Petition — Monroe County Probate Court v. Weldon

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Supreme Court, U. 3.

FILED

76-211 'j) esis om

IN THE SUPREME COWRT

OF THE UNITED STA PRE fooar, Jk..cLERK

Monroe County Probate Court,

es No. A-1067

Petitioners,

-V8- PETITION FOR WRIT

OF CERTIORARI

Dahlari Weldon, et al.,

Respondents.

ON PETITION FOR WRIT

OF CERTIORARI FROM THE

UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BUGBEE & CONKLE ee LEGAL SERVICE

ISTANT PROG

Waren D; Walle Es. mn

regory Gabe Kaimowitz, Esq.

13th Floor Toledo Trust Building Wayne State School of Law

Toledo, Ohio 43604 ‘Annex Building

Telephone: (419) 244-6788 Detroit, Michigan 48202

Telephone: (313) 577-4822

and

EDWARD H. DEVOE, ESQ.

Monroe County Prosecutor's

Office

Monroe County Courthouse

Monroe, Michigan 48161

Telephone: (313) 241-9535

Attorneys for Respondents

Attorneys for Petitioners

IN THE SUPREME COURT

OF THE UNITED STATES

Monroe County Probate Court,

et al.,

No. A-1067

Petitioners,

-VS- PETITION FOR WRIT

OF CERTIORARI

Dahlari Weldon, et al.,

Respondents.

x * *

ON PETITION FOR WRIT

OF CERTIORARI FROM THE

UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BUGBEE & CONKLE MICHIGAN LEGAL SERVICE

ASSISTANT PROGRAM

Warren D. Wolfe, Esq.

Gregory B. Denny, Esq. Gabe Kaimowitz, Esq.

13th Floor Toledo Trust Building Wayne State School of Law

Toledo, Ohio 43604 Annex Building

Telephone: (419) 244-6788 Detroit, Michigan 48202

Telephone: (31:3) 577-4822

and

Attorneys for Kespondents

EDWARD H. DEVOE, ESQ.

Monroe County Prosecutor's

Office

Monroe County Courthouse

Monroe, Michigan 48161

Telephone: (313) 241-9535

Attorneys for Petitioners

TABLE OF CONTENTS

Page

JURISDICTIONAL BASIS .......... l

QUESTIONS PRESENTED.......... 1-2

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED........... 2-4

STATEMENT OF THE CASE ....... 5-13

ee tee eked Ses 5 066i 13-20

CERTIFICATE OF SERVICE ....... 21

APPENDIX OF JUDGMENTS AND

OPINIONS BELOW ............... 22

INDEX OF AUTHORITIES

CASES Page

Hicks v. Miranda, U.S. , 45 L. Ed. 2d 223,

95 S. Ct. FERS 13

Huffman v. Pursue, Ltd., 420 U.S. 592,

43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975).. 13,15,16

In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527,

ee ey een 19

Preiser v. Rodriquez, 411 U.S. 475, 36 L. Ed. 2d 439,

| Ls ef Rr erenae na 11,17,18,19

Samuels v. Mackel, 401 U.S. 66, 27 L. Ed. 2d 688,

Se ls ee PE Eo occ vinccsccececes 13,14

Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669,

oF ee eT | 13,14,15,16,17

STATUTES

28 U.S.C. Section 1331 .............. 10

28 U.S.C. Section 1343 .............. 10,11

42 U.S.C. Section 1983 .............. 10,11,12,17

M.C.L.A. Section 712A.2(a)(2) ....... 6

M.C.L.A. Section 712A.2(b)(1) ....... 6

MC.L.A. Section 712A.21............ )

M.C.L.A. Section 712A.22 ........... )

M.C.L.A. Section 500.4307 ........... ry)

JURISDICTIONAL BASIS

The Honorable Harry J. Seitz, Judge of the

Monroe County Probate Court; James H. Stanifer,

Juvenile Referee of the Monroe County Probate

Court and Shirley Friess, Juvenile Caseworker for

the Monroe County Probate Court, hereinafter

referred to as “petitioners,” hereby petition the Court

for a Writ of Certiorari to review the decision of the

United States Court of Appeals for the Sixth Circuit

entered February 12, 1976. Petitioners timely filed a

petition for rehearing of the February 12, 1976, deci-

sion of the Sixth Circuit, but said petition was denied

by the Sixth Circuit on March 19, 1976. On June 4,

1976, Mr. Justice Potter Stewart, upon petitioners’

application for extension of time to file their petition

for writ of certiorari, extended to August 16, 1976,

the time in which to file the present petition. The

Court has jurisdiction to review the decision ren-

dered by the United States Court of Appeals for the

Sixth Circuit by virtue of the provisions contained in

28 U.S.C. Section 1254(1).

QUESTIONS PRESENTED

1. In light of the fact that respondents failed to

exhaust adequate and available state court reme-

dies, did the federal district court have jurisdiction to

grant respondents a declaratory judgment that the

proceedings by the Monroe County Probate Court

violated respondents’ due process rights and to re-

tain jurisdiction over the action pending the conclu-

sion of litigation in the courts of the State of Michi-

gan?

2. Whether the United States Court of Appeals

for the Sixth Circuit misapplied the established fed-

eral law and public policy prohibiting federal court

intervention in state court proceedings, as ex-

pressed in the Younger v. Harris line of cases, by

affirming the federal district court’s declaratory

judgment and the federal district court’s retention of

jurisdiction over the action pending the conclusion

of litigation in the courts of the State of Michigan?

3. Even if the federal district court possessed

jurisdiction under the Civil Rights Act, whether no-

tions of comity, equity and federalism required the

district court, to dismiss the action and refrain from

issuing a dlgaratory judgment?

4. Whether the mere termination of parental

rights constitutes great and immediate irreparable

harm, as contemplated by the Younger v. Harris line

of cases, so as to warrant federal court intervention

into state court proceedings?

5. Whether the proceedings held by the

petitioners resulting in the termination of re-

spondent Dahlari Weldon’s parental rights to re-

spondent Maria Sophia Weldon violated respond-

ents’ constitutional due process rights?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U.S. Const. Amendment XIV, Section 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State where-

in they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state de-

prive any person of life, liberty or property without

due process of law... .

28 U.S.C. Section 1331:

(a) The district courts shall have original juris-

diction of all civil actions wherein the matter in

controversy exceeds the sum of value of Ten Thou-

sand Dollars ($10,000), exclusive of interests and

costs, and arises under the Constitution, laws, or

treaties of the United States.

28 U.S.C. Section 1343:

The district courts shall have original jurisdic-

tion of any civil action authorized by law to be com-

menced by any person: (4) to recover damages or to

secure equitable or other relief under any act of Con-

gress providing for the protection of civil rights, in-

cluding the right to vote.

42 U.S.C. Section 1983:

Every person who, under color of any statute,

ordinance, regulation, custom or usage, of any State

or Territory subjects, or causes to be subjected, any

citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable tothe party injured

in an action atlaw, suit in equity, or other proper pro-

ceeding for redress.

28 U.S.C. Section 2201:

In a case of actual controversy within its

jurisdiction, except with respect to Federal taxes,

any court of the United States, upon the filing of an

appropriate pleading, may declare the rights and

other legal relations of any interested party seeking

such declaration, whether or not further relief is or

could be sought. Any such declaration shall have the

force and effect of a fina] judgment or decree and

shall be reviewable as such.

28 U.S.C. Section 2254(b):

An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted unless

it appears that the applicant has exhausted the

remedies available in the courts of the State, or that

there 1s either an absence of available State correc-

tive process or the existence of circumstances render-

ing such process ineffective to protect the rights of

the prisoner.

M.C.L.A. Section 712A.21:

Any interested person, at any time while the

child is under the jurisdiction of the court, may file a

petition, in writing and under oath, for a rehearing

upon all matters coming within the provisions of this

chapter, and upon the rehearing the court may

affirm, modify or set aside any order so reviewed. If

parental rights have been terminated by an order

entered in the proceedings and custody of the child

has been removed from the parents, guardian or

other person, the petition for rehearing shall be filed

within three months from the date of entry of the

order terminating parental rights. . . . The rehear-

ing shall be conducted in accordance with the provi-

sions of this chapter relative to the conduct of

original hearings. At any time the court may enter

an order for supplemental disposition as long as the

child remains under the jurisdiction of the court.

M.C.L.A. Section 712A.22:

Appeal may be taken to the circuit court by the

prosecuting attorney or any person aggrieved by any

order of the juvenile division of the probate court.

. . . The pendency of an appeal shall not suspend the

order unless the circuit court shall specifically so

order. A petition for a delayed appeal shall be filed

within six months after the making of the judgment

or order complained of.

M.C.L.A. Section 600.4307:

An action for habeas corpus to inquire into the

cause of detention may be brought by or on behalf of

any person restrained of his liberty within this state

under any pretense whatsoever, except as specified

in Section 4319.

STATEMENT OF THE CASE

STATEMENT OF FACTS

Petitioners seek review of the February 12, 1976,

decision of the United States Court of Appeals for the

Sixth Circuit affirming the judgment of the United

States District Court for the Eastern District of

Michigan (1) granting respondents a declaratory

judgment that the proceedings in the Monroe County

Probate Court before petitioners resulting in the

termination of parental rights of respondent Dahlari

Weldon, hereinafter referred to as “Dahlari,” to her

natural daughter, respondent Maria Sophia Weldon,

hereinafter referred to as “Maria,” violated

Dahlari’s and Maria’s due process rights and (2) re-

taining jurisdiction over the action pending conclu-

sion of litigation in the courts in the State of

Michigan.

The history of the present action dates back to

April, 1972, at which time the Monroe County

Sheriffs Department was advised by Dahlari’s

mother that Dahlari had been missing from home for

almost a month and had not been attending school.

After being found with a male friend by a Sheriff's

Deputy, Dahlari was cited to appear at the Youth Bu-

reau of the Monroe County Sheriff's Department on

April 5, 1972.

On April 5, 1972, the intake referee for the Ju-

venile Division for the Monroe County Probate Court

conducted a preliminary hearing and advised

Dahlari and her mother and father of their constitu-

tional rights, including Dahlari’s right to counsel.

Because Dahlari refused to return to her mother’s

home and her father had no plan for Dahlari, a de-

linquency petition was filed against Dahlari for

deserting home without sufficient cause and re-

peatedly disobeying the lawful commands of her par-

ents in violation of M.C.L.A. Section 712A.2(a)(2) of

the Probate Code of Michigan. An adjudicatory hear-

ing was held on the delinquency petition on April 25,

1972, by petitioner James Stanifer. During this hear-

ing, both Mr. and Mrs. Weldon and Dahlari stated

that they had been advised by the intake referee on

April 5, 1972, of their rights, including their right to

counsel, and they stated that they desired to proceed

in the matter without counsel. As a result of the April

25, 1972 hearing, an order was entered by petitioner

Judge Harry Seitz, upon the recommendation of

petitioner James Stanifer, adjudicating Dahlari a

delinquent minor child.

At the dispositional hearing on the delinquency

charge held June 9, 1972, before petitioner Judge

Seitz, the matter of Dahlari’s child, Maria Sophia

Weldon, was first brought to the court’s attention. Al-

though Dahlari did not know the whereabouts of her

child, Judge Seitz finally ascertained that the child

was in Monroe, Michigan, with Dahlari’s mother.

Upon learning this fact, Judge Seitz ordered Mrs.

Weldon to produce Maria at once so that a medical

examination could be made to ascertain the health

and status ofthe baby. At the conclusion of this hear-

ing, the disposition on the delinquency matter of

Dahlari was taken under advisement.

When Mrs. Weldon failed to produce the child in

compliance with the court’s order, a petition was

filed in the Juvenile Division of the Monroe County

Probate Court alleging that Maria was a minor

without legal home or guardian within the meaning

of M.C.L.A. Section 712A.2(b)(1) of the Michigan

Probate Code. After the filing of said petition, Judge

Seitz entered an order directing the baby be taken

into the temporary custody of the court. After

determining that Mrs. Weldon and Maria were in

Wood County, Ohio, Wood County officials were

notified of the situation and took custody of the baby

on June 15, 1972. After a hearing, the Wood County

Juvenile Court ordered the baby released to a repre-

sentative of the Monroe County Probate Court.

Petitioner Shirley Freiss thereafter took custody of

Maria and returned with her to Monroe County,

Michigan.

On June 19, 1972, Judge Seitz appointed John J.

Sullivan, an attorney duly authorized to practice law

in the State of Michigan, as guardian ad litem for

Dahlari. On this same day Dahlari was served with

notice of a hearing to be held July 11, 1972, on the

question of Maria which could result in the termina-

tion of Dahlari’s parental rights and which notice

advised Dahiari of her right to counsel. On June 27,

1972, Judge Seitz appointed Oliver Golden, an attor-

ney duly authorized to practice law in the State of

Michigan, as guardian ad litem for baby Maria.

On July 11, 1972, an adjudication hearing was

held on the neglect petition regarding Maria. Among

those present at this hearing were: Dahlari;

Dahlari’s father; John J. Sullivan, guardian ad litem

for Dahlari; Oliver Golden, guardian ad litem for

Maria; and E. J. McCormick, attorney for Dahlari’s

mother. At the conclusion of this hearing, Judge

Seitz announced, in open court, his findings that

Maria was without legal home or guardian and that

the mother, Dahlari, was in the custody of the court

as a delinquent minor without adequate means of

support. Accordingly, Judge Seitz adjudicated Maria

to be a neglected child and ordered that she be made

a temporary ward of the court, placing Maria in

foster care pending the dispositional hearing.

The dispositional hearing on the neglect case re-

garding Maria was scheduled for August 11, 1972,

notice of which was duly served on Dahlari, Mr.

Sullivan, Mr. Golden, Dahlari’s parents and their

attorney, Mr. McCormick. Those present at the

August 11, 1972, dispositional hearing were:

Dahlari, Mr. Sullivan, Mr. Golden, Mr. Weldon, and

Mr. McCormick, who appeared as attorney for both

Mr. and Mrs. Weldon. During the hearing, petitioner

Shirley Friess, a caseworker assigned to the Weldon

matter, recommended that the child be made a

permanent ward of the court since no plan for the

care of Maria had been presented to her by either

Dahlari, Mr. Weldon, Mrs. Weldon or their attorney.

Upon the conclusion of the hearing, petitioner Judge

Seitz continued under advisement the delinquency

matter of Dahlari and took the neglect matter of

Maria under advisement.

During the August 11, 1972, hearing, Mr. Mc-

Cormick, attorney for Mr. and Mrs. Weldon, asked

for time to prepare a plan for Dahlari and Maria,

which would involve both of them living in Bowling

Green, Ohio. Mr. Golden, on behalf of Maria, favored

a family placement subject to strict court super-

vision. When the matter was taken under advise-

ment, Judge Seitz directed Mrs. Friess to see whether

the Wood County, Ohio, authorities would supervise

the mother and child. Shirley Friess was later ad-

vised by Wood County authorities that they would

not supervise Dahlari and Maria, and this fact was

made known to Judge Seitz.

On September 12, 1972, and after receiving

Shirley Friess’ report, Judge Seitz issued an order

making Maria 2 permanent ward of the court and

terminating Dahiari’s parental rights to her child.

On this same date, Judge Seitz signed an order mak-

ing Dahlari a temporary ward of the court and com-

mitting her to the Department of Social Services as a

delinquent. Copies of these orders were duly served

upon Dahlari.

On October 31, 1972, Peter J. Betrus, an attor-

ney duly authorized to practice law in the State of

Michigan, filed an entry of appearance on behalf of

Mr. and Mrs. Weldon concerning the matter of

Dahlari and Maria in the Monroe County Probate

Court. On February 12, 1973, Gabe Kaimowitz, an

attorney duly authorized to practice law in the State

of Michigan, was contacted about representing

Dahlari concerning the action taken by the Monroe

County Probate Court on September 12, 1972.

COURSE OF PROCEEDINGS BELOW

Under Michigan law, Dahlari and Maria had

available to them three separate avenues inthe state

courts of Michigan for attacking the September 12,

1972, order of the Monroe County Probate Court. A

petition for rehearing, pursuant to M.C.L.A. Section

712A.21, could have been filed in the Monroe County

Probate Court within three months from the date of

the order terminating parental rights. M.C.L.A.

Section 600.4307 provides for a petition for writ of

habeas corpus which could have been filed with the

Monroe County Circuit Court. Respondents also had

the right to appeal the Probate Court’s termination

order to the Monroe County Circuit Court. In regard

to this appeal, M.C.L.A. Section 712A.22 of the

Michigan Probate Code provides that a petition fora

delayed appeal may be filed within 6 months from

the date of the judgment or order complained of. Re-

spondents’ constitutional claims respecting the Pro-

bate Court proceedings could have been adequately

raised and adjudicated in all of these available state

court proceedings. It should be noted that only after

the October 25, 1973, order of the federal district

court holding the proceedings in the Monroe County

Probate Court to have violated Dahlari’s constitu-

tional due process rights, did Dahlari file a habeas

corpus petition in the Monroe County Circuit Court.

Despite the various state court remedies avail-

able to them, Dahlari and Maria filed a complaint on

May 2, 1973, almost eight months after the Monroe

County Probate Court’s order, in the United States

District Court for the Eastern District of Michigan

alleging jurisdiction under 28 U.S.C. Sections 1331

and 1343 and 42 U.S.C. Section 1983. The complaint

alleged various violations of Maria’s and Dahlari’s

constitutional rights during the proceedings in the

Monroe County Probate Court and sought injunc-

tive and monetary relief. In their answer, petitioners

alleged (1) that the complaint failed to state a claim

upon which relief could be granted; (2) since the re-

spondents failed to exhaust the available remedies

in the courts of the State of Michigan, the federal dis-

trict court was without jurisdiction to entertain

plaintiff's prayer for relief; (3) respondents had an

adequate remedy at law in the courts of the State of

Michigan and (4) in keeping with the doctrines of

abstention, equity, and federalism the district court

must refuse to entertain the complaint.

After granting petitioners’ motion for summary

judgment on the monetary damage issue, the federal

district court conducted a hearing on the merits of

Dahlari’s and Maria’s claims for temporary and

permanent injunctive relief. The final judgment of

the District Court, filed October 25, 1973, held (1) that

the proceedings in the Monroe County Probate Court

terminating Dahlari’s parental rights to Maria were

void because Dahlari’s parental rights were termi-

nated in violation of the due process clause of the

Fourteenth Amendment; (2) remanded the matter to

the Monroe County Probate Court for a hearing with-

in 30 days; and (3) denied Dahlari’s and Maria’s

claims for money damages.

Petitioners perfected an appeal to the United

States Court of Appeals for the Sixth Circuit seeking

a reversal of the judgment of the federal district

court. On April 19, 1974, the Sixth Circuit held: (1)

that the district court properly dismissed Dahlari’s

and Mari’s claims for money damages and (2) that

the district court did not have jurisdiction under 42

U.S.C. Section 1983 and 28 U.S.C. Section 1343 to re-

view and set aside the Probate Court’s proceedings

and to order that court to conduct another hearing.

In addition, the Sixth Circuit remanded the case to

the district court to consider whether a Section 1983

action may be maintained against the individual de-

fendants, whether the district court could fashion

appropriate reliei not barred by Preiser v. Rodriquez,

411 U.S. 475 (1973), and whether notions of comity

otherwise required deferral to state procedures. In

the alternative, the district court was to consider

whether to treat the action as an application for

habeas corpus, and, if so considered, whether re-

spondents were required to satisfy the exhaustion re-

quirements of 28 U.S.C. Section 2254(b).

After briefs and oral arguments, the district

court rendered judgment on July 25, 1974, holding

that part of the action was in the form of habeas

corpus over which the district court lacked jurisdic-

tion, since respondents failed to satisfy the exhaus-

tion requirement of 28 U.S.C. Section 2254(b). The

district court also held injunctive relief under 42

U.S.C. Section 1983 against the individual peti-

tioners was not warranted. Despite these holdings,

the district court, nevertheless, granted Dahlari and

Maria a declaratory judgment that their due process

rights had been violated by the petitioners and re-

tained jurisdiction over the cause pending conclu-

sion of litigation in the courts of the State of

Michigan. An appeal from this judgment resulted in

an affirmanace by the United States Court of

Appeals for the Sixth Circuit without the Sixth Cir-

cuit ever reaching the merits of the constitutional

due process issue involved in the action. It is from

this decision that petitioners presently seek review.

Maria has been in the custody of Mr. and Mrs.

John Doe since September 12, 1972. On February 4,

1973, Mr. and Mrs. Doe filed a petition in the Monroe

County Probate Court to adopt Maria. In November

of 1973, at which time the Ocotber 25, 1973, decision

of the federal district court was being appealed to the

U.S. Court of Appeals for the Sixth Circuit, Mr. and

Mrs. Doe filed a complaint in superintending control

in the Monroe County Circuit Court. Sometime there-

after, Dahlari petitioned the Monroe County Circuit

Court for habeas corpus relief.

On March 6, 1974, the Circuit Court for Monroe

County declared Dahlari to be entitled to the cus-

tody of Maria and ordered Mr. and Mrs. Doe to pro-

duce the child. This order of the Monroe County Cir-

cuit Court was based upon the court’s finding that

the matter was res judicata as a result of the October

25, 1973, order of the federal district court. The Does’

filed an application for leave to appeal the Circuit

Court's order in the Michigan Court of Appeals. On

August 28, 1974, the Michigan Court of Appeals,

relying on the July 25, 1974, declaratory judgment of

the federal district court which is the subject of the

present petition, denied the Does’ application for

leave to appeal. The March 6, 1974, order of the

Monroe County Circuit Court has been stayed by the

Michigan Supreme Court, and proceedings are pres-

ently pending in the Michigan Supreme Court seek-

ing review of the Monroe County Circuit Court’s

order.

ARGUMENT

The decision of the United States Court of

Appeals for the Sixth Circuit affirming the judgment

of the federal district court granting respondents a

delcaratory judgment and retaining jurisdiction of

the action pending conclusion of litigation in the

courts of the State of Michigan violates the public

policy and principles laid down by this Court in

Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S.

Ct. 746 (1971) and its companion case, Samuels v.

Mackel, 401 U.S. 66, 27 L. Ed. 2d 688, 91 S. Ct. 764

(1971). In light of this established public policy

against federal court interference with state court

proceedings, as further enunciated by this Court in

its recent decisions in Huffman v. Pursue, Ltd., 420

U.S. 592, 43 L. Ed. 2d 482, 95 S. Ct. 1200 (1975) and

Hicks v. Miranda,_____U.S.._____, 45 L. Ed. 2d 223,

95 S. Ct. (1975), the decision of the Sixth Cir-

cuit directly conflicts with the established law re-

garding the proper balance between the federal and

state court systems.

In Younger v. Harris, supra, the Court reaf-

firmed the long-standing national policy forbidding

federal courts from staying or enjoining pending

state court proceedings except under very limited

and extraordinary circumstances, such as where

irreparable injury is both great and immediate, or

where the state law is flagrantly and patently viola-

tive of express constitutional prohibitions, or where

there is a showing of bad faith or harrassment in the

enforcement of the state law.

Although Younger v. Harris, supra, concerned

federa. intervention by way of injunctive relief, its

companion case, Samuels v. Mackel, supra, dealt

with the propriety of a federal district court interter-

ing with pending state court proceedings by way of

delcaratory relief. In Samuels v. Mackel, the Court

held that the same equitable principles relevant to

the propriety of an injunction must be taken into

consideration by federal district courts in determin-

ing whether to issue a declaratory judgment, and

that where an injunction would be impermissible

under these principles, declaratory relief should ordi-

narily be denied as well. This Court reasoned that

ordinarily a declaratory judgment will result in pre-

cisely the same interference with and disruption of

state proceedings that the established policy limit-

ing injunctions was designed to avoid. This inter-

ference with state court proceedings by way of de-

claratory relief results from the potential of subse-

quent federal court injunctions to protect and effec-

tuate the federal court’s declaratory judgment and

the res judicata effect of the declaratory judgment

upon the state courts.

Michigan law provided respondents with three

separate avenues for attacking the September 12,

1972, order of the Monroe County Probate Court. A

petition for rehearing could have been filed in the

Probate Court, an appeal could have been taken from

the Probate Court order to the Monroe County Cir-

cuit Court, or habeas corpus relief could have been

sought in the state courts of Michigan. These state

court remedies were available and adequate to raise

the constitutional claims of respondents regarding

the proceedings in the Monroe County Probate

Court. Rather than pursuing their state court reme-

dies to attack the Probate Court order, respondents

filed their complaint in federal district court on May

3, 1973, approximately eight months after the order

oe respondent Dahlari’s parental rights to

aria.

Petitioners acknowledge that at the time the ac-

tion was commenced in federal district court there

were no state court proceedings pending. However,

based on the decision in Huffmanv. Pursue, Ltd.,

supra, respondents can not escape the Younger doc-

trine prohibiting federal court interference merely

because they chose not to pursue their state court

remedies. In Huffman v. Pursue, Ltd., the Court held

that Younger principles are applicable even though

the state proceeding is civil in nature and even

though the federal action was commenced after the

state trial court’s judgment. Regardless of when the

state trial court’s judgment became final, nger

standards must be met to justify federal interven-

tion in a state judicial proceeding as to which a

losing litigant has not exhausted his state appellate

remedies before seeking relief in federal district

court. The considerations of comity and federalism

which underlie Younger permit no truncation of the

exhaustion requirements merely because the losing

party in the state court of general jurisdiction be-

lieves that his chances of prevailing on appeal in the

state courts are not auspicious. The decision in Huff-

man v. Pursue, Ltd., supra, required the federal dis-

trict court to refrain from issuing a declaratory judg-

ment and to dismiss the action in deference to the

State courts of Michigan.

The respondents have failed to show the exist-

ence of those narrowly defined, extraordinary cir-

cumstances warranting a relaxation of the Younger

prohibition against federal court interference with

state court proceedings. The respondents have not

alleged that any particular Michigan statute is un-

constitutional, let alone flagrantly and patently

unconstitutional. The respondents have not alleged

that the Monroe County Probate Court proceedings

were conducted with an intention to harass or in bad

faith. And lastly, respondents have not shown and

the federal district court did not find that great and

immediate irreparable harm, such as contemplated

by Younger, would be suffered by respondents if the

federal district court refused to entertain respond-

ents’ complaint. In fact, a period of almost eight

months elapsed before respondents took any action

whatsoever to attack the order of the Monroe County

Probate Court. This eight month delay in seeking

any kind of review of the Probate Court order surely

vitiates against any contention made by respond-

ents that the harm they would suffer if the federal

court deferred to the state courts of Michigan would

be great and immediate.

The Younger doctrine of federal court non-inter-

ference exists to prevent interference with and

disruption of state court proceedings. Such interfer-

ence and disruption has manifested itself in the pres-

ent action and has resulted in the matter of respond-

ent Maria being unresolved after more than three

years of litigation in both the federal and state

courts. After the October 25, 1973, decision of the

United States District Court rendering the Sep-

tember 12, 1972, termination order of the Monroe

County Probate Court void, Dahlari filed a petition

for writ of habeas corpus in the Monroe County Cir-

cuit Court. The Circuit Court, finding that the feder-

al district court’s order was res judicata, ordered Maria

returned to Dahlari. The prospective adoptive par-

ents filed leave to appeal the Circuit Court’s order to

the Michigan Court of Appeals. The Michigan Court

of Appeals, relying on the July 25, 1974, declaratory

judgment of the United States District Court denied

leave to appeal. Proceedings are presently pending

in the Supreme Court of Michigan seeking considera-

tion and review of the order of the Monroe County

Circuit Court requiring that Maria be returned to

Dahlari. The matter of Maria has been litigated in

the state courts of Michigan for almost three years,

and because of the res judicata effect given to the

judgments of the federal district court, no state court

of Michigan has reached the merits of respondents’

constitutional attack on the Probate Court’s order of

September 12, 1972.

In addition to the principles laid down in

Younger v. Harris, supra, the United States District

Court was also required to dismiss this action by vir-

tue of this Court’s holding in Presier v. Rodriquez,

411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973). In

Preiser v. Rodriquez, the Court held that a state

prisoner could not challenge the validity of the fact

or duration of this detention by bringing an action

under 42 U.S.C. Section 1983, but rather was re-

quired to proceed by way of habeas corpus under 28

U.S.C. Section 2254. The Court went on to hold that

Congress had determined that habeas corpus is the

appropriate remedy for state prisoners attacking the

validity of the fact of their confinement and that the

exhaustion requirement attendant with habeas

corpus could not be circumvented by proceeding

under the Civil Rights Act.

The essence of respondents’ complaint filed in

the federal district court attacks the constitu-

tionality of the Monroe County Probate Court pro-

ceedings which resulted in respondent Maria being

made a permanent ward of the court and the

termination of respondent Dahlari’s parental rights

to Maria. In applying Preiser v. Rodriquez, supra,

and determining that plaintiffs had failed to ex-

haust their available state court remedies, the

federal district court held that it lacked jurisdiction

to order the petitioners to return Maria to Vahlari.

However, the federal district court went on to hold

that it did have juristiction to determine the

constitutionality of the Probate Court proceedings

which resulted in the termination order.

The holding in Preiser v. Rodriquez, supra, not

only bars that portion of respondents’ complaint

which seeks direct release of Maria, but also must be

read to bar the basis for jurisdiction which the feder-

al district court claimed it “clearly” had. The com-

plaint filed in federal district court attacked the con-

stitutionality of the Probate Court proceedings, and

in the words of Preiser, supra, the respondents were

challenging the “validity of the fact” of respondent

Mari’s confinement. As a result, the entire com-

plaint must be viewed as an application for a writ of

habeas corpus requiring exhaustion of state court

remedies. To hold otherwise, as the Sixth Circuit has,

would be to under cut the purpose and policy

contained in the Preiser line of cases and to allow

access to federal court without requiring exhaustion

of state court remedies.

In addition to the very important and critical

jurisdictional issues raised by the present petition,

there also exists the issue of whether the proceed-

ings in the Monroe County Probate Court resulting

in the termination order of September 12, 1972,

violated the constitutional due process rights of re-

spondents. Throughout the course of these federal

proceedings the petitioners have maintained that

the due process requirements and standards laid

down by the Court in In re Gault, 387 U.S. 1, 18 L. Ed.

2d 527, 87S. Ct. 1428 (1967) wereclearly satisfied. Ac-

cording to the records of the Probate Court proceed-

ings and the testimony during the trial in federal dis-

trict court, the United States District Court’s judg-

ment that the Probate Court’s proceedings violated

the constitutional due process rights of respondents

was clearly against the manifest weight of the evi-

dence.

The merits of this constitutional due process

issue were properly and clearly before the United

States Court of Appeals for the Sixth Circuit on two

separate occassions, and yet the Sixth Circuit failed

to reach the merits of the constitutional issue. On

February 12, 1976, the Sixth Circuit affirmed the dis-

trict court’s declaratory judgment, yet said affirm-

ance was based solely on the Sixth Circuit’s decision

of the jurisdictional issues involved. Petitioners filed

a petition for rehearing of the February 12, 1976,

order of the Sixth Circuit specifically requesting the

Sixth Circuit to decide the merits of the constitu-

tional issue and stating that petitioners had never

waived this issue in the Sixth Circuit, but the Sixth

Circuit summarily denied said petition for rehear-

ing. The constitutional issue in the present action

has been before numerous state and federal courts

over the past three years and yet only one court, the

United States District Court, considered the merits

of the respondents’ constitutional due process

claims. The decision of the Sixth Circuit affirming

the federal district court’s finding that the Probate

Court proceedings violated the constitutional rights

of respondents is against the manifest weight of the

evidence; and, therefore, this Court must consider

and reverse said decision.

Based on the critical jurisdictional issues and

the failure and refusal of the Sixth Circuit to con-

sider the constitutional due process issue, peti-

tioners respectfully submit that this Court must

grant a writ of certiorari to review the February 12,

1976, decision of the United States Court of Appeals

for the Sixth Circuit.

Respectfully submitted,

EDWARD H. DEVOE

and

BUGBEE & CONKLE

By Warren D. Wolfe

Attorneys for Petitioners

Judge Harry J. Seitz, James

Stanifer and Shirley Friess

13th Floor, Toledo Trust Bldg.

Toledo, Ohio 43604

Telephone: (419) 244-6788

CERTIFICATE OF SERVICE

This is to certify that three copies of the

foregoing Petition for Writ of Certiorari were duly

served on Gabe Kaimowitz, Esq., Attorney for

Respondents Dahlari Weldon and Maria Sophia

Weldon, Wayne State School of Law, Annex

Building, Detroit, Michigan 48202 and Bettye S.

Elkins, Esq., Guardian Ad Litem for Respondent

Maria Sophia Weldon, 2700 City National Bank

Building, Detroit, Michigan 48226, by ordinary

United States mail, first class postage prepaid, this

LZ day of August, 1976.

EDWARD H. DEVOE

and

BUGBEE & CONKLE

By Warren D. Wolfe

Attorneys for Petitioners

Judge Harry J. Seitz, James

Stanifer and Shirley Friess

13th Floor, Toledo Trust Bldg.

Toledo, Ohio 43604

Telephone: (419) 244-6788

APPENDIX

OF JUDGMENTS & OPINIONS

BELOW.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAHLARI WELDON, et al,

Plaintiffs,

vs. CIVIL ACTION

No. 40054

MONROE COUNTY PROBATE COURT,

et al, Defendants.

MEMORANDUM OPINION AND ORDER

ON INJUNCTIVE ISSUES

This stage of these proceedings requires that the

Court determine whether it has, and should invoke

its jurisdiction to grant equitable relief to plaintiffs

herein based on their joint and separate claims of

their respective deprivation of federally guaranteed

rights under the Constitution and various statutes.

To that end the Court first makes the following |

findings of act, using a narrative form for the sake of

continuity and clarity.

On October 18, 1971, when she was 14 years of

age and unmarried, plaintiff Dahlari Weldon gave

birth to a daughter, Marie Sophia Weldon. The baby

was taken by plaintiff Dahlari to the home of her

mother, Mrs. Frank Weldon. At that time, and fora

period thereafter, Mr. and Mrs. Frank Weldon were

]

experiencing marital difficulties and were living

apart. It cannot be gainsaid that this atmosphere

was a contributing factor to plaintiff Dahlari’s

subsequent problems.

Plaintiff Dahlari and her mother had a number

of confrontations and Dahlari skipped school and

left home on several occasions, at times going to her

father’s residence, leaving the baby with her mother.

The result was the filing of a delinquency petition

against Dahlari on April 5, 1972, for deserting her

home without sufficient cause. (M.C.L.A. 712A.2.

(See Ex. 4, Defendants Requests for Admissions). A

preliminary hearing was held that day before

Referee Mario Pace and Dahlari was committed to

the Monroe County Shelter Home. (Ex. 5). No

transcript of the proceeding was made and no bond

was set. An adjudication hearing was set for April

25, 1972. Mrs. Weldon was personally served with a

summons on April 10, 1972 and Mr. Weldon by

certified mail on April 14, 1972.

On April 25, 1972, both parents of Dahlari

appeared before Referee James H. Stanifer and the

following colloquy took place regarding counsel:

“THE COURT: All right, as you recall further,

Mr. and Mrs. Weldon, before the intake worker of this

Court on April 5, 1972, among other things you were

advised that you could have an attorney to represent

your child in matters of this nature. Since you have

not requested an attorney, no attorney has filed any

appearance, I assume you wish to proceed without

legal counsel in reference to your child and this

alleged juvenile offense, is this correct?

MR. WELDON; Yes, we do.

THE COURT: Mrs. Weldon?

MRS. WELDON; Yes.”

No inquiry was directed to Dahlari regarding

counsel nor regarding any objection to a referee,

rather than a judge, presiding.

A dispositional hearing was then scheduled for

May 26, 1972, but adjourned to June 9, 1972, when

Mrs. Weldon objected to a referee presiding. In the

interim, Dahlari was released to her mother, who, on

June 6, 1972, reported that Dahlari was missing from

home. She was again taken into custody and

committed to the Shelter Home.

At the June 9, 1972 dispositional hearing, the

Honorable Harry J. Seitz, Jr., Probate Judge of

Monroe County, took the matter under advisement,

apparently accepting the recommendation of a

caseworker, Mrs. Friess. The latter had planned to

recommend home placement but the June 6, 1972

incident prompted further study. Dahlari was

ordered to remain in custody.

It was at that hearing, on June 9, 1972, that the

matter of the baby, Maria Sophia Weldon, was

brought directly to the attention of the court. In fact,

most of the proceedings were spent in determining

the condition and whereabouts of baby Maria. Judge

Seitz ordered Mrs. Weldon to produce the baby fora

medical examination. On the same day a petition

was filed by a deputy sheriff ‘In the matter of Maria

Sophia Weldon” alleging that she was without a

legal home or guardian within the meaning of

M.C.L.A. § 712A.2(1), (Ex. 13). Simultaneously there

was an order entered to take the baby Maria into the

temporary custody of the court. (Ex. 14).

Rather than surrender the child Mrs. Weldon

fled with her to the home of another daughter in

Wood County, Ohio, the original home of the

Weldons. Apparently alerted by Monroe County,

Michigan, probate authorities, Wood County

juvenile officials took custody of the baby on June 15,

1972, and ordered her released to a representative of

the Monroe County Probate Court (Ex. 17). On June

16, 1972, Judge Seitz signed a request that Wood

County Juvenile Court release the child to Shirlie

Friess. The latter, thereupon , took custody of the

baby and returned with her to Michigan.

A hearing was set for July 11, 1972 o0ntheJune 9,

1972 neglect petition regarding the baby Marie anda

summons was served on plaintiff Dahlari on June

19, 1972, while she was in custody at the Shelter

Home. (Plaintiff Dahlari disputes any such service.)

At the July 22, 1972, hearing, the following were

present:

Jan Teague, Assistant Prosecuting Attorney,

John J. Sullivan, Attorney for Dahlari Weldon,

Oliver Golden, Attorney and Guardian Ad

Litem,

E. J. McCormick, Attorney for Mrs. Weldon,

Dahlari Weldon, Minor (Mother of the Child),

Frank Weldon, Father of Dahlari Weldon,

Frank Atkinson, Youth Officer, Monroe County

Sheriff's Department, and

Shirlie Friess, Caseworker.

Upon the opening of the hearing, an oral motion

was made and granted that the neglect petition be

amended to reflect that Dahlari was an unwed

mother and without adequate means of support. Mrs.

Friess then testified that Mr. Weldon had not

provided an acceptable plan for the baby Maria. Mr.

Weldon testified that he and his wife had resolved

their marital problems, were living together and that

he was employed in Toledo and could support the

child.

At the conlusion of the hearing Judge Seitz

ordered that baby Maria “.. . be, and is hereby

adjudicated to be a neglected child, and a temporary

ward of this Court.” and set a disposition hearing for

August 11, 1972. The baby was continued in foster

care.

On August 11, 1972, the following were present:

E. J. McComrick, Jr., Attorney for Mr. and Mrs.

Weldon,

Oliver J. Golden, Attorney for Marie Weldon,

John J. Sullivan, Attorney for Dahlari Weldon,

Shirlie Friess, Caseworker and Probation

Officer,

Frank Weldon, Father of Dahlari Weldon, and

Dahlari Weldon, Mother of Marie Sophia

Weldon, a/k/a Marie Sophia Thomas.

(Again, plaintiff Dahlari disputes service and

denies that she was actually in the courtroom.)

At this hearing Mrs. Friess testified that the

baby Marie had been examined and found to be

healthy but that plaintiff Dahlari had informed her

that Mrs. Weldon had physically abused the baby.

Mrs. Friess recommended that the baby Marie be

made a permanent ward of the court.

Mr. Wel’on again testified that he would

support the baby and that he would have no

objection to strict supervision of the care by Ohio

authorities.

The court thereupon took both the delinquency

matter of Dahlari and the neglect matter of baby

Maria under advisement, the latter with the

stipulation that an investigation of the

arrangements for supervision be made in Ohio.

Dahlari was released to her father.

On August 29, 1972, Dahlari was detained by

Monroe Police as a runaway (which plaintiff Dahlari

denied) and a preliminary hearing was held on

August 31, 1972, before Referee Pace, who took the

matter under advisement pending the dispositional

hearing on the original petition.

On September 12, 1972, Judge Seitz, withtout

further hearing, entered orders making baby Maria

a permanent ward of the court, terminating

Dahlari’s parental rights and committing Dahlari to

the Department of Social Services as a delinquent.

A copy of the Memorandum Opinion and Order

of the Honorable Norman R. Barnard, Judge of

Probate, discussed more fully below, indicates that

as of September 12, 1972, baby Marie wasin a Foster

Care Boarding Home and remained in that home

when an adoption petition was filed on February 5,

1972. Consent of the Probate Judge to the adoption

was executed and filed on February 6, 1973 and the

child is now living in the adoptive home,

On May 2, 1973 plaintiffs herein filed their

complaint in this Court and, after certain

preliminary procedures, a hearing on the merits of

plaintiffs’ claims for temporary and permanent

equitable relief was held on June 12, 1973. At the

conclusion of that hearing, the Court conferred with

counsel and made certain suggestions in the hope

that resolution of the matter could be expeditiously

sought in the state court without intervention of the

federal court. Counsel agreed and this case was held

in abeyance. Thereupon, a petition was filed in

behalf of Dahlari Weldon for a hearing in the matter

concerning her child Maria in Monroe County

Probate Court, Juvenile Division. The Honorable

Norman R. Barnard, Judge of Probate for Oakland

County, was assigned to hear the matter after Judge

Seitz disqualified himself. A hearing was held on

July 20, 1973, and on August 30, 1973, Judge

Barnard filed his Memorandum Opinion and Order. :

Denying Petition for Hearing. In brief, Judge :

Barnard held that the petition was to be construed as

one for a “re-hearing” and that under the Michigan

statute (M.C.L.A. § 712A.21) and cases construing

that statute, the Probate Court had no jurisdiction to

entertain the petition since it was filed more than

three months after the date of the entry of the order

terminating parental rights. Judge Barnard also

held that the child is no longer under the jurisdiction

of the court since it had been placed by order of the

Probate Court in an adoptive home.

Whereupon, plaintiffs repaired to this Court

requesting, by its Motion for Partial Summary

Judgment, an immediate adjudication on the merits.

The threshold issue is the one of the jurisdiction

of this Court. It appears to the Court that plaintiffs’

first two claims, i.e., the release of Dahlari Weldon

from detention and the release of Maria Sophia

Weldon from Probate Court custody, are clearly in

the nature of habeas corpus relief and that this Court

does not have jurisdiction over those claims in the

absence of exhaustion of state remedies as required

by 28 U.S.C. § 2254. Preiser v. Rodriquez, 411 U.S. 475

(1973). Moreover, since Dahlari is no longer in

custody, her claim for release from detention is now

moot.

Plaintiffs, however, also seek injunctive or

equitable relief under 42 U.S.C. § 1983 (1970) and 28

U.S.C. § 1343 (1970), claiming that plaintiff Dahlari

Weldon’s parental rights were terminated without

the due process required by the Fourteenth

Amendment. As to that issue, the Court determines

that it does have jurisdiction.

In Mitchum v. Foster, 407 U.S. 225 (1972) the

Supreme Court held that § 1983 authorizes injunctive

relief against state court proceedings despite the

proscriptions of 28 U.S.C. § 2283. The court also held

in Mitchum that the “power” to enjoin state court

proceedings should be exercised with restraint and

by application of traditional notions of equity,

comity and federalism. (See Younger v. Harris, 401

U.S. 37 (1971)).

Having the utmost confidence in the competence

of the Michigan Court System and its history of

guarding the constitutional rights of its residents,

this Court originally suggested that the attempt be

made to resolve the due process issues in the state

court. However, the peculiar circumstances of this

case demand that this Court delay no longer

procedures that have such a tremendous and

permanent impact on the lives of two minors, a

daughter not yet two years of age and the mother but

17.

In the first instance, the plaintiffs come into this

Court seeking relief. Whatever their reasons may

have been, this they had a perfect right to do and

even though they could have pursued parallel

remedies in the state courts. Monroe v. Pape, 365 U.S.

167, 183 (1961), Zwickler v. Koota, 389 U.S. 241, 248

(1967), Preiser v. Rodriquez, supra at 513-5

(dissenting opinion). This Court then held a hearing

on the merits of the equitable claims '/ but stayed

'/ The Court was admittedly surprised at the hearing of September 24,

1973, when counsel for the defendants informed the Court that there

was a dispute as to the facts and that they would likean opportunity to

offer further testimony. Counsel asserted that they were not prepared

for the June 12, 1973 hearing because they did not have adequate

discovery due to time limitations. Such was certainly not the

understanding of the Court and it is convinced that counsel was

offered every opportunity to present any evidence. That the June 12th

hearing was a hearing on the merits of the equity issues is not only

borne out by the record but by the following language of counsel for

Judge Seitz in his Memorandum of September 20, 1973:

“During the consolidated hearing herein on plaintiffs’ motions for

temporary and permanent injunctions . . .” (underlining supplied.)

decision after the agreement of the parties to attempt

state court action. Judge Barnard did not, however,

reach the merits, finding the jurisdictional obstacle

an insurmountable one. The plaintiffs now find

themselves in the position that requires an appeal of

the jurisdictional finding of Judge Barnard through

the Michigan appellate procedure and, if successful,

a remand to that Court for a hearing on the merits —

the same hearing already held by this Court on June

12, 1973. Certainly, while considerations of comity

and federalism might have countenanced the delay

if a hearing on the merits had been held in the state

court expeditiously, such concepts cannot

countenance the delay that must be anticipated

under the present posture of the case. It would be

unconscionable for this Court to stay its hand now

when as is so evident we are faced with traumatic

consequences whatever the decision might be.

Particularly the Court must consider the effect of a

change, if any is decreed, in the status of the plain-

tiff Maria.

Nor is it reason to abstain here that the plain-

tiffs could seek habeas corpus relief in the state court.

That would involve other or additional parties and

the posture of the parties and the frame of the issues

would be difficult. And the question of delay, or

course, is again a spectre.

Going then to the merits of the due process claim

of plaintiffs, it should be bornein mind that the issue

before this Court at this time involves the procedures

regarding the delinquency of Dahlari. However, the

delinquency proceedings are not without

significance with regard to the due process issues of

the termination of parental rights proceedings. The

two proceedings are intermingled but the rights of

plaintiff Dahlari in the former differ considerably

from those in the latter. Yet no cognizance was taken

of the dilemma that is thus created, nor of its effect

on the understanding or lack thereof on the part of

the plaintiff Dahlari.

A careful review of this record, then, leads to the

conclusion that plaintiffs have been deprived of due

process rights of fundamental fairness guaranteed

to them under the Fourteenth Amendment. Cf. In re

Gault, 387 U.S. 1 (1967), McKeiver v. Pennsylvania,

403 U.S. 528 (1971). See also Armstrong v. Manzo,

380 U.S. 545 (1965).

Perhaps the most striking example of this

deprivation is the failure to ascertain, or attempt to

ascertain, from the plaintiff Dahlari at any time

whether she understood the nature of the

proceedings and the possible consequences. Her

participation in the pertinent hearings, as shown by

the transcripts, is limited to the mere mention of her

presence. No inquiry was ever directed to her, no

invitation to testify or make a statement. With

respect to the most devastating testimony — that of

Mrs. Friess that Dahlari had told her Mrs. Weldon

had physically abused the baby — she was not asked

to verify or deny. The fact that she was represented

by counsel is barely an adequate rebuttal to her

testimony, which this Court found credible, that she

was not only not advised and did not understand the

proceedings, but that she was confused as to which

attorney represented her.

Another area of concern is the final order of

September 12, 1972, which terminated parental

rights. The record does not indicate the reasons for

that action or the basis for the order. On the

contrary, the August hearing had produced the

testimony of Mr. Weldon as to his ability and

willingness to care and support for the baby subject

to closest supervision of a court. That hearing was

concluded with the stipulation that the Ohio

authorities be contacted. Yet there is no indication

that they were contacted and, if so, whether the

results were favorable or unfavorable to the plaintiff

and her parents. If unfavorable and a factor in the

determination, fairness would have required some

disclosure, or an opportunity to be heard.

As alluded to earlier, the joint consideration and

hearing of both the delinquency case and the

termination of parental rights case were

inappropriate and could not but be confusing to

Dahlari. While involving mutual facts, the issues are

separate and distinct and the possibility of

obfuscation great to the uninitiated.

This Court is left with this impression — that the

defendants here being heavily concerned with the

well-being of the baby Maria, and being frustrated

by what may have been or appeared to be challenges,

neglected to consider the rights, particularly, of the

plaintiff Dahlari. As a result the form gave way to

the substance and no real effort was made to assure

that the plaintiff Dahlari was fully apprised of her

rights, of the nature of the proceedings and of the

possible irrevocable consequences. It must be

remembered that at that time the principal figure

was a 15 year old girl having severe home

difficulties, was incarcerated in a_ juvenile

institution and had not seen her child for several

months. Such circumstances require much more

than the pro forma procedures of service of process,

appointment of counsel and presence in a hearing

room.

Further, although it is arguable that the delay

between the final order of termination of plaintiff

Dahlari’s parental rights and the filing of the

complaint in this Court subverts the statutory three

month appeal limitation, such argument loses

validity when it is considered that the plaintiff

Dahlari was incarcerated during that period and

there is no indication that she was advised of any

rights she might have.

In accordance with the foregoing, then, this

Court finds that the plaintiffs were deprived of due

process in the termination of parental rights matters

before the Probate Court for Monroe County and

that, therefore, such proceedings are void.

IT IS, THEREFORE, ORDERED that the

matter be remanded to that Court for hearing within

30 days of the filing hereof.

Joey led.

PHILIP PRATT

United States District Judge

Dated: September 28, 1973.

OPE I ET PE aT a ee aM

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAHLARI WELDON, et al,

Plaintiffs, CIVIL ACTION

"_ No. 40054

MONROE COUNTY PROBATE COURT,

et al,

Defendants.

JUDGMENT

This action having come on for trial before the

Court on plaintiffs’ claims for injunctive relief and

the issues having been duly tried and a decision

having been duly rendered in the Court’s

Memorandum Opinion and Order on Injunctive

Issues; and

This action having also come on for hearing on

plaintiffs’ claims for money damages and the issues

having been duly heard on defendants’ motion for

summary judgment and plaintiffs’ motion for relief

from judgment and decisions having been duly

rendered in the Court’s Memorandum Opinion and

Order Partially Granting Defendants’ Motion for

Summary Judgment and Memorandum Opinion

and Order Denying Plaintiffs’ Motion for Relief from

Judgment;

IT IS ORDERED AND ADJUDGED that the

proceedings in the Probate Court for Monroe County,

Michigan, involving the termination of plaintiff

Dahlari Weldon’s parental rights to plaintiff Maria

Sophia Weldon are void and that the matter be, and

hereby is, remanded to the Probate Court for Monroe

County for a hearing for a hearing to be held no later

than thirty (30) days from September 28, 1973, and

IT IS FURTHER ORDERED AND

ADJUDGED that plaintiffs’ claims for money

damages are denied.

No costs.

PHILIP PRATT

United States District Judge

Dated: October 25, 1973

Detroit, Michigan

NO. 74-1005

NO. 74-1006

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Filed: April 19, 1974

James A. Higgins, Clerk

DAHLARI WELDON, a minor, by Gabe

Kaimowitz, as next friend, on her

own behalf and on behalf of her

infant daughter, Maria Sophia Weldon,

a/k/a Thomas,

Plaintiff-Appellees

Plaintiff Cross-Appellants

- V8 -

ORDER

MONROE COUNTY PROBATE COURT, HARRY

J. SEITZ, Judge, Monroe County Probate Court, and

James H. Stanifer, Juvenile Referee, Probate Court,

Monroe, individually and in their official capacities,

and their employees, agents, assignees and

successors,

Defendants-Appellants

Defendants Cross-Appellees

BEFORE: PECK, MC CREE, and LIVELY, Circuit

Judges.

These appeals were consolidated for hearing.

Defendants’ appeal is from the district court’s

determination that proceedings in the Probate Court

for Monroe County, Michigan, resulted in the

termination of plaintiff Dahlari Weldon’s parental

rights to her child, plaintiff Maria Sophia Weldon,

are void for want of due process and from the district

court’s order remanding the cause to the probate

court for a hearing. On cross-appeal, plaintiffs

contend that the district court erred in dismissing

their claim for money damages and that the district

court’s remand order was not specific enough to meet

the requirements of Fed. R. Civ. P. 65(d).

Upon consideration of the briefs, record and

arguments, we conclude that the district court

properly dismissed plaintiffs’ claim for damages,

Bradley v. Fisher, 13 Wall (80 U.S.) 335 (1871),

Pierson v. Ray, 386 U.S. 547 (1967), Jacobson v.

Schaefer, 441 F.2d 127 (7th Cir. 1971), but that the

district court did not have jurisdiction under 42

U.S.C.§ 1983 and 28 U.S.C. 1343 to review and set

aside the probate court’s proceedings and to order

the probate court .to conduct another hearing. See

City of Kenosha v. Bruno, 412 U.S. 507 (1972).

It is therefore ORDERED that the judgment of

the district court be, and it is affirmed insofar as it

dismissed the claim for money damages and that the

judgment be, and it is reversed insofar as it held the

probate court’s proceedings to be void and ordered

the probate court to conduct a hearing. The case is

remanded to the district court to consider insofar as a

Section 1983 action may be maintained against the

individual defendants, whether the district court can

fashion appropriate relief not barred by Preiser v.

Rodriguez, 411 U.S. 475 (1973), and whether notions

of comity in federal-state relations otherwise require

ETI a Perey GR ARN te. GPT PEI

ves

. !

<bean Min did oll TP ote yey ate ed RES Mme cep

deferral to state procedures. See, e.g., Willi

Dalton, 231 F.2d 646 (6th Cir. 1956). ceceemetiadr

the district court may consider whether to treat the

action as an application for habeas corpus, see, e.g.,

Bennett v. Allen, 396 F.2d 788(9th Cir. 1968), and if

so considered, whether plaintiffs must satisfy the

exhaustion requirements of 28 U.S.C. §2254(b). No

costs.

Entered by order of the court

A Kame Pt bebe

John P. Hehman

ye: ARR

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAHLARI WELDON, et al,

Plaintiffs, CIVIL ACTION

va. No. 40054

MONROE COUNTY PROBATE COURT,

et al,

Defendants.

MEMORANDUM OPINION AND ORDER

This action is presently before the Court on

remand from the order of the Court of Appeals

entered on April 19, 1974. In that order, the Court of

Appeals affirmed this Court’s Judgment dismissing

plaintiffs’ claims for money damages but reversed

insofar as this Court “held the probate court’s

proceedings to be void and ordered the probate court

to conduct a hearing.” The Court of Appeals then

remanded the case for further consideration. !/

'/ Insofar as pertinent the Order issued by the Court of Appeals reads

as follows:

“Upon consideration of the briefs, record and arguments, we

conclude that the district court properly dismissed plaintiffs’ claim for

gy v. Fisher, 13 Wall (80 U.S.) 335 (1871), Pierson v.

Ray, 386 . 547 (1 441 F.2d1 ir.

ty, , bet that the district court not have jurisdiction under 42

and 28 U.S.C. 130 to review and set aside the probate

In order to place the issues currently before the

Court in proper prospective, a brief statement of the

history of this case is necessary. Plaintiff Dahlari

Weldon is the natural mother of Maria Sophia

Weldon, an infant, who is also named as a plaintiff

herein. Maria was born on October 18, 1971, when

Dahlari was 14 years of age.

On May 2, 1973 plaintiffs filed their complaint in

this action against the Monroe County Probate

Court, Harry J. Seitz, a judge of that court, and

James H. Stanifer, the court’s juvenile referee, for

violation of plaintiffs’ constitutional rights.

Jurisdiction was alleged solely upon 28 U.S.C. § 1343

and 42 U.S.C. § 1983. The complaint was soon

amended to name Shirley Friess, a juvenile case

worker for the Probate Court, as a party defendant.

In their complaint, plaintiffs allege that

defendants have violated their constitutional rights

guaranteed under the Fourteenth Amendment. The

action arises from the termination of the parental

rights of Dahlari Weldon with respect to her daugh-

ter Maria Sophia Weldon. Both monetary damages

court’s proceedings and to order the probate court to conduct another

hearing. See City of Kenosha v. Bruno, 412 U.S. 507 (1972).

“It is therefore ORDERED that the judgment of the district court

be, and it is affirmed insofar as it dismissed the claim for money

damages and that the judgment be, and it is reversed insofar as it held

the probate court’s proceedings to be void and ordered the probate

court to conduct a hearing. The case is remanded to the district court to

consider insofar as a Section 1983 action may be maintained against

the individual defendants, whether the district court can fashion

appropriate relief not barred by Preiser v. Rodriguez, 411 U.S. 475

.1973), and whether notions of comity in federal - state relations other-

wise require deferral to state procedures. See ‘a Williams v. Dalton,

231 F. 2d 646 (6th Cir. 1956). Alternatively, the district court may

consider whether to treat the action as an application for habeas

corpus, see, e.g., Bennett v. Allen, 396 F. 2d 788 (9th Cir. 1968), and, if so

considered, whether plaintiffs must satisfy the exhaustion

requirements of 28 U.S.C. §2254 (b). No costs.”

s,-

and equitable relief are sought in the complaint. 2/

Due to the urgency of the matter because adoption

proceedings had already begun for Maria, the Court

set an accelerated trial date (June 12, 1973) for all

claims for injunctive and other equitable relief.

Immediately after the trial was completed, the

parties, pursuant to a suggestion by the Court,

sought to obtain a new hearing before another judge

in state court in order to remedy the alleged pro-

cedural inadequacies of the original proceedings.

This motion, however, was denied on grounds that it

was, in effect a motion for rehearing which was un-

timely.

Since the plaintiffs attempted resort to state

court had met with failure, this Court rendered its

decision on the merits of plaintiffs’ claims for in-

junctive relief. Finding that the state procedures

were insufficient to comply with the requirements of

due process mandated by the Fouteenth Amend-

ment, the Court held that defendants had violated

plaintiffs’ constitutionally protected rights. °/ The

Court further held the Probate Court proceedings

void and ordered that the case be remanded to the

Monroe County Probate Court for a new hearing

within thirty days.

Apparently on the basis of this order, a new

hearing was held in the Monroe County Probate

Court before a visiting judge on the original neglect

petition on October 22-25, 1973. Judge Mitchell,

therein, found no evidence of neglect and dismissed

the petition. Thereupon, Mr. and Mrs. John Doe, the

2/ Since this Court’s prior judgment dismissing plaintiffs’ claim for

damages was affirmed by the Court of Appeals, that portion of the case

is no longer before the Court and thus will not be discussed further in

this memorandum.

3/ The Order of the Court of Appeals does not disturb this finding.

prospective adoptive parents of Maria, filed a com-

plaint in Superintending Control against Judge

Mitchell and others in Monroe County Circuit Court.

Dahlari Weldon also sought habeas corpus relief in

the same court on the basis of Judge Mitchell’s find-

ings. After numerous hearings, Circuit Judge James

J. Kelley ordered Maria’s custody transferred from

the Does to Dahlari Weldon. This order was stayed

and an appeal from the Monroe County Circuit Court

is currently pending before the Michigan Court of

Appeals.

In the meantime, defendants in this action per-

fected an appeal to the federal Court of Appeals. In

its Order (supra, n.1), that court held that a federal

court has no jurisdiction in an action brought under

Section 1983 to hold the probate court’s proceeding

void and to order a state court to hold a hearing. This

ruling was based on the fact that a state court, like a

municipality, is not a “person” within the meaning

of the term used in Section 1983. There being no

claim presented under Section 1983, the Court there-

fore would lack subject matter jurisdiction under 28

U.S.C. § 1343(3) and (4). City of Kenosha v. Bruno,

412 U.S. 507 (1973). The Court of Appeals then

remanded the case for consideration whether an ac-

tion under Section 1983 may be maintained against

the individual defendants. ‘/

On the basis of the decision of the Court of

Appeals, all claims against the defendant Monroe

County Probate Court must be dismissed for lack of

‘/ The Court of Appeals specifically requested consideration of the

following questions:

1) Whether the district court can fashion appropriate relief not

barred by Prieser v. Rodriguez, 411 U.S. 475 (1973); and

2) Whether notions of comity in federal-state relations otherwise

require deferral to state procedures. See. e.g., Williams v. Dalton, 231

F.2d 646 (6th Cir. 1956).

jurisdiction. Pursuant to the directions of the Court

of Appeals, we must now turn to plaintiffs’ remain-

ing claims for equitable and injunctive relief against

the individual defendants.

In their complaint, plaintiffs sought an order

from this Court requiring defendants and their

agents (presumably the prospective adoptive

parents — the Does) to return Maria to her natural

mother, Dahlari Weldon. Since this claim is equiva- «

lent to that available through a writ of habeas

corpus, the Court must necessarily apply 28 U.S.C. §

2254. Preiser v. Rodriguez, 411 U.S. .475 (1973).

Although the matter is currently being litigated in

state court, available state remedies clearly have yet

to be exhausted. Accordingly, this Court necessarily

lacks jurisdiction to grant relief in the nature of

habeas corpus.

Plaintiffs additionally request that defendants

be ordered to rescind the termination of parental

rights. With respect to this claim, the Court clearly

has jurisdiction but it must yet be determined

whether these defendants are judicially immune

from suit and whether this relief is appropriate giv-

ing due weight to traditional considerations of

equity, comity and federalism.

The individual defendants initially contend that

any action for equitable or injunctive relief based

upon Section 1983 is barred under the doctrine of ju-

dicia! or quasi-judicial immunity. °/Thus, the issue

presented is whether the immunity bars claims for

equitable relief as well as claims for monetary

damages. Although the Supreme Court has never di-

°/ On the damages claim, the Court previously held that the individ-

ual defendants acted within their jurisdiction and that therefore any

claim for monetary damages was barred. Pierson v. Ray, 386 U.S.547

(1967).

rectly decided the question, the great weight of cur-

rent authority has held that the doctrine of judicial

immunity does not bar civil rights actions against

judges or other personnel such as prosecutors for

equitable or injunctive relief. Littleton v. Berbling,

468 F.2d 389 (7th Cir. 1972), rev’d on other grounds

sub. nom.; O’Shea v. Littleton, 414 U.S. 488 (1974);

Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir.

1972), cert. denied 409 U.S. 889; Jacobson v.

Schaefer, 441 F.2d 127, 130 (7th Cir. 1971); Peek v.

Mitchell, 419 F.2d 575, 578 (6th Cir. 1970); Law

Students Civil Rights Research Council, Inc. v.

Wadmond, 299 F.Supp. 117, 123 (S.D. N.Y. 1969) (3

judge court) (Friendly, J.), aff'd on other grounds 401

U.S. 154. See also Conover v. Montemuro, 477 F.2d

1073 (3rd Cir. 1973). Contra, Tate v. Arnold, 223 F. 2d

782 (8th Cir. 1955); Smallwood v. United States, 358

F. Supp. 398 (E.D. Mo. 1973), aff'd without opinion,

486 F.2d 1407 (8th Cir. 1973).

While not directly deciding this issue, the Su-

preme Court has decided a number of significant

cases which apparently rest upon an assumption

that the immunity doctrine does not apply to claims

for equitable relief. In Mitchum v. Foster, 407 U.S.

225 (1972), the Court held that Section 1983 came

within the “expressly authorized’’ exception to the

anti-injunction statute at 28 U.S.C. § 2283 and thatin

limited circumstances a federal court could enjoin

state court proceedings. In that case the defendant

Foster was the state prosecuting attorney who would

normally be clothed with quasi-judicial immunity.

The defendants in both Younger v. Harris, 401 U.S.

37 (1971) and Samuels v Mackell, 401 U.S. 66 (1971)

were also prosecuting attorneys. Additionally, in

Boyle v. Landry, 401 U.S. 77 (1971) the defendants

included the Chief Judge and two Magistrates of the

Circuit Court and the county State’s Attorney. It

would appear highly unlikely that the Supreme

Court would have considered these cases on their

merits if any claims for equitable relief would have

been barred on immunity grounds. Accordingly, we

— proceed to the merits of plaintiffs’ equitable

claims.

In determining the type of relief, if any, which

may be fashioned, the Court is cognizant that it must

look to the principles of equity, comity and feder-

alism. See Mitchum v. Foster, supra, at 243; Williams

v. Dalton, 231 F.2d 646 (6th Cir. 1956). Cf. Samuels v.

Mackell, supra. In making this decision we must look

to the factual setting as the case presently stands be-

fore the Court. This Court has conducted a trial on

the federal constitutional issues and has determined

that the parental rights of plaintiff Dahlari Weldon

were terminated by defendants in a manner incon-

sistent with her procedural rights granted by the

Fourteenth Amendment. On the basis of this ruling,

new proceedings were instituted in state court re-

sulting in an order requiring Maria to be returned to

Dahlari. An appeal from that decision is now pend-

ing in the state Court of Appeals.

In light of these facts the Court believes that its

prior decision that plaintiff Dahlari Weldon’s par-

ental rights were terminated without the due proc-

ess of law and the proceedings held before the in-

dividual defendants were void must be reaffirmed.

Since the courts of the state originally declined to

consider the issues raised in this action, comity is no

bar. Moreover, the importance of the federal right in-

ANolved indicates that we should adjudicate it in this

form. )

Nevertheless, the Court does not believe injunc-

tive relief of the type sought is now appropriate.

Given the fact that this Court now lacks jurisdiction

to order return of Maria to her natural mother

Dahlari Weldon as noted above, plaintiffs must first

pursue available state remedies on that score. More-

over, at present this Court has no reason to believe

that the courts of the State of Michigan will not give

a judgment rendered by this Court full faith and

credit. Accordingly, applying general principles in

equity, an injunction is not now warranted. The

Court furthermore believes that at this time the re-

quisite showing contemplated by the Supreme Court

in Mitchum v. Foster, supra, for a federal court to en-

join state proceedings has been satisfied.

While injunctive relief is not now appropriate,

the Court does believe that it should issue its judg-

ment declaring the rights of the parties. 28 U.S.C. §

2001. Since the parties before this Court have fully

litigated the federal constitutional issues arising

from the proceedings in the Monroe County Probate

Court, it is within the Court’s inherent equity pow-

ers to grant declaratory relief. In fact, because such

relief is much less intrusive upon pending state pro-

ceedings, it is far preferable to injunctive relief.

Therefore, in accordance with the foregoing and

with the findings in this Court’s original opinion on

plaintiffs’ equitable claims, the Court holds that the

proceedings in the Monroe County Probate Court be-

fore the individual defendants herein which re-

sulted in the termination of plaintiff Dahlari Wel-

don’s parental rights with respect to her natural

daughter, plaintiff Maria Sophia Weldon, were in

violation of the due process rights of plaintiffs guar-

anteed by the Fourteenth Amendment to the Con-

stitution of the United States. Jurisdiction will be re-

tained pending conclusion of litigation on related

matters in state courts in the event further equitable

relief may later prove necessary.

IT IS SO ORDERED.

lo. ra )

PHILIP PRATT

United States District Judge

Dated: July 25th, 1974

Detroit, Michigan.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DAHLARI WELDON, et al,

Plaintiffs, CIVIL ACTION

om No. 40054

MONROE COUNTY PROBATE COURT,

et al,

Defendants.

JUDGMENT

This action having come before the Court on

remand from the United States Court of Appeals for

the Sixth Circuit, and pursuant to the directions of

that Court,

IT ISHEREBY ORDERED AND ADJUDGED,

1. That this action be dismissed as to the defend-

ant Monroe County Probate Court for lack of

jurisdiction over the subject matter; and

2. That plaintiffs be, and hereby are granted a

declaratory judgment that the proceedings in the

Monroe County Probate Court before defendants

Harry J. Seitz, James H. Stanifer and ShirleyFreiss,

which resulted in the termination of plaintiff

Dahlari Weldon’s parental rights with respect to her

natural daughter, plaintiff Maria Sophia Weldon,

were in violation of the due process rights of plain-

tiffs guaranteed by the Fourteenth Amendment to

the Constitution of the United States.

]

No costs. Jurisdiction will be retained pending

conclusion of litigation in the courts of the State of

Michigan in related matters.

PHILIP PRATT

United States District Judge

Dated: July 25th, 1974.

Detroit, Michigan.

NO. 74-2095

UNITED STATES COURT OF

APPEALS

FOR THE SIXTH CIRCUIT

Filed: Feb. 12, 1976

John P. Hehman, Clerk

DAHLARI WELDON, et al.

Plaintiffs-Appellees

MONROE COUNTY PROBATE COURT, et al.

Defendants-Appellants

ORDER

BEFORE: PECK, McCREE and LIVELY, Circuit

Judges.

This case has been considered on the record

together with briefs and oral arguments of counsel.

It was agreed at oral argument by counsel for appell-

ants that the only issue on appeal is whether the dis-

trict court had jurisdiction and, if such jurisdiction

existed, whether it should have declined to proceed in

the cause on the basis of considerations of comity,

equity and federalism. We conclude that the district

court did have jurisdiction and that it gave due

consideration to principles of comity, equity and fed-

eralism.

Accordingly the judgment of the district court is

affirmed for the reasons set forth in the opinion of

]

United States District Judge Philip Pratt dated July

25, 1974.

ENTERED BY ORDER OF THE COURT

NO. 74-2095

UNITED STATES COURT OF

APPEALS

FOR THE SIXTH CIRCUIT

oo (O / _ a ~A—

e Filed March 19, 1976

John P. Hehman | John P. Hehman, Clerk

DAHLARI WELDON, et al.

Plaintiffs-Appellees

PTA ON

Vv.

MONROE COUNTY PROBATE COURT, et al.

Defendants-Appellants

eer “rer

ORDER

BEFORE: PECK, McCREE and LIVELY, Circuit

Judges.

Upon consideration of the petition for rehearing

filed herein by the defendants - appellants the court

concludes that said petition is without merit.

It is therefore ORDERED that the petition for

rehearing be and it hereby is denied.

ENTERED BY ORDER OF THE COURT

SN 8 OR Re rE S RES BHT RL ERR

: John P. Hehman

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