Appendix — Lehman v. Lycoming County Children's Servs. Agency

la

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 79-2466

LEHMAN, MARJORIE, on behalf of her children,

William Lehman, Mark Lehman, Frank Lehman

VU.

LYCOMING COUNTY CHILDREN'S

SERVICES AGENCY,

Lycoming County Court House,

Williamsport, Pa. 17701

MARJORIE LEHMAN and her children

on whose behalf this action was filed,

Appellants

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 79-0065)

Argued March 27, 1980

Before: ROSENN, GARTH, and SLOVITER, Circuit Judges

Reargued November 17, 1980 In Banc

Before: SEITZ, Chief Judge,

ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER,

WEIS, GARTH, HIGGINBOTHAM and SLOVITER,

Circuit Judges

MARTIN GUGGENHEIM, ESQ.

(Argued)

New York University School of Law

80 Fifth Avenue

New York, New York 10001

2a

WARREN R. BALDYS, JR., ESQ.

Baldys and Baldys

350 William Street

Williamsport, Penna. 17701

THOMAS HARVEY, ESQ.

American Civil Liberties Union

of Pennsylvania

260 South 15th Street

Philadelphia, Penna. 19102

Attorneys for Appellants

CHARLES F. GREEVY, III, ESQ.

Argued

Greevy, Greevy & Greevy

29 West Fourth Street

Williamsport, Penna. 17701

Attorneys for Appellee

OPINION ANNOUNCING THE JUDGMENT

OF THE COURT

(Filed March 31, 1981)

GARTH, Circuit Judge.

This case requires us to determine whether a peti-

tion for a writ of habeas corpus is available for a federal

constitutional challenge to Pennsylvania’s statutory

scheme for involuntarily terminating a parent's rights in

her children. We hold that habeas corpus is not appro-

priate for the constitutional challenge here, and thus we

affirm the district court’s dismissal of Ms. Lehman's pe-

tition.

The facts giving rise to the instant petition are de-

tailed in full in In Re William L., 477 Pa. 322, 383 A.2d

1228, cert. denied, 439 U.S. 880 (1978), the Pennsylva-

3a

nia Supreme Court decision which held that Ms.

Lehman’s parental rights were properly terminated un-

der a constitutional act. We recount some of the relevant

circumstances drawn from the factual recital of that

case, not to evaluate the merits of Ms. Lehman’s consti-

tutional claims, but rather to determine whether these

facts constitute an extraordinary case impinging with

especial harshness on personal liberty — the hailmark

for determining whether the requirement for the habeas

corpus has been satisfied.

In June, 1971, appellant Marjorie Lehman, then

age 39, was living with her three sons who aye the sub-

ject of this proceeding: Frank, then age 7, William, then

age 5, and Mark, then age 1. At that time she was preg-

nant with her youngest daughter Tracie. Tracie has

lived with her mother since her birth. Ms. Lehman’s el-

dest child, Carol, has lived with Ms. Lehman's parents

for many years, and Ms. Lehman does not seek her re-

turn. In June, 1971, when pregnant with Tracie, Ms.

Lehman voluntarily surrendered custody of her three

sons to the Lycoming County Children’s Services Agen-

cy (the Agency). Ms. Lehman had come to the attention

of the Agency sometime earlier as a result of the deplor-

able living conditions that obtained in her apartment.

Ms. Lehman and the caseworker agreed that the home

was unfit for children.

After Tracie’s birth, the Agency helped Ms. Lehman

find a new apartment. Ms. Lehman vacillated between

seeking an apartment large enough to accommodate

only herself and Tracie, and one large enough for the

three boys as well. She ultimately selected one suitable

only for Tracie and herself. The boys remained in foster

care. In November, 1974, more than three years after

she had surrendered custody of her sons, Ms. Lehman

requested that the boys be returned to her. At

the time, she was still in the apartment suitable only

for Tracie and herself. The Agency, concluding that Ms.

4a

Lehman could not provide her sons with necessary sup-

port and supervision, declined to return them. The

Agency then filed a petition in the Court of Common

Pleas of Lycoming County under section 311(2) of the

Pennsylvania Adoption Act of 1970,' seeking to termi-

nate Ms. Lehman’s parental rights in the three boys, so

that they could be placed for adoption without Ms.

Lehman’s consent.

Most of the evidence at the hearing on this petition

consisted of the testimony of nutrition aides and case-

workers from the Agency who had visited with Ms. Leh-

man. After Tracie’s birth, nutrition aides began regular

visits to Ms. Lehman’s home to help her maintain the

household and raise her infant daughter. Ms. Lehman

came to rely heavily on these aides to perform even the

simplest tasks of everyday life. She made little or no

progress in learning to handle problems without assis-

tance. A series of incidents illustrates the depth of Ms.

Lehman’s incapacity. On one occasion, Tracie was sent

home from school because she had lice. The nutrition

aide could not make Ms. Lehman understand the need

to rid Tracie of the lice or how to perform the simple pro-

cedure to achieve this result. Ultimately, as Tracie be-

came upset about missing school, the aide herself was

forced to perform the treatments.

On several occasions, Ms. Lehman has had her heat

and electricity terminated for her failure to pay the bills.

Once, Ms. Lehman sought emergency financial assis-

1. Section 311(2) of the Pennsvivania Adoption Act of 1970, 1

Pa.Cons.Stat.Ann. §311(2) (Purdon Supp. 1979), authorizes termi-

nation of parental rights on the ground that:

The repeated and continued incapacity, abuse, neglect, or

refusal of the parent has caused the child to be without essen-

tial parental care, control. or subsistence necessary tor his

physical or mental well-being and the conditions and causes of

the incapacity. abuse, neglect. or refusal cannot or will not be

remedied by the parent.

oe

tance to pay bills for rent, gas, water and electricity that

she believed were due. On inquiry, the aide discovered

that Ms. Lehman had already paid all of these bills.

There was also other evidence of Ms. Lehman's incapac-

ity to conduct her financial affairs responsibly. She told

the aides on several occasions of making payment for

items, such as toys, that were never delivered. She also

told them of turning over her social security checks, her

sole source of income, to creditors who would cash the

checks, deduct amounts allegedly owed, and return to

Ms. Lehman the difference.

As a result of Ms. Lehman's incapacities and the

long period — almost a decade — since her sons have

lived with her, relations between Ms. Lehman and the

boys have deteriorated. The boys visited their mother in

her apartment twice a month during late 1975 and early

1976 under a court ordered visitation plan. Aides present

during these visits described them as “free-for-alls” in

which Ms. Lehman would chase, in succession, each of

the children about the apartment seeking to establish

control. The two older boys appeared to do no more than

tolerate their mother. The youngest boy, who has lived

with a foster family since his first birthday. spent these

visits watching television. Each of the boys testified in

chambers that he did not want to live with his mother.

The oldest boy admitted that he would not obey his

mother and that she could not control him.

Other evidence at the hearing focused on Ms.

Lehman’s intellectual and social skills. A psychologist

who administered a series of tests reported that Ms. Leh-

man has a mental age of six vears, ten months, and that

her social skills and ability to function independently

were those of a twelve vear old. The psychologist opined

that Ms. Lehman lacked the social and intellectual ma-

turity necessarv to raise children.

Based on this testimony, the Court of Common

Pleas found the appellant irremediably “incapable of pro-

60

viding minimal care, control and supervision for the

three children.” In re William Lehman, Nos. 2986-88,

slip op. at 4, (C.P. Lycoming Co., June 3, 1976). The

court rejected Ms. Lehman's argument that Section 311

of the Pennsylvania Adoption Act was unconstitutionally

vague. Accordingly, the Common Pleas Court terminat-

ed Ms. Lehman's parental rights in her three sons, mak-

ing them eligible for adoption. The Pennsylvania Su-

preme Court held that the adoption statute was neither

unconstitutionally vague nor violative of substantive duc

process and then tound that the lower court's termina-

tion of Ms. Lehman's parental rights was supported by

competent evidence,” In Re William L., 477 Pa. 322, 383

A.2d 1228, cert. denied, 439 U.S. 880 (1978).

Ms. Lehman's petition for a writ of certiorari was de-

nied, 439 U.S. 880 (1978), and thereafter she filed a pe-

tition for a writ of habeas corpus “on behalf of” her three

sons in the United States District Court for the Middle

District of Pennsylvania.’ The petition asserted that the

2. The Pennsylvania Adoption Act of 1970, under which Ms.

Lehman's parental rights were terminated, see note 1, supra, re-

flects the judgment that “a parent who is incapable of performing

parental duties is just as parentally unfit as one who refuses to per-

form the duties.” Jn re William L., 477 Pa., 322, 345, 383 A.2d 1228,

1239, cert. denied, 439 U.S. 880 (1978).

In affirming the judgment of the lower court terminating Ms.

Lehman's parental rights in her three sons, the Pennsylvania Su-

preme Court held that this strict standard of parental incapacity had

been satisfied. Id. at 341-52, 383 A.2d at 1237-43.

In Pennsylvania, as in virtually all jurisdictions, the overriding

concern in child custody proceedings is the best interests of the

child. Commonwealth ex rel. Parikh v. Parikh, 449 Pa. 105, 107-08,

296 A.2d 625, 627 (1972); Commonwealth ex rel. Drum v. Drum,

397 A.2d 1192, 1193 (Pa. Super. Ct. 1979).

3. A parent has standing to bring a habeas corpus action on be-

half of her minor children. See, ¢.g., United States ev rel. Kirk v.

Kirkpatrick, 330 F. Supp. 821 (E.D. Pa. 1971); Hegwood v.

Kindrick, 264 F. Supp. 720 (S. D. Tex. 1967). The agency argued

before the district court that because the state decree terminated

1

Pennsylvania Adoption Act was unconstitutional as ap-

plied and/or on its face, and sought the return of the chil-

dren. It also sought a declaration that Ms. Lehman was

their legal parent, or, in the alternative, the release of the

children from the Agency's custody unless within sixty

davs “a hearing is held in the appropriate state court and

it is judicially determined to be in the best interests of

The Children that temporary custody should remain

with the |A]geney ”

The district court dismissed the petition for lack of

jurisdiction, Lehman v. Lycoming County Children’s

Services Agency, No. 79-65 (M.D. Pa. Sept. 4, 1979), re-

lving substantially on the holding of the First Circuit in

Sylvander v. New England Home for Little Wanderers,

584 F.2d 1103 (Ist Cir. 1978).

On July 23, 1980 a divided panel of this court re-

versed the district court. It held that “federal habeas cor-

pus jurisdiction may be invoked to challenge the consti-

tutionality of a state statute by which the state has taken

custody of children and has terminated without consent

the rights of a natural parent to them.” Lehman ov.

Lycoming County Children’s Services Agency, No.

79-2466. slip op. at 24, (3d Cir. July 23, 1980), vacated

and rehearing en banc granted, (August 15, 1980).

Thereafter rehearing before the court en banc was or-

dered.

A habeas corpus action differs from other constitu-

tional challenges in one exceedingly important respect.

All other litigational claims, constitutional and

non-constitutional, are subject to the doctrine of res

judicata. That principle precludes a litigant who has ful-

Ms. Lehman's parental nyhts, she lacked standing to file the habeas

petition. The district court reyected that contention and it is not

raised on appeal

8a

ly and freely pressed a claim or defense in one court from

obtaining a second adjudication of that claim or

defense.*

Society, and hence, the law has a critical interest in

finality, which is the basis for the doctrine of res

judicata. In normal litigation, our jurisprudence dictates

that this degree of finality has been reached after consid-

eration by a court of original jurisdiction and a court of

review. Thus, the doctrine of res judicata bars a cause of

action that had earlier been determined in court, even if

that determination was substantively in error. Habeas

corpus, because it embodies considerations of personal

liberty, is the major exception to this doctrine.

The writ of habeas corpus recognizes however, that

this interest in finality cannot transcend each and every

other societal interest. It represents our society's judg-

ment that avoiding wrongful incarceration and unlawful

restrictions on liberty outweighs the otherwise compel-

ling interest in finality of litigation. Because this interest

in personal liberty is one of our most highly valued con-

stitutional rights, those who are in “custody” pursuant to

a judgment of a court are, in almost all cases, permitted

to raise their federal claims in federal court, even those

claims had once before been adjudicated. As Justice

Brennan wrote ior the Supreme Court majority in Fay v.

Noia, 372 U.S. 391 (1963),

“conventional notions of finality in criminal litiga-

tion cannot be permitted to defeat the manifest fed-

4. Normally res judicata bars the relitigation of claims that

were raised or could have been raised at the first trial. We have ac-

corded limited res judicata effect to state judgments in subsequent

suits under §1983, appiying res judicata only to bar claims that ac-

tually were litigated. See New Jersey Educational Ass'n. v. Burke,

579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894.

5. Not every federal claim can be raised again. See Stone v.

Powell, 428 U.S. 465 (1976), which involves search and seizure

challenges under the Fourth Amendment.

S Ow

eral policy that federal constitutional nghts of per

sonal liberty shall not be denied without the fullest

opportunity for plenary federal judicial review

Id. at 424

While the ability to avoid res pudicata is an extraor

dinary characteristic of habeas when the relitigation

takes place within the same judicial system — that is

when a state court entertains the writ on behalf of a per

son in Custody pursuant to the judgment of a court of

that same state — the writ assumes even more profound

implications when its operation cuts across the federal

and state judicial systems. In this Jatter context the wrt

empowers a single federal district judge to overrule de

terminations of federal issues which have been adjuds

cated by the highest court of 4 state. Sumnerc Mata, 49

US.L.W. 419%, 4135 (January 2), 194%), Thus the as

sumption of habeas jurisdiction by a federal court on be

half of a party complaining of 4 judgment rendered

against him by a state court, represents an unparalleled

assertion of federal authority over the state judicial sys

tem. Such an intrusion upon state judicial authority

deeply implicates the principles of comity and may im

pair the smooth workings of our federal system

The awesome power of the writ to avoid res

judwata, and its implications for our federalism de

mand that its use be confined to its proper role the pres

ervation of individual liberty and the relief from unlawful

custody. This principle has been expressed by the Su

preme Court in Hensley vo. Municipal Court, 41) 0S

$45 (197%)

The custody requirement of the habeas corpus

statute is designed to preserve the wrt of habeas

corpus as a remedy for severe restraints on individ

ual liberty. Since habeas corpus is an extraords

nary remedy whose operation is to a large extent

uninhibited by traditional rules of finality and feder

100

alism, its use has been limited to cases of special ur-

gency, leaving more conventional remedies for

cases in which the restraints on liberty are neither

severe nor immediate.

Id. at 351. (emphasis added).

Other commentators have expressed similar senti-

ments:

The historic custody requirement, although

rooted in the procedural nature of the writ, took on a

substantive character as habeas corpus came to be

seen as an extraordinary remedy for the extraordi-

nary restraints of custodial situations. The modern

jurisdictional requirement {of custody] reflects this

conception. Federal supervision of state judicial

processes by means of the writ departs from tradi-

tional notions of deference owed state administra-

tion of federal law; problems of federalism aside, or-

dinary concepts of finality in the judicial process are

displaced by the continuing availability of habeas

for review of restrictions imposed by the judgments

of federal courts. Therefore the restraints which

have been thought appropriate for review in habeas

proceedings are those which impinge with especial

harshness on personal liberty — those severe

enough to warrant relitigation.

Developments in the Law —- Federal Habeas Corpus, 83

Harv. L. Rev. 1038, 1073 (1970)(emphasis added). The

need to confine habeas to its proper sphere has become

even more important as the scope of constitutional errors

within its reach has expanded dramatically. See id. at

1041.

In deciding whether habeas corpus lies to challenge

a termination of parental rights, we must determine,

then, whether such a case presents the same, strong

claim for overriding the interest in finality as inheres in

the plea of a prisoner that he has been incarcerated in

lla

violation of the Constitution of the United States. We

think the answer is clear: it may not, and for much the

same reasons as those expressed in Sylvander v. New

England Home for Little Wanderers, 584 F.2d 1103 (1st

Cir. 1978). The principal reason may be plainly stated:

habeas lies to challenge unlawful custody, but unlawful

custody is simply not the issue in a parental rights termi-

nation case. It is not the liberty interest of the children

that is sought to be protected in such a case, but only the

right of the particular parent to raise them.” Such an in-

terest is unrelated to the core concern of the writ of ha-

beas corpus.

A.

The federal habeas corpus statute for state prison-

ers, 28 U.S.C. §2254, establishes custody as the prime

requisite for relief. The statute provides in relevant part:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an applica-

tion for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United

States.

(Emphasis added).

While the Supreme Court has held that persons oth-

er than incarcerated prisoners may be in custody and

hence has extended relief under the writ of habeas cor-

6. Indeed, a fair reading of Justice Koberts’ thorough and

thoughtful opinion for the Pennsylvania Supreme Court suggests

that the Lehman boys might find a far yreater restriction of their

personal liberty in a judgment returning them to their mother’s cus-

tody than in the actual judgment severing Ms. Lehman's parental

rights, inasmuch as each of the boys expressed a clear preference

for not living with his mother. In re William L., 477 Pa. 422, 343,

383 A.2d 1228. 1239. cert. denwd, 439 US. 880 (1978)

12a

pus to them, see Hensley v. Municipal Court, 411 U.S.

345 (1973); Carafas v. LaValleo, 391 U.S. 234 (1968);

Jones v. Cunningham, 371 U.S. 236 (1963), suci: cases

present instances of actual restrictions on the petition-

ers’ individual liberty, all stemming from state criminal

conviction.

In Hensley v. Municipal Court, supra, the habeas

petitioner had been released on his own recognizance

after his state conviction and sentencing, but prior to the

commencement of his incarceration. In holding that the

petitioner was in custody, the first factor that the Court

looked to was that he was “subject to restraints ‘not

shared by the public generally.’ ” Id. at 351.’

Carafas v. La Vallee, 391 U.S. 234 (1968) presented

the situation of a state prisoner who was unquestionably

in custody at the time when the district court and court

of appeals considered his petition for a writ of habeas

corpus. His petition was denied by the court of appeals

and he then sought a writ of certiorari. Just prior to the

granting of his petition for certiorari by the Supreme

Court, Carafas was discharged from his parole status be-

cause his sentence had expired. The Supreme Court

held that Carafas’s case was not moot, and that Carafas

was in custody within the meaning of the habeas corpus

statute. The Court, in so holding, stressed that Carafas

was subject to “collateral consequences,” Id. at 237, and

“is suffering, and will continue to suffer, serious disabil-

ities. . . .” Id. at 239.

Jones v. Cunningham, supra, involved a petitioner

who was on parole after serving part of a state prison

term. The Court ruled that he was “in custody” because

“the custody and control of the Parole Board involve sig-

nificant restraints on petitioner’s liberty. . . which are

in addition to those imposed by the State upon the public

generally.” Id. at 242.

7. It also emphasized that its custody holding would not lead to

a vast expansion of habeas jurisdiction. Id. at 353.

Ba

Relating these principies to the Lehman family situ-

ation, it is immediately apparent that unlike Hensley,

Carafas, and Jones, the three boys here suffer no re-

straints that can be equated to the restraints which

permitted habeas corpus relief in those cases. If indeed a

characteristic of habeas custody is that the restraint suf-

fered is “not shared by the public generally,” Hensley at

351, see also Jones at 242, we fail to understand how the

situation of the three Lehman boys differs from the situ-

ation of other children in “the public generally” who are

subject to parental or foster parental care and living ar-

rangements. Thus this record discloses no restraint on

liberty in terms of Hensley and Jones and no “collateral

consequences” in terms of Carafas. Nor are we aware of

any other expressions of federal habeas corpus “custo-

dy” which would include a child custody situation such

as the one presented by Ms. Lehman's petition.

B.

Sylvander v. New England Home for Little Wander-

ers, supra, is the only case that has analyzed whether

the termination of parental rights meant that the chil-

dren were “in custody” for habeas corpus purposes.”

The facts of Sylvander, are remarkably similar to those

of this case. Gail Sylvander relinquished custody of her

son, Michael, to the New England Home for Litthe Wan-

derers, a state licenses, albeit privately run institution.”

8. Other cases have assumed that habeas jurisdiction lies in

this situation; Rouell v. Oesterle, 626 F.2d 437 (Sth Cir. 1980); Da-

vis Vv. Page, 442 F.Supp. 258 (S.D. Fla, 1977), aff'd in part, remand-

ed in part, 618 F.2d 374 (Sth Cir. 1980), rehearing en banc ordered

July 8, 1980; Smith v. Edmiston, 431 F.Supp. 941 (W.D. Tenn.

1977); United States ex rel. Reed v. Tinder, No. 75-45 (S.D. W.Va.

1975). Because of their conclusory nature, these cases are not help-

ful and of very little persuasive value.

9. It is of little importance that Sylvander involved a state li-

censed private ugency, whereas in this case the Lycoming County

ldaw

After Mrs. Sylvander rescinded her permission granting

the Home the right to put her son up for adoption, that

institution petitioned the Massachusetts Probate Court

for authority to dispense with the mother’s consent to

the child’s adoption. That court found that it was in the

best interests of the child to be placed with prospective

adoptive parents. The Supreme Judicial Court of Massa-

chusetts affirmed the order of the probate court and re-

jected Sylander’s argument that the statute’s standards

were unconstitutional.

Sylvander did not take an appeal to the United

States Supreme Court, nor did she file a petition for cer-

tiorari. Instead she filed a petition for habeas corpus in

the district court for the District of Massachusetts, join-

ing with it a complaint pursuant to 42 U.S.C. §1983.

The district court dismissed her case, and the First Cir-

cuit affirmed.

After concluding that res judicata barred the §1983

action, the First Circuit then held that there was no cus-

tody for habeas corpus purposes. It pointed out that the

Supreme Court “had never acknowledged that habeas

corpus is an appropriate remedy for litigating federal

constitutional claims arising from child custody dis-

putes.” Id. at 1110-1111. The First Circuit wrote:

It is of course true that, although the wording

of the federal habeas statute is tailored to fit state

criminal proceedings, the habeas remedy has been

made available in other contexts. What is not clear

is that this case presents yet another situation to

which that remedy should be extended. Here, the

custody that the habeas petition seeks to challenge

is a state’s assignment of the responsibility for the

NOTE 9 — (Continued)

Children’s Agency is a county institution. In neither case are there

restraints present, let alone restraints which impinge with especial

harshness on personal liberty, see 83 Harv. L. Rev. supra at 1073,

the hallmark of custody in a habeas case.

la

upbringing of a child to one person or another, in

that child's “best interests.” Michael is not a detain-

ee or one undergoing some form of state-imposed

restraint or disability, but rather is living with per-

sons who have taken interim parental responsibility

for him at the request of a private institution after a

judicial determination that he may be adopted with-

out parental consent. This is not the kind of custody

that has traditionally prompted federal courts to as-

sert their jurisdiction in the face of prior state adju-

dication, It cannot meaningfully be said that the

person in custody — Michael — is being held

against his will. The “rights” Ms. Sylvander now as-

serts on Michael's behalf are chiefly her own — her

rights as a mother not to be deprived of her child.

Only speculatively are they the rights of the person

in “custody.” Indeed, several years of state court liti-

gation resulted in the determination that the Home,

a Charitable institution established to promote the

welfare of children, is correct in arguing that Mi-

chael's best interests lie in his being adopted. Thus,

if this court were to recognize the availability of fed-

eral habeas in child custody cases, the proper party

to seek the Great Writ on Michael's behalf in this

case might as well be the Home as Ms. Sylvander.

Id. at 1111."

The court concluded that:

9a. On page 9 of his dissenting opinion, Judge Kosenn asserts

that “neither the /Sylvander] district court nor the First Circuit held

that the children were not ‘in custody’ for the purposes of §2254." It

is true that the district court for the District of Massachusetts so

reasoned. It is not true that the First Circuit affirmed that reason-

ing. Contrary to Judge Rosenn’s impression of the court of appeals

opinion, a fair reading of the passage quoted in text above from that

opinion, indicates beyond question that the court of appeals in

Sylvander held that “|t\his is not the kind of custody that has tradi-

tionally prompted federal courts to assert their jurisdiction in the

face of prior state adjudication.” 584 F.2d at 111)

160

the question is who should bring Michael up. We do

not think that Michael's mother may avail herself of

federal habeas corpus to litigate her right to do so.

Id. at 1113.

Similarly in this case, the Lehman boys are not “de-

tainee|s]” nor are they “undergoing some form of re-

straint or disability.” Jd. at 1111. “It cannot meaningfully

be said that the” Lehman boys are “being held against

|their| will.” Id. at 1111. Just as Ms. Sylvander essential-

ly was asserting her own rights in her child, the rights

Ms. Lehman asserts on behalf of her children are chiefly

her own — her rights as a parent not to be deprived of

her children. The “custody” of a foster or adoptive parent

over a Child is simply not the type of custody that may be

challenged through federal habeas.

Ms. Lehman attempts to distinguish the facts of the

present case, involving the power of the state to extin-

guish the rights of a natural mother in her children,

from the typical private custody dispute among parents.

Yet such a distinction, in terms of the availability of ha-

beas, cannot be sustained.'° In both instances a litigant

uses the state’s judicial machinery to establish the liti-

gant’s right to raise the child and to invalidate some oth-

er party's right to do so. Thus, the status of the child is

the same whether determined in a “typical dispute be-

tween parents” or in a state parental right termination

proceeding. If there is “custody” within the meaning of

the habeas statute in the one instance, there must nec-

essarily be “custody” in the other, because neither situa-

10. We recognize that there may be collateral differences be-

tween the termination of one parent's custody with the consequent

award of the child to the other parent in a typical parental custodial

dispute, and the termination of a parent's custody in a state termina-

tion proceeding. However, such differences that may exist are not

significant in terms of habeas jurisdiction. Whatever effect they

may have upon the parent-child relationship do not impact upon nor

involve extraordinary restraints on liberty.

17a

tion can be distinguished from the other in terms of the

“extraordinary restraints,” 83 Harv. L. Rev. at 1073, that

must be present to satisfy the custody requirement. In

both instances, the child’s status at the completion of the

action is the product of a state judicial decree.''

C.

We recognize that outside the context of federal ha-

beas which is extended to persons in custody pursuant

to the judgment of a state court, habeas has seen a con-

siderably expanded usage. Ms. Lehman, for instance, re-

fers to the discussion in Jones v. Cunningham, 371 U.S.

236, 239 (1963), and notes that under the English com-

mon law, habeas could be employed in custody disputes

between warring parents. See R. Sokol, Federal Habeas

Corpus §6.1, at 73 (2d ed. 1969). Many states employ

habeas for the same purpose. See discussion in

Sylvander, 584 F.2d at 1110. But such cases are plainly

inapposite to the question presented here. The use of ha-

beas within a single, unified judicial system, that is,

when the writ is extended by a federal court to a person

in custody pursuant to the judgment of a federal court,

or by a state court to a state prisoner, or by an English

court to an English prisoner, does not implicate any con-

cerns of comity. When one judicial system decides to

subordinate the interest in finality to some other inter-

est, that is its own prerogative. When the federal courts

recognize the federal interest in liberty as superior to the

state interest in finality, we face a quite different prob-

lem, one which has the most profound implications for

11. If we were to permit the use of habeas for state termination

proceedings, we would necessarily be obliged to permit the use of

habeas for parental custody proceedings, thus opening the federal

courts to a substantial number of matters which traditionally have

been processed by state tribunals as matters of primary state

concern.

l8a

comity and federalism. As the First Circuit wrote in

Sylvander:

Federal habeas when applied to persons under state

control is a procedure of unique potency within

federal-state framework, having far different and

more far-reaching consequences than a state’s utili-

zation of habeas within its own system. State utili-

zation of habeas to test the legal custody of a child is

part of the fabric of its reserved jurisdiction over

child custody matters. If a habeas remedy were not

provided, some other procedure would be needed to

effectuate the state’s substantive interest in these

relationships. It is purely a matter of procedural

detail whether the remedy is called “habeas” or

something else.

584 F.2d at 1111.

Thus, when we confine our review of the authorities

only to those cases in which federal habeas has been ex-

tended to individuals in state custody, it is clear that

none of the cases relied upon by Ms. Lehman for a broad

reading of the term “custody” would find “custody” in

the situation presented here, and thus would not author-

ize the use of the writ in the present case.

D.

Nor do policy considerations favor the availability of

federal habeas in cases of this type. The child custody

context is one where the interest in finality is especially

weighty. It is widely recognized that children require se-

cure, stable, long term and continuous relationships

with their parents or the persons filling the role of par-

ent. There is little that can be as detrimental to a child’s

sound development as prolonged uncertainty over whom

he is to regard as his parents. And vet prolonged uncer-

19a

tainty in family relations must be the inevitable oytcome

of allowing the relitigation in federal court through ha-

beas, of federal constitutional issues that were once fully

adjudicated in state court. As the First Circuit wrote in

Sylvander, “|i|t is by no means clear that the welfare of

children and families would be promoted by creating a

right to litigate in two sets of courts instead of one, thus

extending the potential duration of litigation in this

area.” 584 F.2d at 1112.

We must also recognize that the child (whose liber-

ty interests we must presume to be implicated in order to

find a basis for the extension of habeas, see note 6 supra)

is little more than a pawn in the battle that engulfs him.

Unlike the prisoner, who can control and direct the col-

lateral attacks on his confinement, the child cannot call

a halt to custody litigation whenever he sees fit. See

Sylvander, 584 F.2d at 1112. The parties fighting over

the right to raise the child will continue fighting, as Ms.

Lehman has demonstrated, until there is no other forum

in which they may do so. Providing another arena for

this contest, by extending the federal writ of habeas cor-

pus to custody actions, is hardly likely to serve the best

interests of the child. See note 2 supra.

Nothing we have discussed here, however, should

be read as a suggestion that the great writ may never be

available on behalf of a child. We have indicated earlier

that this case does not involve incarceration or restric-

tions or restraints affecting the Lehman boys’ liberty —

any of which conditions might well be sufficient for ha-

beas to lie. “Were [the Lehman boys] incarcerated in a

state home, or were there other issues making this truly

a struggle for liberty by one imprisoned under the aegis

of the state,” id. at 1113 (emphasis added), the writ

might well be available. We hold only that parental

rights termination suits, and other similar determina-

tions of child custody, do not without more, provide a

predicate for the use of federal habeas corpus.

200.

Ill.

Ms. Lehman argues that she should be afforded ha-

beas corpus review, otherwise a federal court will never

hear the merits of her claim. Such an argument assumes

that there is an inherent right to a litigant to have a fed-

eral court consider his federal claims. No such right ex-

ists. See Allen v. McCurry, 49 U.S.L.W. 4015, 4022

(December 9, 1980). Moreover, Ms. Lehman had a

choice of two routes to a federal determination on the

merits of her constitutional challege and rejected both.

The simplest and most direct route was Ms.

Lehman's right to appeal to the United States Supreme

Court from the adverse judgment of the Supreme Court

of Pennsylvania. By this means, Ms. Lehman could have

immediately, and as a matter of right, obtained a deci-

sion from our highest court. She chose not to file an ap-

peal, but, rather, simply petitioned for a writ of certiora-

ri. Under 28 U.S.C. §1257(2) (1976), a party who

presents a federal constitutional challenge to a state stat-

ute (here, the Pennsylvania Adoption Act), and loses in

state court, has the right to appeal to the United States

Supreme Court. The Court’s appellate jurisdiction, of

course, is nondiscretionary: the Court must determine

cases falling within this jurisdiction on the merits, even

though it need not give such cases plenary consider-

ation. Hicks v. Miranda, 422 U.S. 332, 343-44 (1975).

Thus, had Ms. Lehman invoked the Court’s appellate ju-

risdiction, instead of petitioning for certiorari, she would

have obtained a ruling on the merits of her constitutional

challenge. By deciding to forego an appeal and instead

petitioning for certiorari, Ms. Lehman sought to avoid

the res judicata effect that would attach to a summary

affirmance on appeal, but not to a denial of certiorari.

The second route to a federal resolution of the feder-

al constitutional challenge is available by the litigant re-

serving the federal claims during the state court litiga-

tion, and then bringing a subsequent challenge to the

2Zla

state statutory scheme in federal court under 42 U.S.C.

§1983 (1976). Such an approach is possible due to the

limited res judicata effect accorded state court judg-

ments in subsequent suits under §198%3, under the rule

in this Circuit of New Jersey Educational Ass'n v. Burke,

579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894

(1978).'"*

Normally, res judicata bars the assertion of claims

that were or could have been litigated in an earlier suit.

In Burke, this court held that, in a later §198% suit, res

judicata would apply only to federal claims that actually

were litigated, rather than to those that could have been

litigated, in the earlier state court suit. We said that “a

state court judgment forecloses a §198% litigant from

raising grievances in federal court only if such claims

have been pressed before, and decided by, a state tribu-

nal.” 579 F.2d at 774. We so held in order to give effect

to the interest in providing a federal forum for the resolu-

tion of federal claims. Thus, Burke offered another fed-

eral route to resolve Ms. Lehman's constitutional chal-

lenge to Pennsylvania's statutory scheme for the

termination of parental rights. Ms. Lehman could simply

have withheld her federal constitutional claims in the

lla. Judge Rosenn’s dissent in discussing the litigational strat-

egy employed in a §194% action apparently takes issue with the

holding of this court in New Jersey Educational Ass'n v. Burke, 579

F.2d 764 (3d Cir.) cert. denied, 439 U.S. 894 61978). We point out

that we have referred to Burke only in connection with a possible

alternative available to Ms. Lehman for a determination of her fed-

eral claims. The §198% route, as we have noted in text, was rejected

by Ms. Lehman. It appears to us that Judge Kosenn is questioning

not our analysis of Burke, but rather the underlying holding of

Burke. However, no issue implicating Burke's holding has been pre-

sented to us on this appeal, and thus unless it is reconsidered and

reversed by this court en banc, or reyected by the Supreme Court

Burke remains the law of this circuit. In this latter connection, we

observe that the determination of this precise issue has been explic-

itly reserved by the Supreme Court in its recent opinion of Allen v

McCurry, 49 U.S.L.W. 4015, 4017 n. 5 n 10 (Dee. 9 1980,

22 &

state court proceedings, and then brought those claims

in federal court under §1983.

Ms. Lehman, however. takes issue with the sugges-

tion that §1983 is an appropriate vehicle for a constitu-

tional challenge in this custody setting. She objects,

noting that such a procedure precludes state courts from

addressing federal challenges to state statutes and pro-

cedures. She also points out that a §1983 challenge

would require duplicate litigation.

To Ms. Lehman's first objection, we note only that

the interest in presenting federal constitutional chal-

lenges to state courts in advance of consideration in fed-

eral court is not an interest that applies in all types of

cases; it is, rather, limited to constitutional challenges to

custody within the meaning of habeas. A routine §1983

action, such as a constitutional attack on a state Medic-

aid program, or a state statute providing for pre- or

post-judgment garnishment, of course need not first be

presented to the state courts. As long as custody within

the meaning of habeas is not implicated, as it is not in

this case, the exhaustion requirement has no place. The

Supreme Court itself has entertained constitutional

challenges to state custody procedures under §1983,

without any indication that the failure to give the state

courts an opportunity to consider the federal constitu-

tional questions was a bar to federal jurisdiction. See

Smith v. Organization of Foster Families for Equality &

Reform, 431 U.S. 816 (1977).

To Ms. Lehman’s second objection, that a §1983

challenge requires duplicate litigation, we observe that

we have only urged that if a federal forum is desired,

§1983 is an appropriate means of gaining entry. We

have by no means suggested that litigants in Ms.

Lehman's position ought to withhold their constitutional

claims from the state courts and bring them in federal

court later under §1983. We believe that the state court

is the appropriate forum for resolution of all aspects of

24 Oe

these disputes, including the federal constitutional

claims, although a litigant is not obligated to prosecute

such constitutional claims in siate court. Burke, as we

have stated, gives a litigant such as Ms. Lehman a choice

of fora for the determination of the federal challenge:

she can raise federal constitutional issues in the state

court, in which case she will be barred by res judicata

from raising them in federal court. or she can reserve

them in the state proceeding, and assert them in federal

court under §19%%3.'% This scheme does not. however

give the litigant a right to have the claim determined

both in state and federal court — a right that is available

under habeas corpus, but unwarranted in this context.

12. Ms. Lehman in her brief suggests that 41943 cannot pro

vide a basis for the constitutional challenge raised here and in

deed, that habeas is the exclusime route for such a suit. under the

Supreme Court's decision in Preiser v. Rodriguez 411 US 475

(197%). In Preiser, the Court held that habeas corpus was the exclu-

sive remedy fora prisoner who sought to challenge the fact or dura

tion of his imprisonment and who seeks, by way of relief a judy

ment that he is entitled to immediate or speedier release The Court

held that §19%% was an improper basis for such a suit Ms. Lehman

contends that. since her constitutional challenge seeks by wav of re

lief the release of her children from the custody of the agencs

Preiser controls and compels the conclusion that habeas corpus and

not §1983 1s the only proper basis

This argument. once its initial premise is accepted. has a cer

tain superficial appeal But it is no more than another example of

“how one goes in. determines how one comes out.” Her argument

proceeds: since this suit challenges “custody” within the meaning

of habeas, habeas is not only an appropriate route for the challenge

itis the exclusive route under Preiser

We find the converse of her argument. however to be far more

convincing. this action does not challenge “custody” within the

meaning of habeas thus habeas is an inappropriate basis for the

suit, and §19%%4 remains available

Certainly nothing in Preiser precludes our view Preiser in

volved a challenge to incarceration brought by an inmate placed in

prison as punishment for criminal conduct. The present context a

child custody suit is for reasons we have discussed earlier. outside

the rule of Preiser

240.

IV.

We hold that custody disputes of the nature ad-

dressed here and which essentially involve no more than

the question of who shall raise a child to maturity, do not

implicate the federal interest in personal liberty suffi-

ciently to warrant the extension of federal habeas cor-

pus. Accordingly the order of the district court which

dismissed Ms. Lehman’s petition for a writ of habeas

corpus will be affirmed. Each party will bear its own

costs.

Judges Aldisert, Hunter and Weis join in this opin-

ion in all respects and also join in the concurring opinion

of Judge Adams.

ADAMS, Circuit Judge, concurring, with whom Judges

Aldisert, Hunter and Weis join.

The family relationship, whose origin is entirely in-

dependent of the state and whose rights are older than

the Constitution itself, has been an unending source of

sensitive legal problems. The present appeal compounds

the delicate nature of the parent-child relationship with

the intricacies of federal-state comity. Specifically before

us is the question whether a federal court has jurisdic-

tion to entertain an action based solely on the habeas

corpus statutes, 28 U.S.C. §§2241 and 2254, brought on

behalf of children by a parent claiming that the children

are unconstitutionally confined. The application seeks

the return of the children — although the children have

expressed a wish not to return' — on the ground that

parental rights were terminated pursuant to a state stat-

ute which allegedly violated the federal Constitution.

1. See In Re William L., 477 Pa. 322, 383 A.2d 1228, 1239

(1978).

2a

No federal court has squarely held that it has juris-

diction over an action bottomed uniquely on habeas cor-

pus in this type case.* Nonetheless, it is admittedly argu-

able that the Lehman children technically fall within the

literal language of the habeas statute. That is, in the

words of the statute, they are conceivably “in custody

pursuant to the judgment of a State court. . . in viola-

tion of the Constitution,” and “the applicant has ex-

hausted the remedies available in the courts of the

State.” 28 U.S.C. §2254(a) and (b). However, attempts

to ascertain the meaning of custody for purposes of the

Great Writ from the bare statutory language have, in the

past, proven of little avail. As conceived by the Supreme

Court, the writ “is not now and never has been a static,

narrow, formalistic remedy.” Jones v. Cunningham, 371

U.S. 236, 243 (1963). Yet our understanding of the writ

is infused with its historic applications: “To determine

whether habeas corpus could be used to test the legality

of a given restraint on liberty, {the Supreme] Court has

generally looked to common law usages and the history

of habeas corpus both in England and in this tountry.”

Jones v. Cunningham, 371 U.S. at 238. But common law

uses provide insufficient guidance in the present cir-

cumstances, first, because no federal system with its

unique comity concerns existed at common law and sec-

ond, because state child neglect and parental termina-

tion proceedings are predominantly tools of the modern

state.

2. See maj. op. ante at 13 n.8 (noting small number of courts

that have assumed without discussion, in somewhat different con-

texts, that habeas jurisdiction lies).

3. The past century has witnessed the attenuation of extended

kinship and tight-knit community ties with the consequent vulner-

ability of nuclear and one-parent families. As informal social sup-

ports for troubled families have diminished, the role of formal social

institutions has increased. See D. Rothman, The Discovery of the

260

It is true that certain early English common law

cases considered habeas “a proper mode” to be utilized

by parents to regain custody of children. But such an ar-

rangement establishes no more than that one avenue of

relief available at English common law was called habe-

as, whereas today such an approach has substantially

been supplanted by statutory proceedings.’ Moreover, a

reliance on the common law proves too much for Mrs.

Lehman’s purposes. Indeed, Mrs. Lehman herself con-

cedes that federal habeas jurisdiction should be limited,

and suggests that courts erect a distinction between do-

mestic relations disputes” and child custody or termina-

NOTE 3 — (Continued)

Asylum: Social Order and Disorder in the New Republic (1971). Cf.

Ex parte Crouse, 4 Wharton 9 (Pa. 1839) (Act of 1835 establishing

House of Refuge for infants with incorrigible, vicious or morally de-

praved parents held constitutional). The habeas action brought by

the father on behalf of the child in that case was denied. The 1835

Act was among the first of its kind.

4. See B. Sharpe, The Law of Habeas Corpus 169 (1976). Such

proceedings include, for example, actions for adoption, custody, or

guardianship. See also Stanley v. Illinois, 405 U.S. 645, 647-49

(1972).

5. Plaintiff admits that it ma’~~ >-nse that “the whole subject

of the domestic relations of husband and wife, parent and child, be-

longs to the laws of the states and not to the laws of the United

States.” In re Burrus, 136 U.S. 586 at 593 (1890). Pl. Brief at 20. In

light of this concession and the continuing vitality of the general

proposition articulated in In Re Burrus — that traditionally ques-

tions concerning “the custody and guardianship by the parent of his

child” do not arise under the Constitution, laws or treaties of the

United States, see 136 U.S. 586 at 596 — we are somewhat at a loss

to understand the attack mounted against Solomon and Burrus by

Judge Gibbons. See dissent infra at 10 n.7. Neither Burrus nor Solo-

mon involved a federal claim or constitutional question. We fully

agree that there are aspects of family life that are not immune from

constitutional protection. Such issues are properly raised by stating

a cause of action under 42 U.S.C. §1983 or directly under the Con-

stitution as suggested in Bellotti v. Baird, 443 U.S. 622 (1979);

Parham v. J.R., 442 U.S. 584 (1979); Caban v. Mohammed, 441

U.S. 380 (1979); and Smith v. Organization of Foster Families for

27a

tion proceedings involving constitutional questions.

Mrs. Lehman insists that unlike the private dispute in

the ordinary domestic relations controversy which

awards custody to a successful parent or relative, thus

leaving the child within the family unit, in the present

case it is the state which has permanently upset a fam-

ily, leaving some of the children state wards. The Eng-

lish common law precedents,° however, involve precise-

ly the intrafamily or private party disputes which Mrs.

Lehman acknowledges should not fall within federal ha-

beas jurisdiction.

In America, the history of the jurisdiction of the fed-

eral courts to issue the writ of habeas corpus to persons

alleging a custody in violation of federal law is one of

carefully controlled statutory expansion. Originally, sec-

tior 14’ of the Judiciary Act of 1789 defined the substan-

Equality and Reform, 431 U.S. 816 (1977). Mrs. Lehman is not

presently asserting a claim in a §1983 action or directly under the

Constitution; rather, she has brought a complaint, bottomed solely

on habeas corpus jurisdiction, seeking custody of her children.

6. See Lyons v. Blenkin, 1 Jac. 245, 37 Eng. Rep. 842 (Ch.

1821), (an English case holding that habeas is the proper mode for a

father to regain custody of his child from an aunt); In re Matthews,

12 Ir. R. C. L. 233 (1859) (another English case in which the writ of

habeas issued at the instance of a mother claiming the legal right to

her infant who was then in the custody of a nurse).

7. Judge Gibbons contends that section 14 is not a jurisdiction-

al statute. That section is, however, part of the first grant of federal

court jurisdiction, Act of September 14, 1789. See Fay v. Noia, 372

U.S. 391, 400 (1963). It is also the ancestor of 28 U.S.C. §2241

which we understand to confer jurisdiction, as well as remedial

powers, when the conditions defined in that section are found to ex-

ist. In Carbo v. United States, 364 U.S. 611 (1961), the Supreme

Court noted that at least since 1842, the power of courts and judges

to issue the Great Writ of habeas corpus had been subject to juris-

dictional limitations, whereas the “all writs” power of courts, much

like the judicial power in the English system, was without such

limitations. 364 U.S. 611, 615-20. However, we are not dealing here

with an ad prosequendum or an ad testificandum writ, nor do we

have jurisdiction premised on some other source, which this Court

might then choose to enforce by means of a writ. We assume this is

28a

tive scope of the federal habeas power.” Initially, only

challenges to the jurisdictional competency of federal

courts’ or to executive detentions witi:out proper legal

process!” were cognizable on habeas. Most significant

for the present situation was the proviso precluding fed-

eral court scrutiny of state imprisonments. The statute

NOTE 7 — (Continued)

what Judge Gibbons’ dissent is addressing insofar as he suggests

that habeas may be a remedy. The complaint filed by Mrs. Lehman

is grounded jurisdictionally solely on the habeas statute, 28 U.S.C.

§§2241, 2254. It is not based on a 42 U.S.C. §1983 claim alleging

jurisdiction under 28 U.S.C. §1343(a), nor has Mrs. Lehman pre-

sented this Court with any other basis, such as diversity, for juris-

diction. Cf. Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel,

490 F.2d 509 (2d Cir. 1973) (diversity jurisdiction).

8. Section 14 provided:

That all the before-mentioned courts of the United States shall

have power to issue writs of scire facias, habeas corpus, and all

other writs, not specially provided for by statute, which may be

necessary for the exercise of their respective jurisdictions, and

agreeable to the principles and usages of law. And that either of

the justices of the Supreme Court, as well as judges of the dis-

trict courts, shall have power to grant writs of habeas corpus,

for the purpose of an inquiry into the cause of commitment:

provided, that writs of habeas corpus shall in no case extend to

prisoners in jail, unless where they are in custody under or by

color of the authority of the United States, or are committed for

trial before some court of the same, or are necessary to be

brought into court to testify.

Act of September 24, 1789, ch. 20 §14, 1 Stat. 73, 81-82 (1789).

9. See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 100 (1807).

10. See Ex parte Randolph, 20 F. Cas. 242 (C.C.D. Va. 1833).

The dissent of Judge Rosenn argues that Ex parte Randolph sup-

ports the proposition that habeas will lie regardless whether the cus-

tody is civil or criminal. While the Randolph court suggested that

habeas corpus might apply to a person imprisoned under civil pro-

cess at the federal level, the court carefully noted that the case be-

fore it involved the abuse of process by an executive official, under a

special jurisdiction, “which can neither be supervised by certiorari,

or re-examined by writ of error.” 20 F. Cas. 242, 253 (C.C.D. Va.

1833).

29a.

declared “that writs of habeas corpus shall in no case ex-

terid to prisoners in jail, unless where they are in custo-

dy under or by color of the authority of the United States,

or are committed for trial before some court of the same,

or are necessary to be brought into court to testify.” 1

Stat. 81-82 (1789).'! While this limitation on federal ha-

beas power was often merely implicit in the early cases,

in Ex parte Dorr the Supreme Court made explicit that

federal courts unqualifiedly lacked the power to issue a

habeas corpus writ to any person in custody under a sen-

tence or execution, whether civil or criminal, of a state

court. 44 U.S. (3 How.) 103, 105 (1845). !*

Our understanding of federal habeas jurisdiction is

further informed by Chief Justice Marshall’s explication

in the landmark case of Ex parte Bollman, 8 U.S. (4

Cranch) 75 (1807),'* of the character and scope of the

writs federal courts were empowered to grant under sec-

tion 14 of the 1789 Act. Chief Justice Marshall first

noted that, unlike the common law, where the court’s

power to issue a habeas writ was an inherent one, in the

American system, judicial authority to grant the writ

flowed solely from the statutory grant. Secondly, Chief

Justice Marshall distinguished the generic term habeas

11. As Chief Justice Marshall explained in Ex parte Bollman, a

logical construction of the statute required that the proviso be read

to apply to both the courts enumerated in the first sentence and the

justices and judges in the second sentence. 8 U.S. (4 Cranch) 75,

98 (1807).

12. In Ex parte Dorr, 44 U.S. 103 (1845), Dorr sought to chal-

lenge his life imprisonment for levying war against Rhode Island on

the ground that the state statute under which he was prosecuted

was unconstitutional inasmuch as treason could not be committed

against a state.

The conclusion in Ex parte Dorr tends to undercut Judge

Rosenn’s attempt to give a broad reading to the type of “commit-

ment” comprehended by the second sentence in the 1789 Act.

13. Ex parte Bollman and Swartwout involved a petition for ha-

beas by the alleged seditious co-conspirators of Aaron Burr, who had

been denied bail prior to trial.

500

corpus, which included every species of the writ,’* from

the term habeas in its most important and constitutional

sense, habeas corpus ad subjiciendum — the writ used

in cases of criminal confinement at common law and the

form which Mrs. Lehman seeks to employ here.'’

“(Wihen used singly — when we say the writ of habeas

corpus, without addition, we most generally mean that

great writ which is now applicd for jad subjiciendum|;

and in that sense it is used in the constitution.” & US. at

14. These include ad respondendum. used when a party wishes

toumitiate suit against a person already confined by the process of an

inferior court, ad satisfaciendum, which enabled one court to award

execuuon on the judgment of another court at Common law. ad

prosequendum, testificandum, and deliberandum, which issue to

remove a prisoner in order to prosecute or to testify in any Court. or

tu be tned in the proper jurisdiction: and the common law writ of ad

faciendum et reciprwendum, “to do and receive whatever the king's

court shall consider in that behalf kx parte Bollman & US 75

G6-97 (1807)

As explained in Carbo vo United States. “Although our own

pracuice has limited the jurisdiction of Courts and justices to issue

the Great Wnt. we have never abandoned the knglish system as to

the ad prosequendum writ” 464 1S 63). 620 (1960) Because

state Courts are not inferior Courts —— exceptin the situations where

appeals he to the United States Supreme Court many Uses to

which these process writs were pul at Common Jaw are inconcely

able within the federal system Ser ka parte Bollman & LOS (4

Cranch, 75, 96-97 (1807). Consequently Judge Gibbons sugges.

von that the statutory grant “was as broad as the common law.” see

dissent infra at). should be read with caution

1% The peution for a writ of habeas corpus filed by Mrs. Leh

man alleged that the children are unlawfully detained and re

strained of their liberty by the Lycoming Children's Agency in viola-

tion of the Fourteenth Amendment It sought release of the children

from the custody of the state agency and return to the mother's cus-

tody. Such a writ clearly sounds in habeas corpus ad subjwciendum,

and cannot be construed as a mesne process ora 26U SC. 4)651

writ that is utilized solely to facilitate the already-existing jurisdic

ion of a federal court. See also Developments Federal Habeas

Corpus, $3 Harv. Lo Rev. 109% 104401970, Fay vy. Nowa 472 US

$91. 414 (196%)

3lay

95. Certain guideposts, then, emerge from the analysis

set forth by Chief Justice Marshall. Federal habeas

power in the sense of the Great Writ is confined insofar

as Congress establishes the bounds of the courts’

supervisory jurisdiction;'® but the habeas corpus power

is not a limited, auxiliary power, available only to aid the

courts to exercise jurisdiction in cases which they are

enabled to decide finally.'’ Rather, once statutorily con-

ferred, habeas corpus is a distinct jurisdictional and re-

medial power to inquire into the cause of commitment.

It embodies a court’s traditional authority to test re-

straints on liberty.'®

Although a series of Jegislative amendments dealing

with the usages of the Great Writ followed the enact-

ment of the Judiciary Act of 1789,'’ Congress in the

16. See Carbo v. United States, 464 U.S. 611, 620 (1960), bx

parte Bollman, 8 US. (4 Cranch) 75, 93, 100 (1807)

17. This is net to dispute that other habeas writs exist, such as

the ad prosequendum writ utilized in Carbo, supra and the writ

fashioned to obtain petitioner's appearance on appeal in Price \

Johnson, 334 U.S. 266 (1948), applications which are not subject to

Statutory or jurisdictional limitations. But such writs within the

court's inherent power that are used to facilitate the exercise of ju

risdiction are available only after the court has otherwise obtained

jursidiction.

18. Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95, 98 (1807)

(power to grant writs of habeas to inquire into Cause of Commitment

vested in courts as well as justices and judges)

19. The first modification, in response to South Carolina's nul-

lification ordinance, enabled federal courts to release from state cus-

tody persons who had been acting under federal authority. See

Force Act of March 2, 1834, ©.57, §7, 4 Stat. 634-45. Subsequently

the Act of August 29, 1842, ¢.257, 5 Stat. 539-40, extended federal

habeas to foreign nationals acting under authority of a foreign state

It is noteworthy that, like the earlier Force Act and the later modifi

cation in the 1867 Act, the 1842 amendment was prompted by a po-

litical crisis — the British diplomatic protest to the trial of a Canadi

an soldier by a New York state court. See People vy. McLeod) 25

Wend. 463 (N.Y. Sup. Ct. 1841) While all significant statutory

changes in the federal writ were responses to grave political crises,

no equivalent crisis can be said to exist here

32a

course of passing such legislation in no way indicated a

desire to embrace child custody concerns within the

statutory scheme. The legislative history to the prede-

cessor statute of 28 U.S.C. §2254, the Judiciary Act of

February 5, 1867, quite significantly fails to mention

challenges to termination of parental rights as among

the intended uses of habeas. Passed in the wake of the

Civil War, when Congress was anticipating resistance to

its Reconstruction measures, the 1867 Act was proposed

“to enable the courts of the United States to enforce the

freedom of the wives and children of soldiers of the Unit-

ed States. . . and also to enforce the liberty of all per-

sons under the operation of the constitutional amend-

ment abolishing slavery.””° At that time, Congress was

preeminently concerned with providing a federal forum

for the constitutional claims of state prisoners and with

establishing the principle that military authorities have

no jurisdiction over private citizens.*!

Even today, the habeas statute speaks in terms of

“the rights of the prisoner,”** thus continuing to reflect

the specific thrust of the Judiciary Act of 1867. Of

course, the original congressional purpose underlying

the 1867 Act is not dispositive of the question presently

confronting the Court; construction of the statutory

phrase of “in custody” has evolved over time to embrace

persons on parole,?* persons unconditionally released

from prison after filing a habeas petition,”* persons re-

leased on their own recognizance,”° and persons on un-

20. See Cong. Globe, 39th Cong., Ist Sess. 87 (1865) (House

resolution precipitating Bill No. 605, which became, with slight

changes, the Judiciary Act of 1867).

21. See Cong. Globe, 39th Cong., Ist Sess. 4151 (1866) ( House

Bill No. 605).

22. 28 U.S.C. §2254(b).

23. See Jones v. Cunningham, 371 U.S. 236 (1963).

24. See Carafas v. LaVallee, 391 U.S. 234 (1968).

25. See Hensley v. Municipal Court, 411 U.S. 345 (1973).

330

attached, inactive army reserve duty.*° Nevertheless,

the stamp of the criminal sanction pervades the over-

whelming majority of habeas petitions, thus indicating

the judicial and social perception of the scope of the

Great Writ.

Insofar as the use of habeas in a case such as the

one at hand is not historically foreordained or legislative-

ly mandated, it is appropriate to inquire whether existing

proceedings circumscribing the termination of parental

rights are constitutionally adequate, or whether chilcaren

such as the Lehman children have an interest that mer-

its the added safeguard afforded by the habeas writ.?’

No empirical data has been brought to our attention

which would demonstrate that family unity is being seri-

ously jeopardized as a result of state statutes or proce-

dures which do not deal fairly and equitably with such

matters. In this very case a review of the record in the

state proceedings shows no cavalier disregard of paren-

tal rights on the part of the governmental agency or the

state courts. All this is in sharp contrast with the situa-

tion that prevailed when the habeas statute was last giv-

en an expanded construction. At the time of Fay v. Noia,

372 U. S. 391 (1963), few states had post-conviction

hearing act procedures; thus federal habeas proceedings

were necessary to assure appropriate protection of pris-

oners who were incarcerated without due deference to

constitutional rights. Moreover, unless the federal courts

were prepared to make their facilities available to vindi-

26. See Stuart v. Laird, 406 U.S. 341 (1972).

27. Ingraham v. Wright, 430 U.S. 65] (1977), in which the

Supreme Court declined to extend the Eighth Amendment into the

context of school disciplinary proceedings, presented a somewhat

similar question on the extent of federal court intervention into

child care and education. The Court recognized a difference be-

tween children and criminals for Eighth Amendment purposes —

just as we have suggested here with respect to habeas corpus —

and found existing state and common law remedies adequate to pro-

tect the child.

34a

cate such complaints it was at least doubtful, given the

status of the complainants, that the legislative bodies

would adequately respond to the problem.?®

Under the circumstances, then, it would appear to

be both unwise and impolitic for the federal courts to un-

cover a whole new font of jurisdiction at this time.

Inasmuch as the Constitution specifically provides that

jurisdiction for the lower federal courts should be con-

ferred by the Congress, it would seem that a more pru-

dent approach would be to permit Congress to determine

whether §2254 should be amended so as to empower the

federal courts to enter the domain of child custody

cases.”?

II.

Even assuming the propriety of extending jurisdic-

tion under the federal habeas statute to the Lehman

children, our inquiry does not end. Rather, what de-

serves special scrutiny here is whether it is proper for a

mother in the posture of Mrs. Lehman to bring a habeas

28. In contrast, we would expect that the present situation,

which deals with family concerns to which the entire community is

sensitive, would be appropriately dealt with by the state legislatures.

See J. Ely, Democracy and Distrust, 73-104 (1980).

29. In his thoughtful essay on Structure and Relationship in

Constitutional Law, Professor Charles Black of the Yale Law

School admonishes that federal courts should consider not only the

particular textual provision in question (whether statutory or consti-

tutional) but should also ground their reasoning on the structure of

the federal union — here, on the relationship of federal to state gov-

ernments,. Id. at 3-32 (1969). It certainly is true that the states were

assumed to have exclusive jurisdiction in areas such as child wel-

fare. Until Congress acts, then, indicating an intent to intervene via

habeas, the federal courts should | — hesitant to invade such areas.

Moreover, extending habeas removes the res judicata effect of

the prior state judgment, a most significant jurisprudential depar-

ture, see maj. op. ante at 9,29-23, constituting an important alter-

ation in state-federal relations.

35oD

action on behalf of *’ children in the present situation. *!

Normally, the law entrusts parents with providing

for the basic needs of a child, *” and out of respect for the

“integrity of the family unit”*’ is reluctant to intervene

in the private family domain. As the Supreme Court de-

clared in Prince v. Massachusetts, “ijt is cardinal with

us that the custody, care and nurture of the child reside

first in the parents, whose primary function and freedom

include preparation for obligations the state can neither

supply nor hinder.” 321 U.S. 158, 166 (1944). Concerns

30. The district court, in a preliminary order, denied the re-

spondent’s contention that Lehman had no standing, and the par-

ties did not raise the issue on appeal. But while Mrs. Lehman has a

sufficient personal interest in getting the present habeas relief she

seeks, the question whether she is a sufficiently appropriate repre-

sentative of the other interested parties — the children — is a diffi-

cult one, given the context of overlapping yet potentially conflicting

parent and child interests. Not only does the problem deserve to be

addressed, but a court of appeals may affirm a district court's deci-

sion on a different ground from that assigned by the trial court. See

Harold Friedman Inc. v. Thorofare Markets, 587 F.2d 127, 140 (3d

Cir. 1978).

31. Inasmuch as the complaint has asserted no basis for the

court's jurisdiction other than 28 L.5.C. §§2241 and 2254, our

standing discussion is necessarily framed by this statutory context.

We acknowledge that Mrs. Lehman might well have standing to

bring a §1983 action challenging the constitutionality of the statute

on its face and as applied to her, but that is not the question before

us. Rather than imposing our views of the merits on Mrs Lehman,

as Judge Gibbons asserts we do, itis Mrs. Lehman who has brought

her cause of action in its particular form and accordingly defined

the perspective for our standing analysis. In fact, counsel for Mrs.

Lehman made it clear at oral argument that the decision to proceed

by way of habeas rather than under §198% was quite advertent

32. See Stanley v. Illinois, 405 U.S. 645, 651 (1972)

33. The family unit has found protection in the Due Process

and the Equal Protection Clauses of the Fourteenth Amendment,

see Meyer v. Nebraska, 262 U.S. 390, 399 (1923), Skinner v. Okla-

homa ex rel, Williamson, 316 U.S. 535 (1942), as well as under the

Ninth Amendment. See Griswold v. Connecticut, 381 U.S. 479, 496

(1965) (Goldberg, J., concurring).

36a

of social pluralism and social order underlie this legal

deference to parental authority within the family. The

state is foreclosed from imposing a single conception of

the good life on its citizens, inasmuch as the institution

of parental authority fragments decisionmaking con-

cerning the goals of childrearing. At the same time par-

ental authority functions to socialize children, encourag-

ing conformity to cultural norms.**

It might thus not appear illogical that should the

state break up this family unit, a parent would have

standing to challenge the intrusion as an infringement

of the parental interest, of the family’s interests, and, on

the children’s behalf, of their interest in an intimate, on-

going association.*° But it is important to recognize that

parents and children do not have identical interests.

Clearly, the parental interest in the companionship, care

and custody of the children is a strong one and is recip-

rocated by the child’s equally weighty interest in the

nurture, love and instruction of the parents.*° However,

the children have independent, private interests not nec-

essarily shared by the parents,*’ just as the parents have

34. See Moore v. City of East Cleveland, 431 U.S. 495, 503-04

(1977); Wisconsin v. Yoder, 406 U.S. 205, 232-34 (1972); Note,

The Mental Hospitalization of Children and the Limits of Parental

Authority, 88 Yale L. J. 186 (1978) (articulating five justifications

for parental authority: social pluralism, social order, parental privi-

lege, family autonomy, and the child’s welfare); Wald, State Inter-

vention on Behalf of “Neglected” Children: A Search for Realistic

Standards, 27 Stan. L. Rev. 985, 990-93 (1975).

35. Should the children be in state custody against their will, it

is even possible that habeas would be an appropriate vehicle for the

legal attack.

36. See Quilloin v. Walcott, 434 U.S. 246, 255 (1978).

37. See In re Smith, 16 Md. App. 209, 266; 295 A.2d 238, 246

(1972) (parent may not compel 16-year-old to have abortion) Martin

v. Martin, 308 N.Y. 136, 138-39, 123 N.E.2d 812 (1954) (per

curiam) (12-year-old permitted to attend church of choice and

transfer from parochial school over parent's objection). In Wiscon-

sin v. Yoder, 406 U.S. 205 (1972), the Court explicitly noted that

the record showed no evidence of a conflict between parent's and

la

interests in the children that are not reflected by the

children themselves. ”

For example, in Planned Parenthood of Missourn v.

Danforth, 428 U.S. 52 (1976), which held that the state

may not impose a blanket provision conditioning an

unmarried minor's abortion decision on parental con-

sent, the Supreme Court recognized the existence of a

child’s privacy interest which the parent could not pur

port to represent. The Court noted that “/a|ny independ-

ent interest the parent may have in the termination of

the minor daughter's pregnancy is no more weighty

than the right of privacy of the Competent minor mature

enough to have become pregnant.” 4246 U.S. at 75. Al-

though an independent parental authority does exist

which can be exercised for the sake of the parent rather

than the child, the judiciary should be cautious in

unquestioningly reinforcing such authority, especially

in the context of terminations of parental rights. ”’

The existence of a “best interests of the child”

standard, often used in domestic custody disputes. *” is a

children's wishes concerning schooling, but conceded that exist

ence of such a conflict would present a very different question 406

U.S. at 240-4)

38. See Parham v J K.. 442 US 5944 (1979, (parent retains

substantial, if not dominant, role in decision to have child institu

tionalized in mental hospital notwithstanding child's interest in not

heing confined unnecessarily for treatment or stigmatized as men

tally ill)

39. Unchecked exercise of such a power might ultumately un

dermine its very besis. Parental authority legitimately proceeds from

ties that bind, and might forfeit moral validity and legal protection

when it becomes solely the imposition of one will upon another See

Parham v J. R., 442 US. 984, 602 61979) (historically, it has been

recognized that natural bonds of affection lead parents to act in the

best interests of their children.” »

40, See Note, Lawyering for the Child. Principles of Represen

tation in custody and Visitation Disputes Arising from Divorce, 47

Yale L. J. 1126, 11435 96 (1978) “\Ajs of 1975, 31 jurisdictions

appeared to have had statutes establishing the ‘best interests of the

child’ as the standard for divorce custody adjudications. ©

38 O

further recognition that minors have interests and con-

stitutional rights separate from those of the parents.

Whether the judicial scheme permits independent legal

counsel for the child, thus acknowledging the inability

of the parents or the court to represent fully the interests

of the child,*' or retains the traditional model of the

judge as parens patriae, protecting the child's interest, it

attests to divergencies in the parents’ and childrens’

interest. *?

Additionally, the state itself has a stake in the child’s

welfare. While the state’s interest does not necessarily

mirror the child’s wishes, it similarly may not elide with

the parent’s conception of what is best for the child.**

Thus, despite society's disinclination to subordinate par-

ental prerogative to governmental authority, it has been

recognized that the state can set limits on parental dis-

cretion when the physical or mental health of children is

in jeopardy.** It is in this context, then, that it is neces-

41. See Note, supra n.4@, at 1127; (24 jurisdictions have im-

plemented legal representation for the child).

42. The very existence of statutes authorizing state interven-

tion on behalf of neglected and abused children reflects the princi-

ple that parental rights are limited by, and occasionally different

from, the legitimate interests of their children. See J.R. v. Parham,

442 U.S. at 630 (Brennan, J., dissenting); Wald, State Intervention

on Behalf of “Neglected” Children: A Search for Realistic Standards,

27 Stan. L. Rev. 985 (1975).

43. See Caban v. Mohammed, 441 U.S. 380 (1979) (best inter-

ests of child, state’s interest in providing for well-being of illegit-

imate children through adoption and unwed parent's interest in

child all arguably different); Smith v. Organization of Foster Fam-

ilies, 431 U.S. 816, 841 n.44 (1977) (state, natural parents and fos-

ter parents, all of whom shared some portion of responsibility for

guardianshin of child, were parties to suit, and all contended that

position they advocated was most in accord with rights and interests

of children).

44. See Wisconsin v. Yoder, 406 U.S. 205, 230, 233-34 (1972);

Prince v. Massachusetts, 321 U.S. 158 (1944); Goldstein, Medical

Care For the Child at Risk: On State Supervention of Parental

Autonomy, 86 Yale L. J. 645 (1977).

39 ow

sary to determine whether Mrs. Lehman can be pre-

sumed to be speaking “on behalf of” the children so as to

merit extending the use of habeas to persons whose par-

ental rights have been terminated.

Although procedural protection can ordinarily be

extended to one’s liberty interest without diminishing

the substantive liberty of another, the present situation

illustrates that this is not universally valid.4° Once a par-

ent’s rights are terminated, a parent is no longer pre-

sumed to represent the interests of the child.*° Even if

we assume that the statute under which the termination

occurred, and which survived attack in the state courts,

is unconstitutional, it is highly possible that Mrs. Leh-

man, in challenging the statute ostensibly on behalf of

the children, may actually be asserting an interest that

derogates from the child’s interest.*’ That is, the child’s

interest in a sound family environment that the state

45. See Smith v. Organization of Foster Families, 431 U.S.

816, 846 (1977).

46. See Stanley v. Illinois, 405 U.S. 645, 649, 652 (1972).

47. In fact, because the children have articulated a wish not to

return, this case approaches the standing dilemma that the Su-

preme Court declined to answer in Gilmore v. Utah, 429 U.S. 1012

at 1013-14 (1976). There, Bessie Gilmore, claiming to act as “next

friend” on behalf of her son, filed an application for a stay of execu-

tion of the death sentence. The Court concluded, after a careful ex-

amination of the record, that her son Gary Gilmore did not want a

stay and had knowingly and intelligently waived any rights he

might have asserted after imposition of sentence. One concurrence

concluded that the “next friend” concept was wholly inapplicable in

that case on account of the express divergence between the biologi-

cal parent's and child's wishes. Admittedly, the Gilmore case differs

somewhat from the situation here. Gary Gilmore was of age and his

attorneys had filed a response challenging the standing of Gilmore's

mother. However, the situation presented in Gilmore may suggest

that a dichotomy of interests between the party asserting a right and

the person on whose behalf the right is asserted is relevant to the

standing inquiry. See Brilmayer, The Jurisprudence of Article III:

Perspectives on the “Case or Controversy” Requirement, 93 Harv.

L. Rev. 297, 310-314 (1979).

Ve

Statute was intended to protect may not be properly re-

presented by the parent's demand for family unity

The divergent interests between parent and child

become clear when we focus on what Mrs Lehman's

federal habeas claim addresses She is not. in this pro

ceeding, atternpting to prove her fitness as a parent or

even her right to permanent custody of the children

Rather, she is attacking the state standard under which

she was adjudicated “incapacitated a Standard

which, in light of traditional deference to family auton-

omy, We must assume was Crafted to give leeway to par-

ental authonty while incorporating the community's

conception of minimally acceptable family conduct and

the child's interest in mental health and protection. In

contesting the state statute which already embodies a

balance between the needs of the parent and the chiid.

Mrs Lehman is potentially undercutting the child's

night and interest in a minimum parent-child relation-

ship

It may be that Mrs. Lehman has standing to make

this challenge to the statute as an infringement of her

nights directly in state or federal courts, such as in a suit

brought under 419% But what is questionable here is

her right to resort to a habeas petition, which can be

frarned only on behalf of her children Once Mrs. Leh-

man voluntarily relinquished custody of her children ten

years ago, the presumption of family integrity was un-

dermined. She long period of separation, and the devel-

opment by the children of stable ties with a different set

of persons in loco parents, further underscores the po-

tential discrepancies between the interests of Mrs. Leh

man and her children” If Mrs. Lehman were to sue-

4% One child has been with the same foster family fur 10 years

now, since he was one year old and he is presently unable to relate

emotionally tao Ars Lahman See in re Willian b. 477 Pa $22 35%

AW 122% 1249 1974, Cf Smith vy Organization fA Foster Fam

ies, 441 0S B16 BAA C1977, (Child continueusly in care of same

fester parents develops strong ties ty these parents equivalent th

tems within natural family,

Ila

ceed in her habeas attack, a new state termination

statute undoubtedly would be enacted to avoid the de-

fects which Mrs. Lehman claims the present law pos-

sesses. Yet, upon reinstitution of the termination pro-

ceedings, Mrs. Lehman might well lose custody of her

children once again. Inescapably, then, Mrs. Lehman's

interests and her children’s are not, in the context of this

case, the same.

While the intervention of the state via parental ter-

mination proceedings signals a potential nonalignment

of the parent and child’s interests, another element —

the interest in finality — is likely to be valued quite dif-

fereritly by parent and child. The parent’s prime interest

is theoretically in restoring family unity; the redundancy

of habeas corpus and the prolongation of litigation is a

burden which the parent may consider worth enduring

for the sake of reestablishing parental rights. For the

child, however, a prompt end to litigation and the clear

establishment of a permanent association with a parent

figure would seem to be the important goal.*? From this

perspective, it would not appear that the writ of habeas is

being exercised here on behalf of the children.°° This is

49. See J. Goldstein, A. Freud & A. Solnit, Beyond the Best In-

terests of the Child (1973); Cf. Smith v. Organization of Foster

Families, 431 U.S. 816, 826,844 (1977) (possibility for deep emo-

tional ties even in absence of blood relationship).

50. In addition, to justify extending the writ to the parent with

the belief that the children could always object, would force the

court to demand express opposition from the child before the judici-

ary will recognize a conflict between the interest of the parent and

interest of the child. This is unrealistic from the perspective of com-

mon sense as well as the psychologist’s understanding of the child's

emotional dilemma. Children’s loyalties to, and dependencies on,

their parents, regardless of overt disagreement and even in the ab-

sence of the physical and emotional minima needed by the child,

often create an ambivalence which reduces a child to silence. To

permit children to bring a habeas petition in state court in the

present situation, should they be so motivated, would be legallv and

42am

especially so in a termination situation, where the un-

qualified ending of the original relationship offers the

child an opportunity for an uninterrupted association fol-

lowing adoption by a new parent figure. Moreover, the

prospect of a parent bringing a habeas petition on a

child’s behalf years after the termination of parental

rights, and years after the child has attained an estab-

lished relationship with another parent figure, presents

an even greater potential conflict between the parent

and child’s interests.*!

Ill.

Accordingly, since it appears that a federal court

does not have jurisdiction over the habeas petition in

this case, and because even if it did it does not appear

that Mrs. Lehman has standing to assert such an action

on behalf of the three children, I would affirm the judg-

ment of the district court.

NOTE 50 — (Continued)

psychologically realistic; to allow a parent to petition, absent the

child’s objections, in a context where emotional conflict often re-

sults in silence, would tend toward a misreading of the child's best

interest. Burt, Developing Constitutional Rights of, in and for Chil-

dren, 39 Law & Contemp. Prob. 118, 126-30 (1975).

51. If federal habeas is permitted in this situation, and res

judicata eliminated as a bar, there is nothing to preclude a parent

from filing a petition for a writ of habeas corpus vears after the origi-

nal separation, and then litigating the constitutional issue complete-

lv afresh.

Ba

SEITZ, Chief Judge, concurring.

I find this to be a most difficult case. On the one

hand, I believe that the habeas corpus statute relied on

by Ms. Lehman can be read to encompass this constitu-

tional challenge to the Lehman boys’ custody. Ms. Leh-

man contends that her sons are “in custody pursuant to

the judgment of a State court. . . in violation of the

Constitution. . . .” See 28 U.S.C. §2254(a) (1976),

There is no suggestion that Ms. Lehman has failed to ex-

haust available state remedies. See id. §2254(b). There-

fore, the literal statutory requirements for exercise of

section 2254 federal habeas corpus jurisdiction can be

said to be satisfied.

Nevertheless, | believe that it is inappropriate for a

federal court to exercise its jurisdiction in this case.

whether jurisdiction is said to be present by virtue of

section 2254 or because Ms. Lehman presents a federal

question for which habeas corpus is merely a remedy.

Attempts to seek federal habeas corpus when challeng-

ing state child-custody determinations have not been

made until recently. See Sylvuander v. Home for Little

Wanderers, 584 F.2d 1103 (1st Cir. 1978); cases cited in

Judge Garth’s op. at n.8. There has been, therefore, a

prolonged period during which there has been an ab-

sence of relevant precedent. Additionally, exercise of ju-

risdiction in this case would represent a significant ex-

pansion of the availability of federal habeas corpus,

because constitutional challenges to state decisions in

intrafamily custody disputes — which are far more prev-

alent than parental-rights termination cases — come

within the literal requirements for federal habeas corpus

relief to the same extent that this case does. If there is to

be such a major departure from traditional uses of feder-

al habeas corpus to challenge state-court judgments, it

is not unreasonable to await a congressional directive on

the matter.

I therefore vote to affirm the judgment of the dis-

trict court.

Ho.

ROSENN, Circuit Judge, Dissenting. ”

A plurality of this court is of the opinion that this

proceeding essentially involves “no more than the ques-

tion of who shall raise a child to maturity” and holds that

it does not sufficiently implicate the federal interest in

personal liberty to warrant federal habeas corpus. Garth

pl. op., typescript at 24.' In essence, the plurality

sees the case as one involving nothing more than the

custody of some children. But the question of who shall

raise a child to maturity is not the issue now before us.

The merits of Ms. Lehman's capability to raise her chil-

dren, a matter which absorbs about one-third of Judge

Garth's opinion, are likewise irrelevant at this time. The

narrow but important issue before us is whether the dis-

trict court erroneously dismissed for lack of jurisdiction

the habeas corpus petition’s constitutional challenge to

Pennsylvania's statute permitting the State to terminate

permanently the rights of a parent in her children with-

out her consent. Inasmuch as only that narrow question

is before us and because I believe the district court had

jurisdiction to entertain the petition, I respectfully

dissent.”

* The writer of this dissent sat as a member of the panel that

initially heard this case. He also sat as a member of the court in

banc that subsequently was convened, heard oral argument, and

participated in the in banc discussion of the case following oral ar-

gument. Thereafter, on January 21, 1981, he took senior status un-

der 28 U.S.C. §§371(b) and 294(b).

1. The division of the court in this case is such that none of the

filed opinions represents a majority viewpoint. Two opinions, how-

ever, Judge Garth's and Judge Adams’, command a plurality. To

avoid confusion, | will refer to Judge Garth's opinion as that of “the

plurality,” because it announces the judgment of the court, and to

Judge Adams’ opinion as that of “the concurring plurality.”

2. In his concurring plurality opinion, Judge Adams posits Ms.

Lehman's alleged lack of standing as one ground for denying juris-

diction in the case at bar. I think it important to emphasize that

Judge Adams is not, as I read the opinion, addressing the issue of

45g

I.

When Marjorie Lehman placed her three sons with

the Lycoming County Children’s Services Agency

(Agency) for temporary foster care, she and the Agency

apparently intended that the custody would be only tem-

porary and that the children would be returned after her

expected childbirth confinement and after satisfactory

housing had been obtained.’ The Agency later became

convinced that she was incapable of raising her three

sons and resisted Ms. Lehman's efforts to obtain the re-

turn of her sons. It filed a petition in the Court of Com-

mon Pleas of Lycoming County under section 311(2) of

the Pennsylvania Adoption Act of 1970, 1 P.S. §311(2)

(Supp. 1980), seeking to terminate the mother’s paren-

tal rights.

The court did not find the appellant neglectful or

abusive but found that she was “incapable of providing

minimal care, control and supervision for the three chil-

dren” and that her incapacity could not be remedied. In

“standing” in the constitutional sense, which might raise a jurisdic-

tional problem worthy of sua sponte consideration. See concurring

op., typescript at 34 n.28. Rather, he is concerned that Ms. Lehman

may not be the best — or even a proper — relator in this action. Be-

cause I do not consider that issue to affect the question of jurisdic-

tion, I do not address it. I believe that the question of proper repre-

sentation is a matter to be determined by the district court in

pre-trial proceedings, after it has assumed jurisdiction, in the same

fashion that representation disputes are determined under the

class-action rules. As Judge Garth notes, Garth pl. op., typescript at

6 n.3, the standing issue is not properly before us and unless it af-

fects our jurisdictional authority to hear the case, we should not

reach conclusions of law on the basis of an undeveloped factual

record.

3. Although the plurality characterizes the placement of the

children with the agency as a voluntary surrender of custody, Garth

pl. op., typescript at 3, the placement was done informally and the

parties intended that the custody be only temporary. This certainly

is the intent revealed in Ms. Lehman's petition and is supported by

the county court's order awarding the Agency temporary custody.

16e&

re William Lehman, Nos. 2986-88 (C.P. Lycoming

County, June 3, 1976). Accordingly, the court granted

the petition and awarded temyorary custody of the chil-

dren to the Agency pending placement in a foster home.

The court also rejected Ms. Lehman’s contention that

section 311 of the Pennsylvania Adoption Act is

unconstitutionally vague. On appeal to the Pennsylvania

Supreme Court, appellant again raised her constitution-

al challenge. The Pennsylvania Supreme Court, howev-

er, upheld the lower court and found the statute to be

constitutional. In Re William L., 477 Pa. 322, 383 A.2d

1228, cert. denied, 439 U.S. 880 (1978). Following the

rejection of her constitutional challenge by the Pennsyl-

vania Supreme Court, Ms. Lehman filed a petition for

certiorari with the United States Supreme Court. The

petition was denied with three justices dissenting. 439

U.S. 880 (1978).

Thereafter, appellant filed a petition for a writ of ha-

beas corpus in the United States District Court for the

Middle District of Pennsylvania on behalf of her three

sons. The petition, alleging that the children are unlaw-

fully detained and restrained of their liberty by the

Lycoming County Children’s Services Agency in viola-

tion of the fourteenth amendment, sought to have them

released from the custody of the Agency and returned to

their mother’s custody. The district court, however, dis-

missed the petition for lack of jurisdiction, Lehman v.

Lycoming County Children’s Services Agency, Civ. No.

79-65 (M.D. Pa., Sept. 4, 1979), and sua sponte issued a

certificate of probable cause.

As the plurality indicates, whether federal habeas

corpus is available to assert federal constitutional claims

challenging state custody of a child pursuant to state

proceedings terminating parental rights has been ad-

dressed at length by only one other federal appellate

Te.

court. In Syluander v. Home for Little Wanderers, 544

F.2d 110% Cist Cir. 197%), the First Circuit considered

the availability of section 198% and federal habeas cor-

pus actions to review a state adjudication that the con-

sent of a child's mother would not be required in con-

templated adoption proceedings. The plurality relies

principally on this case. In Sylvuander, however, custody

of the child had been relinquished to a private adoption

agency shortly after birth, The agency in turn had

placed the child in a foster home. Thereafter, the adop-

tion agency petitioned the state court for authority to

dispense with the mother’s consent to the child's adop-

tion. The court granted the requested authority over the

mother's objections. The mother’s federal constitutional

challenge to the applicable state statute was subse-

quently rejected by the Massachusetts Supreme Judicial

Court. Thereafter, she filed in federal court a complaint

under 42 U.S.C. §19%3 and a habeas corpus petition un-

der 26 U.S.C. §§2241 and 2254 challenging the state

proceedings. The First Circuit affirmed the order of the

district court dismissing both the section 19%% com.

plaint and the habeas corpus petition.

The First Circuit's decision rested upon its percep-

tion that the state interests in family law matters

outweigh the “collateral” federal interests in the adjudi-

cation of federal constitutional rights.’ From Sylcvander

4. The First Circuit relied upon several factors in reaching this

conclusion. birst, the court found (a long history of state predomi

nance and federal deferral in family law matters G64 r Zdat bile

Second the court found it unclear whether the welfare of children

and familes would be promoted by creating a ght to litigate in two

sets of Courts instead of one thus extending the potential duration

of litigation in this area Id binally the court stated its beled that

Wf tigation expenses mount. social workers and Chantable organs

zauions such as the Home may well become less willing to seek

placements for Children over thei parents objections whether ra

nonal or irrational even though in them honest pudvanent the cbhulds

best interests demand it Id

BO

the plurality draws the following conclusions: (1) A per-

manent termination of parental rights in children does

not present “the same, strong claim for overriding the in-

terest in finality as inheres in the plea of a prisoner that

he has been incarcerated in violation of the Constitution

of the United States.” Garth pl. op., typescript at 10. (2)

“|H]abeas lies to challenge unlawful custody, but unlaw-

ful custody is simply not the issue in a parental rights

termination case. It is not the liberty interest of the chil-

dren that is sought to be protected in such a case, but

only the right by the particular parent to raise them.”

Garth pl. op., typescript at 11.

I can only assume that the plurality would reach the

same conclusion in every case involving a child — even

if the parent and child had an overriding love and attach-

ment for each other — where because of some exigency

the State had acquired custody of the child. For exam-

ple, suppose the father of several children had been

killed, and his widow severely injured, in an automobile

accident and his widow severely injured and the chil-

dren had been placed in temporary custody with the

State. The plurality would hold that under such circum-

stances the mother could not assert her federal constitu-

tional rights or the federal constitutional rights of her

children in a federal court to resist an effort to terminate

permanently the parental relationship between the chil-

dren and her. For the reasons set forth below I disagree

with Sylvander and the conclusions that the plurality

draws from it. Moreover, because Sylvander concerned

custody of a private adoption agency and did not involve

state action, I conclude that its relevance to the case at

bar is limited.

As I have already alluded, the question whether

there is federal habeas corpus jurisdiction should not de-

pend on the federal court’s agreement or disagreement

with the state court’s disposition of the merits of the

case. Such an approach is unsupported by accepted

9a

principles of jurisprudence. Jurisdiction consists only of

the abstract power of a court to try a case of the kind or

character of the one under consideration. Disposition of

the issue presented by this case depends upon the reso-

lution of two underlying questions. The first is whether

federal review of state custody proceedings terminating

parental rights in a child is available under the terms of

the federal habeas corpus statute, 28 U.S.C. §§2241.

2254. The second is whether, on balance, the exercise of

federal habeas corpus jurisdiction in such cases serves

the concerns of federal-state comity as well as other rel-

evant policy considerations. | now turn to the first con-

cern, the availability of federal review under the terms ot

the federal habeas corpus statute.

At common law, the writ of habeas corpus originat-

ed as a method by which the superior courts of the cem-

mon law and the chancellor could extend their jurisdic-

tion at the expense of inferior or rival courts. Ultimately.

it took form and survived as the writ of habeas corpus ad

subjiciendum by which the legality of the detention of

one in the custody of another could be tested judicially

McNally v. Hill, 293 U.S. 131, 136 (1934). In its classic

form the writ was directed to the disposition of the custo-

dy of a prisoner. Bacon, in his Abridgment, wrote that

the writ “is the most usual remedy by which a man is

restored to his liberty if he hath by law been deprived ot

it.” Bacon’s Abridgment at 425, quoted in McNally i.

Hill, supra, 293 U.S. at 137 n.3.

The importance of the writ is implicitly recognized

by the terms of the Constitution. Article I. section 9.

clause 2 provides: “The Privilege of the Writ of Habeas

Corpus shall not be suspended, unless when in Cases ot

Rebellion or Invasion the public Safety may require it.

Congress first extended to the federal courts the powe:

to issue writs of habeas corpus in the Judiciary Act ot

50a

September 24, 1789, ch. 20, §14, 1 Stat. 73, 81-82. The

custody requirement of that statute was found in its pre-

scription that the writ be used “for the purpose of an in-

quiry into the cause of commitment.” That commitment,

however, could be either civil or criminal. Ex Parte Ran-

dolph, 20 F.Cas. 242, 252-53, 257 (C.C.D. Va. 1833)

(Marshall, Circuit Justice and Barbour, District Judge).

The original broad grant of jurisdiction was limited only

by the following statutory language: “Provided, That

writs of habeas corpus shall in no case extend to prison-

ers in gaol, unless they are in custody, under or by colour

of the authority of the United States, or are committed

for trial before some court of the same, or are necessary

to be brought into court to’ testify.”

Thus, in its original form in our nation’s history, the

Great Writ did not reach the pleas of prisoners in state

jails those who have become the archetypal petitioners

of modern days. It was not until passage of the Judiciary

Act of February 5, 1867, ch. 28, §1, 14 Stat. 385-86, that

the writ was first made generally available to state pri-

soners. The removal in 1867 of the exception to the

broad jurisdictional grant of 1789 made the Great Writ

available to anyone “restrained of his or her liberty in vio-

lation of the constitution.” Thus, the Supreme Court has

observed that “the writ of habeas corpus should be left

sufficiently elastic so that a court may, in the exercise of

its proper jurisdiction, deal effectively with any and all

forms of illegal restraint.” Price v. Johnson, 331 U.S.

266, 283 (1948).

In modern times. the Supreme Court has

stated:

The writ of habeas corpus is the fundamental in-

strument for safeguarding individual freedom

against arbitrarv and lawless state action. Its pre-

eminent role is recognized by the admonition in the

Constitution that: “The Privilege of the Writ of Ha-

beas Corpus shall not be suspended...” U.S.

Slo

Const., Art. I, §9, cl.2. The scope and flexibility of

the writ—its capacity to reach all manner of illegal

detention—its ability to cut through barriers of form

and procedural mazes—have always been empha-

sized and jealously guarded by courts arid

lawmakers. The very nature of the writ demands

that it be administered with the initiative and flexi-

bility essential to insure that miscarriages of justice

within its reach are surfaced and corrected.

Harris v. Nelson, 394 U.S. 286, 290-91 (1969). The pur-

pose of the writ is “to provide a prompt and efficacious

remedy for whatever society deems to be intolerable re-

straints.” Fay v. Noia, 372 U.S. 391, 401-02 (1963).

The current federal habeas corpus statute

provides:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an applica-

tion for a writ of habeas corpus in behalf of a person

in custody pursuant to the judgment of a State court

only on the ground that he is in custody in violation

of the Constitution or laws or treaties of the United

States.

(b) An application for a writ of habeas corpus in be-

half of a person in custody pursuant to the judg-

ment of a State court shall not be granted unless it

appears that the applicant has exhausted the reme-

dies available in the courts of the State, or that there

is either an absence of available State corrective

process or the existence of circumstances rendering

such process ineffective to protect the rights of the

prisoner.

28 U.S.C. §2254. See 28 U.S.C. §2241. Thus, there are

four basic requirements to the exercise of federal habeas

corpus jurisdiction. The person in whose behalf the peti-

tion is brought must be alleged to be (1) “in custody,” (2)

in violation of the federal laws or Constitution, (3) “pur-

520.

suant to the judgment of a State court,” and (4) available

state remedies must be exhausted.

First, I think it cannot be gainsaid that appellant's

sons are “in custody” within the meaning of the statute.

In recent years the concept of custody has been expand-

ed to include not only actual physical confinement but

also other severe forms of personal restraint. Of course,

the Great Writ always could and still can reach behind

prison walls. But recent Supreme Court decisions have

made it clear that habeas corpus “is not now and never

has been a static, narrow, formalistic remedy; its scope

has grown to achieve its grand purpose—the protection

of individuals against erosion of their right to be free

from wrongful restraints upon their liberty.” Jones v.

Cunningham, 371 U.S. 236, 243 (1963). See, e.g.,

Hensley v. Municipal Court, 411 U.S. 345 (1973) (re-

lease of petitioner on own recognizance constitutes cus-

tody within meaning of habeas corpus statute); Ham-

mond v. Lenfest, 398 F.2d 705, 711 (2d Cir. 1968)

(inactive naval reservist who had been called to active

duty but not yet reported for service was “in custody”

within meaning of federal habeas statute notwith-

standing the absence of any criminal conviction). Thus,

“it is no longer necessary for a person to be under actual

physical restraint in order to obtain habeas relief.”

Westberry v. Keith, 434 F.2d 623, 624 (Sth Cir. 1970)

(per curiam). The Commonwealth's supervisory control

_ over the children in the case before us is sufficient to

meet the custody requirement of the federal habeas

statute.°

5. There is precedent in the common law for the use of the writ

of habeas corpus to challenge child custody. “|MJore than a century

ago an English court permitted a parent to use habeas corpus to ob-

tain his children from the other parent, even though the children

‘were not under imprisonment, restraint, or duress of any kind.’ ”

Jones v. Cunningham, 371 U.S. 236, 239 (1963). Although that

case is not dispositive of the issue presented by the case before us,

whether federal habeas jurisdiction should be exercised, it does pro-

vide support for the conclusion that the statutory prerequisite of

“custody” has been satisfied.

53 ae

Contrary to the plurality’s reading of Sylvander, nei-

ther the district court nor the First Circuit held that the

children were not “in custody” for purposes of section

2254. In fact, in relating the district court’s conclusion

on the matter the circuit court stated:

The district court found that Michael, although liv-

ing with foster parents, remained under the super-

vision and control of the Home, “a_ private,

non-profit agency engaged in child care,” and that

this was sufficient to constitute “custody” in the

ome.

584 F.2d at 1109. The district court found itself without

jurisdiction because, even though Michael was commit-

ted to the Home through operation of a state court de-

cree, there was not sufficient state involvement, given

the private nature of the Home, to distinguish Michael's

case from that of a child who is placed in the custody of

only one parent by operation of a state court judgment.

Since it was clear that the court had no jurisdiction in

the latter situation — because of countervailing policy

considerations rather than a failure to meet the statutory

requirements — it decided it had none to entertain Mi-

chael’s petition. The First Circuit approved this reason-

ing.© 584 F.2d at 1112. In the instant case the State is

directly involved, not only through its judicial action in

6. The plurality asserts that this statement is incorrect and chat

the First Circuit rejected the district court's finding that the

Sylvander child was in custody for purposes of the statute. Garth pl.

op., typescript at n.10. The plurality relies on a lengthy quote from

Sylvander which culminates in a holding that “{¢|his is not the kind

of custody that has traditionally prompted federal courts to assert

their jurisdiction in the face of prior state adjudication.” See id. |

first note that this statement itself recognizes the existence of feder-

al jurisdiction and is addressed only to th: propriety of asserting it.

Second, I submit that a “fair reading” of the quoted passage in the

text accompanying the plurality’s note 10 reveals a discussion of

policy, not statutory interpretation.

540

the section 311 proceedings, but also by virtue of a coun-

ty agency maintaining “custody,” as used in the statute,

of the boys.

Second, Ms. Lehman’s petition alleges that the cus-

tody of her children is in violation of several provisions of

the United States Constitution. The petition asserts that

section 311(2) of the Pennsylvania Adoption Act of 1970,

under the provisions of which her parental rights were

terminated, is unconstitutionally vague both on its face

and as applied to her. In addition, she alleges that termi-

nation of her parental rights violated the fourteenth

amendment because the Commonwealth failed to utilize

less drastic alternatives. Furthermore, she avers that the

Commonwealth had no compelling interest in terminat-

ing her parental rights in the absence of a finding that

she had failed to provide adequate child care or that she

would expose her children to serious and substantial

harm in the future.

Third, the Commonwealth’s custody of the children

is pursuant to the judgment of a state court, the Or-

phans Court Division of the Court of Common Pleas of

Lycoming County, Pennsylvania. In re William Lehman,

Nos. 2986-88 (C.P. Lycoming County, June 3, 1976). Fi-

nally, having presented her constitutional argument to

the Pennsylvania Supreme Court, appellant has satisfied

the exhaustion requirement of section 2254. According-

ly, I believe that the requirements of 28 U.S.C. §2254

have been satisfied and that, absent important policy

reasons to the contrary, federal habeas jurisdiction is

available to this appellant.

As I read the plurality opinion, it concludes that the

Lehman boys are not “in custody” as that term is used in

section 2254 and that, even if they were, the State’s in-

terest in the final ty of its judgments, when combined

with the traditiona! federal policy of deferral in the area

of family law, ou‘ weighs the federal interest in keeping

individuals free :rom unconstitutional deprivation of

55 @&

their personal liberties. I find this striking of the balance

to be historically and rationally unacceptable.

The argument is advanced that were we to allow the

exercise of federal habeas jurisdiction in the case before

us, we will have effectively allowed an end run around

the preclusive effect given state court judgments under

section 1983. The plurality appears to have succumbed

to this argument. But the plurality itself points out that

state court judgments are shielded from section 1983 at-

tacks only if the federal constitutional claims upon

which the civil rights action rests were actually litigated

in the state courts. See Garth pl. op., typescript at 8 n.4.

The plurality also acknowledges that the policy of federal

deferral in matters involving family law will not override

the federal interest in redressing unconstitutional depri-

vations of personal liberties when alleged in a section

1983 complaint.’ Similarly, if the allegations in the com-

7. I believe that the exercise of section 1983 jurisdiction is sig-

nificantly more intrusive upon state interests than is federal habeas

corpus. The intrusive nature of such an action is demonstrated by

the arguments advariced by the plurality. They suggest, as a meth-

od for obtaining federal review, that a parent in Ms. Lehman's posi-

tion reserve her federal claims in the state proceedings so that they

may be preserved and asserted in a later section 1983 action in fed-

eral court. Garth pl. op., typescript at 20-23. The problems with

such a procedure, however, are readily apparent.

.First, such a procedure effectively precludes state courts from

addressing federal challenges to state statutes and procedures. This

is an important state interest, Preiser v. Rodriguez, 411 U.S. 475,

490 (1973), and one which is served by the exhaustion requirement

of federal habeas corpus.

Second, to the extent that parents follow the litigation strategy

suggested by the plurality they ensure protracted litigation because

state courts would have no opportunity to resolve successfully the

federal constitutional claims. Duplicate litigation and expense

would therefore be required. Thus, the children’s interest in a

speedy and final determination of their status, an interest which the

plurality recognize is significant, Garth pl. op., typescript at 18-19,

will be disserved. The exhaustion requirements of federal habeas

corpus, however, require that the parents’ federal constitutional

560

plaint are proved, no amount of state concern fox finality

of its judgments will prevent a federal court from re-

straining the execution of the state judgment. Thus, it is

not the state court’s disposition of questions of family

law, an area in which state courts are regarded as having

special expertise,® that is protected by this court’s rejec-

tion of Ms. Lehman’s habeas corpus petition; rather, it is

the state court’s rulings on her federal constitutional

claims that the majority holds that we are powerless to

review.

The plurality’s conclusion that we should not, as a

matter of federal-state comity, undertake to review the

propriety of the Pennsylvania courts’ rulings on substan-

tive federal constitutional law rests merely on the bald

assertion that this case does not impinge “with special

harshness on liberty.” Even if that were the jurisdiction-

al standard — which I do not concede, and the plurality

fails to cite any case that so holds — how can one plausi-

bly declare that the removal of a child by the State from

his natural family and the non-consensual termination

for all time of the reciprocal relationships between moth-

er and children impinges less on personal liberty than

the call to active duty of an inactive reservist who had

not yet reported for service, Hammond v. Lenfest, 398

F.2d 705 (2d Cir. 1968), or that it constitutes less of an

impingement on liberty than experienced by an accused

released on his own recognizance, Hensley v. Municipal

Court, 411 U.S. 345 (1973).

For the reasons stated below it appears to me that,

on balance, the exercise of tederal habeas corpus juris-

NOTE 7 — (Continued)

claims be addressed, in the first instance, by the state courts. Thus,

there is an opportunity, not available under the procedure urged by

the plurality for an early and satisfactory resolution of the federal

claims.

8. See, e.g., Sylvander v. New England Home for Little Wander-

ers, 584 F.2d at 1109 n.9.

57a.

diction accommodates the competing interests of the

federal government and of the state in the privacy of the

family without sacrificing the important concerns of ei-

ther.

IV.

I now turn to the question which I mentioned earli-

er, whether on balance, the exercise of federal habeas

corpus jurisdiction serves the concerns of federal-state

comity and other relevant policy considerations. In

Sylvander v. Home for Little Wanderers, supra, the

court reasoned that competing policy considerations

militate against the exercise of federal habeas jurisdic-

tion. The factors identified in Sylvander as militating

against the exercise of federal habeas jurisdiction were

primarily two: (1) exercise of habeas jurisdiction would

interfere with significant state interests in the regulation

of the family and domestic matters while serving only a

collateral federal interest, and (2) there is no need to ex-

ercise federal habeas jurisdiction because other existing

avenues of relief afford sufficient protection for federal

constitutional rights. I consider each of these ‘in turn.

The state interest in family relationships is well es-

tablished and recognized by the federal courts. As the

Supreme Court stated in In Re Burrus, 136 U.S. 586,

593-94 (1890), “[t]he whole subject of the domestic rela-

tions of husband and wife, parent and child, belongs to

the laws of the States and not to the laws of the United

States.” Thus, this court, for instance, has declined to

exercise diversity jurisdiction in domestic relations suits.

Solomon v. Solomon, 516 F.2d 1018 (3d Cir. 1975). See

Armstrong v. Armstrong, 508 F.2d 348 (Ist Cir. 1974).

This case, however, bears no similarity to Solomon

which arose out of a contract claim for child support pay-

ments and was brought during an ongoing state pro-

ceeding relating to visitation rights. Appellant’s petition

in this case alleges that the Commonwealth of Pennsyl-

58a

vania has deliberately deprived these children of a fun-

damental personal liberty interest in contravention of

the fourteenth amendment to the United States Consti-

tution. Just as the federal deferral policy is overridden

when such allegations are presented in section 1983

complaints, it logically should give way before identical

allegations in a habeas corpus petition.

It is undisputed that this case does not involve a dis-

pute between parents over the custody of their children.

These are the types of disputes alluded to by the plurality

which normally involve a determination of “who shall

raise {the} child” and with which parent the child will re-

side. I repeat, what is at issue here is the constitutional-

ity of a state statute that empowers the State to termi-

nate permanently parental rights in their children

without their consent and the many sensitive implica-

tions that follow therefrom. | see a fundamental differ-

ence between an action in which family members are

struggling over, in the words of the plurality, “who will

raise the child to maturity” and an action in which the

State, even with all its beneficent motivations, moves

against an existing family unit for the purpose of legally

dismembering it. The latter, because the State proceeds

against an individual that effectively deprives that indi-

vidual of fundamental personal liberties, is not too unlike

a criminal prosecution. Cf. Moore v. Sims, 442 U.S. 415,

423 (1979) (“the temporary removal of a child in a child

abuse context is . . . ‘in aid of and closely related to

criminal statutes.’ ”’).

This is a proceeding in which the State itself has

taken temporary custody of the children after utilizing

its own judicial machinery to terminate, permanently

and in all respects, the legal relationship of the children

and their natural mother. Thus, this is not merely a dis-

pute over which of the children’s natural parents should

raise them but whether the State may constitutionally

forever foreclose the children from any relationship

59 Ow

whatsoever with their natural parent. The important so-

cial and psychological consequences of this distinction

cannot be overemphasized. The total extinction of a fa-

milial relationship between children and their biological

parents is the most drastic measure that a state can im-

pose, short of criminal sanctions, to protect disadvan-

taged or neglected children. The termination of the

mother’s rights in her children is, in effect, a declaration

to the children that their mother is legally dead. There-

fore, any suggestion that the exercise of jurisdiction in

this case will lead to the exercise of jurisdiction in ordi-

nary child custody disputes between natural parents is

disingenuous and palpably unrealistic.

Significant federal interests are implicated here.

The Constitution recognizes a right to be free from un-

necessary state intrusion into family relationships. The

freedom of personal choice in matters of family life is

protected by the Due Process Clause of the fourteenth

amendment. Cleveland Board of Education v. LaFleur,

414 U.S. 632, 639-640 (1974).”

9. The right to family privacy and parental autonomy, as well

as the reciprocal liberty interest of parent and child in the famil-

ial bond between them, need no greater justification than that

they comport with each state’s fundamental constitutional

commitment to individual freedom and human dignity. But the

right of parents to raise their children as they think best, free of

coercive intervention, comports as well with each child's bio-

logical and psychological need for unthreatened and unbroken

continuity of care by his parents. No other animal is for so long

a time after birth in so helpless a state that its survival depends

upon continuous nurture by an adult. Although breaking or

weakening the ties to the responsible and responsive adults

may have different consequences for children of different ages.

there is little doubt that such breaches in the familial bond will

be detrimental to a child's well-being. But “so long as a family is

intact, the young child feels parental authority is lodged in a

unified body which is a safe and reliable guide for later identifi-

cation.” Court or agency intervention without regard to or over

the objection of parents can only serve to undermine the famil-

60a

The United States Constitution recognizes a “pri-

vate realm of family life which the state cannot enter.”

Prince v. Massachusetts, 321 U.S. 158, 166 (1944). This

right may be characterized as the integrity of the family,

see Note, Constitutional Limitations on the Scope of

State Child Neglect Statutes, 79 Colum. L. Rev. 719, 720

(1979), or of intimate association, see Karst, The Free-

dom of Intimate Association, 89 Yale L.J. 624 (1980),

and flows from “the importance of the familial relation-

ship, to the individuals involved and to the society,

[which] stems from the emotional attachments that de-

rive from the intimacy of daily association, and from the

role it plays in ‘promot|ing] a way of life’ through the in-

struction of children,” Smith v. Organization of Foster

Families for Equality and Reform, 431 U.S. 816, 844.

This right encompasses not only the parents’ right to

nurture, educate, love, and manage their children but

the children’s right to remain with and be raised by their

natural parents.'° Mr. Justice Brennan characterizes it

as a “constitutionally recognized liberty interest that de-

rives from blood relationship, state-law sanction, and

basic human right.” Id. at 846.

The importance of familial relationships to minor

children is particularly significant. An intimate relation-

NOTE 9 — (Continued)

ial bond which is vital to a child’s sense of becoming and being

an adult in his own right.

Goldstein, Medical Care for the Child at Risk: On State

Supervention of Parental Autonomy, 86 Yale L.J. 645, 649-50

(1977) (footnotes omitted).

10. Thus, I cannot agree with the plurality’s declaration that

the mother alone has an interest here. See Garth pl. op., typescript at

16. The children as well have a biological and emotional identifica-

tion with the natural parent which constitutes a protected and fun-

damental interest. Furthermore, although the children in this case

may have expressed a desire not to be returned to their natural par-

ent, I do not believe that raises a jurisdictional issue. Rather, it

would be a matter for the district court’s consideration in weighing

the merits once jurisdiction is established.

6la

ship with a loving, caring adult is imperative for chil-

dren. Most often this is provided by the natural parent

and the law so presumes. The Supreme Court has ob-

served that “historically [the law] has recognized that

natural bonds of affection lead parents to act in the best

interests of their children.” Parham v. J.R., 442 U.S.

584, 602 (1979). Removal of a child from its natural par-

ents may result in serious psychological harm and thus

may inflict greater damage than the intervention was in-

tended to prevent. Wald, State Intervention on Behalf of

“Neglected” Children: A Search for Realistic Standards,

27 Stan. L. Rev. 985, 994 (1975).

The Supreme Court has “recognized on numerous

occasions that the relationship between parent and child

is constitutionally protected.”'' Quilloin v. Wolcott, 434

U.S. 246, 255 (1978). Responsibility for the “custody.

care and nurture of the child reside|s] first in the par-

ents, whose primary function and freedom include prep-

aration for obligations the state can neither supply nor

hinder.” Prince v. Massachusetts, supra, 321 U.S. at

166.

The Supreme Court has expressed in a variety of

contexts an individual’s right to be free of unwarranted

state intrusion into family relationships. Significantly.

11. The Supreme Court's basis for its constitutional concern

with the integrity of the family is set forth in Stanley v. Illinois. 405

U.S. 645, 651 (1972):

The Court has frequently emphasized the importance ot

the family. The rights to conceive and to raise one's children

have been deemed “essential,” Meyer v. Nebraska, 262 U.S.

390, 399 (1923), “basic civil rights of man,” Skinner v. Okla-

homa, 316 U.S. 535, 541 (1942), and “|rjights far more pre-

cious. . . than property rights,” May v. Anderson, 345 U.S.

528, 533 (1953). . . . The integrity of the family unit has

found protection in the Due Process Clause of the Fourteenth

Amendment, Meyer v. Nebraska, supra, at 399, the Equal Pro-

tection Clause of the Fourteenth Amendment, Skinner v. Okla-

homa, supra, at 541, and the Ninth Amendment. Griswold ¢

Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J.. concur:

ring).

620

for the purposes of the case before us, it has acted to en-

force the federal interests implicated in state child cus-

tody proceedings. In Quilloin v. Wolcott, supra, for in-

stance, the Court considered the claim of an unwed fa-

ther that, as a matter of due process and equal protec-

tion, he was entitled to an absolute veto over the

adoption of his child. In Smith v. Organization of Foster

Families, supra, the Court entertained an action under

42 U.S.C. §1983 which alleged that the New York pro-

cedures governing the removal of foster children from

foster homes violated the Due Process and Equal Protec-

tion Clauses of the Constitution. Although the court

upheld the challenged statute, it recognized the impor-

tance of the biological family relationship in the nurtur-

ing and development of children. 431 U.S. at 842-45.

Furthermore, the Supreme Court has made clear

that natural parents have federal constitutional rights

upon which the states may not encroach. '” In Stanley v.

Illinois, 405 U.S. 645 (1972), the Court held that an

unwed father is constitutionally entitled to a hearing as

to his parental fitness before his child is removed from

his custody. Central to the Court’s holding was its recog-

nition of the importance of familial relationships, even

those “unlegitimized by a marriage ceremony.” 405 U.S.

at 651.

The private interest here, that of a man in the

children he has sired and raised, undeniably war-

12. In commenting on the liberty interest inherent in the

parent-child relationship, the Court in Meyer v. Nebraska, supra,

observed:

The estabished doctrine is that this liberty may not be inter-

fered with, under the guise of protecting the public interest, by

legislative actions which is arbitrary without reasonable rela-

tion to some purpose within the competency of the State to ef-

fect. Determination by the legislature of what constitutes prop-

er exercise of police power is not final or conclusive but ts

subject to supervision by the courts

262 U.S. at 499-400.

63a

rants deference and, absent a powerful countervail-

ing interest, protection. It is plain that the interest of

a parent in the companionship, care, custody, and

management of his or her children “come{s] to this

Court with a momentum for respect lacking when

appeal is made to liberties which derive merely from

shifting economic arrangements.”

Id.

Other federal courts have followed the Supreme

Court's lead and acted to enforce these important federal

rights under the civil rights statutes. In Duchesne v.

Sugarman, 566 F.2d 817 (2d Cir. 1977), for example,

the Second Circuit considered a damage action under

the civil rights statute by a mother, on behalf of herself

and her two children, for the allegedly unconstitutional

action of a city child welfare bureau in taking and retain-

ing her two children without her consent and without a

hearing or court order. The court reversed the judgment

of the district court dismissing the action and held that

the welfare bureau's retention of custody of the children

without judicial ratification amounted to a deprivation of

the mother’s and children’s liberty interest in family pri-

vacy without due process of law. The court stated:

Here we are concerned with the most essential

and basic aspect of familial privacy — the right of

the family to remain together without the coercive

interference of the awesome power of the state. This

right to the preservation of family integrity encom-

passes the reciprocal rights of both parent and chil-

dren. It is the interest of the parent in the “compan-

ionship, care, custody and management of his or

her children,” Stanley v. Illinois, 405 U.S. 645, 651

[citations omitted] (1972), and of the children in not

being dislocated from the “emotional attachments

that derive from the intimacy of dailv association”

64a

with the parent, Organization of Foster Families,

supra, 431 U.S. at 844 [citations omitted].

566 F.2d at 825 (footnote omitted). !*

In Alsager v. District Court, 545 F.2d 1137 (8th Cir.

1976), affirming per curiam 406 F.Supp. 10 (S.D. Iowa

1975), the court considered, in an action under 42

U.S.C. §1983, a case factually very similar to the case

before us. There, the parental rights of a natural mother

and father in and to five of their six children had been

terminated in state court proceedings. Subsequently,

the parents brought an action in federal court challeng-

ing the state statute under.which their parental rights

were terminated as unconstitutionally vague and viola-

tive of substantive due process. The Eighth Circuit

found the parents’ substantive due process objection

meritorious and held that the state had failed to demon-

strate “a compelling interest sufficient to justify perma-

nent termination of the parent-child relationships.” 545

F.2d at 1137.'* In reaching its conclusion, the court re-

lied on the district court’s recognition of a significant

and constitutionally protected liberty and privacy inter-

est in the integrity of the family unit. See Smith v. Or-

ganization of Foster Families, supra, 431 U.S. at

842-44.'°

13. The Seventh Circuit recently observed: “Certainly where a

biological relationship exists, the power of the state to regulate ac-

tivity is limited.” Kyees v. County Dept. of Public Welfare, 600 F.2d

693, 697 (7th Cir. 1979).

14. The court reserved judgment on the vagueness challenge.

545 F.2d at 1137-38.

15. In Roe v. Conn, 417 F.Supp. 769, 777 (M.D. Ala. 1976)

(three-judge court), the court followed Alsager and held that “the

Constitution recognizes as fundamental the right of family integri-

ty.” On that basis, the court declared unconstitutional a statute au-

thorizing the State to seize a child and remove it from its parents if

“the child is in such condition that its welfare requires such

removal.”

65 a

V.

The relevant inquiry then is not whether the exer-

cise of federal jurisdiction is ever appropriate in cases in-

volving family relationships. The overwhelming weight

of applicable precedent clearly indicates that such juris-

diction is not only appropriate but necessary.'® Rather,

the question is whether countervailing considerations of

federal-state comity render inappropriate the exercise of

federal habeas corpus jurisdiction when the constitu-

tionality of a state statute providing for permanent

non-consensual termination of parental rights in their

children is challenged. It bears iteration that intellectu-

ally that abstract question should be decided separate

and apart from the merits of the case.

An historical accommodation has been developed

between the state and federal courts respecting the ad-

ministration of federal habeas corpus. Following the Civ-

il War, federal habeus jurisdiction was expanded to what

was believed to be the constitutional limit. See Ex parte

McCardle, 73 U.S. (6 Wall.) 318, 325-26 (1867). This

expansion of federal habeas jurisdiction was intended to

facilitate dealing with anticipated resistance to recon-

struction measures planned by the Congress. But soon

after the enactment of the expansive provision in the Act

of February 5, 1867, ch. 28, §1, 14 Stat. 385-86, the Su-

preme Court was faced with the issue of accommodating

conflicting state and federal interests in the area of crim-

inal justice administration. Thus, in Ex parte Royall,

117 U.S. 241 (1886), the Court held that, although the

16. The Supreme Court of the United States has recently

heard argument in an appeal from a Delaware state court case in-

volving federal constitutional issues similar to those which appel-

lant seeks to assert in this case. See In the Matter of Five Minor

Children, 407 A.2d 198 (Del. 1978), probable jurisdiction noted sub

nom. Doe v. Delaware No. 79-5932, 48 U.S.L.W. 3613 (March 25,

1980). See also 49 U.S.L.W. 3507 (Jan. 20, 1981) (summary of

arguments).

66a

federal courts had the power to discharge a state prison-

er restrained in violation of the Constitution, ordinarily

the federal court should stay its hand on habeas pending

completion of the state court proceeding. The consider-

ations underlying the Court’s holding were set forth in a

later case:

While the federal courts have the power and may

discharge the accused in advance of his trial, if he is

restrained of his liberty in violation of the Federal

Constitution or laws. . . the practice of exercising

such power before the question has been raised or

determined in the state is one which ought not to be

encouraged. The party charged waives no defect of

jurisdiction by submitting to a trial of his case upon

the merits, and we think that comity demands that

the state courts, under whose process he is held,

and which are equally with the Federal courts

charged with the duty of protecting the accused in

the enjoyment of his constitutional rights, should be

appealed to in the first instance. Should such rights

be denied, his remedy in the Federal court will re-

main unimpaired.

Cook v. Hart, 146 U.S. 183, 194-95 (1892). These con-

cerns of federal-state comity are reflected in the exhaus-

tion requirements of 28 U.S.C. §2254.

The continuing role of federal habeas corpus juris-

diction in accommodating competing federal and state

concerns was more recently expressed in Preiser v.

Rodriguez, 411 U.S. 475 (1973). There the Court con-

sidered whether section 2254, the federal habeas corpus

statute, was an available federal remedy by which to ob-

tain relief for the allegedly unconstitutional deprivation

of good-conduct time credits of a prisoner. The Court

held that the appropriate remedy was through petition

for writ of habeas corpus. Underlying the Court’s hold-

ing was its recognition that “|t|]he rule of exhaustion in

67 ee

federal habeas corpus actions is rooted in Considerations

of federal-state comity.” Id. at 491. Thus, the Court

noted that the strong policy underlying the exhaustion

requirement of section 2254(b) is “to avoid the unneces-

sary friction between the federal and state court systems

that would result if a lower federal court upset a state

court conviction without first giving the state court sys-

tem an opportunity to correct its own Constitutional er-

rors.” 411 U.S. at 490. I think similar considerations ap-

ply here in a case involving state custody of minor

children.’ /

In the case at bar, appellant has, in conformance

with federal policy, presented to and received from the

state courts an adjudication of her federal constitutional

claims. In particular, I take note of the well-reasoned

and thoughtful opinion of Justice Roberts writing for the

Pennsylvania Supreme Court. In Re William L., supra,

477 Pa. 322; 44% A.2d 1224. We are urged by the Agen-

cy that should we grant appellant a collateral federal fo-

rum for the presentation of her constitutional claims, we

will be effectively undermining the Commonwealth's in-

terest in the sanctity of its own judicial proceedings.

Were this an action under 42 U.S.C. 41943, I might well

find this argument persuasive. We have held that when

a plaintiff has obtained a full and fair adjudication of his

constitutional claims in a prior state Court proceeding he

is precluded from a later action under section 194%, New

Jersey Education Association vo Burke, 5979 &.2d 764

17. The significant interests protected by the exhaustion re

quirement are of two types First. exhaustion preserves the role

of the state courts in the appheoation and enforcement of federal

law Second, exhaustion preserves orderly administration

of state judicial business Its umportant that pennoners

reach state appellate courts which can develop and correct er

rors of state and federal law and most effectively supervise and

impose uniformity on trial Courts

Developments in the Law bederal Habeas Corpus %4 Wary Lo Kev

10%4% $9094 (3970, footnote omitted ,

68a,

(3d Cir.), cert. denied, 439 U.S. 894 (1978). The same

preclusive effect, however, is not given to prior state

court proceedings by the federal habeas statute. Indeed,

the statute itself requires exhaustion of available state

remedies prior to availing oneself of the federal habeas

forum.

Here, the Commonwealth has terminated the con-

stitutionally protected relationship of appellant and her

three sons and taken temporary custody of the children.

Although I express no opinion as to whether that action

was appropriate, I believe that federal habeas corpus is

an available remedy in this case. My conclusion is based

on the following reasons. First, federal habeas corpus

rests upon the paramount importance of preventing un-

lawful restraint and represents a considered judgment

by the Congress that federal jurisdiction should be exer-

cised when the statutory requirements are met. In the

case before us, the three sons of Ms. Lehman are in the

custody of the Commonwealth of Pennsylvania under

the authority of an allegedly unconstitutional statute and

she has exhausted available state remedies. Hence, the

requirements of the federal habeas statute are met and

federal habeas jurisdiction must be exercised unless

there are compelling reasons to the contrary. Second, al-

though there is an important state interest in the regula-

tion of domestic relations, the case before us is not the

ordinary dispute between parents for the custody of a

child but concerns the power of a state statutorily to ex-

tinguish for all time the reciprocal liberty interests of a

natural mother and her children through a state custody

proceeding. Under such extraordinary circumstances,

there is an overriding federal interest in ensuring that

state intervention in family relationships takes place

within constitutional bounds. Finally, the exhaustion re-

quirements of federal habeas corpus offer an appropriate

accommodation of those competing state and federal in-

terests by requiring that the federal claims be brought

61a

first in state court while preserving the opportunity for

federal review. Federal review, of course, would be limit-

ed to the federal constitutional claims. The question of

the custody of the children would still remain in the

state courts for determination subject to appropriate fed-

eral constitutional guidelines. '®

Therefore, I believe federal habeas corpus jurisdic-

tion may be invoked to challenge the constitutionality of

a state statute which empowers the state to take custody

of children and permanently terminate without consent

the reciprocal rights and Liberty interests of parent and

children.

Accordingly, I would reverse the order of the district

court dismissing appellant’s petition for want of jurisdic-

tion and remand for further proceedings not inconsis-

tent with this opinion.

Judge Higginbotham and Judge Sloviter join in this

dissent.

18. Such a holding would be consistent with the established

federal policy which affords te the states substantial independence

in the regulation of family relationships.

Government policy toward the family has traditionally

been regarded as presenting local rather than national ques-

tions. Generally speaking, “there is no federal law of domestic

relations, which is primarily a matter of state concern.” But the

states’ power to legislate and administer family law has never

been exempt from constitutional limitations. Restricting state

power within constitutional bounds is an appropriate task for

the federal judiciary, and carrying out this duty “does not make

of [the Supreme] Court a court of probate and divorce.” The

Court has properly insisted that state intervention respect fun-

damental human rights.

Developments in the Law: The Constitution and the Family, 93

Harv. L. Rev. 1156, 1159 (1980) (footnotes omitted).

70 Oe

GIBBONS, Circuit Judge, dissenting

Marjorie Lehman appeals from the dismissal] of her

complaint seeking a writ of habeas corpus to regain cus-

tody of her children from the Lycoming County Chil-

dren’s Service Agency. As the several plurality opinions

and Judge Rosenn’s dissenting opinion note, her federal

complaint was filed after she unsuccessfully litigated

her claim for the childrens’ custody in the Pennsylvania

courts, and unsuccessfully petitioned for certiorari. The

federal constitutional challenges which she asserts

against the statute under which her parental rights were

terminated, resulting in the loss of the custody of her

children, are significant, but were not considered by the

district court because it dismissed for lack of subject

matter jurisdiction. I conclude that the dismissal was er-

ror, and should be reversed. | disagree, however, with

the analysis of the issues in any of the opinions which

have been filed.

The source of the confusion in resolving this case is

appellant’s attempt to treat habeas corpus as a source of

federal subject matter jurisdiction. Habeas corpus, how-

ever, is relevant only as a remedy in aid of the court's ex-

ercise of such jurisdiction. The debate over the appropri-

ateness of habeas corpus as a source of jurisdiction has

sparked a misguided standing discussion, and, more im-

portantly, has obscured the real nature of Ms. Lehman's

claim. Ms. Lehman is arguing, on her own behalf, that

Pennsylvania’s termination of her parental rights was

invalid because the relevant statute is unconstitutionally

vague. Custody, a statutory incident to the termination

decision, is significant only in the event that Ms. Leh-

man prevails in her constitutional challenge. In that

case, the state would no longer have custodial rights in

the children, and their return could be obtained through

the habeas corpus remedy. There is federal subject mat-

ter jurisdiction under of 28 U.S.C. §§1331 and 1343(a),

and the case should be remanded for determination of

the res judicata effect of the state termination decision.

7Tlao

Habeas Corpus Does Not Provide Jurisdiction But

May Be Available As A Remedy

The starting point for consideration of the power of

a federal court to issue a writ dealing with custody is sec-

tion 14 of the Judiciary Act of 1789:

That all the before-mentioned Courts of the United

States, |District, Circuit, and Supreme] shall have

power to issue writs of scire facias, habeas corpus.

and all other writs not specially provided for by stat-

ute, whic 1 may be necessary for the exercise of

their respective jurisdictions |elsewhere defined}.

and agreeable to the principles and usages of law.

And that either of the justices of the supreme court,

as well as judges of the district courts, shall have

power to grant writs of habeas corpus for the pur-

pose of an inquiry into the cause of commitment. —

Provided, That writs of habeas corpus shall in no

case extend to prisoners in gaol, unless where thev

are in custody, under or by color of the authority of

the United States, or are committed for trial before

some court of the same, or are necessary to be

brought into court to testify.

1 Stat. 81-82 (1789) (footnote omitted).

Section 14 is not a statute dealing with jurisdiction.

The first sentence simply deals with the power of courts

to issue various kinds of mesne process necessary to

their respective jurisdiction; jurisdiction, however, is

elsewhere defined. Habeas corpus is listed with another

mesne process writ, scire facias, and with an omnibus

clause including all such writs.

In the second sentence, the power of single judges

or justices sitting as members of a circuit court. was

limited with respect to prisoners in jail. Whereas the first

sentence deals with the powers of the courts. the subse-

quent reference to “either of the justices. . . as well as

72 Ow

the judges of the district court” is quite specifically a ref-

erence to the powers of the individual members of the

original circuit courts which were comprised of two Su-

preme Court Justices and one District Court Judge. Sec-

tion 4, 1 Stat. 74-75. Those single members of a circuit

court, acting individually and not as a court, were given

only the more limited power of inquiring “into the cause

of commitment,” rather than the general mesne process

powers conferred on the court by the first sentence. That

the commitment referred to in the section dealing with a

single judge’s powers is commitment to “gaol” is made

clear by the proviso immediately following the second

sentence.

Since it was common in 1789 to use various forms

of capias writs in civil litigation, it is possible that the

power of a single judge or justice to “inquirje] into the

cause of commitment” was intended to apply to civil

commitments as well as criminal. In any event, howev-

er, habeas corpus as court process was not confined to

inquiries into the causes of commitment to “gaol.” As

court process, habeas corpus included all uses of any

form of the writ necessary for the exercise of jurisdic-

tion. The proviso, which excepts state prisoners from

federal habeas corpus relief, refers only to prisoners in

“gaol,” and thus in no way limits the courts’ power to is-

sue writs for other than prisoners in “gaol.”!

1. The probable intention of the draftsmen in adding the provi-

so to section 14 was, I believe, to limit only the power of a single

judge or justice conferred in the second sentence. As Judge Adams

points out, in Ex parte Dor, 44 U.S. (3 How.) 103 (1845), the Court

construed the proviso to be applicable to the entire section. Justice

McLean said:

This is so clear, from the language of the section, that any illus-

tration of it would seem to be unnecessary. The words of the

proviso are unambiguous. 44 U.S. (3 How.) at 105. With defer-

ence, one may disagree. The writ was sought by Francis C.

Treadwell on behalf of his client so as to gain access to the cli-

73 Ow

Thus the suggestion that “[i]Jn America, the history

of federal courts’ jurisdiction to issue the writ of habeas

corpus is one of carefully controlled statutory expan-

sion,” concurring opinion, typescript at 27, is wrong for

several reasons. First, section 14 was not jurisdictional.

Second, except for prisoners in jail, to which the proviso

applied, the grant of statutory authority to courts as dis-

tinguished from single judges was as broad as the com-

mon law. Every one of the careful statutory expansions

to which either opinion of the majority refers involved

prisoners in jail who would otherwise have fallen under

ent for the purpose of having him sign a writ of error. The Su-

preme Court had unquestioned jurisdiction to entertain that

writ since Dorr was challenging the validity of his conviction on

at least two significant constitutional grounds. See Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264 (1821). One was whether, de-

spite Article III section 3 of the Constitution, a defendant could

be convicted of treason against a state. The other was whether,

assuming an affirmative answer to the first question, a defen-

dant could be convicted of treason against a government not re-

publican in form. The court was not then anxious to decide ei-

ther federal question. It avoided deciding the latter question in

Luther v. Borden, 48 U.S. (7 How.) 1 (1849) also. The etfect of

Ex parte Dorr was that, by locking Dorr up so that he could not

sue out a writ of error, the Charter Government of Rhode Island

was permitted to accomplish the result for which Virginia had

argued unsuccessfully in Cohens v. Virginia, 19 U.S. (6

* Wheat.) 264 (1821), that of allowing separate states final con-

struction of the federal laws. Ex parte Dorr is a less than rep-

utable product of an unfortunate time in which the Court was

attempting to stand aside from the emerging states’ rights dis-

pute. Its holding that section 14 of the Judiciary Act does not

extend to bring up a state prisoner for any other purpose than to

be used as a witness, i.e. to set his appeal to the federal courts

in motion, fortunately, does not survive Price v. Johnston, 334

U.S. 266 (1948). But even the now repudiated misconstruction

of the proviso has nothing to do with this case, since we are not

dealing with a commitment to jail. Justice McLean's reference

in Ex parte Dorr to civil commitment is to commitment to jail

as rmesne process, not to custody outside jail.

740

the interpretation of the proviso announced in Ex parte

Dorr, 44 U.S. (3 How.) 103 (1845).?

The first sentence of section 14, with which we are

concerned, is now codified in two places. 28 U.S.C.

§2241(a) provides:

Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdictions.

28 U.S.C. §1651(a) provides:

The Supreme Court and all courts established

by Act of Congress may issue all writs necessary or

appropriate in aid of their respective jurisdictions

and agreeable to the usages and principles of law.

There has been no time since 1789 that federal courts

lacked the power to issue writs for obtaining custody,

other than for state prisoners, if such writs were in aid of

their exercise of existing subject matter jurisdiction.

The plurality’s attempts to have the state prisoners provi-

so swallow sections 1651(a) and 2241(a) simply do not

fit the legislative history of the governing statutes. That

the All Writs statute authorizes writs other than in those

instances provided in 28 U.S.C. §2241(c) concerning

state prisoners is made plain by Price v. Johnston, 334

2. The expansions to which the plurality refers, which are

codified in 28 U.S.C. §2254(c), have nothing to do with the

question presented here. The children whose custody is sought

have never been in jail and never would have fallen within the

coverage of the proviso of section 14. Someone seeking to ob-

tain their custody would never have had to rely on the now

codified exceptions to the proviso which, beginning with the

Force Act of 1833, §7, 4 Stat. 634-35, Congress gradually

adopted. The Judiciary Act of 1867, 14 Stat. 385, to which the

concurring opinion devotes so much space, in no way affected

the authority conferred in the 1789 statute. Ex parte Yerger, 75

U.S. (8 Wall.) 85 (1868).

Ow

U.S. 266, 27% ¢ 1944), in which the Court held that habe

a5 Corpus 15 available to facilitate the exercise of appel-

late jurisdiction by requiring the production of 4 prisoner

to argue an appeal, and by the Court's discussion of the

question. Moreover. although Price 1 Johnston, Supra,

actually involved a state prisoner * itis settled that habe-

45 Corpus May be used in non-prisoner Cases. It has heen

used to test the validity of the exclusion of an alien tree

to $0 anywhere else in the world. Brow nell vo. Tom We

Shung, 352 US. 180 (1956); Shaughnessy v United

States ex rel. Mei, 445 U.S. 206 (195%), United States

ex rel. Knauff v Shaughnessy, 35% US 537 (1950):

United States 1 Jung Ah Lung, \2AU.S 62] (BAK) It

also has been used to test the validity of a military induc.

on order, Billings vu. J ruesdell, 421 US 5A2 (1944,

and to test the validity of a military decision that a resery

Ist, Claiming to be a conscientious Objector, was not enti-

ted to a discharge. Hammond 1, Lenfest, 49% F 2d 705

(2d Cir. 1968). None of these Cases Involved prisoners

None of them would have fallen under the proviso in

secon 14, and none now fall within its Codification,

with exceptions, in 28 USC 42241 (ce). In each Case

there was a recognized basis for federal question juris

diction, and in each case non-prisoners had their

non-jail Custody contention considered and resolved

The habeas corpus question to be resolved, which

has nothing to do with the prisoner subsection, 2%

U.S.C. §2241c), or with any of the cases on which the

plurality opinions rely, is whether at common law habe-

aS Corpus Could be used to obtain Custody of children

, ’ es ,

from someone other than a jailkeeper* The answer is

6 Tt thus overruled the fx parte Dorr construcnon of the ba

beas Corpus statute Ser note ) supra

4 In kay Now, the Supreme Court instructed

Tt would appear thar the ¢ GNSUtunOn invites iat does nor

compel 4 ZENETOUS Construction of the power of the federal

COUNTS to dispense the Writ Conformably with common law

practice

s7Z 0S $9) 406, 7 1963, (oitation omitted

TER

clear. In Jones v. Cunningham, 371 U.S. 236 (1963), the

Court reviewed at length the situations in which habeas

corpus was resorted to in domestic custody situations.

For example, the King’s Bench as early as 1722 held

that habeas corpus was appropriate to question

whether a woman alleged to be the applicant’s wife

was being constrained by her guardians to stay

away from her husband against her will.* The test

used was simply whether she was “at her liberty to

go where she please[d].”° So also, habeas corpus

was used in 1763 to require the production in court

of an indentured 18-year-old girl who had been as-

signed by her master to another man “for bad pur-

poses.”© Although the report indicates no restraint

on the girl other than the covenants of the inden-

ture, the King’s Bench ordered that she “be dis-

charged from all restraint, and be at liberty to go

where she will.”’ And more than a century ago an

English court permitted a parent to use habeas cor-

pus to obtain his children from the other parent,

even though the children were “not under impris-

onment, restraint, or duress of any kind.”® These

examples show clearly that English courts have not

treated the Habeas Corpus Act of 1679, 31 Car. II,

c.2 — the forerunner of all habeas corpus acts — as

permitting relief only to those in jail or like physical

confinement.

4.Rex v. Clarkson, 1 Str. 444, 93 Eng. Rep. 625

(K.B. 1722).

5. Id., at 445, 93 Eng. Rep., at 625.

6. Rex v. Delaval, 3 Burr. 1434, 97 Eng. Rep.

913 (K.B. 1763).

7. Id., at 1437, 97 Eng. Rep., at 914.

8. Earl of Westmeath v. Countess of

Westmeath, as set out in a reporter’s footnote in

Lyons v. Blenkin, 1 Jac. 245, 264, 37 Eng. Rep.

842, 848 (Ch. 1821); accord Ex parte

M’Clellan, 1 Dowl. 81 (K.B. 1831).

77a

371 U.S. at 238-39. The pre 1789 cases to which the Su-

preme Court makes reference establish conclusively

that if child custody, other than custody in a state jail.

were an issue in a case within the subject matter of the

federal courts, habeas corpus would lie.” Nor is the rule

that habeas corpus is available in custody matters con-

fined to Great Britain, for as Jones v. Cunningham fur-

ther noted:

Again, in the state courts, as in England, habeas

corpus has been widely used by parents disputing

over which is the fit and proper person to have

custody of their child,'* one of which we had before

us only a few weeks ago. History, usage, and prece-

dent can leave no doubt that, besides physical

imprisonment, there are other restraints on a man’s

liberty, restraints not shared by the public gen-

erally, which have been thought sufficient in the

English-speaking world to support the issuance of

habeas corpus.

12. E.g., Boardman v. Boardman, 135 Conn.

124, 138, 62 A.2d 521, 528 (1948); Barlow v.

Barlow, 141 Ga. 535, 536-537, 81 S. E. 433.

434 (1914); In re Swall, 36 Nev. 171, 174. 134

P. 96, 97 (1913) (“the question of physical re-

straint need be given little or no consideration

where a lawful right is asserted to retain pos-

session of the child”). See also In re Hollopeter.

52 Wash. 41, 100 P. 159 (1909) (husband held

entitled to release of his wife from restraint by

5. It should also be noted that Sommersett’s Case. 20 How. St

Tr. 1, sub nom. Somerset v. Stewart, 98 Eng. Rep. 499 (1772). in

which Lord Mansfield held that slavery did not exist under the com

mon law of England. was a writ of habeas corpus. Certainly disputes

over the custody of servants did not fall within the proviso to section

14. and, were they to arise today, would not be governed by section

2241(c).

78 OQ

her parents); In re Chace, 26 R. I. 351, 358, 58

A. 978, 981 (1904) (wife held entitled to hus-

band’s society free of restraint by his guardian).

371 U.S. at 240 (footnote omitted). To the state habeas

corpus cases referred to by the Court in Jones v. Cun-

ningham can be added cases in the state courts in this

circuit. See, e.g., In re C.M.D., 256 A.2d 266 (Del. Super.

1969); S on behalf of L. v. H.M. and E.M., 111 N.J. Su-

per. 553, 270 A. 2d 48 (1970); Commonwealth ex rel.

Ebel v. King, 162 Pa. Sup

This text is long and has been trimmed here. Open the source document for the complete record.