Davis v. Page

• Citation: 714 F.2d 512
• Decision Date: 15 September 1983
• Docket Number: No. 78-2063,78-2063
• 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: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 512

714 F.2d 512

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.^*

Sept. 15, 1983.

Certiorari Denied Jan. 9, 1984.

See 104 S.Ct. 735.

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

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

Robert L. Walker, San Francisco, Cal., for amicus Nat. Legal Aid & Defender Ass'n, Nat. Center for Youth Law.

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

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GODBOLD, Chief Judge, TUTTLE, BROWN, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON JR., HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, THOMAS A. CLARK, WILLIAMS, GARWOOD, JOLLY and HIGGINBOTHAM, Circuit Judges. ^**

PER CURIAM:

In our prior en banc decision in this case we held that the due process clause of the fourteenth amendment requires the state of Florida to provide counsel to indigent parents whose children are the subject of dependency proceedings. Davis v. Page, 640 F.2d 599 (5th Cir.1981). The United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to us for consideration in light of Lehman v. Lycoming County Children's Services Agency, --- U.S. ----, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Chastain v. Davis, 458 U.S. 1118, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982). Since our prior en banc decision, the Supreme Court has also decided Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Lehman held that federal habeas corpus jurisdiction could not be invoked to challenge state-court judgments involuntarily terminating parental rights. Lassiter held that due process requires only a case-by-case determination whether indigent parents should be provided with counsel in parental termination proceedings, rather than the appointment of counsel in all instances. We hold first that Lehman does not deprive us of jurisdiction in this case. Second, we hold that Lassiter requires that the right to counsel in Florida dependency proceedings be determined on a case-by-case basis. Finally, based on Lassiter, we hold that the district court should have dismissed the claim for relief now before us. Thus, we reverse the judgment of the district court and remand the case for the court to dismiss that claim.

I.

Because the facts of this case have been set forth in three prior opinions, Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977), aff'd in part and remanded, 618 F.2d 374 (5th Cir.1980), aff'd in part and rev'd in part on reh'g en banc, 640 F.2d 599 (5th Cir.1981), we state the essential facts briefly. On March 4, 1976, the Circuit Court of Dade County, Florida, adjudicated Carl T. Davis a dependent child without providing his indigent mother, Hilary Davis, counsel. The court placed the child in the temporary custody of the State Department of Health and Rehabilitative Services (DHRS). After petitioning the Florida Supreme Court unsuccessfully for a writ of habeas corpus, Ms. Davis brought this suit.

Davis separated her complaint into two distinct counts against two separate groups of defendants. Count I sought a writ of habeas corpus to release the Davis child from the custody of DHRS and named DHRS officials as defendants. Count II sought declaratory and injunctive relief in favor of a class of indigent parents who were not or who would not be provided counsel in dependency proceedings, and named as defendants the judges then assigned to the Juvenile and Family Division of the Dade County Circuit Court.

The district court granted summary judgment in Davis' favor on both counts after certifying a class in count II. The DHRS officials did not appeal. The state judges appealed, and in our prior panel and en banc decisions we essentially affirmed the district court's decision. We now reconsider these decisions in light of Lehman and Lassiter.

II.

First, we must determine the effect of Lehman on our prior en banc decision. In Lehman the Supreme Court held that federal habeas corpus jurisdiction could not be invoked to challenge state court judgments involuntarily terminating parental rights. In the case at bar, habeas jurisdiction was invoked, but in support only of count I. The count I defendants, DHRS officials, did not appeal the district court's judgment. The only count involved in this appeal was count II. Count II was based on 42 U.S.C. § 1983 (1976 & Supp. V 1981). The district court took jurisdiction of count II pursuant to 28 U.S.C. § 1343(a)(3) and (4) (1976 & Supp. V 1981). Consequently, this appeal does not involve habeas jurisdiction and Lehman is inapplicable.

The Supreme Court's remand to us for reconsideration in light of Lehman is nevertheless understandable. Our prior en banc opinion could be read as based in part on habeas jurisdiction. We take this opportunity to clarify any confusion that opinion may have caused. Only the count II defendants, the state judges, appealed the district court's decision. Because the count I defendants did not appeal, the question of the applicability of habeas jurisdiction was not before us. We proceed to decide Davis' section 1983 claim against the state judges, which is unaffected by Lehman.

III.

We now consider whether our prior en banc decision survives Lassiter. In our prior decision we held that due process requires the appointment of counsel for indigent parents in all Florida dependency proceedings. In Lassiter the Court held that due process requires only a case-by-case determination whether counsel must be appointed for indigent parents in state termination proceedings. The Court expressly rejected the notion that due process requires the appointment of counsel for indigent parents in all termination proceedings. 452 U.S. at 31, 101 S.Ct. at 2162. The question presented is, therefore, whether a proceeding in which a child is adjudicated a dependent is distinguishable from a proceeding in which parental rights are terminated, for purposes of the right to counsel under the due process clause. We apply the Lassiter analysis to dependency proceedings to resolve this question.

The Court in Lassiter began its analysis by drawing from prior cases "the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." 452 U.S. at 26-27, 101 S.Ct. at 2159. Thus, in Lassiter the presumption was against the appointment of counsel. Similarly, in this case Ms. Davis' physical liberty was not at stake. Therefore, the presumption was against the appointment of counsel. This case and Lassiter are not distinguishable as regards the presumption against the appointment of counsel.

The Court's analysis next focused on the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), which requires evaluation of "the private interests at stake, the government's interest, and the risk that the procedures used will lead to erroneous decisions." Lassiter, 452 U.S. at 2159, 101 S.Ct. at 2159. In analyzing the private interests, the Court first recognized the extreme importance of the parental interest at stake in a termination proceeding:

This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to "the companionship, care, custody and management of his or her children" is an important interest that "undeniably warrants deference and, absent a powerful countervailing interest, protection." Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. A parent's interest in the accuracy and injustice of the decision to terminate his or her parental status is, therefore a commanding one.

452 U.S. at 27-28, 101 S.Ct. at 2160 (citations and footnote omitted).

We must determine whether the parental interest asserted in a dependency proceeding is any stronger than the "commanding" interest the Court has found in a termination proceeding. In the latter, the interest is in the complete termination of parental rights. In fact, in Lassiter the Court relied on the finality of the termination decision to support its holding that a commanding interest was at stake: "Here the State has sought not simply to infringe upon [the parents'] interest but to end it. If the State prevails, it will have worked a unique kind of deprivation." Id. (citations omitted).

In contrast to the complete and irrevocable termination present in Lassiter, the parental interest asserted in a Florida dependency proceeding will usually be in the temporary custody of the child. As we noted in our prior en banc decision:

Once a child has been adjudicated dependent the court may (1) place the child in his own home or the home of a relative under protective supervision; (2) commit the child to a licensed child-care agency; (3) commit the child to the temporary legal custody of DHRS; or (4) permanently commit the child to DHRS or a licensed child-placing agency. Fla.Stat. § 39.41(1).

640 F.2d at 601 n. 2.

Thus, although permanent commitment of the child is a possibility, it is also a possibility that the child will remain in his own home or in the home of a relative. The parental interest at stake certainly becomes greater as the deprivation approaches permanency. Supervision of the child in his own home does not amount to the "unique" type of deprivation present in Lassiter. As the Supreme Court noted in discussing New York termination proceedings in Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) (footnote...