Hilary Davis, Individually and on Behalf of All Others Similarly Situated v. William J. Page, Jr., Etc., Circuit Judges Dixie Herlong Chastain, Etc.

minority views that doubt con- iteration of predicate to habe-

cerning guilt should be DAVIS, Hilary Individually and on behalf relief,4 Court has not corpus as situated, similarly of all others See, accepted g., that view. e. Rose Plaintiffs-Appellees, 559-564, Mitchell, 99 S.Ct. 3002-04, (1979). 61 L.Ed.2d 739 distinguish Cuyler v. The State seeks to PAGE, Jr., Etc. et William J. lawyer Perez’s Sullivan from the failure of al., Defendants, appeal because received ineffec- Sullivan argues tive assistance at the trial level. It Judges Chastain, Herlong Dixie proceedings appeal are different al., Defendants-Appellants. Etc. et and that ineffective at that assistance level does not constitute fundamental unfairness. No. 78-2063. poses This hypothesis a false draws a Appeals, United Court of States appellate distinction not found here. No Fifth Circuit. jurisdiction court ever obtained Perez’s case, appeal for no was taken. His coun- March wrongful entirely sel’s conduct occurred not, therefore, the trial We court. need apply

consider the standards that would quality representation ap- before an See,

pellate g., court. e. Mendiola v. Es-

telle, (5th 635 F.2d 487 Cir. attempt

Finally, the state retreats to an

to differentiate between the trial and the

lodging appeal of an because the state initi-

ates the criminal trial and thus embroils the

defendant, appeal but the initiative to is on

the defendant. The issue is not where the lies,

initiative for the defendant must raise

any at trial defenses and counsel’sfailure to particular

raise a defense well make

him ineffective. The rather pro-

whether the conduct the criminal whole,

ceeding, considered as a was funda-

mentally appeal unfair. Here it was. The

is the vehicle which violations of the trial,

right to a fair conducted in accordance Therefore, law, may be remedied. appeal promised, timely

failure to file a more,

without constitutes a violation Amendment and Perez must be ac-

Sixth appeal.

corded an out-of-time reasons, petition

For these for rehear-

ing is DENIED. See, Mitchell, g. ing). 443 U.S. See also United States ex rel Barksdale v. e. Rose v. 574-588, 2993, 3009-17, Blackburn, (5th 1981) (en 61 L.Ed.2d 616 F.2d 254 99 S.Ct. Powell, J., J., banc); Friendly, (Stewart, concurring; concur- Is Innocence Irrelevant? Col- Bustamonte, Judgments, ring); Schneckloth lateral Attack on Criminal Note, 218, 250, 2041, 2059, generally See U.Chi.L.Rev. J., Guilt, (Powell, concurring); Kaufman v. and Federalism in Habeas Innocence States, Corpus, United L.Rev. 1123 65 Cornell J., (1969) (Black, dissent- McKenzie, III, Atty. Asst.

Sidney H. Gen., Tallahassee, Fla., defendants-ap- for pellants. Miami, Fla., Masinter, for

Michael R. plaintiffs-appellees. Walker, Abigail English, L. James

Robert Morales, O’Toole, Fran- and John F. San cisco, amicus, Cal., Legal Aid National & Defender Ass’n. GODBOLD, Judge, Chief

Before AINSWORTH, BROWN, COLEMAN, RONEY, GEE, CLARK, TJO- CHARLES VANCE, FAY, RUBIN, FLAT, HILL, JOHNSON, Jr., KRAVITCH, M. FRANK REAVLEY, HENDERSON, GARZA, POL- ANDERSON, ITZ, HATCHETT, RAN CLARK, DALL, TATE, A. THOMAS WILLIAMS, Judges.* Circuit VANCE, Judge: challenges This class action the constitu- tionality dependency proceedings of child indigent parents in the Circuit Florida, County, par- of Dade when provided ents are not with counsel at the expense. granted state’s The district court judgment plaintiff. Davis summary to the Page, (S.D.Fla.1977), except panel of this court affirmed Page, fees. attorneys’ the issue of (5th 618 F.2d 374 30, 1976, Hilary January On Davis left her home after her husband broke the arm baby, of her 14-month old Carl Davis. She they hospital took her son to a where both spent night. day, telling next after hospital that she was social workers at the leaving her husband and would seek a di- vorce, she was that she would not informed son with her. A permitted be to take her later, Department of days few the Florida * Judge participate Sam D. Johnson did not decision. (DHRS)

Health and State, Rehabilitative Services state.” Pendarvis v. 104 So.2d filed proceedings in the Juve- 652 (Fla.Dist.Ct.App.1958). Evidence Family nile and Division of the Circuit disposition hearings admitted at seeking to remove Carl from her cus- would be inadmissible at an adjudicatory tody. emergency hearing At an on Febru- hearing. 39.408(2). Fla.Stat. § ary judge advised Ms. Davis to have Davis was not judge advised counsel at adjudicatory proceeding a adjudicatory at the hearing of her right to month later. He appoint made no offer to appeal under Fla.Stat. 39.413. After § indigent, counsel. Ms. Davis was and al- 30-day appeal period expired, had she re- though repeatedly attempted she to secure tained counsel. counsel, May On her she filed efforts were unsuccessful. a Petition for Writ of Corpus Habeas adjudicatory hearing proceeded in Supreme Florida seeking the return 39.408(l)(b).1 accordance with Fla.Stat. § of her son. The Florida hearings Such are adversary pro- formal petition denied her without opinion and this ceedings. represented The state is by coun- required litigation sel prove and is to its followed. by case a preponderance of the evidence under the outset, At the we jurisdic note that

rules of generally applicable evidence proceedings. civil tion is properly founded 28 U.S.C. 2241 § seq. 1343(3) et 28 U.S.C. § At the adjudicatory hearing, Carl Davis Appellants argue, for the first time in this was dependent declared to be a child and litigation, the action should be dis was temporary committed to the custody of missed under the Although Younger DHRS.2 Ms. Davis doctrine of mistakenly believed that she separated Harris, would be from weeks, only Carl for a few phrase “tem disagree. We At the time she porary custody” belies the serious conse action, filed her federal the adjudicatory quences adjudication of an dependency. proceeding completed had been and Ms. Da Temporary custody continues until termi vis had exhausted the remedies available to nated the court or until the child reaches her under Florida law. The comparatively the age 39.41(1)(c). of 18. Fla.Stat. § disposition hearings, informal in which the parent may petition While a regain cus longer state no carries proof, the burden of child, tody of his or her the nature of subse are not a adjudicatory continuation of the quent proceedings significantly differs from proceeding. parent may relitigate original adjudication hearing. In these original adjudication. this Since action proceedings, “disposition known as hear enjoin did not seek to a state proceeding ings,” longer the state no bears the burden sought previous but rather to vacate a proof. Compare 39.408(l)(b) Fla.Stat. § judgment, comity the considerations of 39.408(2) Fla.Stat. § Fla.Stat. Younger federalism that underlie the doc 39.41. may “Evidence that be totally require trine do not the federal courts to inadequate deprive parent of the custo abstain taking jurisdiction of Ms. Da dy of his child in the first instance Compare present vis’ claim. case with altogether adequate support the court’s Sims, Moore v. refusal to restore to the once the child (1979) (suit had become a ward of the seeking enjoin protective 1. The statutes in effect at the time the events home or the home of relative under replaced by (2) supervision; in this action have a new act commit the child to a licensed providing dependency proceedings. (3) for rules in agency; child-care commit the child to the opinion DHRS; The citations in this refer to the current temporary legal custody per- provisions substantially statute. The cited are manently commit the child to DHRS or a li- the same in both acts. child-placing agency. censed Fla.Stat. 39.- 41(1). adjudicated dependent 2. Once a child has been may (1) place the court the child in his own (No. 79-2466, Agency, custody proceeding by Young- July barred Services 3d Cir. er).3 1980). Eng- v. New Sylvander But see Wanderers, Little 584 F.2d land Home for was also entitled to in Ms. Davis (1st corpus jurisdiction. voke federal habeas at time question The state does not We turn now to the central filed, action was Carl Davis was federal appeal, of this whether failure to offer judgment. custody pursuant to state It of counsel violated the assistance however, argues, that since the state court process. requirements constitutional due returned Carl to his mother before the dis questioned It is not that Ms. Davis and judgment, trict court rendered the habeas parents have similarly liberty situated This contention claim had become moot. interest at stake in the child jurisdiction If exists at lacks merit. habeas protected proc hearings the due case, the outset of a it is not defeated ess clause of the Fourteenth Amendment. subsequent release from applicant’s cus Roth, 564, Regents Board of v. 408 U.S. LaVallee, 234, tody. Carafas v. 391 U.S. 570-71, 2701, 2705, 92 33 L.Ed.2d 548 S.Ct. 1556, 1559, 238, 88 20 L.Ed.2d 554 S.Ct. (1972). Supreme recognized The Court has addition, (1968). the state court order right family integrity autonomy the to and returning placed him Carl under the contin See, g., in a number of contexts. e. Cleve uing supervision of DHRS. Ms. Davis had LaFleur, v. land Board of Education 414 worker, regularly with her to visit social 632, 791, (1974); U.S. 94 39 L.Ed.2d 52 S.Ct. permit inspect her social worker to her 205, Yoder, Wisconsin v. 406 92 U.S. S.Ct. home, permit and her social worker to exer 1526, (1972); Stanley 32 L.Ed.2d 15 v. Illi general supervisory authority cise over her nois, 645, 1208, 405 92 31 U.S. S.Ct. parental decisions and actions. Jones v. See Sisters, (1972); Society 551 Pierce v. of 268 236, 373, Cunningham, 371 U.S. 83 S.Ct. 9 510, 571, (1925). 45 69 L.Ed. 1070 U.S. S.Ct. (1963) (parolee custody” L.Ed.2d 285 “in process To determine whether due in this meaning within of habeas statute in view of counsel, case includes the to we must significant liberty restraints even after weight precisely examine more the of the prison). release from We decline the state’s liberty presented by plaintiff interest the inappro invitation to declare habeas relief competing by and the interests asserted the priate custody whenever the of a child is at government. Supreme The Court has noted stake. While domestic relations are nor that three distinct factors are involved in courts, mally province within the of state such a determination: nothing history of the habeas writ First, suggests private that it denied the interest that will be merely should be action; second, custody because the at results from issue affected the official adjudication involving custody.4 deprivation See the risk of an erroneous of Lycoming County Lehman v. Children’s through procedures such interest Appellants urged sponte injunctive have not us to consider sua because relief judicial immunity declaratory sought. whether bars or defendants was also injunctive relief and we do not. Cf. Gomez v. Toledo, 635, 1920, 1924, Indeed, 446 U.S. 100 S.Ct. examples the common law offers of (1980) (qualified immunity 64 L.Ed.2d 572 to a the use of the habeas writ in child plead- 1983 action is a defense and burden of Cunningham, cases. See discussion in Jones v. ing defendant). generally, 236, 239, 373, 375, rests with See Su- 371 U.S. 83 S.Ct. Union, preme Virginia also, course, Court of v. Consumers (1963). 285 It is of clear that the 13-14, 446 U.S. 735 n. 100 S.Ct. 1976 usual deference to state courts in domestic law 13-14, (1980) (discussing & n. 64 L.Ed.2d 641 questions will not bar federal review of consti- immunity applicability judicial See, Redhail, 1983 ac- g., tutional issues. e. Zablocki relief). declaratory injunctive tions for or Nei- L.Ed.2d 618 434 U.S. 98 S.Ct. 54 judges appellants argued Connecticut, ther have that are not U.S. Boddie v. appropriate defendants in an action to declare (1971); May v. An- S.Ct. 28 L.Ed.2d 113 unconstitutional, express derson, a statute and we no 97 L.Ed. opinion question. on that We do not raise it (1953). used, value, probable any, if tion afforded to a fundamental liberty in procedural additional or substitute safe- parent, terest when unfamiliar with the guards; finally, the Government’s in- judicial process easily intimidated its terest, including function involved workings, opposes legal apparatus and the fiscal and administrative burdens ignorant state. Davis was of the proce- additional substitute law, governing substantive unaware even requirement dural would entail. hearing might that the result in 319, 335, Eldridge, Mathews separation an indefinite from her child. 893, 903, 47 L.Ed.2d 18 Unacquainted evidence, with the rules of challenge she was unable to hearsay and We consider first Ms. Davis’ interest opinion testimony. The dependency proceeding. process judge The trial found which she is part silently through entitled determined in sat most of the “[s]he extent she “con- to which .. . hearing fearful antagonizing grievous Goldberg demned suffer loss.” social she workers” and that “was little 254, 263, Kelly, spectator more the adjudicatory than It is difficult proceeding.” Page, Davis v. at imagine grievous a loss than more unique.5 260. This case is far from parent deprived his or her child. assistance of counsel is cope needed “to offspring bond between one law, problems make skilled in of the central facts of nature as well as of quiry into the facts upon insist [and] ” society, and the Court has fre- proceedings.. . . regularity In re noted the quently fundamental character Gault, 1428, 1448, 18 relationship. The interest of parent a (1967) (footnote omitted). L.Ed.2d 527 raising in his or her child has been described Finally, we must examine the counter- “essential,” Nebraska, v. Meyer 262 U.S. vailing interests asserted the state. In- 390, 399, 625, 626, 67 L.Ed. 1042 sofar as the state in appears dependency (1923), precious and “far more ... than proceedings parens patriae, in its role as it Anderson, property rights,” v.May 345 U.S. shares interest and parent the of child in 840, 843, 73 97 1221 S.Ct. L.Ed. taking all measures which will significantly (1953). As Stanley the Court stated in v. the likelihood of decrease an erroneous deci- Illinois, 405 at 92 at “It S.Ct. however, argues, sion. The state that the plain is that parent the interest of a in the offering financial cost of counsel to indi- companionship, care, custody, manage- gent parents in proceedings these out- of his ment or her children to this ‘come[s] weighs protection provided the value of the respect lacking Court with a momentum disagree. We Where right counsel. the appeal when to liberties de- made which protection to counsel is essential to the of a merely shifting rive ar- economic ” liberty philosophy so basic to the fabric and recognized rangements.’ weight of society, of in saving our the interest an Davis’ demands re- interest that she sum right. uncertain will not defeat that procedural protection ceive the full neces- deprivation to avoid of sary the erroneous us to Although urges accept the state the interest. that case-by-case method the Florida used next thus inquiry provide Our becomes whether to courts to determine when coun- provision sel, is likely of counsel to alleviate we that the facts of this case believe significantly the risk that a child will erro- dramatically pitfalls illustrate the of such neously be of dependent. found The facts by which approach. an The factors Florida testify inadequate this case protec- courts decide whether to offer counsel are See, Z., g., (Fla.Dist. 5. e. In 383 re A. So.2d 934 ent The court witnesses. Ct.App.1980), adjudicatory which described an case relied on various written re- described hearing ques identified, in which ports, the court conducted the none of which were authenti- witnesses, tioning placed evidence, none were of whom and none of cated or in oath, par- placed permit parent. under and did not to the were furnished

604 Alabama, 77 287 U.S. 53 L.Ed. pro- in advance of

often unknowable Gault, In re 87 of ceeding.6 complexity view the In our (1967), the Court 18 L.Ed.2d 527 always these necessitates proceedings juvenile be in dep- provided that counsel the erroneous ordered offer of counsel to avoid civil because proceedings denominated liberty a interest. cases rivation of fundamental threatened was liberty of deprivation absolute and should right involved is in adult crimi- involved subject comparable the trial not be the discretion of family in- adju- proceedings. nal The interest in formal judge. We thus hold law, interest comparable to the tegrity under Florida is one dication of To offer counsel deprivation being free of restraint. prolonged where or indefinite stake, jail at threatened, day be proc- single when a parental custody due indigent when the indigent parent deny of- but to counsel an requires ess family is threat- of his or her provided that counsel be destruction fered counsel and intelligent waiver is knowing ened, concept unless a not accord with our does made.7 process.8 due support holding, majority

In so we draw from Su great We note also that rulings that mandated preme Court have the issue have courts that have considered proceedings when fundamental lib right the offer counsel to counsel found at erty separation stake. permanent interests have Some prolonged where prosecutions. threatened,9 have criminal these involved child is and that See, Hamlin, g., e. v. Argersinger majority recognized of states have (1972); hearings in these essential role of counsel Wainwright, Gideon by enacting provide statutes which Powell v. indigent Ct. parents.10 S. to counsel for Keller, (Fla. points proceed- In Potvin 313 So.2d contrast on both these ing with the 1975), the Florida Court announced us is before unmistakable. determining factors five to be considered (1) necessary: potential whether counsel is Edmiston, See, g., e. Smith length parent-child separation; (2) the ex (W.D.Tenn.1977); Depart Danforth v. State visitation; parental tent restrictions on (Me. Welfare, ment 303 A.2d of Health consent; presence parental of the or absence ; Friesz, 347, 1973) 190 208 In re Neb. N.W.2d facts; (4) presence disputed of the or absence (1973); Youth v. of and 259 Crist Division (5) complexity proceeding of the in terms Services, 402, Family N.J.Super. 128 320 A.2d witnesses and documents. modified, 573, 203, N.J.Super. 343 A.2d 135 815 B., 352, (1974); 30 334 N.Y.S.2d In re N.Y.2d today holding does not the state’s 7. Our affect Mitchell, 133, (1972); 288 In re 251 285 N.E.2d ability from his her home to remove a child 114, (1968); 15 State ex rel. Heller Or. 444 P.2d emergency temporarily where in an situation Miller, 6, (1980); v. St.2d N.E.2d 66 61 Ohio 399 safety immediately life or threatened. I., 29, Adoption 312 A.2d In of R. 455 Pa. 601 re ; (1973) Myricks, In re Welfare of 85 Wash.2d liberty in We find interest this case to be 8. the 252, (1975); Gault, ex rel. comparable 533 P.2d 841 State Lemas In re more that in than to 590, Oakley, ter 157 203 S.E.2d 140 Gagnon Scarpelli, v. W.Va. v. 411 those in U.S. involved ; Annot., (1974) 778, 1756, (1973) (hold- 80 1141 See A.L.R.3d 656 93 36 L.Ed.2d Wilcox, also, (9th probationer’s right v. F.2d 940 Cir. ing Cleaver 499 in a that a counsel 1974) (mandating case-by-case proceeding determination probation revocation is to be deter- Guy, counsel); case-by-case approach prison for v. 476 the need Brown mined on disciplinary for see, (D.Nev.1979). Cag F.Supp. re 771 But proceedings) and Wolff v. McDon- er, 473, 2963, nell, 539, 248 251 Md. A.2d 384 935 418 94 S.Ct. 41 L.Ed.2d U.S. case-by-case approach (adopting the disciplinary proceedings.) proceed- See, prison 15-63(b) (1975); g., e. Ala.Code tit. § ings (Cum.Supp. 1979); in involved conditional these cases the 8-225 § Ariz.Rev.Stat.Ann. liberty already (1973); 19-1-106(1)(b)(ii) interest of a defendant who has D.C. § Colo.Rev.Stat. adjudicated proceeding 1978); 16-2304(b) (Supp. in a criminal V Code Ann. § representation by (Smith-Hurd 701-20(1) he where was entitled § Ann.Stat. ch. Cum.Supp. Also, specifically 1979); counsel. the Court relied Ann. 232.89.1 § Iowa Code proceedings Gagnon 1979); (West Cum.Supp. and the fact that the Me.Rev.Stat.Ann. tit. Indeed, adversary (Supp. 1979); were Wolff nature. & Jud.Proc. 4005.12 Md.Cts. by represented (1980); the state was not counsel. 3-821 Mass.Ann.Laws ch. Code Ann.

605 Finally, it should be clear that this again Once this Court high in the name way obliges by no the State of the Constitution decision in becomes involved majority way most direct provide purely counsel Florida when two problems wisely domestic left private litigate the of child parties issue that, only by states. Not it is done holding only when custody. Today’s applies declaring order prior de- unconstitutional actively integ the state interferes cisions of the state’s highest tribunal family, adjudicates rity of the not when it through medium of an attack directed parties. competing private claims of innocent local state trial circuit Oesterle, (5th 437 See Rowell 626 F.2d judges, of whom—including all all other 1980). Cir. judges high and low in the whole state declaratory The relief we affirm is directed, now categorically Florida—are null void the state decree deter- renders without discretion or real consideration of mining dependent Davis to be a child. Carl needs, to conform to our edict. I think injunctive inappro- We believe relief is principles all of Federalism and the priate there is since no indication comity demands of are this defeated judges State of Florida will not con- I action and therefore dissent from form to dictates of the Constitution. intrusion. injunction We therefore vacate the entered Page, (5th 618 F.2d 386 appellant the district court. has Since 1980). attorneys’ inappro- fees conceded are Domestic relations is an area of law case, priate in this we also the dis- reverse Courts traditionally Federal have de trict on this issue. court ferred to State Courts. Sosna v. State Iowa, 393, 404, 553, 559, 419 42 U.S. 95 S.Ct. PART, AFFIRMED IN VACATED (1975); DeSylva v. Ballen IN PART. REVERSED tine, 974, 979, 100 Bell, (1956); L.Ed. Bell v. CLARK, COLEMAN and Cir- CHARLES (W.D.Wash. Federal cuit would have Judges, deferred decision always preferred Courts have to abstain pending Court’s decision in answering questions law, such as 79-6423, Department Lassiter Social suits, those contained domestic relations Durham County, Services of North Caroli- which are best the states nature na. Sims, equipped to deal with. See Moore v. 429-30, BROWN, Judge, R. JOHN Harris AINSWORTH, COLEMAN, with whom Moore, County Commissioners Court v. CLARK, GEE, RONEY, CHARLES TJO- 77, 83-84, 870, 874-75, FLAT, HILL, GARZA, HENDERSON (1975); Burford v. Oil Sun REAVLEY, Judges, join, dissenting: Co., succinctly this case involves What was Although I refrain as my panel opinion dissenting described serting that there are no instances in which (with concurrence):1 in- partial appropriate it is for Federal Courts to (Michie/Law Cum.Supp. 1980); Co-op Act taken in the Uniform Juvenile § 1971); 260.155(2) (West 26(a), Neb. IJA-ABA § Minn.Stat.Ann. and Joint Commission § (1943); Standards, 43-205.06 § Rev.Stat. N.M.Stat.Ann. Relat- on Juvenile Justice Standards (1978); 2.3(b) ing F 32-1-27 N.Y.Jud.Fam.Ct.Act § for Private Parties § Counsel (McKinney 1979); 262(a) Supp. 1975 & N.D. § (1974); 27-20-26 § Ohio Rev.Code Cent.Code (Page 1976); tit.

Ann. 2151.352 Okl.Stat.Ann. § study and me that 1. Further reflection convince 10, 1109(b) (West Cum.Supp. 1979); Ore.Rev. § my part panel opinion concurrence (1977); 419.498(2) Laws Stat. S.D. Codified § corpus was since I believe the habeas a mistake 161- § 26-8-22.2 Va.Code Ann. § permissible was not vehicle to reach a 1980); 266(c)(2) (Cum.Supp. Wis.Stat.Ann. process decision. Court’s due (West 1979). position The same 48.23 matters, I My relations be-

trade in domestic of Health and Rehabilitative Services. only should take that such intrusion lieve the same as those essentially are concerns the roles of proper awareness of place with Sylvander the First Circuit expressed by only and then Courts Federal State for Little Wander England v. New Home in extreme situations. rarely and 1978), ers, (1st in which F.2d 1103 Cir. that Federal habeas that Court concluded by this con- am first concerned Court’s I rights to assert the was not available relief operative order the Federal and its clusion child, in that of the a case parent, in this corpus appropriate relief is habeas here, where, parent contested the invol origins of this case are somewhat case. The rights. It parental termination of untary complaint in two original was curious. that in a recent un pointed should be out count stated as a class counts. One was Third Circuit injunctive published opinion of declaratory and relief action for on this same presumably under U.S.C.A. reached a conclusion judges of the Juvenile and the First Circuit. How against contrary all of to that of ever, Family sharp Division of the Circuit Court of was issued over a opinion Florida, County, none of whom was Subsequently, put Dade the case was en dissent. having custody of the minor. charged reargued en recently banc and has count, sought separate In a County Lycoming banc. Lehman v. Chil corpus against Secretary 79-2466, of habeas (No. writ Agency, 3d dren’s Services of Health and Novem Department July reargued the Florida en banc 17, 1980). and three subordi- Rehabilitative Services ber Department. nate officials of assumption of Fed- My concern with the primarily as a class What started out merely in this case is not eral habeas judges has now been against action state As rec- jurisdictional quibbling. matter of as an action based framed this Court Sylvander: ognized essentially Although on Federal habeas. persons applied Federal habeas when appropriateness majority discusses procedure of under state control is a in this case there is no of habeas relief unique within the Federal-state potency the 42 1983 cause of discussion of U.S.C. § framework, having far different jurisdiction upon action under 28 far-reaching consequences than a more 1343(3) presumably U.S.C. § within its state’s utilization of habeas based. system. own inappropri- Clearly, Federal habeas is an 584 F.2d at 1111. Unlike other avenues respects ate avenue of relief as the action relief, habeas a Federal Dis- under Federal against judges the state named as defend- jurisdiction can assume of a case trict Court ants, particularly more as the vehicle prior proceedings—res regardless of state sweeping binding on all for the declaration judicata estoppel and collateral are no bar. Judges. suggestion There is no Florida today represents the This Court’s decision judges themselves at the time the of the avail- recognition by first this Circuit was had of Carl Federal suit filed habeas relief a state ability of Federal Davis. Furthermore, custody dispute. explicitly recog- never Supreme Court has I that Federal habeas is an also believe habeas respects appropriateness nized the of Federal inappropriate avenue of relief as expansion Department in a as this.2 The the action the Florida case such grounds (but argu- agree I cided on federal with the First Circuit that: connotations) ably having jurisdictional the many fact remains that over the [T]he the writ. Matters corpus Court refused to authorize years since enactment of the habeas Ryan, 63 L.Ed. Supreme statute in the Court has never Burrus, ap- acknowledged corpus In re an that habeas is propriate remedy litigating of the None federal consti- 34 L.Ed. 500 for custody rights arising implicating that have tutional from state child custo- cases claims custody dy disputes. the come before the reached child cases de- two this custody Federal habeas in manner is not a of his or her through child a state course which this Circuit should enter into decree. the of Under rationale the Court’s lightly. decision, be, what real bar there would example, an indigent to asserting mother legal strictly standpoint,

From a I disa- constitutional in a “purely counsel gree seriously appropriateness as to the of private” battle, custody in which she Federal faces habeas relief this case. The the real possibility being deprived of “custody” of Davis which of purportedly Carl the child, custody her gave rise to Federal habeas in was of and then litigating this case type “custody” not the question through tradi- the has both State and tionally basis for formed the habeas relief.3 Federal Courts? The disclaimers of the ma- cursory opin- Even a review Court’s jority opinion withstanding, not I fear that primary being ion reveals that the interest this opinion provide open will invitation addressed is the of Ms. interest Davis as the for great, and growing, number of disap- parent in being deprived of her child. pointed parents in “private” so-called custo- Only by a reading strained of the opinion dy suits to seek habeas relief in Federal can it be the said that true interest Court. which the Court is concerned is the interest basic, Even more I do not the prob- think being of Carl deprived Davis in not his go away lems can by characterizing these liberty by some virtue of unconstitutional “private litigation”. battles as The State order. very has much an immediate direct From the standpoint the administra- interest in the welfare of a child hence justice tion of maintenance of our too, his or custody. her So does the State cherished principles federalism, I am significant have a interest in the marriage acutely recognition disturbed Fed- relationship and the maintenance of the eral habeas as an available avenue relief family home. disputes. First, in child custody I am not Once this is recognized where does the convinced that the interests of family and Court’s intrusion end? Consider for exam- child will significantly per- be fostered ple, a husband who has all secreted of his mitting actions as litigated such these to be property and files a divorce suit his state, in two sets of courts—first and then wife desperately preserve who wants federal, worse, perhaps simultaneously. marriage it, both protect and home and Furthermore, suspect I that it diffi- will be (and incidentally her errant husband from place cult for our courts limits another) the wiles is left penni- but who types custody may of child cases which less and unable to obtain counsel. Would brought in through Federal Courts ha- Court, again this high name of the Although beas route. the Court in case Constitution, decree that the State must pains takes emphasize holding its provide at its expense? suppose counsel Or does not cases in extend to which “two custody that the purely private controversy directly arises parties litigate the issue of out of the divorce action to which custody”, the net effect of as “pure- most wife, private” ly disputes indifferent, now a forced custody essentially indigent, is present the same struggle as that in but is controver- nevertheless locked in a over sy—a parent deprived of the continuing parental custody Again of a son. minor

through brethren, the route federal habeas. even if not confined the strict sweeping language Court’s cases sense. Court, Hensley Municipal supra, such 584 F.2d pointed supra, 3. For reasons in Note out Cunningham, supra, and Jones suggestion panel I recant concur- (1963), ring/dissenting opinion that since persons concerned extensions of the writ to seeking was the release from of her criminally who accused had obvious claim son, Federal habeas was available to her. 618 jurisdictional purposes be treated for federal F.2d at 388. in the same manner as their incarcerated

608 guaranteed by mandate counsel for the Sixth Amendment

does the Constitution through the Fourteenth Amendment. expense. at state her conclu- agree I with the Court’s cannot not have been question While the should Supreme Court’s case- that the Florida sion reached, disagree compelled to I also am provision to the of counsel by-case approach presented issue as with the Constitutional in dependency proceedings, as enunciated in case, In this to and decided the Court. (Fla.1975), Keller, 703 v. 313 So.2d Potvin legal system imposes on the state this Court adopted The rule constitutionally unsound. They rule. tell the Florida a hard and fast directly the Ninth taken from in Potvin was capable of Judges they that are not Circuit Wilcox, 499 in Cleaver v. opinion indigent parent present deciding when an reasonably assures that (1974) and F.2d 940 coun- hearing is in need of dependency at a harsh results will be avoided worse, sel, Supreme we declare that the Furthermore, the Florida proceedings. Su- rule is unconstitutional of Florida’s Court recently more re- preme has even all time and for all circumstances. for in all appointment counsel quired appoint judges have no choice but state indigent parents are threat- cases where every case. counsel in permanent custody loss of ened 455, Brady, 62 Although Betts 316 U.S. charges when criminal arise L.Ed. 1595 was over 86 only It in cases which con- proceeding. Wainwright, 372 U.S. ruled Gideon consequences that the template less serious (1963), I do approach play. comes into In case-by-case D.S., the notion of deference to 83 think that the Interest of D.B. &. 385 So.2d not (Fla.1980). interpretation in the of their state courts Betts, laws, at expressed in own today Every case on which the Court at has 62 at holding of an abso- support relies in of its longer important. as no ever been dismissed parents for in a child right lute to counsel decided, Gideon, In case dependency proceeding, is a criminal comity insignificant concern was Amendment, or at least involving the Sixth Courts, it was out Federal but involving potential confinement a case powerful Federal con weighed by right a more person to whom the absolute case, right disagree I cannot granted.4 cern in that the fundamental counsel is custody to retain prosecution, of a counsel in a state criminal Babylift.” respect namese See 28 U.S.C. 4. With to instances which habeas Reed, correctly 2241(c)(1). Application Young, granted, First Circuit has been points custody disputes out: aris and Bell involved child ing Virgin Islands and in the District of Finally, in several the writ has been issued Columbia, courts, the federal courts were act where custody cases decided federal ing was based distinguishable as territorial courts. Cobell special largely albeit jurisdiction special grant Kissinger, over claims Nguyen on circumstances. Da Yen v. reservations, relating (9th 1975); Indian United States to federal 528 F.2d 1194 Cir. Cobell, (9th Indian child. and concerned an ex rel. Cobell v. 503 F.2d 790 Cir. U.S.C. denied, 1974), Schneider, writ. It cert. In the court denied the (1975); Application length pursued the habeas at some Reed, (3d 1971). only couple See also 447 F.2d 814 on whose behalf the because the Leonard, U.S.App.D.C. peti Belgium brought Bell v. had vice-consul of Minton, (1958); Young F.2d Belgium and the child tion were citizens (W.D.Ky.1972); Tinder, United States ex Belgium. dis had been bom (W.D.Pa. Sauvage, 91 F. 490 rel. Schneider v. corpus rely habeas condi trict court did rel. Reed v. But see United States ex Department tionally require the State Tinder, (D.W.Va.1975) (unpub No. 75-1454 mother, unless a child to its Welfare to return opinion).11 lished hearing granted be the mother a the State Nguyen Da Yen were in The children judgment. opinion entering its final fore they were under federal since however, unreported, did not dis was Immigration supervisory control of the jurisdictional issue in detail. cuss the Service, having brought Naturalization 584 F.2d country during “Viet- to this the so-called important children right. his is an But it is

not of the constitutional dimension as is an right liberty.

individual’s to his own It is outweigh interest which can

concerns of federalism and of state and Therefore, comity. agree

federal I cannot

with the holding of the Court—that an indi-

gent has an absolute constitutional attorney to an juvenile dependen- in a

cy proceeding protect to assert and raise,

parent’s right for, to continue to care

nurture and teach minor child.

I, therefore, respectfully dissent. America,

UNITED STATES of

Plaintiff-Appellee,

Randolph FERNON, Jr., C. Etc. and Fernon,

Susanna F.

Defendants-Appellants.

No. 78-3634.

United Appeals, States Court of

Fifth Circuit.

Unit B

March

Case Details

Case Name: Hilary Davis, Individually and on Behalf of All Others Similarly Situated v. William J. Page, Jr., Etc., Circuit Judges Dixie Herlong Chastain, Etc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 23, 1981

Citation: 640 F.2d 599

Docket Number: 78-2063

Court Abbreviation: 5th Cir.