Davis v. Page, 78-2063

• Decision Date: 06 June 1980
• Docket Number: No. 78-2063,78-2063
• Citation: 618 F.2d 374
• 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 374

618 F.2d 374

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.

June 6, 1980.

Rehearing En Banc Granted July 8, 1980.

Jim Smith, Atty. Gen., Sidney H. McKenzie, III, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendants-appellants.

Florida Rural Legal Services, Delray Beach, Fla., Michael R. Masinter, Florida Rural Legal Services, Inc., Perrine, Fla., Miami, Fla. (effective July 15, 1978), for plaintiffs-appellees.

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

Before TUTTLE, BROWN and TATE, Circuit Judges.

TUTTLE, Circuit Judge:

This is an appeal from a Florida district court's ruling that the Federal Constitution requires that indigent parents in child dependency proceedings be provided with counsel in all cases unless they waive that right, beginning immediately following service of a petition on the parent or seizure of the child. The trial court also ruled that the plaintiffs were entitled to a reasonable attorney's fee, pursuant to the Civil Rights Attorney's Fees Awards Act, P.L. No. 94-559, 42 U.S.C. § 1988 as amended. We affirm the holding of the trial court except as to the award of attorney's fees.

On January 30, 1976, Hilary Davis, the mother of Carl Thor Davis left her husband after he hit their 14-month-old child and broke the child's arm. After she turned to the state for assistance, the State initiated a dependency proceeding under Fla.Stat.Ann. § 39.01 et seq. (West 1974) seeking to obtain custody of the child. At the initial hearing on February 4, 1976, in the Juvenile and Family Division of the Dade County Circuit Court, custody of the child was granted to the Florida Department of Health and Rehabilitative Services, pending a formal hearing on March 4. Hilary Davis was indigent and was unable to obtain counsel for this preliminary adjudicatory hearing. The judge did not offer to appoint counsel for her at this hearing, but he did advise her to have counsel present at the formal hearing.

The plaintiff, because of her poverty, was unable to hire counsel for the March 4 hearing. She tried to secure an attorney through a legal services office, but was unsuccessful. Thus she appeared at the formal hearing without counsel. The circuit judge never asked her at the hearing about the failure to obtain counsel.

Under Florida law, pursuant to Fla.Stat.Ann. § 39.05(4) and 39.09(1)(b), while the state is represented by counsel at such a proceeding, the judge is not required to appoint counsel to represent indigent parents. ¹

According to the district court opinion, "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." Davis v. Page, 442 F.Supp. 258, 260-61 (S.D.Fla.1977). Ms. Davis evidently thought the state would take custody of the child for a few weeks while she found a new place to live and a job. She was unaware that a finding committing the child to the temporary custody of the state pursuant to Fla.Stat.Ann. § 39.10(4) and 39.11(1)(c) left the child in the state's custody "until terminated by the court or until the child reaches 18." See Davis v. Page, 442 F.Supp. 258, 261 (S.D.Fla.1977). At the conclusion of the hearing, the court told Ms. Davis to contact a lawyer. She was not informed, however, of her right to appeal under Fla.Stat.Ann. § 39.14(1).

After the hearing, the child was adjudicated dependent and custody was given to the Department of Health and Rehabilitative Services (D.H.R.S.). Ms. Davis subsequently obtained counsel and filed a petition for writ of habeas corpus in the Florida Supreme Court seeking return of her son. That petition was denied. She subsequently filed suit in federal court on two counts. First, she sued officials of the D.H.R.S. in order to regain custody of her son. Second, she filed a class action on behalf of all indigent parents who were defendants in child dependency and neglect proceedings seeking a declaratory judgment that counsel must be afforded to them at state expense in these proceedings. Named as defendants in the second count were the judges of the Juvenile and Family Division of the Circuit Court of Dade County, Florida, acting in their official capacity. The plaintiff also sought to enjoin dependency hearings in which counsel was not provided to indigent parents.

During the course of the proceedings in the United States court, custody was restored to Ms. Davis, subject to supervision by the state and the continuing jurisdiction of the state Circuit Court. By the time the child was returned to her, she had been deprived of custody for a full year.

On the second charge, the United States court found first that the "right of family integrity" given constitutional protection under the Fourteenth Amendment, see May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), required strict scrutiny of the procedural safeguards required in these proceedings. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). Applying strict scrutiny, the court reasoned that the right to counsel was an essential element of the procedural due process required in these proceedings. The court then concluded that while a dependency proceeding was not a criminal proceeding, it was substantially similar and that therefore, as in criminal cases, counsel had to be provided to indigent parents. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Finally, the court ruled that counsel should be provided to indigent parents in all dependency proceedings, rather than assigned on a case-by-case basis. The court said such a right could not be waived prior to notice and that such a waiver to be effective had to be "knowing and intelligent." See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The court also said that counsel had to be made available "immediately following service of the petition or seizure of the child. ²" 442 F.Supp. at 265.

An amended final judgment was entered in this case on January 25, 1978. Department of Health and Rehabilitative Services' officials acquiesced in the judgment and are not parties to this appeal.

Counsel for the Circuit Judges, without discussing the matter with his clients, determined on the basis of his research, not to appeal the judgment. On March 3, the plaintiff moved for civil contempt to enforce compliance with the final judgment. However, after finally discussing the matter with his clients, defense counsel for the judges decided to appeal. On March 22, the judicial defendants filed both a notice of appeal and a motion to extend the time within which to appeal under Federal Rules of Appellate Procedure 4(a). The district court granted the extension on the ground that defense counsel's failure to appeal constituted excusable neglect.

I.

The appellee argues first in a motion to this Court that the district court's granting of an extension to appeal beyond the usual 30 days constituted an abuse of discretion. Under the Federal Rule 4(a) applicable at the time:

. . . Upon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this subdivision. . . .

The appellee urges that the failure to appeal in this case was not "excusable neglect," since the defendants' counsel, the Attorney General's office of Florida, reached this decision after thoughtful research and deliberation based on legal research.

We think the trial court decided this issue correctly. This standard of "excusable neglect," incorporated into the rule in 1966, was intended to broaden the former rule that defined excusable neglect only as "the failure of a party to learn of the entry of judgment. ³" The "change was made because experience has revealed that there are a number of other situations in which tardiness is excusable and in which it is unfair to dismiss an appeal because of late filing of the notice." Stern, Changes in the Federal Appellate Rules, 41 F.R.D. 297, 298 (1967). Although the "excusable neglect" standard is still a strict one, this Court has held that a "showing of . . . unique circumstances may render it unfair to dismiss an appeal because of late filing of the notice." Chipser v. Kohlmeyer & Co., 600 F.2d 1061, 1063 (5th Cir. 1979). It has also been suggested that the "matter rests largely in the discretion of the district court. If it finds excusable neglect and grants an extension, the Court of Appeals should not second-guess this determination. . . ." 16 Wright, Miller, Cooper and Gresman, Federal Practice and Procedure § 3950, at 367 (1977). This standard of appellate deference to the discretion of the district court has been adopted by this Court. Gann v. Smith, 443 F.2d 352, 353 (5th Cir. 1972).

We also note that effective August 1, 1979, the Supreme Court amended Rule 4(a) to provide that the time for appeal may be extended, not only for a showing of "excusable neglect," but also for a showing of "good cause." Although that amendment does not apply to this case since the district court made its ruling before August 1, we note that the change indicates that the standard should be interpreted flexibly. See also Chipser v. Kohlmeyer, 600 F.2d at 1063 n.2.

Although the district court filed no...