Roe v. Conn

Decision Date06 July 1976
Docket Number75-233-N and 75-457-N.,Civ. A. No. 75-232-N
Citation417 F. Supp. 769
PartiesRichard ROE, etc., Plaintiff, v. L. T. CONN, etc., et al., Defendants. Margaret Ann WAMBLES, etc., Plaintiff, v. L. T. CONN, etc., et al., Defendants. Richard ROE, etc., et al., Plaintiffs, v. Cecil COPPAGE et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

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Pamela S. Horowitz, Joseph J. Levin, Jr., John L. Carroll and Morris S. Dees, Jr., Montgomery, Ala., for plaintiffs in all three cases.

Nicholas T. Braswell, III (Rushton, Stakely, Johnston & Garrett), Montgomery, Ala., for the defendant Montgomery Police officials — L. T. Conn, a patrolman with the City of Montgomery Police Department, and E. L. Wright, Jr., the Chief of Police, and Charles Swindall, who succeeded him as Chief of Police during the pendency of these suits.

Jack A. Blumenfeld, Asst. Atty. Gen., State of Alabama, Montgomery, Ala., for Barbara Ward, the Director of the Montgomery County Youth Facility, and Judge William F. Thetford, Judge of the Montgomery County Family Court, and Judge John W. Davis, who succeeded Judge Thetford during the course of these lawsuits and Probate Judge Walker Hobbie, Jr.

Jamie L. Pettigrew, Mary Lee Stapp and J. Michael Crouch, Asst. Attys. Gen., State of Alabama, Dept. of Pensions and Security, Montgomery, Ala., for Julia Oliver, the Commissioner of the Alabama Dept. of Pensions and Security, and Ada Kate Morgan, the Director of the Montgomery County Dept. of Pensions and Security.

L. Wayne Collier and L. H. Walden, Montgomery, Ala., for the defendant Cecil Lawrence Coppage.

J. Michael Crouch, Montgomery, Ala., for defendant Probate Judge Walker Hobbie, Jr.

Before RIVES, Circuit Judge, JOHNSON, Chief District Judge, and VARNER, District Judge.

OPINION

These cases were consolidated for trial because of a common background of facts. Wambles v. Conn, Civil Action No. 75-233-N, is a class action challenging the constitutionality of Alabama's child neglect law, Alabama Code, Title 13, § 350 et seq. (1958). Plaintiff Margaret Wambles represents a class composed of mothers who have been or may be deprived of the custody of their child or children without a prior hearing where there was no showing of immediate or threatened harm, and a subclass composed of all mothers who have been or may be deprived of their child or children because they are living with men (other than relatives or boarders) to whom they are not married. Roe v. Conn, Civil Action No. 75-232-N, challenges the constitutionality of the same child neglect law from the vantage point of the child's protectable interest. Plaintiff Richard Roe represents a class composed of all children under the age of 16 who have been or may be removed from their mothers without a prior hearing, absent a showing of immediate harm or threatened harm, and all children not appointed counsel to represent their interests, and a subclass composed of all children who have been or may be removed from their mother because their mothers are living with men (other than relatives or boarders) to whom they are not married. Roe v. Coppage, Civil Action No. 75-457-N, is an action brought by Richard Roe and Plaintiff Wambles which seeks to challenge the constitutionality of the state law, Alabama Code, Title 27, §§ 11-12 (1973 Supp.), that allows a man in an ex parte proceeding to legitimatize an illegitimate child by declaring himself the father and in the same proceeding to change the child's name.

Defendants in these cases are Cecil Cop-page; Hon. Walker Hobbie, individually and in his official capacity as Judge of Probate of Montgomery County, Alabama; L. T. Conn, individually and in his official capacity as a patrolman with the City of Montgomery Police Department; E. L. Wright, Jr., individually and as Chief of Police of the City of Montgomery Police Department; Barbara Ward, individually and as Director of the Montgomery County Youth Facility; Julia Oliver, individually and as Commissioner of the Alabama Department of Pensions and Security (DPS); Ada Kate Morgan, individually and as Director of the Montgomery County Department of Pensions and Security; and Hon. William F. Thetford, individually and as Judge of the Montgomery County Family Court. During the course of the lawsuit, Hon. John W. Davis succeeded Judge Thetford as Judge of the Montgomery County Family Court and Mr. Charles Swindall replaced Mr. Wright as Chief of the Montgomery Police Department. The successors were automatically substituted as defendants pursuant to F.R.C.P. 25(d).

A three-judge court has been convened pursuant to 28 U.S.C. § 2281 to decide these constitutional questions. After a pretrial conference at which many of the facts were stipulated, the case was submitted for decision upon the briefs and documents supplied by the parties.

FINDINGS OF FACT

Margaret Wambles is a 25-year-old white woman who has never married. On September 15, 1971, Plaintiff Wambles gave birth to a son, Richard Roe, who lived with her continuously until June 2, 1975, when he was seized by Officer L. T. Conn of the Montgomery Police Department and placed in the custody of the Montgomery County Department of Pensions and Security. This seizure was ordered by Judge Thetford of the Montgomery County Family Court without affording Plaintiff Wambles prior notice and a hearing. Such authority as exists for this action is provided by Alabama Code, Title 13, §§ 350(2) and 352(4), which purports to permit a juvenile court judge to summarily remove a "neglected child" from its home if the judge believes the child's welfare so warrants.1

The investigation which led to termination of Plaintiff Wambles parental rights was prompted by Defendant Coppage. Mr. Coppage, who is white, lived intermittently with Plaintiff Wambles from 1970 until March, 1975, and claims to have fathered Richard Roe. On June 1, 1975, Mr. Coppage contacted the Montgomery Police Department and reported that Plaintiff Wambles might be neglecting Richard Roe, that she had been evicted from her former residence because she was keeping company with black males, and that she had moved to Highland Village (a black neighborhood) where she was living with a black man. On the basis of this information, Police Officer Conn initiated an investigation of Plaintiff Wambles. The records of the Montgomery Police Department were checked but revealed no previous complaints of child neglect against Plaintiff Wambles and no adult file on her. Meanwhile, on June 2, 1975, Defendant Coppage went to the office of Barbara Ward, Director of the Montgomery County Youth Facility, and told her that he was the father of Richard Roe; that he had once lived with Margaret Wambles, who was now living with a black man and entertaining other black men; that he had reported this to the Montgomery Police Department; that he wanted to get the child out of the house; and that he wanted custody of the child.2 Following Defendant Coppage's visit to her office, Defendant Ward conferred with Judge Thetford and then called the Montgomery Police Department. According to the police report prepared by Officer Conn, Defendant Ward advised the police to request a pick-up order if Margaret Wambles and Richard Roe were living with a man to whom Margaret Wambles was not married. Officer Conn went to the Wambles' residence, 1033-E Highland Village Drive, Montgomery, Alabama, at approximately 7:30 P.M. on June 2, 1975. Plaintiff Wambles permitted Officer Conn to enter and inspect her dwelling, which the officer found was a two-bedroom apartment, where Plaintiff Wambles and her son were living with a black man to whom she was not married. Richard Roe was clothed, clean, and in "fairly good" physical condition with no signs of physical abuse. The home was "relatively clean" and stocked with "adequate food." Upon completing his inspection, Defendant Conn left the home and called Defendant Ward and reported his findings. He was then instructed by Defendant Ward to go to the Youth Facility and get a pick-up order. The only facts about Margaret Wambles known to Judge Thetford before he issued the pick-up order were that she was unemployed and that she and her child are white and were living with a black man in a black neighborhood. Judge Thetford had no information as to how long Margaret Wambles had lived in Montgomery, where she had worked, or how long she had been unemployed.3 He had no evidence that Richard Roe was being physically abused and no information as to the condition of the Wambles' home. Judge Thetford knew nothing about the man with whom Margaret Wambles was living, other than his race and the fact that he was not married to her. Judge Thetford testified that the race of the man with whom Plaintiff Wambles was living was relevant to his decision to order Richard Roe removed from his mother's custody, particularly because they were living in a black neighborhood. Judge Thetford concluded that this habitation in a black neighborhood could be dangerous for a child because it was his belief that "it was not a healthy thing for a white child to be the only white child in a black neighborhood."

At approximately 8:30 P.M. on June 2, 1975, after obtaining the pick-up order, Defendant Conn, accompanied by two other Montgomery police officers, returned to Plaintiff Wambles' home. When Defendant Conn announced that he had come to take Richard Roe, Plaintiff Wambles picked up her child and ran to the back of the apartment. After Defendant Conn showed Plaintiff Wambles the pick-up order, she still refused to surrender the child. Thereupon, with the child crying, "No, mama, don't let him take me," Defendant Conn grabbed Plaintiff Wambles by the arm and pulled her back into the living room, took Richard Roe from her arms, and left without leaving a copy of the pick-up order. After the seizure, Defendant Conn took Richard Roe to a DPS-licensed shelter home in...

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