Standing to Intervene in Criminal Nonsupport Actions

Subject:

Requested By: Jean Prewitt Bost, Supervisor Mecklenburg-Union Counties Child Support Enforcement Unit

Question: May a designated representative (IV-D agent) of the North Carolina Child Support Enforcement Program, institute a criminal nonsupport action or take up and move to modify an existing criminal order for nonsupport of children, for the purpose of collecting monies now due and owing the State as a result of the payee’s acceptance of public assistance?

Conclusion: Yes.

N.C. Gen. Stat. 110, Article 9 provides a statutory basis for the North Carolina Child Support Enforcement Porgram. Among other features, this section of the law provides that the payment of public assistance creates both a debt due and owing the State, and an assignment by operation of law of the right to child support. N.C. Gen. Stat. 110-128. It is clear, under N.C. Gen. Stat. 110-130, that a designated representative (IV-D agent) of the Child Support Enforcement Program may bring a civil action for nonsupport. The analogous, operative criminal statutes are found in Article 40 of Chapter 14 and in Article 1 of Chapter 49 of the General Statutes, making it a misdemeanor or a felony, in certain cases, to fail to adequately support one’s children. These statutes as a practical matter indirectly lead to the collection of child support through the judge’s use of the sentencing procedure. The procedure allows a judge to condition suspension of a sentence upon support of one’s dependents. N.C. Gen. Stat. 15-199 (11); 15-200 N.C. Gen. Stat. 110-128, 110-135, and 110-137 arguably stand for the proposition that all support rights are by operation of law assigned to the State by a recipient of public assistance, criminal as well as civil. The first sentence of N.C. Gen. Stat. 110-137 states generally as follows:

"By accepting public assistance for or on behalf of a dependent child or children, the recipient shall be deemed to have made an assignment to the county from which such assistance was received of the right to any child support owed. . . ."

The second sentence reads more narrowly:

"The county shall be subrogated to the right of the child or children or the person having custody to initiate a support action under this Article. . . ." (Emphasis supplied.)

The underlined quoted language from this sentence authorizes subrogation to civil actions mentioned in N.C. Gen. Stat. 110-130. Nevertheless, there is no indication that subrogation to the custodial parent’s standing to institute a criminal action elsewhere authorized is inappropriate.

Turning to other statutes, we can glean authority for the proposition that the IV-D Program has standing to criminally intervene in cases involving public assistance. N.C. Gen. Stat. 50-13.7 states:

"An order of a court of this State for . . . support . . . of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested." (Emphasis supplied.)

Once welfare is paid out, "anyone interested" clearly includes the State as represented by the IV-D agent. Also, this addition of a newly interested party and the resultant need to change the payee in such a court order points out the "changed circumstances" as required by the statute. This statute lends credence to the proposition that it is appropriate for IV-D agent to take up an existing criminal nonsupport action, and, as is commonly done, move for enforcement or change of payee (e.g., from the custodian to the Department of Human Resources).

Moreover, N.C. Gen. Stat. 108-22, which deals with the duties and responsibilties of special county attorneys in social service matters, clearly envisions participation by the State in criminal nonsupport actions. The county attorney is "To assist the district court prosecutor or superior court district attorney with the preparation and prosecution of criminal cases under Article 40 of Chapter 14 of the General Statutes, entitled "Protection of the Family" . . . (and) entitled "Bastardy."" One could only assume that the General Assembly, in passing this statute, intended that the county and State, as providers of public assistance, should directly participate in criminal as well as civil nonsupport actions.

Furthermore, an examination of N.C. Gen. Stat. 15-199 reveals a broad possible interpretation of the criminal sentencing laws, making intervention by the IV-D program allowable:

"Conditions of probation. — The court shall determine and may impose, by order duly entered, and may at any time modify the conditions of probation and may include among them the following, or any other: that the petitioner . . . (11) Support his dependents."

This broad language does not limit a criminal order in any fashion. Typical conditions of probation and suspension are enumerated, but "any other" is within the power of the judge. And even the enumerated condition "Support his dependents" is broad enough to include reimbursement of the State, where the State is already supporting a defendant’s children. In short, the State can properly be made a payee under N.C. Gen. Stat. 15-199, and as such gains clearer standing to enforce criminal rights.

Finally, as a matter of Department of Human Resources policy, written assignments of rights are secured from recipients of public assistance at the time of their initial eligibility application, clearly allowing the State to step into a client’s shoes in all instances regarding child support. Provided that routine was followed in an individual case, the question of whether criminal standing has been assigned to the State by operation of law would appear to be rendered moot.

Rufus L. Edmisten Attorney General

Edward H. Galloway Associate Attorney General