406 A.2d 873 | Conn. Super. Ct. | 1979
Theresa M. Ferro instituted a paternity action against Thomas Morgan alleging that he was the father of the child born to her on October 28, 1974. In her petition she alleged that she "is now or has been a recipient of public assistance." The defendant first appeared pro se below and denied paternity. Thereafter, counsel appeared for the defendant and filed a "Motion to Waive Costs of Blood Grouping Tests" to which was attached an affidavit attesting to the defendant's indigency. The court below found Morgan indigent *680 and ordered that the "cost of said test be paid by the State of Connecticut." That court denied a motion to reconsider or vacate its order, although it did clarify the order by specifically ordering the department of welfare1 to pay the blood test expenses.
The state has appealed, alleging error in the trial court's granting of the defendant's motion to waive the costs of the blood grouping tests and in its ordering the welfare department to pay the costs of the blood grouping tests.
The state claims that the court has no authority to order the state of Connecticut, and specifically the department of social services, to pay the cost of blood grouping tests upon the motion of a defendant in a paternity action where the statute, General Statutes
The intention of the legislature is found not in what it meant to say but in the meaning of what it did say. Colli v. Real Estate Commission,
Where proceedings to establish paternity are instituted and recipients of public assistance are involved the "petition shall also be served upon the attorney general who shall be and remain a party . . . ." General Statutes
What we have said to this point is dispositive of this appeal. There are, however; other claims made by the defendant which we will discuss. The defendant claims that both due process and equal protection required that the court below grant his motion. We do not agree.
We turn first to the defendant's due process claim which invokes both the United States and the Connecticut constitutions. "The due process clauses of the federal and state constitutions have the same *683
meaning and impose similar limitations." State v. Kyles,
"[T]he requirements of due process are not fixed but depend on the nature of the case under consideration and the relative interests, both governmental *684
and private, involved." Robertson v. Apuzzo,
Some claim seems to be made that the defendant's "liberty," within the meaning of that term under the due process clause, is involved in the trial of this action. The thread suggested here is that if the paternity issue is found against the defendant, he might be imprisoned at some later date because of his failure to pay certain money aspects of the judgment, and so refusing to have the blood test expense paid as ordered denies him the "liberty" guaranteed by the due process clause of the fourteenth amendment. This argument is wide of the mark. First, a paternity action itself does not result in imprisonment, but in an order finding paternity and liability for certain money obligations flowing from the finding of paternity. General Statutes
The defendant makes much of the claim that due process requires that the expenses of the blood grouping tests be paid because, as he says in his brief, an indigent defendant is "denied a meaningful hearing when he is denied access to the one defense which can prove scientifically and conclusively that *685
he is not the father of the child." This claim, that a refusal to pay this expense amounts to a denial of his access "to what may be an absolutely crucial piece of evidence," merits some comment on just how crucial blood grouping tests are in this context. Reliable estimates vary concerning the conclusiveness of such tests. One textwriter points out that the chances of the test being inclusive are about the same as for exclusive — 49 percent versus 50 percent. McCormick, Evidence (2d Ed.) 211, pp. 518, 519. One court points out that it has been estimated that the use of tests based on blood type classification gives a man falsely accused a 50 to 55 percent chance of proving his nonpaternity. State v. Fowler,
In addition, the defendant claims that the lower court's order of payment for the blood grouping tests is required to be sustained on equal protection grounds. We do not agree.
The threshold question on the equal protection claim is the standard to be used for review of that claim. Is it the strict scrutiny test or the rational basis test? This indigent defendant's "right" in this civil action, to have the expense of the blood grouping tests paid for, is not considered a fundamental right as that has been regarded by the United States Supreme Court. See Robertson v. Apuzzo,
Although the factual pattern of the claimed right in the case at bar is different, we believe that the reasoning of Robertson applies on the equal protection claim. The standard for reviewing the equal protection claim is not the strict scrutiny test which requires justification by a compelling state interest, but rather is whether the classification (in which this defendant finds himself) is founded on a rational basis. See Laden v. Warden,
What we have said above disposes of this appeal although we do also note that there is a grave question whether there is statutory or budgetary authority on the part of the department of social services legally to disburse the moneys ordered for these tests.
There is error, the order to the department of welfare, now the department of social services, to pay the expenses of the blood grouping tests is vacated, and the case is remanded for further proceedings consistent with this opinion.
In this opinion PARSKEY and A. ARMENTANO, Js., concurred.