Davis v. Page

• Decision Date: 23 March 1981
• Docket Number: No. 78-2063,78-2063
• Citation: 640 F.2d 599
• Parties: Hilary DAVIS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellees, v. William J. PAGE, Jr., Etc. et al., Defendants, Circuit Judges Dixie Herlong Chastain, Etc. et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 599

640 F.2d 599

Hilary DAVIS, Individually and on behalf of all others

similarly situated, Plaintiffs-Appellees, v. William J. PAGE, Jr., Etc. et al., Defendants,

Circuit Judges Dixie Herlong Chastain, Etc. et al.,

Defendants-Appellants.

No. 78-2063.

United States Court of Appeals, Fifth Circuit.

March 23, 1981.

Sidney H. McKenzie, III, Asst. Atty. Gen., Tallahassee, Fla., for defendants-appellants.

Michael R. Masinter, Miami, Fla., for plaintiffs-appellees.

Robert L. Walker, Abigail English, James Morales, and John F. O'Toole, San Francisco, Cal., for amicus, National Legal Aid & Defender Ass'n.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, Chief Judge, BROWN, COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, THOMAS A. CLARK, and WILLIAMS, Circuit Judges. ^*

VANCE, Circuit Judge:

This class action challenges the constitutionality of child dependency proceedings against indigent parents in the Circuit Court of Dade County, Florida, when parents are not provided with counsel at the state's expense. The district court granted summary judgment to the plaintiff. Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977), and a panel of this court affirmed except as to the issue of attorneys' fees. Davis v. Page, 618 F.2d 374 (5th Cir. 1980).

On January 30, 1976, Hilary Davis left her home after her husband broke the arm of her 14-month old baby, Carl Davis. She took her son to a hospital where they both spent the night. The next day, after telling social workers at the hospital that she was leaving her husband and would seek a divorce, she was informed that she would not be permitted to take her son with her. A few days later, the Florida Department of Health and Rehabilitative Services (DHRS) filed dependency proceedings in the Juvenile and Family Division of the Circuit Court seeking to remove Carl from her custody. At an emergency hearing on February 4, the judge advised Ms. Davis to have counsel at the adjudicatory proceeding a month later. He made no offer to appoint counsel. Ms. Davis was indigent, and although she repeatedly attempted to secure counsel, her efforts were unsuccessful.

The adjudicatory hearing proceeded in accordance with Fla.Stat. § 39.408(1) (b). ¹ Such hearings are formal adversary proceedings. The state is represented by counsel and is required to prove its case by a preponderance of the evidence under the rules of evidence generally applicable to civil proceedings.

At the adjudicatory hearing, Carl Davis was declared to be a dependent child and was committed to the temporary custody of DHRS. ² Although Ms. Davis mistakenly believed that she would be separated from Carl for only a few weeks, the phrase "temporary custody" belies the serious consequences of an adjudication of dependency. Temporary custody continues until terminated by the court or until the child reaches the age of 18. Fla.Stat. § 39.41(1)(c). While a parent may petition to regain custody of his or her child, the nature of subsequent proceedings differs significantly from the original adjudication hearing. In these proceedings, known as "disposition hearings," the state no longer bears the burden of proof. Compare Fla.Stat. § 39.408(1)(b) with Fla.Stat. § 39.408(2) and Fla.Stat. § 39.41. "Evidence that may be totally inadequate to deprive a parent of the custody of his child in the first instance may be altogether adequate to support the court's refusal to restore custody to the parent once the child had become a ward of the state." Pendarvis v. State, 104 So.2d 651, 652 (Fla.Dist.Ct.App.1958). Evidence may be admitted at disposition hearings which would be inadmissible at an adjudicatory hearing. Fla.Stat. § 39.408(2).

Ms. Davis was not advised by the judge at the adjudicatory hearing of her right to appeal under Fla.Stat. § 39.413. After the 30-day appeal period had expired, she retained counsel. On May 11, 1976, she filed a Petition for Writ of Habeas Corpus in the Florida Supreme Court seeking the return of her son. The Florida Supreme Court denied her petition without opinion and this litigation followed.

At the outset, we note that jurisdiction is properly founded on 28 U.S.C. § 2241 et seq. and 28 U.S.C. § 1343(3) and (4). Appellants argue, for the first time in this litigation, that the action should be dismissed under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). We disagree. At the time she filed her federal action, the adjudicatory proceeding had been completed and Ms. Davis had exhausted the remedies available to her under Florida law. The comparatively informal disposition hearings, in which the state no longer carries the burden of proof, are not a continuation of the adjudicatory proceeding. The parent may not relitigate the original adjudication. Since this action did not seek to enjoin a state proceeding but sought rather to vacate a previous judgment, the considerations of comity and federalism that underlie the Younger doctrine do not require the federal courts to abstain from taking jurisdiction of Ms. Davis' claim. Compare the present case with Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979) (suit seeking to enjoin child custody proceeding barred by Younger). ³

Ms. Davis was also entitled to invoke federal habeas corpus jurisdiction. The state does not question that at the time this federal action was filed, Carl Davis was in custody pursuant to state judgment. It argues, however, that since the state court returned Carl to his mother before the district court rendered judgment, the habeas claim had become moot. This contention lacks merit. If habeas jurisdiction exists at the outset of a case, it is not defeated by the applicant's subsequent release from custody. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968). In addition, the state court order returning Carl placed him under the continuing supervision of DHRS. Ms. Davis had to visit regularly with her social worker, permit her social worker to inspect her home, and permit her social worker to exercise general supervisory authority over her parental decisions and actions. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parolee "in custody" within meaning of habeas statute in view of significant restraints on liberty even after release from prison). We decline the state's invitation to declare habeas relief inappropriate whenever the custody of a child is at stake. While domestic relations are normally within the province of state courts, nothing in the history of the habeas writ suggests that it should be denied merely because the custody at issue results from an adjudication involving child custody. ⁴ See Lehman v. Lycoming County Children's Services Agency, (No. 79-2466, 3d Cir. July 23, 1980). But see Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978).

We turn now to the central question of this appeal, whether the failure to offer Ms. Davis the assistance of counsel violated constitutional requirements of due process.

It is not questioned that Ms. Davis and similarly situated parents have a liberty interest at stake in the child dependency hearings that is protected by the due process clause of the Fourteenth Amendment. Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The Supreme Court has recognized the right to family integrity and autonomy in a number of contexts. See, e. g., Cleveland Board of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).

To determine whether due process in this case includes the right to counsel, we must examine more precisely the weight of the liberty interest presented by the plaintiff and the competing interests asserted by the government. The Supreme Court has noted that three distinct factors are involved in such a determination:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976).

We consider first Ms. Davis' interest in the dependency proceeding. The process to which she is entitled is determined in part by the extent to which she may be "condemned to suffer grievous loss." Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 1018, 25 L.Ed.2d 287 (1970). It is difficult to imagine a loss more grievous than that of a parent deprived of his or her child. The bond between parent and offspring is one of the central facts of nature as well as of society, and the Supreme Court has frequently noted the fundamental character of this relationship. The interest of a parent in raising his or her child has been described as "essential," Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923), and "far more precious ... than property rights," May v. Anderson, 345 U.S. 528, 533, 73 S.Ct. 840, 843, 97 L.Ed. 1221 (1953). As the Court stated in Stanley v. Illinois, 405 U.S. at 651, 92 S.Ct. at 1212, "It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children 'come(s) to this Court with a momentum for respect lacking when appeal is made to liberties which derive...