Ex. 2, Aff. of Bonnie Cowden). Mr.

Dickinson called her shortly thereafter and learned that she in

fact was pregnant. (Jd.). He told her to have an abortion, but

she refused. (Jd.).

After Ms. Cowden became pregnant, Mr. Dickinson broke

off their relationship. (Jd.). They still saw each other occa-

sionally during her pregnancy, however. (/d.). A week after

the child was born on October 13, 1981, Ms. Cowden called

Mr. Dickinson to tell him about the new baby. (/d.). She

testified:

[My phone call] awakened him and he said he had

no comment about his daughter. He said he would call

me back but he never did. He never offered to pay

child support. He never took the opportunity to be

involved with Nancy [the child] in any way. In Janu-

ary or February of 1982, I sent him pictures of

Nancy. He never responded to those either.

(Id.).

Ms. Cowden applied for AFDC payments. As part of the

application, she named Mr. Dickinson as the father of her

child and assigned her statutory child support rights to the

state welfare agency. The agency did not notify Mr. Dickin-

son that he had been named as the child’s father. The state

initiated proceedings in 1985 to have Mr. Dickinson declared

the child’s father and to recover back and future child support

6

from him pursuant to the assignment.

REASONS FOR DENYING CERTIORARI

The putative fathers argue that the state’s failure to notify

each of them that they had been named as the father of an

illegitimate child when the mother applied for public

assistance violates the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. Their primary claim

is that the lack of notice prevented them from bonding with

the children. The claim is somewhat hollow—if not frivo-

lous—where, as here, each putative father knew that the child

had been born, each knew that the mother considered him to

be the father, and each repeatedly rejected the mother’s

attempts to have him support and nurture the child.

Not only are petitioners’ federal claims insubstantial, but

the Court also lacks jurisdiction to consider them. This brief

first will address the two jurisdictional bars to hearing this

case. It then will explain why this case does not present an

issue that warrants granting certiorari.

I. The Court of Appeals’ Decision Rests on an Indepen-

dent and Adequate State Procedural Ground.

The state trial court granted summary judgment in favor

of the putative fathers finding that “the lack of notice has

deprived (the putative fathers) of [their] guarantees to due

process and equal protection under the 14th Amendment to

the United States Constitution and under the Oregon Con-

stitution.” (Order Granting Summary Judgment, App. B at

4). Unlike the trial court, the court of appeals did not reach

the putative fathers’ state or federal constitutional

claims. Rather, it reversed solely on state procedural grounds.

The court of appeals began its analysis by noting that, as a

matter of state law, “[s]ummary judgment may be granted

where there is no genuine issue of material fact. . . .” State

ex rel. AFSD v. Kitchens, supra, 93 Or. App. at 690. It held

that “the issue of paternity [which each petitioner disputed] is

7

material in each case” and it reversed to allow the trial court to

decide whether petitioners were in fact the biological

fathers. Jd. The court of appeals thus rested its holding solely

on a question of state procedural law—whether a disputed

issue of material fact made summary judgment

improper. Although the putative fathers do not address how

the court of appeals’ decision could be said to raise a federal

issue, their petition suggests two possibilities.

First, the putative fathers argue that the court of appeals

held that they lacked standing to pursue their federal

claims. (See Petition 12-13). The short answer to this argu-

ment is that the question whether a person has standing in

state court is solely a state-law issue.2 See ASARCO Inc. v.

Kadish, ___U.S. __, 109 S.Ct. 2037, 2045 (1989) (state-court

standing requirements are separate from federal standing

questions). Moreover, the putative fathers’ characterization

of the court of appeals’ reasoning is inaccurate. The court of

appeals’ opinion does not hold that petitioners lack standing

to raise federal issues.* It merely establishes the sequence in

which the trial court should resolve their non-constitutional

and constitutional claims. It recognizes that if, as the

2 If a state standing doctrine precluded a litigant from raising federal

constitutional claims altogether, it would be subject to a due process attack

or perhaps an argument that the state court procedural rule was inconsistent

with the Court’s role under the Supremacy Clause. As explained below,

however, the Oregon Court of Appeals’ opinion does not address questions of

standing to raise federal issues nor does it preclude the putative fathers from

having their federal claims considered in a meaningful fashicn in state court.

3 Petitioners assert that “the court, using a standing analysis, held that

‘{putative fathers] may not invoke claims of other persons who might be

fathers.’” (Petition 12 quoting State ex rel. AFSD v. Kitchens, supra, 93

Or. App. at 691 (brackets in petition)). The portion of the opinion peti-

tioners quote addresses petitioners’ argument that the state was estopped to

institute filiation proceedings because it had waited an undue amount of

time. See State ex rel. AFSD v. Kitchens, supra, 93 Or. App. at

691. Although not completely clear, the court of appeals’ use of jus tertii

appears to be focused on a state question of estoppel.

8

putative fathers assert, they are not the biological fathers,

then there is no need to reach the state and federal constitu-

tional issues they raise. Directing the trial court to consider

the issues in this sequence is consistent with well-established

state practice. See Lloyd Corp. v. Whiffen, 307 Or. 674, _—

P.2d _____ (1989) (reiterating that Oregon courts should decide

issues in a way that avoids, if at all possible, constitutional

questions).

Second, the putative fathers argue that the court of

appeals’ opinion prevents them from having their constitu-

tional claims considered in a meaningful way.* (Petition

19-20). They contend that because their constitutional claims

go to the question of whether paternity should be established,”

delaying consideration of those claims until after paternity is

established renders’ their rights mean-

ingless. (Id.). Petitioners’ concerns are misplaced. The court

of appeals’ opinion only requires the trial court to decide first

if petitioners are in fact the biological fathers. If they are,

then the trial court is free to consider each father’s constitu-

tional claims in deciding whether it would be in the child’s

best interests to establish paternity.

* Although the putative fathers do not identify the federal issue raised by

this interpretation of the Oregon Court of Appeals’ opinion, the question

would be whether the procedural ground on which the state court judgment

rests is itself a denial of due process. See Michel v. Louisiana, 350 U.S. 91

(1955) (state procedural requirement that objections to grand jury be raised

within three days is consistent with due process).

° Although the putative fathers’ argument is not completely clear, it

appears to run as follows: The state, they contend, unconstitutionally

deprived them of the opportunity to bond with their children by failing to

notify them that the mothers named them as the fathers when they applied

for public assistance. Because the children have gone so long without bond-

ing, declaring the putative fathers to be the children’s fathers at this point

would disrupt the children’s lives unduly. Accordingly, tie putative fathers

conclude, they have a constitutional right not to be named as the children’s

fathers.

Poca 2 aN Un ————

9

Petitioners may disagree with the order in which the state

court of appeals directed that their claims be decided. But

requiring that the state trial court decide the underlying mer-

its of the case before reaching petitioners’ affirmative defenses

does not present any federal constitutional issue. It presents

only a question of state procedural law. This Court accord-

ingly lacks jurisdiction.

II. Even If the State Court’s Judgment Rests on

Federal Grounds, the Judgment Is Not Final.

The Oregon Court of Appeals reversed the trial court’s

grant of summary judgment and remanded for trial. As a gen-

eral rule, a state court judgment that contemplates further

proceedings, as this judgment does, is not final for the pur-

poses of 28 U.S.C. section 1257(3) (1982). See Cox Broadcast-

ing v. Cohn, 420 U.S. 469, 479-85 (1975). Nor does this case

fall within any of the four exceptions to the rule which the

Court identified in Cox Broadcasting.

First, this is not a case in which the outcome of further

state proceedings is preordained. See id. at 479; Pope v. Atlan-

tic Coast Line R. Co., 345 U.S. 379, 382 (1953). Petitioners

have asserted that they are not the biological fathers, and the

state court of appeals found that this was a disputed issue of

material fact that required a trial on the merits.

Second, this is not a case in which the federal issue will

remain regardless of the outcome of the trial on remand. Cox

Broadcasting v. Cohn, supra, 420 U.S. at 480; Radio Station

WOW v. Johnson, 326 U.S. 120, 124-27 (1945) (subsequent

accounting could not affect federal issue). If the state fails to

prove that petitioners are the biological fathers, then there

will be no need to reach the federal constitutional issues peti-

tioners raise. Moreover, as this Court has recognized, the

Oregon courts typically decide state constitttional issues

before reaching federal constitutional questions. See Employ-

ment Div., Department of Human Res. v. Smith, 485 U.S. 660,

10

108 S.Ct. 1444, 1447 & n 9 (1988). If, on remand, petitioners

prevail under the state constitution, then the state courts will

not reach the federal constitutional issues. See Cooper uv.

Eugene Sch. Dist. No. 4J, 301 Or. 358, 369 n 12, 723 P.2d 298

(1986), appeal dismissed, 480 U.S. 942 (1987); State v. Ken-

nedy, 295 Or. 260, 262, 666 P.2d 1316 (1983).

Third, this is not a case in which the federal issue will

necessarily be mooted on remand. Cox Broadcasting v. Cohn,

supra 420 U.S. at 481; North Dakota Pharmacy Bd. v. Snyder’s

Stores, 414 U.S. 156, 159-64 (1973). If the state proves that

the putative fathers are the biological fathers and if the

putative fathers have no valid state constitutional claim, then

the trial court will have to reach the federal constitutional

claims.

Finally, this is not a case in which the failure to grant

review immediately would seriously erode federal policy. See

Cox Broadcasting v. Cohn, supra, 420 U.S. at 482-83; Construc-

tion Laborers v. Curry, 371 U.S. 542, 550 (1963). Petitioners’

claims do not implicate questions of national labor policy, as

the pre-emption issue in Curry did. Rather, the due process

issues of timely notice raised here are much closer to the due

process claims raised in Miner v. Gillette Co., 459 U.S. 86

(1982), which the Court dismissed for lack of jurisdiction

because there was no final judgment.® Moreover, because, as

explained below, the particular federal questions petitioners

raise are not substantial, declining to grant certiorari now will

not seriously erode federal policy.

®6In Miner, the defendant petitioned for certiorari from an Illinois

Supreme Court decision which held that a state court did not have to have

personal jurisdiction over all plaintiffs to certify a non-resident plaintiff

class. Miner v. Gillette Co., 87 Ill.2d 7, 428 N.E.2d 478 (1981). The decision

was not final because the state supreme court had remanded to allow the trial

court to decide whether such a class would be manageable. See 428 N.E.2d at

484.

The Court later decided the question when it was properly presented in

Phillips Petroleum v. Shutts, 472 U.S. 797 (1985).

ds tence

0s Ore em raboweth tit

11

III. The Putative Fathers’ Due Process Claims Are

Insubstantial.

The putative fathers’ constitutional analysis identifies

why, in their view, the state’s action impinges on a protected

liberty interest and a protected property interest. (See Peti-

tion 33-41). The state will respond to their arguments in turn.

A. Protected Liberty Interests.

The putative fathers rely on Lehr v. Robertson, 463 U.S.

248 (1983), to argue that they have a constitutionally pro-

tected “‘opportunity interest” to bond with the chil-

dren. (Petition 33-35). Lehr does not support petitioners’

claims. In Lehr, the state terminated the father’s interest by

allowing the child to be adopted. In this case, the state is not

terminating petitioners’ interests. It is seeking to prove that

petitioners are in fact the children’s biological fathers. The

state thus would appear to be advancing petitioners’ “oppor-

tunity interests,” not frustrating them.’ —

The putative fathers argue, however, that the problem is

that the state has not done enough. They claim that because

the state failed to notify them that the mothers had identified

them as the fathers, petitioners lost their only meaningful

opportunity to form bonds with the children. (See Petition

16-17). They argue:

Through these delays, and the withholding of Title

IV-A notice, states may suppress information from

putative fathers in such manner that they are not

7 Lehr does not support petitioners for a second reason. The Court

recognized in Lehr that unwed fathers who have developed a relationship

with the child have a strong liberty interest, while persons who are merely -

biological fathers have only a minimal liberty interest in the opportunity to

form a relationship with their child. 463 U.S. at 260-64. Lehr does not

suggest, however, that persons who are not the biological father enjoy any

constitutionally protected interest. It is, thus, difficult to see how peti-

tioners can deny that they are the biological fathers and at the same time

claim a constitutionally protected liberty interest.

12

encouraged to seek timely legal advice. This means

that they may, as has happened to these putative

fathers, lose the opportunity to assume their respon-

sibilities as parents in a timely fashion.

(Petition 16). The short answer to this argument is that the

Due Process Clause does not require the state to take steps to

increase a father’s opportunity to bond with his children. See

DeShaney v. Winnebago Social Services, US. , 109

S.Ct. 998, 1003 (1989). It only protects the termination or

deprivation of that opportunity. See id; Lehr v. Robertson,

supra.

In any event, even if the Due Process Clause imposes such

an obligation on the state, the absence of any official notice

was harmless on the facts of this case. Each of these putative

fathers knew that the mother had given birth to a child, each

knew that the mother claimed that the child was his, and each

failed to support or nurture the child. Indeed, Mr. Kitchens

did not come to see his son even though Mr. Kitchens’ family

told him that the boy was so sick he nearly died. If these

putative fathers have lost the opportunity to “assume their

responsibilities as parents in a timely fashion,” as they assert

in their petition, they can hardly lay the blame at the state’s

door.®

Finally, even if the state improperly failed to notify these

putative fathers in time to allow them to bond with their

children, that does not preclude the state from now seeking to

establish the children’s paternity. As the Court recognized in

Rivera v. Minnich, 483 U.S. 574, 107 S.Ct. 3001, 3005 (1987),

“the primary interest of the defendant [in a filiation proceed-

ing] is in avoiding the serious economic consequences that

8 The putative fathers’ argument to the contrary rests on the factual

assumption that they did not know about the children. (See, e.g., Petition

48). Because, however, this case arises on the putative fathers’ motions for

summary judgment, the facts must be taken in the light most favorable to the

state. The facts have been set out in that light above.

13

flow from a court order that establishes paternity and its

correlative obligation to provide support for the child.” The

fact that the putative father has not previously had an oppor-

tunity to bond with his child does not preclude the state from

asking the father to assume his share of the financial responsi-

bility.?

B. Protected Property Interests.

Petitioners argue:

Putative fathers have a constitutional due process

property right to Title IV-A notice [notice when the

mother applies for AFDC payments], because of their

entitlement to rectify the needs of the children by com-

ing forward and raising the children, or to mitigate

“the serious economic consequences” by beginning to

pay some support for the children.

(Petition 41). The short answer to this argument is that any

time these putative fathers wanted to rectify the needs of their

children or mitigate the serious economic consequences by

beginning to pay child support, they could have done so. Each

putative father knew that the mother considered him to be the

father. Nothing prevented these putative fathers from “‘com-

ing forward” and paying child support. On these facts, the

absence of official notice that each of these petitioners had

been identified as the father when the mother applied for

AFDC payments is immaterial to the loss petitioners allegedly

sustained.

The petition also suggests that the failure to notify peti-

tioners implicated a protected property interest because child

° If, as the putative fathers suggest, they are concerned about disrupting

the children’s existing relationships, see note 5 supra, their concern is

misplaced. The existence of an order establishing paternity simply imposes a

financial obligation on a parent. It does not require that parent to form a

relationship with the child or to take actions that would disrupt the child’s

world in any way. A father who is concerned that his presence would be

detrimental to the child’s best interests, as these putative fathers claim to be,

can simply send in his money and not disturb his child’s life.

14

support was accruing without the petitioners’ knowledge. The

difficulty with this suggestion is that Oregon law imposes a

duty of support on all parents. Or. Rev. Stat. § 109.010 (1987);

Haxton and Haxton, 299 Or. 616, 705 P.2d 721 (1985). Under

state law, the duty to pay child support and the resulting

financial obligation began accruing the moment the child was

born. Jd. The mother’s application for public assistance and

her assignment of the right to recover child support to the

state did not change the nature of the underlying obliga-

tion. State ex rel. AFSD v. Lester, 45 Or. App. 389, 392, 608

P.2d 588 (1980); Butchko v. Butchko, 43 Or. App. 199, 203, 602

P.2d 672 (1979).!° It merely changed the payee. The identity

of the payee is not a protected property interest for which the

Due Process Clause requires notice.!!

IV. Equal Protection.

The putative fathers argue that the state notifies married

fathers but not unmarried fathers when a mother applies for

AFDC payments. (Petition 43). They assert that this distinc-

10 When, as in this case, the state has provided AFDC payments, the

state could either assert the mother’s right to child support pursuant to the

assignment or seek to recover a “state debt” for the amount paid, Or. Rev.

Stat. § 416.410(1) (1987). The former claim allows the state to recover only

what the father owes for child support, which may well be less than the

AFDC payments made. The latter claim allows the state to recover all the

payments it made for the benefit of the child. In this case, the state is only

seeking to enforce the mothers’ child support rights that had been assigned

to the state. It is not seeking to recover a state debt pursuant to Or. Rev.

Stat. § 416.410(1) (1987).

'! As a matter of state law, an assignee may protect his or her interests

by notifying the debtor of the assignment. See State Farm Ins. v. Pohl, 255

Or. 46, 50, 464 P.2d 321 (1970). Absent notice, any payment the debtor

makes to the assignor is credited against the amount now owed the

assignee. Meier v. Hess 23 Or. 599, 603, 32 P. 755 (1893); State ex rel.

Hansen v. McKay, 31 Or. App. 631, 636, 571 P.2d 166 (1977). While the

assignee thus may have an incentive to notify the debtor of the assignment,

the failure to do so does not invade any constitutionally protected property

interest the debtor enjoys.

ek

15

tion violates the Equal Protection Clause. This argument

lacks merit for three reasons. First, the state does not dis-

tinguish between married and unmarried fathers. Second, the

“notice” given certain fathers is solely to determine eligibility

for AFDC payments. Finally, the distinction the state draws

is rationally based on federal statutes, federal regulations, and

this Court’s decisions.

Before turning to the putative fathers’ arguments, it is

helpful to explain the background against which the state

acts. The AFDC program provides assistance to needy chil-

dren. In determining the needs of a child who applies for

AFDC payments, the statutes direct cooperating states to

consider “any other income and resources [of the child].” 42

U.S.C. § 602(a)(7) (1982). The parent’s income is one source

of funds that must be taken into consideration. 45 C.F.R.

§ 233.90 (1988). The question, however, of who is a parent for

the purposes of determining AFDC eligibility has proved

complex.

The Court has recognized that the term “parent,” as used

in the AFDC statutes and regulations, includes ‘‘only those

persons with a Jegal duty of support.” King v. Smith, 392 U.S.

309, 327 (1968). In Lewis v. Martin, 397 U.S. 552, 559 (1970),

however, the Court explained that the “legal duty of support”

identified in King was a necessary but not sufficient condition

for qualification as a “parent.” The Court upheld the Depart-

ment of Health, Education and Welfare’s determination that

even though some persons might have a legal obligation to

support a child, the fulfillment of that obligation was “‘suffi-

ciently uncertain in the absence of the marriage tie” to require

that that person’s incoine automatically be considered in

determining the child’s eligibility for AFDC payments. Jd. In

effect, the Court held that in deciding an applicant’s eligibility

16

for AFDC, a state was only required to consider the income

from married parents and those unmarried parents whose

legal support obligations were sufficiently certain.

The evidence brought out in opposition te the summary

judgment motion is consistent with this Court’s cases and

Department of Health and Human Services’ regulations. The

evidence demonstrated that when an applicant applies for

AFDC payments, the state agency requests all married par-

ents and some unmarried parents to report how much money

they contribute monthly to the household’s income. (Resp. to

Summary Judgment, Ex. 4, Aff. of Kathie Blair). The

agency’s practice recognizes that although all married fathers

have a clearly established legal obligation to support their

children, the obligation of only some unmarried fathers (such

as those whose paternity has been acknowledged or estab-

lished) may be sufficiently certain to require consideration of

their income in determining the child’s eligibility for AFDC

payments.

In light of this background, tne putative fathers’ equal

protection claims are meritless. The state does not dis-

tinguish on the basis of marital status. It distinguishes on the

basis of the certainty of the father’s fulfilling his legal obliga-

tion of support. As the Court recognized in Lewis, this class

will include all married parents and a small percentage of

unmarried ones. Because the state does not classify on the

basis of even an arguably suspect classification, compare

Zablocki v. Redhail, 434 U.S. 374, 386-87 (1978) (law that

significantly interferes with right to marry subject to

“rigorous scrutiny”), the only question is whether the distin-

tion is a rational one. New Orleans v. Dukes, 427 U.S. 297

(1976) (per curiam). It is difficult to see how a distinction that

complies with federal regulations that have been upheld by the

Court lacks a rational basis.

17

Finally, even if there were some question of an equal pro-

tection violation, the putative fathers in this case have not

been injured by any lack of notice. The notice the agency

sends out would have told them only that the mother had

applied for AFDC payments on behalf of a named child and

that the “case record indicates that you may have an interest

in the listed person(s).” (Resp. to Summary Judgment, Ex. 4,

Attachment to Aff. of Kathie Blair). This “notice” would not

have told these putative fathers any relevant information they

did not already know.

V. The Procedure Established by the Court of Appeals’

Decision Does Not Deprive the Putative Fathers of

Due Process.

The final argument the putative fathers make is that

under the court of appeals’ decision

loss of [their] constitutional rights may not be asserted

by putative fathers as available, meritorious defenses

when the courts determine the factual issue of pater-

nity in simplified, state-initiated Title IV-D filiation

proceedings. —

(Petition 55). As explained above, the putative fathers mis-

read the court of appeals’ opinion. The opinion merely

requires that the trial court first decide whether petitioners

are the children’s biological fathers before considering peti-

tioners’ affirmative defenses. The court of appeals’ opinion

does not preclude the trial court from subsequently consider-

ing petitioners’ constitutional claims in deciding whether to

enter an order establishing the paternity of the children.

18

CONCLUSION “

For the reasons set out above, the petition for certiorari

should be denied.

Respectfully submitted,

DAVE FROHNMAYER

Attorney General of Oregon

JAMES E. MOUNTAIN, JR.

Deputy Attorney General

VIRGINIA L. LINDER

Solicitor General

TIMOTHY A. SYLWESTER

RIVES KISTLER

Assistant Attorneys General

Counsel for Respondent