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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 809

## Text

{

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1201%3A2. Public record. Not legal advice.