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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1982
- **Citation:** 458 U.S. 502

## Text

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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 parent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2344%3A2. Public record. Not legal advice.