Hilary Davis, Individually and on Behalf of All Others Similarly Situated v. William J. Page, Jr., Etc., Circuit Judges Dixie Herlong Chastain, Etc.

JOHN R. BROWN, Circuit Judge, with whom COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJO-FLAT, HILL, GARZA, HENDERSON and REAVLEY, Circuit Judges,

join, dissenting:

What this case involves was succinctly described in my panel dissenting opinion (with partial concurrence): 1

Once again this Court in the high name of the Constitution becomes involved by the majority in the most direct way in domestic problems wisely left to the states. Not only that, it is done by an order declaring unconstitutional prior decisions of the state’s highest tribunal through the medium of an attack directed against innocent local state trial circuit judges, all of whom—including all other judges high and low in the whole state of Florida—are now categorically directed, without discretion or consideration of real needs, to conform to our edict. I think all of the principles of Federalism and the demands of comity are defeated by this action and I therefore dissent from this intrusion.

Davis v. Page, 618 F.2d 374, 386 (5th Cir. 1980).

Domestic relations is an area of law in which Federal Courts traditionally have deferred to State Courts. Sosna v. State of Iowa, 419 U.S. 393, 404 , 95 S.Ct. 553, 559 , 42 L.Ed.2d 532, 543 (1975); DeSylva v. Ballentine, 351 U.S. 570, 580 , 76 S.Ct. 974, 979 , 100 L.Ed. 1415, 1427 (1956); Bell v. Bell, 411 F.Supp. 716 (W.D.Wash.1976). Federal Courts have always preferred to abstain from answering questions of law, such as those contained in domestic relations suits, which the states are by nature best equipped to deal with. See Moore v. Sims, 442 U.S. 415, 429-30 , 99 S.Ct. 2371, 2380, 2381 , 60 L.Ed.2d 994, 1007 (1979); Harris County Commissioners Court v. Moore, 420 U.S. 77, 83-84 , 95 S.Ct. 870, 874-75 , 43 L.Ed.2d 32, 39 (1975); Burford v. Sun Oil Co., 319 U.S. 315 , 63 S.Ct. 1098 , 87 L.Ed.2d 1424 (1942). Although I refrain from asserting that there are no instances in which it is appropriate for Federal Courts to in- *606 trade in domestic relations matters, I believe that such intrusion should only take place with proper awareness of the roles of Federal and State Courts and then only rarely and in extreme situations.

I am first concerned by this Court’s conclusion and its operative order the Federal habeas corpus relief is appropriate in this case. The origins of this case are somewhat curious. The original complaint was in two counts. One count was stated as a class action for declaratory and injunctive relief presumably under 42 U.S.C.A. § 1983 against all of the judges of the Juvenile and Family Division of the Circuit Court of Dade County, Florida, none of whom was charged with having custody of the minor. In a separate count, Ms. Davis sought a writ of habeas corpus against the Secretary of the Florida Department of Health and Rehabilitative Services and three subordinate officials of that Department.

What started out primarily as a class action against state judges has now been framed by this Court as an action based essentially on Federal habeas. Although the majority discusses the appropriateness of habeas relief in this case there is no discussion of the 42 U.S.C. § 1983 cause of action upon which jurisdiction under 28 U.S.C. § 1343 (3) and (4) is presumably based.

Clearly, Federal habeas is an inappropriate avenue of relief as respects the action against the state judges named as defendants, and more particularly as the vehicle for the sweeping declaration binding on all Florida Judges. There is no suggestion that the judges themselves at the time the Federal suit was filed had custody of Carl Davis.

I also believe that Federal habeas is an inappropriate avenue of relief as respects the action against the Florida Department of Health and Rehabilitative Services. My concerns are essentially the same as those expressed by the First Circuit in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978), in which that Court concluded that Federal habeas relief was not available to assert the rights of the parent, not that of the child, in a case where, as here, a parent contested the involuntary termination of parental rights. It should be pointed out that in a recent unpublished opinion of the Third Circuit reached a conclusion on this same question contrary to that of the First Circuit. However, that opinion was issued over a sharp dissent. Subsequently, the case was put en banc and has recently been reargued en banc. Lehman v. Lycoming County Children’s Services Agency, (No. 79-2466, 3d Cir. July 23, 1980, reargued en banc November 17, 1980).

My concern with the assumption of Federal habeas in this case is not merely a matter of jurisdictional quibbling. As recognized by the Court in Sylvander :

Federal habeas when applied to persons under state control is a procedure of unique potency within the Federal-state framework, having far different and more far-reaching consequences than a state’s utilization of habeas within its own system.

584 F.2d at 1111 . Unlike other avenues of relief, under Federal habeas a Federal District Court can assume jurisdiction of a case regardless of prior state proceedings—res judicata and collateral estoppel are no bar. This Court’s decision today represents the first recognition by this Circuit of the availability of Federal habeas relief in a state child custody dispute. Furthermore, the Supreme Court has never explicitly recognized the appropriateness of Federal habeas in a case such as this. 2 The expansion of *607 Federal habeas in this manner is not a course which this Circuit should enter into lightly.

From a strictly legal standpoint, I disagree seriously as to the appropriateness of Federal habeas relief in this case. The “custody” of Carl Davis which purportedly gave rise to Federal habeas in this case was not the type of “custody” which has traditionally formed the basis for habeas relief. 3 Even a cursory review of the Court’s opinion reveals that the primary interest being addressed is the interest of Ms. Davis as the parent in not being deprived of her child. Only by a strained reading of the opinion can it be said that the true interest with which the Court is concerned is the interest of Carl Davis in not being deprived of his liberty by virtue of some unconstitutional order.

From the standpoint of the administration of justice and the maintenance of our cherished principles of federalism, I am acutely disturbed by the recognition of Federal habeas as an available avenue of relief in child custody disputes. First, I am not convinced that the interests of family and child will be significantly fostered by permitting actions such as these to be litigated in two sets of courts—first state, and then federal, or worse, perhaps simultaneously. Furthermore, I suspect that it will be difficult for our courts to place limits on the types of child custody cases which may be brought in Federal Courts through the habeas route. Although the Court in this case takes pains to emphasize that its holding does not extend to cases in which “two purely private parties litigate the issue of child custody”, the net effect of most “purely private” custody disputes is essentially the same as that in the present controversy—a parent is deprived of the continuing custody of his or her child through a state decree. Under the rationale of the Court’s decision, what real bar would there be, for example, to an indigent mother asserting a constitutional right to counsel in a “purely private” custody battle, in which she faces the real possibility of being deprived of the custody of her child, and then litigating that question through both the State and Federal Courts? The disclaimers of the majority opinion not withstanding, I fear that this opinion will provide an open invitation for a great, and growing, number of disappointed parents in so-called “private” custody suits to seek habeas relief in Federal Court.

Even more basic, I do not think the problems can go away by characterizing these battles as “private litigation”. The State has very much an immediate and direct interest in the welfare of a child and hence his or her custody. So too, does the State have a significant interest in the marriage relationship and the maintenance of the family and the home.

Once this is recognized where does the Court’s intrusion end? Consider for example, a husband who has secreted all of his property and files a divorce suit against his wife who desperately wants to preserve both marriage and home and protect it, (and incidentally her errant husband from the wiles of another) but who is left penniless and unable to obtain counsel. Would this Court, again in the high name of the Constitution, decree that the State must provide counsel at its expense? Or suppose that the custody controversy arises directly out of the divorce action as to which the wife, now a forced indigent, is indifferent, but is nevertheless locked in a struggle over parental custody of a minor son. Again *608 does the Constitution mandate counsel for her at state expense.

While the question should not have been reached, I also am compelled to disagree with the Constitutional issue as presented to and decided by the Court. In this case, this Court imposes on the state legal system a hard and fast rule. They tell the Florida Circuit Judges that they are not capable of deciding when an indigent parent present at a dependency hearing is in need of counsel, and worse, we declare that the Supreme Court of Florida’s rule is unconstitutional for all time and for all circumstances. The state judges have no choice but to appoint counsel in every case.

Although Betts v. Brady, 316 U.S. 455 , 62 S.Ct. 1252 , 86 L.Ed. 1595 (1941) was overruled by Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963), I do not think that the notion of deference to state courts in the interpretation of their own laws, expressed in Betts, 316 U.S. at 472 , 62 S.Ct. at 1261 , 86 L.Ed.2d at 1607, has ever been dismissed as no longer important. In Gideon, the Supreme Court decided, not that comity was an insignificant concern for Federal Courts, but that it was outweighed by a more powerful Federal concern in that case, the fundamental right to counsel in a state criminal prosecution, guaranteed by the Sixth Amendment through the Fourteenth Amendment.

I cannot agree with the Court’s conclusion that the Florida Supreme Court’s case-by-case approach to the provision of counsel in dependency proceedings, as enunciated in Potvin v. Keller, 313 So.2d 703 (Fla.1975), is constitutionally unsound. The rule adopted in Potvin was taken directly from the Ninth Circuit opinion in Cleaver v. Wilcox, 499 F.2d 940 (1974) and reasonably assures that harsh results will be avoided in dependency proceedings. Furthermore, the Florida Supreme Court has even more recently required the appointment of counsel in all cases where indigent parents are threatened with permanent loss of custody or when criminal charges may arise from the proceeding. It is only in cases which contemplate less serious consequences that the case-by-case approach comes into play. In the Interest of D.B. &. D.S., 385 So.2d 83 (Fla.1980).

Every case on which the Court today relies in support of its holding of an absolute right to counsel for parents in a child dependency proceeding, is a criminal case involving the Sixth Amendment, or at least a case involving the potential confinement of the person to whom the absolute right to counsel is granted. 4 I cannot disagree that the right of a parent to retain custody of *609 his children is an important right. But it is not of the constitutional dimension as is an individual’s right to his own liberty. It is not an interest which can outweigh the concerns of federalism and of state and federal comity. Therefore, I cannot agree with the holding of the Court—that an indigent parent has an absolute constitutional right to an attorney in a juvenile dependency proceeding to assert and protect that parent’s right to continue to raise, care for, nurture and teach a minor child.

I, therefore, respectfully dissent.

. Further reflection and study convince me that my concurrence in part in the panel opinion was a mistake since I believe the habeas corpus was not a permissible vehicle to reach the Court’s due process decision.

. I agree with the First Circuit that:

[T]he fact remains that over the many years since enactment of the habeas corpus statute in 1867, the Supreme Court has never acknowledged that habeas corpus is an appropriate remedy for litigating federal constitutional claims arising from state child custody disputes. In two child custody cases decided on federal question grounds (but arguably having jurisdictional connotations) the Court refused to authorize the writ. Matters v. Ryan, 249 U.S. 375 , 39 S.Ct. 315 , 63 L.Ed. 654 (1919); In re Burrus, 136 U.S. 586 , 10 S.Ct. 850 , 34 L.Ed. 500 (1890). None of the cases implicating custody rights that have come before the Court reached the Court *607 through the route of federal habeas. The Supreme Court’s sweeping language in cases such as Hensley v. Municipal Court, supra, 411 U.S. 345 , 93 S.Ct. 1571 , 36 L.Ed.2d 141 (1973) and Jones v. Cunningham, supra, 371 U.S. 236 , 83 S.Ct. 373 , 9 L.Ed.2d 285 (1963), concerned extensions of the writ to persons criminally accused who had obvious claim to be treated for federal jurisdictional purposes in the same manner as their incarcerated brethren, even if not confined in the strict sense.

584 F.2d 1103, 1110 .

. For the reasons pointed out in Note 1, supra, I recant the suggestion in may panel concurring/dissenting opinion that since Ms. Davis was seeking the release from custody of her son, Federal habeas was available to her. 618 F.2d at 388 .

. With respect to instances in which habeas has been granted, the First Circuit correctly points out:

Finally, the writ has been issued in several child custody cases decided by federal courts, albeit in special and largely distinguishable circumstances. Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975); United States ex rel. Cobell v. Cobell, 503 F.2d 790 (9th Cir. 1974), cert. denied, 421 U.S. 999 , 95 S.Ct. 2396 , 44 L.Ed.2d 666 (1975); Application of Reed, 447 F.2d 814 (3d Cir. 1971). See also Bell v. Leonard, 102 U.S.App.D.C. 179 , 251 F.2d 890 (1958); Young v. Minton, 344 F.Supp. 423 (W.D.Ky.1972); United States ex rel. Schneider v. Sauvage, 91 F. 490 (W.D.Pa.1899). But see United States ex rel. Reed v. Tinder, No. 75-1454 (D.W.Va.1975) (unpublished opinion). 11

584 F.2d 1103, 1110 .

The children in Nguyen Da Yen were in federal custody since they were under the supervisory control of the Immigration and Naturalization Service, having been brought to this country during the so-called “Vietnamese Babylift.” See 28 U.S.C. § 2241 (c)(1). Application of Reed, Young, and Bell involved child custody disputes arising in the Virgin Islands and in the District of Columbia, where the federal courts were acting as territorial courts. Cobell was based on special grant of jurisdiction over claims relating to federal Indian reservations, 25 U.S.C. § 1303 , and concerned an Indian child. In Schneider, the court denied the writ. It pursued the habeas question at some length only because the couple on whose behalf the vice-consul of Belgium had brought the petition were citizens of Belgium and the child had been bom in Belgium. In Tinder , a district court did rely on habeas corpus conditionally to require the State Department of Welfare to return a child to its mother, unless the State granted the mother a hearing before entering its final judgment. The opinion was unreported, however, and did not discuss the jurisdictional issue in detail.