No. 29774 – State ex rel. West Virginia Department of Health and Human Resources,
Bureau for Child Support Enforcement, and Jennifer Dawn Shepard v.
May 15, 2002
May 17, 2002
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Albright, Justice, concurring, in part, and dissenting, in part:
While I concur with the majority’s decision that a Huffman-type hearing1 must
be held, I part ways with the majority’s determination that no discrimination results by applying
this Court’s holding in Kathy L.B. v. Patrick J.B., 179 W.Va. 655, 371 S.E.2d 583 (1988), that
the mother may recover the birth expenses from the child’s natural father in a paternity action,
to require a biological father to be responsible for the entirety of the birth expenses where the
mother was granted birth and medical benefits from the DHHR. See id. at syl. pt. 1. I also
take issue with the majority’s holding insofar as the determination of a biological father’s
ability to pay is tied to “the date the mother was granted birth and medical benefits.” Syl. Pt.
3, in part, State ex rel. W.Va. DHHR v. Carpenter, No. 29774, ___ W.Va. ___, ___ S.E.2d
___ (filed April 26, 2002). Additionally, I think that the “ability to pay” determination should
be resolved in a judicial forum, rather than through an administrative proceeding.
See Syl. Pt. 2, in part, State ex rel. Dep’t of Human Servs. v. Huffman, 175
W.Va. 401, 332 S.E.2d 866 (1985) (holding that DHHR’s right to reimbursement for AFDC
benefits “is dependent upon the ability of the responsible relative to pay, and the determination
of ability to pay must be made through an administrative hearing or court proceeding”).
The majority quickly dismissed Mr. Carpenter’s argument that requiring the
biological father of a child born out of wedlock to be exclusively responsible for the mother’s
birth-related expenses does not comport with this state’s statutory scheme of basing the
medical care component of child support “upon the respective ability of the parents to pay.”
W.Va. Code § 48-12-102 (2001). While the majority may be “technically” correct that the
provisions of West Virginia Code § 48-12-102 are inapplicable to a proceeding initiated by
the DHHR to recover birth expenses2 because that statute pertains to securing health insurance
coverage in connection with fixing a child support obligation, they clearly do the law, and Mr.
Carpenter, a disservice by not exploring the rationale which underlies that statutory provision.
The concept of assessing the support obligation and fixing support payments
based on the ability of the parties to contribute is clearly an integral aspect of our spousal and
child support system. See W.Va. Code §§ 48-6-301; 48-12-102, 48-13-103 (2001). Thus,
the majority’s failure to give serious consideration to the issue of whether liability for birth
expenses, like other types of support, should be analyzed under an ability to pay format is
shortsighted. Since this Court created a mother’s right to seek recovery of birth expenses
from the child’s natural father by looking to the legislatively drawn bases of support that are
See W.Va. Code § 9-5-11(a) (1995) (Repl. Vol. 1998).
invoked upon proof of paternity, it stands to reason that the legislative framework for
establishing medical support for children might be of assistance in resolving whether a
biological father should be fully responsible for those birth-related expenses, or, consonant
with other support obligations, only be required to contribute to the expenses based upon his
ability to pay. See Kathy L.B., 179 W.Va. at 659, 371 S.E.2d at 587. Because equitable
theories of cost-sharing permeate the child support system set forth in chapter 48 of our state
code, logic suggests that the issue of liability for birth costs should be approached in a fashion
that is harmonious with other support obligations, rather than to assume the father bears full
responsibility solely because federal law prevents recovery of those expenses from the
The notion of determining responsibility for birth-related expenses based upon
the ability to pay has been codified by the Minnesota legislature in its Parentage Act, which is
based upon the Uniform Parentage Act:4
The judgment or order may direct the appropriate party to pay all
or a proportion of the reasonable expenses of the mother’s
pregnancy and confinement, including the mother’s lost wages
due to medical necessity, after consideration of the relevant
facts, including the relative financial means of the parents; the
See 42 U.S.C. §§ 1396a[a] (1994); 1396p[b] (1994).
See Uniform Parenting Act §15, 9B U.L.A. (1973). Note, however, that the
drafters of the 2000 Uniform Parenting Act omitted the language from former section 15, now
section 636 of the Act, pertaining to a father’s payment of confinement and pregnancy costs,
stating that “[t]his Act leaves such matters to other state law.” Uniform Parenting Act § 636,
9B U.L.A. 351 (2001).
earning ability of each parent; and any health insurance policies
held by either parent, or by a spouse or parent of the parent, which
would provide benefits for the expenses incurred by the mother
during her pregnancy and confinement. . . . Remedies available for
the collection and enforcement of child support apply to
confinement costs and are considered additional child support.
Minn. Stat. Ann. § 257.66 (West 2001); see also State ex rel. Kandiyohi County v. Swanson,
381 N.W.2d 84, 86 (Minn. App. 1986) (applying subdivision 3 of Minnesota Statute § 257.66
to require remand for determining whether mother would owe father one-half of birth expenses
upon his payment of full amount of expenses).
While the DHHR asserts that Mr. Carpenter is necessarily the only party that can
be held liable5 for the birth-related expenses at issue here given the interplay with federal
welfare laws, which preclude seeking reimbursement from the mother,6 it is important to
realize that no statutory provision or prior decision of this Court spoke to the issue of what
amount of the birthing and medical expenses the biological father could be required to pay.
Nothing in Kathy L.B., or in subsequent code enactments, suggests that the father is
responsible for the entirety of these expenses. Until now, a circuit court had the discretion
to determine what amount, if any, of these birth-related expenses an unwed father could be
See Walker v. Walker, 2001 WL 965519 *3 (Mich. App. 2001) (discussing
distinction between statutory liability and financial liability and concluding that “[a]
determination that one person is liable for a debt does not necessarily exclude all others”).
See supra note 3.
expected to pay.7 By completely eviscerating the lower court’s discretion to consider the
financial circumstances of the father at the obligation-setting phase of the determination, I am
convinced that the majority has gone too far.8 See Walker v. Walker, 2001 WL 965519 *2
I note that the statute at issue in the New York case heavily relied upon by the
majority contains the critical element of reposing discretion in the trial court to decide how
to apportion the birth expenses between the birth parents:
“[T]he court shall direct the parent or parents possessed of
sufficient means or able to earn such means to pay * * * a fair and
reasonable sum * * * for [the] child’s support and education * *
*. The order may also direct each parent to pay an amount as
the court may determine and apportion for * * * the necessary
expenses incurred by or for the mother in connection with her
confinement and recovery [and] such expenses in connection with
the pregnancy of the mother as the court may deem proper.”
In re Comm’r of Social Servs. v. Bernard B., 637 N.Y.S.2d 659, 664 n. 2 (N.Y. App. 1995)
(citing section 545 of New York Family Court Act) (emphasis added).
Another issue which arises due to the removal of all discretion from the lower
court concerning the amount of the birth-related expenses that the biological father is
responsible for is the apparent omission of any consideration regarding whether the expenses
were “necessary” – a statutory requisite to including such expenses in any support award. See
W.Va. Code § 48-1-244(3) (2001) (defining support for mother to include “necessary
expenses incurred by or for the mother in connection with her confinement or of other
expenses in connection with the pregnancy of the mother”). While this Court, in announcing
its holding in syllabus point two of Kathy L.B., was clear to hold that any recovery of birthrelated expenses from an unwed biological father must be made pursuant to the former
statutory version of West Virginia Code § 48-1-244, the majority glosses over the need to
initially find that the expenses at issue were “necessary” by directing that the entirety of
whatever amount DHHR paid on the mother’s behalf is recoverable against the child’s father.
See W.Va. Code § 48A-1-3(20)(C) (1986); Syl. Pt. 2, State ex rel. W.Va. DHHR v. Carpenter,
No. 29774, ___W.Va. ___, ___S.E.2d ___ (filed April 26, 2002); see also Huffman, 175
W.Va. at 404, 332 S.E.2d at 870 (discussing fact that DHHR’s recovery from a third-party is
not always “the full amount of AFDC benefits paid out” and noting further that “[t]he actual
amount of AFDC benefits paid to the assignor provides a ceiling and not a floor on state
(Mich. App. 2001) (recognizing that trial court’s discretion to apportion birth-related costs
between mother and father under Paternity Act prevented statute from violating Equal
Protection clause based on gender).
To reach its conclusion that no gender-based discrimination results from the
DHHR’s policy to seek the full amount of the birthing expenses from an unwed father where
the mother has applied for and obtained a medical card, the majority completely ignores the
first prong of the Equal Protection argument presented to the Court. The initial Equal
Protection hurdle is whether a denial of Equal Protection results through imposition of
liability solely on a biological father for birth-related costs. The primary case upon which the
majority relies to find no resulting gender-based discrimination initially addressed and
resolved this same issue by doing exactly what the majority refused to do here. The New York
Court of Appeals looked to the support section of the Family Court Act after determining that
the statute imposing discretionary liability for birth-related expenses upon the father had to
be read in pari materia with the later-enacted support section of the Act, which permitted the
trial court to apportion these expenses and other child-rearing expenses among the parents
based on their respective ability to pay for such expenses. See In re Comm’r of Social Servs.
v. Bernard B., 637 N.Y.S.2d 659, 663-64 (N.Y. App. 1995). In Bernard B., the court
determined that “section 514 [of the Family Court Act] is properly understood as authorizing
the court to impose liability without regard to gender” based solely on the fact that the trial
court had discretion to “impose liability for these [birth-related costs] on either parent.” 637
N.Y.S.2d at 663-64. Only after this first hurdle was cleared did the New York Court proceed
to determine whether gender-based discrimination resulted from the singular recoupment of
these birth-related costs from unwed biological fathers.9 Id. at 664.
To be clear, it is not a statutory directive that imposes full responsibility on the
unwed father for birth-related costs, but a court-imposed one. Cf. W.Va. Code § 48-1-244(3)
to Carpenter, ___W.Va. ___, ___S.E.2d ___, syl. pt. 2. Nonetheless, it is the wholesale
removal of any discretion on the trial court’s part in assessing liability for those birth-related
costs that convinces me that gender-based discrimination results at the liability stage of the
While I do not challenge the majority’s determination that there is a rational
relationship underlying the DHHR’s policy of not seeking reimbursement of birth-related
costs from indigent women, I question the clear departure from this Court’s holding that the
intermediate level of scrutiny applies to Equal Protection claims that involve issues of gender.
See Syl. Pt. 5, Israel v. West Virginia Secondary Schools Activities Comm’n, 182 W.Va. 454,
388 S.E.2d 480 (1989). Without any explanation for its abandonment of a higher-level of
scrutiny (normally, gender classifications can only withstand Equal Protection analysis where
the classifications serve important governmental objectives and are shown to be substantially
related to achieving those objectives), the majority simply veered from the accepted analytical
path with the cautionary caveat that it may decide not to similarly veer from such path in the
future. See Carpenter, ___ W.Va. at ___, n. 4, ___ S.E.2d at ___, n. 4.
The majority further clouds the future of Equal Protection analysis for the
practitioners of this state by relying almost exclusively on a case that concludes that
pregnancy-based classifications are, as a rule, medical conditions and, therefore, not genderbased classifications. Despite its apparent adherence to the gender discussion in Bernard B.,
the majority nonetheless characterizes pregnancy as “inherently gender-related.” See
Carpenter, ___ W.Va. at ___, n. 4, ___ S.E.2d at ___ n. 4. Under well-established law, the only
way the majority could properly apply the rational relationship level of Equal Protection
analysis was to find that the classification was not gender-based–a conclusion that the majority
process when biological fathers are held exclusively responsible for these costs without any
consideration of apportioning such costs based upon an ability to pay.
II. Date for Determining Ability to Pay
I disagree with the majority’s decision to link the determination of the father’s
ability to pay solely to the date on which the mother obtained birth and medical benefits from
the state. The right of recovery against the father for birth-related costs incurred by the mother
is admittedly steeped in third-party liability. See W.Va. Code §§ 9-5-11(a), 48-1-244(3);
Bernard B., 637 N.Y.2d at 663. However, just as the New York Court determined in Bernard
B. that there was no state or federal statutory basis for requiring an ability to pay determination
to be made at the time the expenses were incurred, there is similarly no basis for the majority’s
determination in the instant case that the ability to pay determination should only be made
concurrent with the chronological granting of the medical and birth-related benefits to the
mother. See id. Instead, the father’s ability to pay should be determined, like other support
obligations, by examining his present ability to pay.10 See, e.g., W.Va. Code § 48-12-102; see
Bernard B., 637 N.Y.2d at 663.
Moreover, to make a determination retroactive to a date that precedes any
establishment of paternity simply defies logic. See Carpenter, ___ W.Va. at ___, n. 5, ___
S.E.2d ___, n. 5 (acknowledging that “paternity of an out of wedlock child is generally not
established until after a child is born”). Additionally, the setting of a finite date restriction for
making an ability to pay determination, rather than utilizing a more open-ended present ability
to pay inquiry, may contribute to or encourage the “hiding” of assets or dilatory behavior with
regard to procuring the means to pay for such costs.
III. Judicial Determination
Finally, while I recognize the source of the majority’s conclusion that the ability
to pay determination can be made administratively or judicially,11 I think it should be made
solely in a judicial forum. The issues that need to be examined, including the necessity of the
expenses in the first instance,12 demand appropriate consideration of all relevant factors –
considerations that warrant both judicial expertise and experience. Moreover, since a judicial
officer typically makes determinations of an individual’s ability to pay for child support and
spousal support purposes, it stands to reason that judicial officers should be permitted to apply
those same factors to resolve the ability to pay issues pertaining to this particular type of
support.13 See W.Va. Code § 48-1-244(3).
Based on the foregoing, I respectfully concur, in part, and dissent, in part.
I am authorized to state that Justice Maynard joins in this concurring and
See supra note 1.
See W.Va. Code § 48-1-244(3).
The fact that DHHR argued that it had no list of factors for making an ability
to pay determination further supports requiring such hearing to be conducted by a judicial