Davis v. Page

• Decision Date: 23 November 1977
• Docket Number: No. 76-1068-Civ-SMA.,76-1068-Civ-SMA.
• Citation: 442 F. Supp. 258
• Parties: Hilary DAVIS et al., Plaintiffs, v. William J. PAGE, Jr., et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

442 F. Supp. 258

Hilary DAVIS et al., Plaintiffs, v. William J. PAGE, Jr., et al., Defendants.

No. 76-1068-Civ-SMA.

United States District Court, S. D. Florida.

November 23, 1977.

Carol Hewett, Daytona Beach, Fla., Michael R. Masinter, Delray Beach, Fla., Stephen W. Bricker, Richmond, Va., for plaintiffs.

Thomas A. Beenck, Tallahassee, Fla., Chester G. Senf, Jacksonville, Fla., J. Robert Olian, Homestead, Fla., for defendants.

MEMORANDUM OPINION

ARONOVITZ, District Judge.

In this class action, Plaintiff seeks declaratory relief holding and declaring unconstitutional the conducting of child dependency proceedings against indigent parents in the Juvenile Court Division of the Circuit Court, Dade County, Florida without providing them counsel at the state's expense.

Plaintiff, Hilary Davis, represents a class composed of all indigent parents who have been or may be defendants in child dependency and neglect proceedings in Juvenile and Family Division of the Circuit Court of Dade County, Florida, without being advised of their rights to counsel or afforded the right to counsel at state's expense, if indigent. Defendants are the Judges of the Juvenile and Family Division of the Dade County Circuit Court acting in their official capacity and thus as and for the State of Florida. Plaintiff further seeks to enjoin dependency hearings without providing counsel to indigent parents.

In a separate count, Plaintiff seeks a writ of habeas corpus to secure the release of her child from the continuing supervision by the Florida Department of Health and Rehabilitative Services under the continuing jurisdiction of the Dade County Circuit Court.¹ The defendants in the habeas count are the Secretary of said Department and three subordinate officials of the Department of Health and Rehabilitative Services.

This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. Sec. 2241 et seq. and 28 U.S.C. Sec. 1343(3) and (4).

At an earlier hearing, this Court certified this case as a class action under Fed.R. Civ.P. 23(b)(2). The case is before the Court on Plaintiff's Motion for Summary Judgment. Since there are no material facts in dispute, summary judgment is appropriate.

FACTUAL BACKGROUND

On January 30, 1976, Hilary Davis, the mother of Carl Thor Davis, left her husband because he beat her 14-month old baby until he broke the baby's arm. After spending the night in the hospital with her son, Hilary Curtis Davis turned to the state for help.

The state, which operates public assistance programs designed to help abandoned families,² responded on February 4, 1976 by initiating a dependency proceeding under F.S. Sec. 39.01 et seq. to remove Carl Thor Davis from the custody of his mother.

An initial hearing took place later during the day of February 4, 1976 in the Juvenile and Family Division of the Dade County Circuit Court before a Circuit Court Judge during which the state sought an order directing the hospital to release Carl Thor Davis to the Florida Department of Health and Rehabilitative Services. Hilary Davis attended the hearing without counsel. The Court granted custody of Carl Thor Davis to the state pending a formal adjudicatory hearing scheduled for March 4, 1976. According to the record the Judge did not offer to appoint counsel to represent Hilary Davis during the hearing on February 4, but advised her to have counsel at the adjudicatory hearing.

Because she was indigent, Hilary Davis was unable to retain private counsel to represent her at the March 4 adjudicatory hearing. Recognizing her need for legal assistance, she repeatedly attempted to secure the services of an attorney employed by Legal Services of Greater Miami, Inc. However, she was unable to secure representation, and she appeared at the dependency adjudicatory hearing without counsel.

Dependency adjudicatory hearings proceed pursuant to Fla.Stat. Sec. 39.09(1)(b). The state must prove its case by a preponderance of the evidence, and the rules of evidence generally applicable to civil proceedings apply.³ While the state is represented by counsel,⁴ nothing in the statutory framework authorizes or requires the appointment of counsel to represent indigent parents.⁵ Dependency adjudicatory hearings should not be held without advising parents of their right to counsel and without appointing counsel for those parents who are indigent.

Without benefit of counsel, Hilary Davis was little more than a spectator in the adjudicatory proceeding. She was ignorant of the law of evidence, and of the substantive law governing dependency proceedings. She sat silently through most of the hearing, and fearful of antagonizing the social workers, reluctantly consented to what she believed would be the placement of her child with the state for a few weeks.

The Juvenile Division Court conducted the adjudicatory hearing. According to the transcript Hilary Davis was not asked if she wished to be represented by counsel, and at no time did the Court offer to appoint counsel to represent her⁶ since there is no statutory authority in Florida for payment of such attorneys' fees. Rather, Carl Thor Davis was adjudicated dependent, committed to temporary custody of the Department of Health and Rehabilitative Services pursuant to Fla.Stat. Sec. 39.10(4) and Sec. 39.11(1)(c). At the conclusion of the hearing, the Court told Hilary Davis to contact a lawyer. She was not advised of her right under Fla.Stat. Sec. 39.14(1) to appeal from the adjudication of dependency.

The Order adjudicating Carl Thor Davis dependent carried far-reaching legal consequences.⁷ Fla.Stat. Sec. 39.11(1)(c) specified that temporary custody "shall continue until terminated by the court or until the child reaches the age of 18." Thus, the "temporary" custody which Plaintiff believed would last a few weeks to enable her to find a job can potentially last for another 16 years. Subsequent state proceedings are categorized as disposition hearings rather than adjudicatory hearings; while traditional rules of evidence govern adjudicatory hearings, virtually no evidentiary rules limit the receipt of evidence at disposition hearings.⁸ While the state bears the burden of proof in an adjudicatory hearing, the parent bears the burden of proof in a disposition hearing and must prove that restoration of custody is in the best interests of the child.⁹

The consequences of an adjudication of dependency are aptly illustrated by the instant case. Plaintiff's child was removed because her former husband beat him on January 30, 1976. On January 30, 1976, Plaintiff left her husband. On March 4, 1976, the Circuit Court finally adjudicated Plaintiff's child dependent. Plaintiff later obtained counsel, securing a dissolution of her marriage. Through subsequent litigation in the state proceedings, she obtained weekend home visits with her son and on January 28, 1977, Plaintiff finally secured the return of her son, subject to continuing supervision and under the continuing jurisdiction of the Circuit Court. Thus, Plaintiff lost the custody of her son for a full year.

PROCEDURAL DUE PROCESS AND THE RIGHT TO COUNSEL

The procedural safeguards which must attend interruption of a constitutionally protected right vary with the nature of the state proceedings and the nature of the right at issue. Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). In articulating the balancing test which determines what process is due, the Supreme Court has stated that "the extent to which procedural due process must be afforded . . . is influenced by the extent to which an individual may be `condemned to suffer a grievous loss'." Goldberg v. Kelly, 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970). Thus, the initial inquiry must focus upon the interest which Plaintiff seeks to protect — the integrity of her family.

The right to the integrity of the family is among the most fundamental rights under the Fourteenth Amendment. The Supreme Court first recognized that right in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1922). In Meyer, the Court stated that the "liberty" as set forth in the due process clause "denotes, not merely freedom from bodily restraint, but also the right . . . to marry, establish a home and bring up children." 262 U.S. at 399, 43 S.Ct. at 626. Accordingly, the Court struck down a statute forbidding the teaching of the German language to children. Relying on Meyer, the Court later held unconstitutional a statute requiring that children must attend only public schools in Pierce v. Society of the Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), reasoning that the law "unreasonably interferes with the liberty of parents and guardians to direct the upbringing . . . of their children." 268 U.S. at 513, 45 S.Ct. at 573. In Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), the Court stated:

It is cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder . . . and it is in recognition of this that (Meyer and Pierce) have respected the private realm of family life which the state cannot enter. 321 U.S. at 166, 64 S.Ct. at 442.

In May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), the Court, in holding that a mother, in a custody battle with her husband over their minor child, was not permanently bound by a previous award of custody, stated that "(R)ights far more precious to appellant than property rights will be cut off . . .". 345 U.S. at 533, 73 S.Ct. at 843.

More recently, the Court held in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), that a conclusive presumption of unfitness for unwed fathers violated the Fourteenth Amendment, ruling that unwed fathers, were entitled to notice and a hearing...