Sims v. STATE DEPT. OF PUBLIC WELFARE, ETC.
Citation | 438 F. Supp. 1179 |
Decision Date | 12 October 1977 |
Docket Number | Civ. A. No. 76-H-665 and 76-H-1120. |
Parties | John Pleasant SIMS et al., Plaintiffs, v. STATE DEPARTMENT OF PUBLIC WELFARE OF the STATE OF TEXAS et al., Defendants. Dorothy Mae WOODS et al., Plaintiffs, v. Raul JIMENEZ et al., Defendants. |
Court | U.S. District Court — Southern District of Texas |
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Gladys R. Goffney, Nell H. Holloway, Jerry L. Gardner, Martin J. Grimm, J. Patrick Wiseman, Nicolas R. Serna, Houston Legal Foundation, Houston, for plaintiffs.
Frank C. Cooksey, Colin J. Carl, Asst. Attys. Gen., Austin, for defendants.
Before INGRAHAM, Circuit Judge, and SINGLETON and STERLING, District Judges.
This civil action is a challenge to the constitutionality of portions of Chapters 11, 14, 15, 17, and 34, Title 2, Texas Family Code, seeking declaratory, injunctive, and monetary relief. The plaintiffs in the Sims case are two adult parents and their three minor children who seek relief from the actions of the Harris County Child Welfare Unit of the State Department of Public Welfare. Additionally, the case of Woods v. Jimenez, Civil Action No. 76-H-1120, pending in this district, was consolidated with the Sims case solely on the issue of the right of indigent parents to counsel in suits for the termination of the parent-child relationship.
Pursuant to 28 U.S.C. §§ 2281, 2284, a three-judge district court was convened to determine the constitutional issues. The court has carefully considered the extensive briefs, the arguments of counsel, and the evidence presented, and concludes that the case is properly before the court for determination, that certain portions of the Texas Family Code are violative of minimal constitutional standards, and that appropriate declaratory and injunctive relief is necessary.
The threshold issue is that of abstention in light of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Huffman v. Pursue, Ltd.; 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), and Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Having viewed the instant case with an eye to the notions of comity and federalism which underlie Younger's policy of equitable restraint, this court concludes that abstention is not warranted and would be improper under the unique and compelling circumstances of this case.
A chronology of the events which precipitated the filing of this suit is necessary. In March, 1976, the Sims children lived with their parents in Montgomery County, Texas, and attended the John G. Osborne Elementary School in the Houston Independent School District, located in Harris County, Texas. On March 25, 1976, the Harris County Child Welfare Unit received a telephone report from the school that Paul Sims was possibly the victim of child abuse. In response to that call, caseworker Rex Downing visited the school and, on the same date, took possession of the three Sims children pursuant to Section 17.01 of Title 2 of the Texas Family Code.1 The next day, March 26, the Child Welfare Unit instituted a "Suit for the Protection of a Child in an Emergency" pursuant to Chapter 17, which was filed in Juvenile Court Number One of Harris County, Texas, Cause No. 38,295, and concerned all three of the Sims children. Also on March 26, 1976, Judge Robert L. Lowry of the Harris County Juvenile Court issued an ex parte order pursuant to Section 17.04, which has the effect of removing the children from the custody of their parents. Section 17.05 provides that such an order is of ten days in duration, and, upon the expiration of the order, the court is required to either order the restoration of the children to their parents or direct that a "Suit Affecting the Parent-Child Relationship" be filed.
On March 31, 1976, the plaintiff-parents sought to present to Judge Lowry a motion for modification of the March 26 Order, pursuant to Section 17.06. Although that section requires that a hearing be held on the motion, no hearing was in fact held. Rather, evidence before this court on May 5, 1976, indicates that the motion was not presented to Judge Lowry because of his temporary absence and was returned to counsel for the parents. Later on March 31, 1976, counsel for the parents filed with the Juvenile Court Number One, a petition for a writ of habeas corpus, Cause No. 1,069,341.
On April 5, 1976, a hearing was held before Judge Lowry on the parents' petition for a writ of habeas corpus. This was the first time since their seizure that the children were brought before the court for any hearing and the first time the parents were given any opportunity to appear. However, the merits of the dispute were never addressed. At the April 5 hearing, Judge Lowry determined that the children were residents of Montgomery County and, despite their custody in Harris County, transferred the matter to Montgomery County. Later on April 5, at Judge Lowry's direction pursuant to Section 17.05(b)(2), the Harris County Child Welfare Unit filed a "Suit affecting the parent-child relationship" in Harris County. This second petition by the current defendants was filed in the same Cause No. 38,295 as the original emergency suit filed under Chapter 17. Finally, on April 5, 1976, Judge Lowry issued another ex parte temporary order pursuant to Section 11.11.2 The order directed that the children continue in the possession of the Harris County Child Welfare Unit and purported to set a hearing upon its expiration. However, the order setting the hearing was entered in blank and to date the blanks have never been completed.
On April 6, 1976, the "Suit affecting the parent-child relationship" (Cause No. 38,295), which supplanted the emergency suit, and the habeas corpus action (Cause No. 1,069,341) were officially transferred to the District Court of Montgomery County and assigned to the docket of Judge Ernest A. Coker, Sr. The transfer was apparently made sua sponte under Section 11.06(a) despite the requirement that it be transferred upon a timely motion.3 It is stipulated that from April 6, 1976, to May 5, 1976, when the first hearing was conducted in this action, no notice, citation or process of any kind was served upon the plaintiff-parents with regard to the Montgomery County cases, nor were they afforded a hearing of any kind before the District Court of Montgomery County. During the entire time, the children remained in the custody of the Harris County Child Welfare Unit.
On April 19, 1976, the plaintiffs filed their Original Complaint in federal court. On May 4, 1976, the plaintiffs filed a motion for leave to file an original petition for a writ of habeas corpus with the Texas Court of Civil Appeals for the 14th District, which was denied on the same date. The next day, the managing judge of the three-judge district court conducted an evidentiary hearing at which the court found that the children were not in the legal custody of the defendants because the ex parte temporary order under Chapter 17, dated March 26, and the ex parte order under Section 11.11, dated April 5, had both expired. The court ordered that the Sims children be returned to their parents, but did not enjoin the Department of Public Welfare from taking action under state law to properly establish a temporary conservatorship over the children. Therefore, on May 14, 1976, the Department of Public Welfare filed another "Suit affecting the parent-child relationship" in the Juvenile Court of Montgomery County. This action concerned Paul Sims only.
The Juvenile Court on May 14, 1976, established a temporary managing conservatorship for the child and set a hearing for May 21. On May 21, upon the motion of the plaintiffs, the managing judge of the three-judge panel temporarily enjoined the hearing in Montgomery County. Subsequently, after a hearing, the three-judge court extended the restraining order and enjoined any further state proceeding under the challenged statutes pending determination of the plaintiffs' constitutional challenges.
As a preliminary matter, the parties are in dispute as to whether there is a pending state action. Although the Chapter 15 action filed on May 14, 1976, was obviously not pending on the date the federal action was instituted, the original "Suit affecting the parent-child relationship" which was filed on April 5, 1976, and transferred to Montgomery County from Harris County on April 6 was pending on April 19 and, along with the action filed on May 14, remains on the docket of the District Court of Montgomery County. The plaintiffs' argument that there is no pending proceeding because the temporary orders have expired is therefore without merit. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Although, as we note infra, there is no pending state judicial proceeding with regard to some aspects of the plaintiffs' complaint, abstention must still be addressed because of the proceeding filed on April 5, 1976.
The extent to which Younger principles apply to a case where the pending state action is civil in nature is still unclear. The first acknowledged extension of Younger to civil cases involved a nuisance proceeding which was "more akin to a criminal prosecution than are most civil cases." Huffman v. Pursue, Ltd., supra, 420 U.S. at 604, 95 S.Ct. at 1208. However, more recently, in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), and in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Supreme Court extended the coverage of Younger to an even broader range of civil cases. In each of the two most recent decisions, the court has reserved the issue of whether Younger principles apply to all civil cases. We believe that the facts of the instant case do not...
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