Respondents Brief — Lehman v. Lycoming County Children's Servs. Agency

Ulfice - Sinrer ° Court, US.

ELILE Dp

No. 80-2177 JAN 25 1982

ALEAAN D E ad tn STEVAS,

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

MARJORIE LEHMAN, on behalf of her children, WILLIAM

LEHMAN, MARK LEHMAN and FRANK LEHMAN,

Petitioners,

—Vi—

LYCOMING COUNTY CHILDREN’S SERVICES AGENCY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF FOR RESPONDENT

i]

CHARLES F. GREEVY, Ili

29 West Fourth Street

Williamsport, Pennsylvania 17701

(717) 326-6561

Attorney for Respondent

Lycoming County Children’s Services Agency

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........cceeeeeeeeeeeeeees iii

PRELIMINARY STATEMENT ............:.eeeeeeeeees 1

COUNTERSTATEMENT OF THE CASE .............-- 2

SUMMARY OF ARGUMENT ..........-..2eseeeeeeeees 8

ARGUMENT: 28 U.S.C. SECTION 2254

DOES NOT VEST FEDERAL

COURTS WITH JURIS-

DICTION TO ISSUE WRITS

OF HABEAS CORPUS IN

PARENTAL TERMINATION

MATTERS UNDER STATE

LAW LEADING TO ADOPTION

OF MINOR CHILDREN................ 10

A. INTRODUCTION .........:ceeeeeeeeeees 10

B. THERE IS NO HABEAS CORPUS

JURISDICTION COGNIZABLE

UNDER 28 U.S.C.

SECTION 2264 2. ccccccccscsccersesenes 13

1. Petitioner has no legal

standing to seek relief on

behalf of minor children

PUN : sh vaeiedccstoe00csacuuneneeens 14

2. Minor children are not

“in custody” in meaning

of 28 U.S.C. Section 2254 ......... 20

3. Federal habeas corpus

jurisdiction would

extend to intra-family

GI hc dutnnsvacvsncdeecnsteueas 26

ii

TABLE OF CONTENTS (CONT.)

4. Granting of federal habeas

corpus jurisdiction

interferes substantially

with legitimate state

interests, and the balance

ME io iacedecneeeerdesdancevne 34

iii

TABLE OF AUTHORITIES

CASES: PAGES:

Allen v. McCurry, 449 U.S. 90,

101 S.Ct.411 (1980) ..............05. 11,35,38,39

Alsager v. District Court of

Polk City, lowa, 406 F. Supp.

10 (S.D. lowa 1975) aff'd in

part, 545 F.2d 1137 (8th Cir. 1976) ............ 28

Anh v. Levi, 427 F. Supp. 1281,

8g 2 UR eta eee ren Mags ee aera tar ne rey ieee 11

Application of Reed, 447 F.2d 814

WE a xb nkvedacubeauesad eas sasanasans 22

Chastain v. Davis, No. 80-1888,

Petition for Cert. pending ..................0085 12

Commonwealth ex rel Grimes v.

Yack, 433 A.2d 1363,

PUDEN Sccivducbandebedhsexaws cue cedseen 43

Davis v. Page, 640 F.2d

599 (5th Cir., 1981) ............ 12,21,23,27,34,39,42

_ Ellerbe v. Hooks, 416 A.2d

512, 490 Pa. 363 (1980) ............ cece eee eee 31

Fair Assessment in Real Estate

Association, Inc. v. McNary,

No. 80-427, U.S. :

50 U.S.L.W. 4107 (1981) ..........ccccccccenes 40,41

Gilmore v. Utah, 429 U.S. 1012 (1976) ............... 15

iv

Grayned v. City of Rockford,

408 U.S. 104, 92 S.Ct. 2294, 33

Le CUTE sins baivcnewilesucdidernsawones 28

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

95 S.Ct. 1200, 43 L.Ed.2d (1975) ............ 36,40

In Adoption of R.I., 361

A.2d 294, 468 Pa. 287 (1976) ........... cece ee eee 30

In Re: B.E., 377 A.2d 153,

Bg er rrr er ere 33

In Re: Burrus, 136 U.S. 586,

bie 7.) iy sae 35

In Re: Cassen, 326 A.2d 377,

Me Pe UU ccasavacdesvanatteceusesavesss 30

In Re: D.L.R., 432 A.2d 196,

Pa. PEE vsavdvankevassvenascenuvaeean 30

In Re: Gault, 387 U.S. 1

RE Cerca sa vues tas Veen sd beke edn nceeenaaaeeues 15

In Re: Geiger, 331 A.2d 172,

PE ccc aus wcuwakuecddacectwess 29

In Re: Howard, 360 A.2d 184,

Oe en Gus ac cusevaavaceavenvunees 30

In Re: 1.R.A., 410 A.2d 755,

ee Pe NE i csv cncinnscavdaesveseeitsnceons 44

In Re: William L., 383 A.2d

1228, 477 Pa. 322, U.S. cert. 7,11,18,20,28

denied, 439 U.S. 880 (1978) ..... 29,30,39,44,45

Interest of LaRue, 366 A.2d

1271, 244 Pa. Super 218

COME Sicvacas Luvabaknunusddeces KdaUcnneauaecwenes 44

V

Joseph L. v. Officer Judicial

- Support, etc., 516 F. Supp.

IN iio ora cacta etene us caecuenuneawe saan 38

Juidice v. Vail, 430 U.S. 327,

97 S.Ct. 1211, 51 L.Ed.2d

ORR Sane aneetntrr 40

Lassiter v. Department of

Social Services, 452 U.S.

, 101 S.Ct. 2153, 68

L.6d.2d 640 (1061) ...cccccccccccccccccecs 12,13,19

Marjorie Lehman v. Lycoming

County Children’s Services,

Agency, No. 77-1704, 439

oS. i eases eeeussddacuestuades 7

Marjorie Lehman, on behalf of 2,13,14,16,17

her children, et al v. Lycoming 18,21,23,25,26

County Children’s Services 27,29 ,34,36,37

Agency, 648 F.2d 135 (3rd Cir. 1981) ........ 38,39,41

McCray Adoption Case, 331 A.2d 652,

Se Te, ae ME bg cy aan cenvececrccensinessoecs 31

Moore v. City of East Cleveland,

Ohio, 431 U.S. 494, 97 S.Ct.

1932, 52 L.Ed.2d S31 (1977) ....ccccccccccccess 17,18

Moore v. Sims, 442 U.S. 415, 99

S.Ct. 2371, 60 L.Ed.2d 994

DC Gk ac cudscicddenck cee senceouesecuuaneeaeurs 40

New Jersey Education Association

v. Burke, 579 F.2d 764, cert.

denied, 439 U.S. 894, 99 S.Ct. 252,

Se Ge Be CUED ce cc nccccccecuctcnccesese 37,38

vi

Smith v. Edminston, 431 F. Supp.

TONES sbicccavaccdsedsenkiacess 23

State v. Mills, 629 P.2d 861

RRR S A AR arpa Seen year mere Pemery gy oe 28

Stone v. Powell, 428 U.S. 465

RS rrr rT errr rrr rrr rer 11

Sylvander v. New England Home

for Little Wanderers, 584 12,21,23,27,33,

2 ba Sy rrr re 34,37,39,46

U.S. ex rel Cobell v. Cobell,

503 F.2d 790 (9th Cir. 1974) ...............05 22

Wisconsin Potowatomies v. Wilsey,

377 F. Supp. 1153 (M.D. Forida

EE daw hing habeanved <bNG6sbeedabieseeesseee 22

Wisconsin v. Yoder, 406 U.S. 205,

92 S.Ct. 1526, 32 L.Ed.2d 15

(1G72) 0 .cccsccccccccccccccccccccccccccccccceees 17

Young v. Minton, 344 F. Supp 423

Sy EY TENTED ba cnaasecsesscseesesnceuse 22

Younger v. Harris, 401 U.S. 37,

91 S.Ct. 746, 27 L.Ed.2d 669

CUE UP vcccccccecccccsescssccescccvccscceseses 40,41

vii

PAGES

STATUTES: FEDERAL

SD CA OND CTEED vvcvsccuvecovsscoccece 36

Sr Mes ME TEEPUE -pcc0-5icccccncdébéuenassunears 11

Bee Ses CNN IED Necttcavdedcinsscctececeay 9,11

Ee Cae END TOD vccccccccconccccosccses 35,37

STATUTES: STATE

Pennsylvania Adoption Act of 1970

i. 5 < 4 erry 2,19,28,30

SU NUE ine decGnenbuwssubescuesessats 32

Pennsylvania Adoption Act of 1980

Se Es uti ceannudesasieeeenvacess 19

EE co cccaccucckesuansevasncenenne 19

23 Pa. C.S.A. 2512 “Source and Comment” .... 33

Se , SIG itn bindcben caves wen sexse< 32

Gs Ee PEE 535 kncuesnegnbeetcesaeees 25

Pennsylvania Juvenile Act of 1972

De ee eka ki ksantcaccesacenbreceeces 29

ee I MINS nnn cdesscovecesbiccnseanecces 29

OTHER AUTHORITIES:

Besharov, Douglas J. “Terminating

Parental Rights: The Indigent

Parent’s Right to Counsel after

Lassiter v. North Carolina”,

15 Family L.Q. 205 (Fall, 1981) ................ 23

Note: “Federal Habeas Corpus and Child

Custody Cases”, 67 Virginia Law

Review 1419 (September 1981) ................ 41

NO. 80-2177

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MARJORIE LEHMAN, on behalf of her

children, WILLIAM LEHMAN, MARK

LEHMAN and FRANK LEHMAN,

Petitioners,

Vv.

LYCOMING COUNTY CHILDREN’S

SERVICES AGENCY,

Respondent.

BRIEF FOR RESPONDENT

Respondent, Lycoming County Children’s Services

Agency, respectfully prays that this Court affirm that

there is no jurisdiction under the federal habeas corpus

statute in parental right termination matters under state

law.

a

The Third Circuit Court of Appeals, sitting en banc, on

March 31, 1981, affirmed the Order of the United States

District Court of the Middle District of Pennsylvania,

entered on September 4, 1979, dismissing the Petition

for Writ of Habeas Corpus. The text of the Third Circuit

Court of Appeals decision is set forth at 648 F.2d 135,

and in Petitioners’ Appendix, Pages 1a to 90a. The text

of the Middle District of Pennsylvania is contained in

Petitioners’ Appendix, Pages 135a to 149a.

COUNTERSTATEMENT OF THE CASE

On June 3, 1976, the Lycoming County Orphans’

Court entered an Order involuntarily terminating Mar-

jorie Lehman’s parental rights to her three sons, pur-

suant to the Pennsylvania Adoption Act of 1970, 1 Pa.

Statute Section 311 (2) (Lehman Brief, page 5). Petition-

er had placed her three sons in the care and custody of

the Respondent in June, 1971, when the boys were

respectively one, five, and seven years of age, and they

have not resided with her since that time.

Petitioner's oldest child, Carol born 9/30/60 has re-

sided with the Petitioner's parents for many years and

there is no plan for her ever to return to Marjorie

Lehman’s home.

After the birth of the Petitioner's youngest child,

Tracie, in September, 1971, Marjorie Lehman, by her

own decision, chose an apartment in which she still

resides, which she acknowledges is not adequate for

the return of the three boys. Several Lycoming County

social service agencies worked with Marjorie Lehman

from January, 1971 to the time of the Orphans’ Court

hearing in the Spring of 1976, in an effort to reunite the

family. These agencies included Nutrition Aides who

were in her home at least monthly for a five-year period,

stressing and educating her in regards to proper food

menus, nutritiors guidelines, budgeting and every day

problems and concerns (Orphans’ Court Transcript,

hereinafter O.C.T., pages 55-59). Nutrition Aides and

Supervisors stated from their observation that Marjorie

Lehman would not be able to physically or emotionally

take care of all of the children (O.C.T., page 58).

There was extensive testimony at the Orphans’ Court

hearing by Dr. Jacqueline B. Sallada, a court-requested

psychologist, concerning evaluations which she had

done with Marjorie Lehman in January, 1976. Dr. Sal-

lada found that Marjorie Lehman had a ratio IQ of forty-

three (O.C.T., pages 34-35), and she “was socially

oe

functioning in the terms of self-help skill and independent

skills at about the 12-year level, and that intellectually...

at the level of a six-year old child.” (O.C.T., page 31)

Observation of Marjorie Lehman during times of visita-

tion with her boys, showed that it was general havoc or

“free for all”, and even the older boy, Frank, acknowl-

edged that his mother could not and would not be able

to control the boys’ actions. (O.C.T., page 117)

Dr. Sallada, in interpreting the results of the various

tests that she gave to the natural mother, questioned

her adequacy in basic housekeeping tasks, such as

cooking and cleaning, and of her discipline methods.

(O.C.T., pages 33,34,46) The mother’s functioning level

of twelve years, six months, mental age of six years, and

ratio 1Q of forty-three raised serious questions of her

maturity to handle a household and family of more than

one small child. The Nutrition Aides expressed serious

reservations of her ability to handle money (O.C.T.,

pages 58,62,68,73), to provide proper health care, as

seen by the lice incident (O.C.T., pages 57,61 ,68), and

to take care of all of the children (O.C.T., pages 58,70,7 1).

When discussing the boys, the mother exhibited a lack

of knowledge or concern in their present school status

and hobbies (O.C.T. at page 106), and of their re-

° 6-

spective ages and emotional development (O.C.T. at

page 107.)

The testimony and record in this particular matter

reveals that the natural mother, Marjorie Lehman, vol-

untarily placed the three (3) boys in the custody of the

Children’s Service Agency approximately five (5) years

before the termination hearings were held in May,

1976; that since the placement, all of the children have

remained in foster homes; that at the time of the place-

ment of the three (3) boys, the mother was unable to pro-

vide essential parental care and subsistence nece-

ssary for their physical and mental well-being; that she

had known that better housing and necessity of proper

care and control of the boys was essential for their

return; that she had been unable to or failed to make

progress towards doing so; that the causes of her in-

ability or failure to achieve these goals and standards

are primarily her limited intellectual capabilities, her

lack of skills essential to the rearing of the children, as

well as a lack of initiative or ability to progress in pro-

grams or opportunities which provide such skills; and

that she lacked the capacity to even recognize the need

of emotional and intellectual stimulation for the boys.

Surely, emotional and mental deprivation and injury

-6-

may be as crippling to a young child in his formative and

teenage years as physical abuse and neglect, if not

more devastating. Herein, lies the crux of the evidence

in the Lehman terminations.

The three boys were interviewed by the lower court

on the record in May, 1976, and in the presence of the

attorney for each party. William, age 10, and Frank, age

12, expressed love for their natural mother, but minimal

concern that there would be no further visitation if the

termination were granted; the youngest, Mark, age 6,

appears to have little or no emotional attachment to his

mother. It is difficult to determine whether the ex-

pression of the two older boys represent a real desire on

their part to maintain a relationship with their natural

mother, pointing towards an eventual return; or whether,

on the other hand, these expressions represent a grasp-

ing on the part of the children to maintain a permanent

seat in their family status, a need and desire that could

be satisfied by the eventuality of adoption for all of these

boys. Frank and William, in January, 1977, expressed

no interest in seeing their mother, and Mark was non-

committal (see, Respondent's Exhibit “A”, attached to

this Brief).

The Lycoming County Orphans’ Court terminated

-7-

the parental rights of the natural mother to the three

boys. This decision was affirmed by the Pennsylvania

Supreme Court in a wide-ranging review and decision

based upon the natural mother’s repeated and con-

tinued incapacity which could not be remedied, that

caused the boys to be without essential parental care or

control necessary for their physical and mental well-

being. The Pennsylvania Supreme Court directly and

firmly upheld the constitutionality of the Pennsylvania

Adoption Act and recognized the state’s constitutional

interest in the welfare of the children and rejected

Petitioners argument that the Pennsylvania statute re-

quired a showing of a substantial degree of misconduct.

(In Re: William L., 383 A.2d 1228, 477 Pa. 322 (1978) ).

A Petition for Writ of Certiorari rather than a Direct

Appeal on the constitutional issues, was then filed with

the U.S. Supreme Court by Marjorie Lehman (and by a

Gladys Beatty, a companion case to the Pennsylvania

and U.S. Supreme Court), and the Petition was denied

on October 2, 1978. (Marjorie Lehman v. Lycoming

County Children’s Services, et al, No. 77-1704, 439 U.S.

880 (1978) ). This present proceeding for a Writ of

Habeas Corpus was filed on January 16, 1979, and was

dismissed in Judge Malcolm Muir's Opinion dated Sep-

eg

tember 4, 1979 (Petitioner's Appendix, Pages 135a to

149a). Thereafter, an appeal was lodged, briefs filed,

and argument made to the Third Circuit Court of Ap-

peals. On July 13, 1980, a three judge panel of the Third

Circuit Court reversed the District Court. Thereafter, the

judgment was vacated and rebe ring en banc granted

on August 15, 1980. After reargument on November 17,

1980, the Third Circuit Court, sitting en banc, affirmed

the Order of Dismissal of the Writ of Habeas Corpus by

the District Court by their Opinion of March 31, 1981.

Petitioner's Petition for Writ of Certiorari to this Court

was filed on June 24, 1981, and granted October 5, 1981.

As of January 1982, the boys, Frank, William and

Mark, are aged respectively 18, 16, and 12. None of the

three boys has been adopted because of these ongoing

legal procedures since May, 1976.

SUMMARY OF ARGUMENT

There is no statutory, common law or clear de-

cisional holding that renders jurisdiction appropriate

and justifiable in a parental rights termination matter

under state law leading to an adoption of minor children.

The lower federal courts, after thorough and analytical

-9-

review of this Pennsy!vania parental rights termination

case firmly set forth that no jurisdiction exists in this

type of matter. |

Initially, Petitioner Marjorie Lehman possesses no

legal standing to seek habeas corpus relief on behalf of

the minor children. The children’s interests are separate

and apart from hers and they have the right to maintain

their stabilized relationships nurtured over a period of

years. Indeed, the minor children are not “in custody”

within the meaning of 28 U.S.C. Section 2254, as

historically created by Congress and presently inter-

preted by this Court, as the boys’ liberty has not been

hampered and there is a total lack of state restraint

exercised upon them.

To extend habeas corpus jurisdiction within this new

area of state-regulated adoption matters would require

that federal courts also grant jurisdiction in private child

custody disputes. The alleged unconstitutionality of the

Pennsylvania statute herein, as well as similarly en-

acted state laws, can be more efficiently reviewed and

determined by existing federal court jurisdiction, then

through application of the federai habeas corpus statute.

Fundamentally, the granting of federal habeas cor-

pus jurisdiction in a parental rights termination matter

- 10 -

will substantially interfere with legitimate state interests

as well as the proper balance between federal and state

courts. Society and a child’s interest in finality of liti-

gation will best be served by the rejection of jurisdiction

under the habeas corpus statute, and lead to surer

stability of family relationships and protection of es-

sential and basic rights of freedom and liberty.

ARGUMENT

28 U.S.C. SECTION 2254 DOES NOT

VEST FEDERAL COURTS WITH JURIS-

DICTION TO ISSUE WRITS OF HABEAS

CORPUS IN PARENTAL TERMINATION

MATTERS UNDER STATE LAW LEADING

TO ADOPTION OF MINOR CHILDREN.

A. Introduction

There is no statute which has been passed by the

United States Congress, no decision of this Court, no

common law right, and no clear enunciation by the

Federal Courts that would render jurisdiction appro-

priate and justifiable in a case such as this one. Indeed,

issues involved in parental termination matters lead-

ing to an adoption of minor children under state law are

such that state courts are inherently equipped and best

-11-

suited to deal with, and ones which federal courts

should not.

A Federal Court must look to the provisions under 28

U.S.C. Section 2241 and Section 2254, for Habeas cor-

pus jurisdiction. Indeed, “(f)ederal courts do not have

jurisdiction to make a custody determination every time

it is asserted that a person’s custody is wrongful.” Anhv.

Levi, 427 F. Supp. 1281, 1286 (1977). Additionally, not

every Federa! claim can be raised again nor should

every litigant have a federal forum in which to appeal.

(See Stone v. Powell, 428 U.S. 465 (1976); Allen v.

McCurry, 449 U.S. 90 (1980) ) Most directly, Petitioner

Marjorie Lehman seeks Federal revie w of an Orphans’

Court proceeding and subsequent Pennsylvania Ap-

pellate proceedings, including denial of a Writ of Certiorari

to the United States Supreme Court. (See In Re: William

L., et al, 383 A.2d 1228, 477 Pa. 322, U.S. Cert denied

439 U.S.880 (1978) ). The Anh v. Levi, decision sets

forth several bases upon which state procedures and re-

medies are more effective than Federal review in deal-

ing with this prelude to adoption proceedings. Id. 427 F.

Supp. at 1288-89.

Briefly and succinctly stated, the issues and position

of Marjorie Lehman have been well and thoroughly

-12-

argued from the Orphans’ Court of Lycoming County,

Pennsylvania during the summer of 1976, through and

including the very thorough and well presented brief of

the Petitioners herein, in December, 1981. The closest

analogous case to this Lehman matter is the First

Circuit decision in Sylvander v. New England Home for

Little Wanderers, 584 F.2d 1103, (1978), which was

thoroughly argued, discussed, and formed a firm founda-

tion for both District Judge Malcolm Muir's initial denial

of the Petition, and ultimately the holding of the Third

Circuit Court, sitting en banc, which is the subject of this

matter. The only District Court to hold (by a13to 11 vote

decision) that habeas corpus jurisdiction does lie is the

United States Court of Appeals for the Fifth Circuit, and

which is pending decision on a submitted Writ of Certiorari

(See Davis v. Page, 640 F.2d 599, (5th Circuit, 1981);

Petition for Cert. pending, Chastain v. Davis, No. 80-

1888). However, both the majority decision in Davis and

the vigorous dissent, refer to the original panel decision

in this Lehman matter dated July 13, 1980 (See Davis,

640 F.2d at 602 and 606). The Davis case raises both

the habeas corpus jurisdiction issue and the question of

whether counsel for parents in neglect proceedings is

constitutionally mandated. (See Lassiter v. Department

°13-

of Social Services, 452 U.S ,101 S.Ct. 2153, 68

L.Ed.2d 640(1981) ). At this time, their Petition for

Certiorari is still pending before this Court.

Therefore, the First and Third Circuits squarely have

ruled that no habeas corpus jurisdiction lies in parental

termination cases, and the Fifth Circuit's decision was

based upon a vacated judgment and opinion overruled,

en banc. This Court should decisively, and within the

confines of the present federal law, statutes, and de-

cisions affirm the determination of the Third Circuit

Court that “custody disputes of the nature addressed

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 suf-

ficiently to warrant the extension of federal habeas

corpus.” Lehman, 648 F.2d at 136. A full and thoughtful

reading of the thorough Third Circuit decision herein,

contains the firmest foundation upon which this Pe-

tition should be rejected by this Court.

B. THERE IS NO HABEAS CORPUS JURIS-

DICTION FOR STATE-COURT PARENTAL

RIGHTS TERMINATION MATTERS COGNI-

ZABLE UNDER 28 U.S.C. SECTION 2254,

WHEN BROUGHT BY A NATURAL PARENT

ON BEHALF OF MINOR CHILDREN.

-14-

1. Petitioner Marjorie Lehman has no legal

standing to seek habeas corpus relief on be-

half of the minor children involved herein.

The crux of the state court proceedings was a judicial

determination that the natural mother could not and

should not regain custody of her three minor sons, and

thereby ended any legally enforceable relationship that

she would have with the boys. This issue of standing

was raised by this Respondent in its “Response” filed to

the initial Petition for Habeas Corpus filed by Marjorie

Lehman in the Middle District Court of Pennsylvania, as

follows:

“10. Petitioner herein, Marjorie Lehman, has

no standing to bring this Petition for Habeas

Corpus on behalf of the minor children here-

in, as there is no legal relationship existing

between she and the minor children.”

This standing issue was not certified by this Court in

its grant of certiorari in October, 1981. However, it is

closely related to the determination of the basic issue

and was dealt with at length in the Third Circuit, con-

curring opinion of Judge Adams which was joined in by

three of the judges (See Lehman, 648 F.2d at 146), and

-15-

argued by the Petitioner Marjorie Lehman.

Petitioner Marjorie Lehman in the brief filed on her

behalf cites two leading criminal matters, Gilmore v. Utah,

429 U.S. 1012 (1976), and In Re: Gault, 387 U.S. 1

(1967), in support for her Petition filed herein, on behalf

of the minor boys. Those cases are clearly criminal in

nature, and distinguishable in legal effect. Herein, fed-

eral courts are being urged to approve a long floodgate

of cases which the habeas corpus statute was not

designed to oversee. Petitioner has urged these cases

on the lower federal courts since January, 1979, and

these criminal or quasi-criminal cases do not provide

the firm foundation upon which habeas jurisdiction can

be placed. (See slip Opinion by Malcolm Muir, Middle

District Judge, under Civil No. 79-65; Petitioner's Ap-

pendix, pages 135a to 149a.)

Petitioner's citations of “third-Party standing” cases

(Petitioners Brief, pages 42-43) do not support his

argument that “natural parents are routinely recognized

as appropriate habeas corpus petitioners” dealing with

children’s liberty interest. All of the cited cases are

clearly distinguishable from the basic jurisdiction issue

herein, in that they do not deal with the parent-child

relationships nor with litigation in which legal rights

-16-

have been judicially terminated as in this Lehman

matter.

As Judge Adams of the Third Circuit Court expressed:

‘..(I)t is important to recognize that parents

and children do not have identical interests...

(T)hhe children have independent, private inter-

ests not necessarily shared by the parents,

just as the parents have interests in the

children that are not reflected by the children

themselves.” (Lehman 648 F.2d at 152.)

Judge Adams further focuses on the prayer of the

habeas corpus petition filed by Marjorie Lehman, and

directly notes that:

“(S)he is not, in this proceeding, attempting

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 “incapaci-

tated”...In contesting the state statute which

already embodies a balance between the

needs of the parent and the child, Mrs. Leh-

man is potentially undercutting the child’s

right and interest in a minimum parent-child

relationship.” (Lehman, 648 F.2d at 154.)

Initially, Judge Adams holds that “it would appear to

be both unwise and impolitic for the federal courts to

17>

uncover a whole new font of jurisdiction at this time,” by

entering the realm of state controlled adoption matters.

(Lehman, 648 F.2d at 151) He further writes that even if

the federal court had jurisdiction in this case, it remains

undisputed that children have interests separate and

apart from their parents and the state itself has an

interest in a child’s welfare. Particularly herein, where

the children have expressed a desire not to live with

their mother and have stabilized relationships with

foster families their interest and that of the main Pe-

titioner, natural mother, are in conflict.

Indeed, the Petitioner - mother’s argument can be

seen as an attempt to continue an ill-advised pre-

sumption that children are the property of their parents.

Justice Roberts, speaking for the majority in the Penn-

sylvania Supreme Court decision, quoted with favor

Chief Justice Burger's statement in Wisconsin v. Yoder,

406 U.S. 205, 92 S. Ct. 1526, 32 L.Ed.2d 15 (1972):

“To be sure, the power of the parent even

when linked to a free exercise claim, may be

subject to limitation....if it appears that par-

ental decisions will jeopardize the health or

safety of the child, or have a potential for

significant social burden.” Id. 406 U.S. at

233-34, 92 S.Ct. at 1542. (See also, Moore v.

°46-

City of East Cleveland, Ohio, 431 U.S. 494,

499, 97 S.Ct. 1932, 1936, 52 L.Ed. 2d 531

(1977); Lehman, 648 F.2d at 152; In Re:

William L., 383 A.2d at 1234.)

The Pennsylvania Supreme Court while acknowledg-

ing that parental rights must be accorded significant

protection, particularly as interpretated by this Court,

also reiterated that these parental rights must yield toa

child’s essential health and safety needs, and the state

may intervene to protect its weaker members, such as

infants. (In Re: William L., 383 A.2d at 1236.)

Judge Adams raises an additional and very crucial

aspect: that is the “interest in finality.” Petitioners

attorney in his Brief to this Court notes that Judge Garth

and Judge Adams “overlook the fact that the children

did desire a continuation of the family relationship....

(and were) unaware of the boys’ desire to visit with their

mother.” (Petitioner's Brief, page 21 and 22, fns. 5 and

6) Petitioners attorney then saw fit to file a certified

copy of the Orphans’ Court hearing transcript, and cite

portions thereof, dealing with the issue of visitation.

Respondent refers this Court to Exhibit “A”, attached to

this Brief, which directly responded to Petitioner-mother’s

effort for continuing visitation prior to review by the

-19-

Pennsylvania Supreme Court in 1977. This particular

aspect of continuing visitation, helps to crystalize in this

Lehman matter—and more broadly in all termination

matters— that the children’s interest in finality of litiga-

tion or the opportunity to be accepted into a stable

and loving family focuses the vast difference in re-

spective interests between a Petitioner-mother and

purported “Petitioners — children.”

The 1970 Pennsylvania Adoption Act under which

this matter evolved was revoked, and is now codified in

the Pennsylvania Adoption Act of 1980, October 15,

P.L. 934, No. 163, effective January 1, 1981 (23 Pa.

C.S.A. §2101, et seq.). The present Pennsylvania law

continues the right to appointed counsel for a natural

parent who cannot afford to retain one, and now re-

quires the appointment of an attorney for a child in

involuntary termination matters (23 Pa. C.S.A. §2313).

(See also Lassiter, 101 S. Ct. 2153, 2162, fn. 7 and text.)

On this very significant issue of legal standing, Pennsyl-

vania has the statutory provision and judicial mech-

anism to protect the interests of the minor children.

There is no need for federal courts to oversee state

termination matters on behalf of minor children, as the

state courts must be satisfied that the minor's rights are

-20-

not being disregarded (In Re: William L., 383 A.2d at

1235, 1236). A review of the Pennsylvania Supreme

Court decision, written by Justice Roberts will also

verify that the mother’s interest and the children’s

interest were vastly different, and that the seeking for

finality of decision was carefully weighed using a proper

constitutional gridwork. Initially, this fundamental basis

of Marjorie Lehman's standing to bring a suit on behalf

of the children must be resolved in favor of the children,

and the decision of the Third Circuit Court upheld on this

basis alone.

2. The minor children are not “in custody”

within the basic and clear meaning of 28

U.S.C. Section 2254.

Fundamentally, this habeas corpus petition must fail

because the custody requirement is not met and cannot

be met in a case such as this. The Federal habeas

corpus Statute, as presently interpretate¢, provides an

opportunity to test the restraint of liberty of an individual,

and the right to be free, specifically through any un-

constitutional practices. A major aspect and question

arises as to whether any person is in “custody” herein;

the three Lehman boys were voluntarily placed with the

o91-

County Agency, and have resided in foster homes within

the community since June, 1971. We are dealing witha

county agency that works directly with parents and

children, in a more direct sense, serving families than

even private organizations as were examined in the

Sylvander case.

This Court is urged to affirm the very careful evai-

uation and analysis of this crucial aspect of “custody”

which has been enunciated by all of the lower feceral

courts. Judge Garth concludes “that custody disputes

of the nature addressed here and which essentially in-

volve no more than the question of who shall raise a

child to maturity, do not implicate the federal habeas

corpus.” (Lehman, 648 F.2d at 146.) Further, “(t)he

“custody” of a foster or adoptive parent over a child is

simply not the type of custody that may be challenged

through federal habeas.” (Id, 648 F.2d at 142; see also

Davis v. Page, 640 F.2d at 605,607, dissenting Opinion.)

Again, Petitioner's attorney attempts through the

citing of criminal or quasi-criminal matters to justify this

significant aspect of custody under the habeas corpus

statute. (Petitioner's Brief, pages 50-51) Initially, Pe-

titioner-mother sets forth a number of cases which

clearly and through examination involve adjudication

-22-

and disposition of delinquent children in Juvenile Court

hearings which by statute and case law are quasi-

criminal proceedings with all requirements of due pro-

cess guaranteed. Historically, statutorily and by de-

cisional law, Federal habeas corpus has laid in criminal

settings. Secondly, Petitioner purportedly sets forth

several other cases in which habeas corpus has been

the “vehicle to free individuals” in the child custody

context. In examination of several of these cases -

Young v. Minton, 344 F. Supp. 423 (W.D. Kentucky

1972); U.S. ex rel Cobell v. Cobell, 503 F.2d 790 (9th Cir.

1974); Application of Reed, 447 F.2d 814 (3rd Cir.

1971), it is recognized that all deal with father-mother

child custody matters wherein a non-custodial parent

violated a valid Court Order and removed children;

Court proceedings were in the nature of contempt in-

quiries, and jurisdiction was based thereupon. Wisconsin

Potowatomies v. Wilsey, 377 F. Supp. 1153 (M.D. Florida,

1974), is an adoption case involving Indian children re-

moved from parents in Michigan, and placed for adoption

in Florida; the case rested upon requiring exhaustion of

state remedies, and did not reach the jurisdiction issue.

Indeed, all but the Application of Reed case cited by

Petitioner at this point, involved Indian tribal matters,

-23-

and specifically focused upon the special body of law

and Court procedures dealing with this segment of

American history and society. In our view, these cases

are clearly distinguishable, and provide no support for

Petitioner's urging that this Court assume jurisdiction in

this Lehman habeas corpus matter. (Syivander, 582

F.2d at 1116)

The specific issue addressed in both the Davis v.

Page, Supra, and Smith v. Edmiston, 431 F. Supp. 941

(W.D. Tenn. 1977) cases is the failure in the lower state

courts to appoint attorneys for the indigent parents

involved therein. This Court spoke to that issue in its

Lassiter decision last term. (See also, Besharov, Douglas

J., “Terminating Parental Rights: The Indigent Parent's

Right to Counsel after Lassiter v. North Carolina”, 15

Family Law Quarterly 205 (Fall, 1981). Many of these

cases were cited before Judge Muir in the Federal

District Court, and again argued before the Third Circuit

Court, prior to both of these courts rejecting the Petition

under the habeas corpus statute. As pointed out by

Judges Garth and Adams, these cases are of little per-

suasive value. (Lehman, 648 F.2d at 141, 150, 152).

Petitioners attorney next asserts that through ter-

mination of parental rights the boys are directly subject

-24-

to restraints on their physical freedom which would but-

tress a need for habeas corpus jurisdiction. This is

simply not the case. The boys’ liberty has not been im-

paired, and indeed they have grown into active, healthy

and intelligent young men having the freedom to come

and go as they choose in stable and normal family set-

tings. The two youngest boys have been in the same

foster homes for over ten years, which will probably be

the adoptive homes, and in no sense and no aspect are

they in state institutions or under restraint.

The absence of physical restraints and the boys’

emotional stability were substantially increased through

the termination of parental rights in 1976, in that they

were freed from further concern that they would be

placed back into or even visiting their mother’s home,

and that they could justifiably be anticipating adoption

in the near future. Indeed, their physical well-being and

mental states have been hampered by the ongoing liti-

gation herein. This can be most clearly identified through

the reality that the oldest boy, Frank, in 1976 was ex-

hibiting behavioral problems in the foster homes and

school up to the 1976 hearing. Additionally, after having

been in foster care for a period in excess of 10 years

Frank has now reached his majority (on December 22,

-25-

1981) and can make his own decision whether he can

be adopted, without necessity of consent by a parent.

(Pennsylvania Adoption Act of 1980, Section 2713 (1)).

The total reality of this particular phase of this case

through consideration of the federal habeas corpus

statute can be seen for the youngest boy, Mark, now

age 12; he has been in a foster home since age 1. (See

Lehman, 648 F.2d at 154, fn. 48) The Petition for

habeas corpus itself in 1979, recognized that physical

custody of the boys would probably not be returned to

Marjorie Lehman. This aspect of their custody being in

limbo, is a far greater restraint on their future well being

than any purported dominion exercised by a state or

county agency. Unlike prisoners in state or federal jails,

or even juveniles in a state home or under necessary

probation officers, minor children awaiting adoption

have no restraint on their liberty but simply the security

of loving and stable parental guidance, control, sub-

sistence, and discipline necessary for their physical,

mental and emotional well-being. Totally unlike Gary

Gilmore, the boys could not even reject the application

on “their behalf’, other than awaiting final decision by

the courts.

Presumably, federal habeas corpus would operate to

-26-

release and to test confinement, and in this setting, to

directly benefit the children. Here there can be no al-

legation of benefits to the boys, or that their rights,

liberties or opportunities are being considered or handled.

(Lehman, 648 F.2d at 142, 144) Indeed the direct con-

versation with the boys and the state trial court over 5

years ago showed no semblance of stress or emotional

trauma to the boys. In fact, the boys’ interest would be

better served through a stable and legally recognized

home and family, by ending this proceeding at this point.

Again, habeas corpus jurisdiction must fail because of

the absence of the required “custody” necessary for

federal courts to intervene on this very sound and

thorough state court decision.

3. Petitioners cause of action would extend

federal habeas corpus relief to intrafamily

disputes.

The effort by the Petitioner's attorney to differentiate

between state initiated and private custody matters is

precarious and ill-conducted. Certainly, the rights of

private litigating individuals should not be subrogated

and diminished because there is allegedly no state or

governmental party involved. As argued both in the

-27-

Lehman decision involved herein, and the Sylvander

case, by paving the way for federal habeas corpus juris-

diction in this type of matter, private combating parents

in child custody matters could quickly enter into the

federal court arena also. (Sylvander, 584 F.2d at 1112;

see also Davis v. Page, 640 F.2d at 607.) Petitioner's

allegations of unconstitutionality of the Pennsylvania

statute in order to justify restricted jurisdiction, have

been raised before. All of these constitutional issues,

without exception, have been thoroughly urged, argued,

briefed, discussed, and expressly rejected in the five-

year history of this same proceeding. Indeed, Petitioner's

arguments on these issues prior to the foundation of the

Federal Court's jurisdiction to even entertain the hear-

ing on habeas corpus, appears premature. Upon the

very thorough and well documented opinions in all the

previous courts, from the Lycoming County Orphans’

Court through the Third Circuit Court of Appeals, lies the

foundation upon which this case must finally rest, and

the welfare of the three (3) minor boys be finally rec-

ognized and their future stability emphasized.

The Pennsylvania Supreme Court speaking through

Justice Samuel J. Roberts, writing for the majority, dealt

directly with the arguments advanced by Petitioner in

-28-

the state courts of Pennsylvania, and now the lower

Federal courts, as well as in her present application to

this Court. A reading of the Pennsylvania Supreme

Court’s decision contains the strongest arguments for

denial of the relief prayed for in Marjorie Lehman’s

Petition, as recognized by the Third Circuit opinion

herein.

Section 31 1(2) of the Pennsylvania Adoption statute

allows termination of parental rights for children whose

essential needs have not been met, based upon facts as

presented showing that the needs cannot or will not be

met by a parent. The Pennsylvania Supreme Court deals

at length with the manner in which a vague statute may

offend the Constitution, as enunciated in the cases of

Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct.

2294, 33 L.Ed.2d 222 (1972), and Alsager v. District Court

of Polk City, iowa, 406 F. Supp. 10(S.D. lowa 1975), aff'd

in part, 545 F.2d 1137 (8th Cir. 1976). (In Re: William L.,

383 A.2d at 1232) The Pennsylvania statute withstands

this vagueness attack. (See also, State v. Mills, 629 P.2d

861, 865, fn. 6 (1981) ).

Justice Roberts specifically excludes the possibility

that insufficient notice is present since the parent’s

inability or unwillingness must be affirmatively demon-

- 29-

strated and the causes be irremediable. (in Re: William

L., 383 A.2d at 1232-33) Secondly, the concern for arbi-

trary and discriminatory enforcement is negated by a

State’s right and duty to protect its weaker members,

such as infants, and the legislature’s policy protecting

the family as reflected in the Pennsylvania Juvenile Act

as well as the Adoption Act. (Pa. Juvenile Act of 1972, 11

P.S. §50-101, now codified at 42 Pa. C.S.A. 6301, et

seq.; In Re: William L., 383 A.2d at 1241). The Pennsyl-

vania Court emphasized landmark and recent Supreme

Court decisions that a child living in his own home will

not be removed, as long as his essential needs are

being met, (In Re: William L., 383 A.2d at 1234-35), as

did the Third Circuit (Lehman, 648 F.2d at 152). Thirdly,

the Pennsylvania court rejected the argument that First

Amendment values were violated by the statute, in that

the Court is speaking to “essential” and “necessary”

needs of the child which are not being met. (In Re:

William L., 383 A.2d at 1234; see also, In Re: Geiger,

331 A.2d 172, 459 Pa. 636 (1975) ).

Petitioner would require that a state show that serious

harm through a “high and substantial degree of mis-

conduct” by a parent would be necessary prior to the

Court ordering termination of parental rights. This ar-

-30-

gument was specifically submitted and argued before

the Pennsylvania Supreme Court. The Court rejected

this argument, with due regard to firm Supreme Court

decisions, and its own determination. (See In Re: William L.,

383 A.2d at 1236-37) As Justice Roberts points out,

“this contention was expressly rejected in In Adoption

of R.I.,361 A.2d 294, 468 Pa. 287 (1976)” (In Re: William

L., 383 A.2d at 1237).

The section of the Pennsylvania statute attacked

herein, P.S. §311 (2), as interpreted by the Penn-

sylvania Courts allows parental rights to be terminated

entirely without regard to usual concepts of willfullness

or fault on the part of the parent, and deals with those

who cannot care for achild, as well as those whowill not.

(See also, In Re: D.L.R., 432 A.2d 196, Pa.

(1981) ). It is well recognized that the responsibility of

performing parental duties can be met when reasonable

arrangements are made for the temporary care of a

child; however, the true test and inquiry of a Court is

whether a parent has utilized those resources at her

command in overcoming obstacles which temporarily

preciude personal supervision of the child’s welfare.

(For example, In Re: Howard, 360 A.2d 184, 468 Pa. 71

(1976); In Re: Cassen, 326 A.2d 377, 457 Pa. 525

-31-

(1974); McCray Adoption Case, 331 A.2d 652, 460 Pa.

210 (1975); Ellerbe v. Hooks, 416 A.2d 512, 514, 490

Pa. 363 (1980) ).

Petitioner in this phase of her argument cites the

possibility that an adoption would short-circuit and end

any right to review under the federal habeas corpus

statute. Indeed, this is a recognition by Marjorie Leh-

man through her attorneys that finality in the decision

concerning her former sons, and through them all other

minor children similarly situated, can best be served by

adoption. However, while the prospect of further or-

dained court appeals are available, an agency or a

private individual could not freely and in good con-

science, and under proper sequence of law go forward

with such adoption proceedings.

This shallow reasoning of the Petitioner is further

hampered by the reality that an agency is only one of

several parties who may initiate involuntary termination

proceedings in state courts of Pennsylvania and other

states. The Pennsylvania Adoption Law states, as fol-

lows:

“A petition to terminate parental rights

with respect to a child under the age of 18

years may be filed by (i) either parent when

-32-

termination is sought with respect to the

other parent, (ii) an agency, or (iii) the in-

dividual having custody or standing in loco

parentis to the child and who has filed a

report of intention to adopt required by

Section 331.” (1 P.S. Section 312; now, 23

Pa. C.S.A. Section 2512 (a) ).

The acknowledgment made that an adoption under

state law could make a Petition filed under the federal

habeas corpus statute moot, (Petitioner's Brief, Page

67) is the first time that this suggestion has been raised

in the long judicial history of this case. In a large sense,

Petitioners counsel is urging a type of disrespect for

American law and practice, and even undercutting a

litigant’s right of appeal prior to final action by the

courts.

In fact, it is the Respondent’s respect for the rule of

law and Marjorie Lehman’s right of appeal that no

adoption has taken place. Prior to the expiration of any

appeal deadlines and procedures, it was deemed in-

appropriate for adoptions to be pursued for these three

Lehman boys. This Court should not penalize these

boys because of the Agency’s respect for the natural

mother’s attorneys’ right to carry on this appeal. The

proper course is the rejection of federal habeas corpus

-33-

jurisdiction, which in itself would lead to earlier adoption

procedures being appropriate in similar cases to this

one.

The Pennsylvania legislative comments to the 1980

Act confirm that “an agency-petitioner is not required to

plead and prove that an adoption is presently con-

templated or that a person with a present intention to

adopt exists.” (1980 Source and Comments, 23 Pa.C.S.A.

§ 2512; see also, In Re: B.E., 377 A.2d 153,474 Pa.139

(1977) [adoption necessary when one parent seeks

termination to another] ). Present adoptions were avail-

able for the Lehman boys in 1976, and presumably

remain today, as the boys remain in stable foster homes,

with parents willing to adopt. In reality, there are wait-

ing lists of prospective adoptive parents on record with

public agencies, such as Respondent herein. Therefore,

there is no scarcity of prospective adoptive parents

once the legal hurdles are cleared away. However, as

expressed in the Sylvander case:

“A child...has no such control over the liti-

gation in which he is enveloped...(and he) re-

mains in limbo pending a final decision...since

his availability for adoption is clouded.” (Id.,

584 F.2d at 1112.)

- 34-

Again, Respondent urges the Court to note the

thorough analysis of the Lehman and Sylvander courts

that the full range of child custody matters would be

ushered in with the acceptance of habeas corpus juris-

diction in termination matters. (Lehman, 648 F.2d at

143, 151, 156; Sylvander, 584 F.2d at 1112-3; see also,

Davis v. Page, 640 F.2d at 607.) Children would become

mere pawns on 4 vast array of Federal district court

chessboards. Thereby, any suggestion that federal habeas

corpus can be available to only test matters involving

state or county agencies, and not to include private

termination and custody matters between individuals, is

ill-advised and does not take account of the totality of

the circumstances that face the courts now and in the

future.

4. The grant'ng of federal habeas corpus

jurisdiction would interfere substantially with

legitimate state interests, and the balance of

comity between federal and state courts.

Petitioner Marjorie Lehman acknowledges that a

state, such as Pennsylvania, is properly concerned that

children of “non-salvageable families be provided an

opportunity to experience adoptive family life.” (Pe-

-35-

titioner’s Brief, Page 72) However, in order to buttress

this argument Petitioner's attorney again attacks Penn-

sylvania Adoption statute and purported federal con-

stitutional standards. Directly, this litigant had the op-

portunity to properly put this constitutionality issue

before this Court in 1978, but for strategic purposes did

not pursue that route. It is even acknowledged that “the

ultimate issue whether Petitioner should remain as a

parent of her children must be decided, not by federal

judge, but solely by the courts of Pennsylvania.” (Pe-

titioner’s Brief, Page 73) The state courts through their

local Orphans’ Court divisions, such as Lycoming County,

Pennsylvania, and the judges that sit thereon are unique-

ly qualified to make determinations on child custody

matters. (See In Re: Burrus, 136 U.S. 586, 10 S.Ct. 850

(1890) ) Petitioner-mother’s attorney appears to be

arguing that federal habeas corpus is the only forum

open in child custody matters that are decided by a

state court. No party merely asserting a federal right is

entitled to an “unencumbered opportunity” to litigate

that right in a Federal District Court. (See Allen v.

McCurry, 101 S.Ct. at 419.) Judge Garth reviewed the

viable alternatives for federal jurisdiction under 42

U.S.C. Section 1983, as well as the direct appeal ap-

- 36-

plicable from state court determination to this court.

(Lehman, 648 F.2d at 144 to 146, 154.)

If there were unconstitutional elements in the 1970

Pennsylvania statute as alleged by the Petitioner, this

matter was ripe for evaluation and decision by this Court

in January, 1978, not now. Marjorie Lehman had the

right to direct appellate review by this Court following

the determination by the Pennsylvania Supreme Court

on January 31, 1978, and not merely to take achance at

acceptance of Certiorari by this Court, which was the

procedure followed. (See, 28 U.S.C. § 1257 (2); Lehman,

648 F.2d at 144; Huffman v. Pursue, Ltd., 420 U.S. 592,

95 S. Ct. 1200, 1209, 43 L.Ed.2d 482 (1975) ).

Indeed, it was a strategic decision by the present

counsel for Marjorie Lehman in 1978, not to pursue a

direct appeal, but to file a Writ of Certiorari. This was

acknowledged during the arguinent before the Third

Circuit Court of Appeals, as a means to escape the res

judicata effect of an appeal of Justice Robert’s decision,

through the proposed filing of the present habeas

corpus petition.

Allissues involving the alleged unconstitutionality of

the Pennsylvania statute were sharply focused in Justice

Robert's opinion from the Pennsylvania Supreme Court,

-37-

and the direct merits were properly before the Court at

that point. (See Sylvander, 584 F.2d at 1108) This aids

this Court in focusing on acase brought to it onits merits

in which a state appellate court is making determinations

involving federal constitutional issues. Additionally, im-

mediate review of this Lehman case would have proper-

ly served all parties involved, including the mother, the

three boys, and even the Pennsylvania Legislature in

preparing the 1980 Adoption Act. Since 1978, Justice

Robert’s decision has become a firm foundation up-

holding the constitutionality of the adoption statute,

and balance between parents and children, in Pen-

nsylvania.

A second route thoroughly discussed in the Third

Circuit decision is through reservation of alleged un-

constitutional issues under, 42 U.S.C. §1983 (1976).

(See Lehman, 648 F.2d at 145)

The Third Circuit Court of Appeals follows the Second

and Seventh Circuits in the case of New Jersey Ed-

ucation Association v. Burke, 579 F.2d 764, cert. denied,

439 U.S. 894, 99 S. Ct. 252, 58 L.Ed.2d 239 (1978), in

holding that “a state court judgment foreclosures a

Section 1983 litigant from raising grievances in federal

court only if such claims have been pressed before, and

- 38-

decided by a state tribunal.” Id., 579 F.2d at 774. (See

also, Joseph L. v. Officer Judicial Support, etc., 516 F.

Supp. 1345, 1347 (1981); Allen v. McCurry, Supra).

As set forth in Joseph L. v. Officer Judicial Support,

etc.:

“The Burke Court took great pains to dis-

tinguish the application of res judicata in

Section 1983 actions with the doctrine’s ap-

plication in other settings. In a suit brought

under Section 1983, res judicata will bar

only those claims that were “actually decided

by the state tribunals,” not those that “could

have” or “might have been raised before the

state court” but were not.” Id., 516 F. Supp.

at 1347.

As pointed out by Judge Garth, it is not required that

a litigant, such as Ms. Lehman should reserve such

claims; however, the alternative is present and could

lead to a more direct and expressed decision on such

alleged unconstitutional issues. (Lehman, 648 F.2d at

145.) This would preclude, through res judicata, having

a Claim determined both in state and federal courts, a

right which the First and Third Circuits have not ap-

proved, through the rejection of habeas corpus juris-

diction.

- 39-

As very concisely stated by Judge Brown of the Fifth

Circuit, in his dissenting opinion in the Davis v. Page

matter:

“Domestic relations is an area of law in

which federal courts traditionally have de-

ferred to state courts....federal courts have

always preferred to abstain from answering

questions of law, such as those contained in

domestic relations suits, which the states

are by nature best equipped to deal with....

(Citations omitted) Id., 640 F.2d at 605. (See

also Sylvander, 584 F.2d at 1112; Lehman,

648 F.2d at 143, 144).

The consideration of comity and judicial restraint are

bolstered by this deferral to state courts as expressed

by Judge Brown. Undeniably, Marjorie Lehman had and

took full opportunity to present her federal consti-

tutional claims in the state proceedings. (In Re: William

L., 383 A.2d at 1231 to 1237; see also, Allen v. McCurry,

101 S.Ct. at 415).

Arguably, this Court has shown restraint and directed

the federal judiciary to avoid interference with state

court proceedings and accept jurisdiction only when (a)

the claimants have no opportunity to present their

federal constitutional claims in state proceedings, or (b)

-40-

there is bad faith conduct by the state, or (c) the

challenged state statute is wholly and flagrantly violative

of express constitutional prohibitions, in whatever man-

ner and against whomever an effort might be made to

apply it. (Moore v. Sims, 442 U.S. 415,99 S.Ct.2317,60

L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327,

97 S. Ct. 1211, 51 L.Ed.2d 376 (1977); Huffman v.

Pursue, Ltd., Supra; Younger v. Harris, 401 U.S. 37, 91

S.Ct. 746, 27 L.Ed.2d 669 (1971) ). The facts herein do

not warrant federal intervention and buttresses due

regard for comity in this termination matter.

The Supreme Court in this session has provided

further guidelines in the issues of Federal-—state realms

of judicial authority. In the case of Fair Assessment in

Real Estate Association, Inc. v. McNary, No. 80-427,

amin , 50 U.S.L.W. 4107, (argued 10/5/81 and

decided 12/1/81),Justice Rehnquist held that the principle

of comity barred a Section 1983 action involving property

taxes, and dictated federal non-intervention in this par-

ticular area. A central element set forin by Justices

Rehnquist and Brennan is the fact that Congress has not

expressly said that civil rights damage suits may be

brought in this area of law. Additionally as stated by

Justice Brennan:

41°

“(t)he power to contro! the jurisdiction of

the lower federal is assigned by the Con-

stitution to Congress, not to this Court.

In its haste to rid the federal courts of aclass

of cases that it thinks unfit for federal scrutiny

the Court today departs from this funda-

mental precept.” Id., 50 U.S.L.W. 4024.

This also speaks centrally to the issue involvedin this

Lehman matter, in that this Court is being asked to open

the new range of cases in which the Lower Federal

Courts will have to take full testimony, evaluate, and de-

cide this very sensitive area of family law. Once more

these issues involving federal-state courts and the valid

principle of comity must be carefully screened so as not

to infringe upon the valid functions to be served by both.

(Younger v. Harris, Supra). As stated by Chief Judge

Seitz of the Third Circuit, “(i)f there is to be such a major

departure from traditional uses of federal habeas cor-

pus to challenge state — court judgments, it is not un-

reasonable to await a congressional directive on the

matter.” (Lehman, 648 F.2d at 156; see also, Ridgway v.

Ridgway, 50 U.S.L.W. 4006, 4408 (1981); Note: “Federal

Habeas Corpus and Child Custody Cases”, 67 Virginia

Law Review 1419 (September, 1981)). A firm basis set

forth by Judge Garth is that the opportunity presented

«42

by federal habeas corpus to reassert a claim already

litigated in state courts is more offensive to principles of

comity than other federal remedies available to chal-

lenge parental right termination.

Inthe last few pages of Petitioner's Brief (Petitioner's

Brief, pages 85-6), the suggestion is raised again of an

adoption making a habeas corpus petition moot, if a

federal district judge would so determine. No worse

limbo could be wrought upon a child. A child who could,

after presumably a period of time in a foster home, fol-

lowed by a state court decision of parental rights ter-

mination, and appropriate state appellate court pro-

cedures, be adopted, and thereafter await decision by a

federal district judge after a petition and answer filed

and evidentiary hearing held, as to whether his adoption

is valid.

Judge Brown’s fear, as expressed in his Davis v.

Page dissenting opinion, may be realized when he

states:

“...lam not convinced that the interests of

family and child will be significantly fostered

by permitting actions such as these to be liti-

gated in two sets of courts---first state, and

then federal, or worse, perhaps simultan-

eously.” (emphasis added) Id., 640 F.2d at

607.

- 43 -

Petitioner's suggestion of adoption making a habeas

corpus petition moot, foretells a race to the court-

house, disregarding appeal rights, with the child’s well-

being and emotional stability hanging in the balance.

This Court has the judicial responsibility at this time

to reject extension of the federal habeas corpus statute

into such state proceedings, and thereby assure that

eauality and justice for all under the American system

will include minor children, similarly situated as the

three Lehman boys have been, and are, in Lycoming

County, Pennsylvania. A primary purpose of a state’s

parental rights termination statute is to expedite pro-

ceedings in order to reduce unnecessarily protracted

stays in foster care for children removed from their

parents.

Petitioner's accusation of “foot dragging” (Petitioners

Brief, Page 86) is simply not the situation in this matter,

nor circumstances present in Pennsylvania. Where the

welfare of a child is concerned, and dispute arises

between a natural parent and foster parents, the courts

have shown themselves willing to react and expedite a

determination. See Commonwealth ex rel Grimes v.

Yack, 433 A.2d 1363, Pa. (1981), in which a

natural mother withdrew her consent for an adoption

-44-

within six months. It may not validly be said that the

caseworkers involved with the Lehman family for the

several years prior to termination were “foot dragging”

or not working to reunite the family, if appropriate.

(See In Re: William L., 383 A.2d at 1242; Interest of

LaRue, 366 A.2d 1271, 244 Pa. Super 218 (1976); In

Re: |.R.A., 410 A.2d 755, 487 Pa. 563 (1980).

The burden of proof assumed by a Petitioner in a

state involuntary termination petition is a very demand-

ing one, and involves the state’s interest in requiring

parents to recognize and exercise their “high duty”,

which must be counterbalanced with the efforts to

maintain and strengthen the family as the most im-

portant institution in raising a child. A child and his well-

being is not a chattel which a natural parent can pos-

sess or dicker with, but must be recognized as a vibrant

and mature individual with very basic biological, emotional

and psychological needs. These basic human needs are

initially presumed and intended to be provided by a

natural parent in a loving and stable home environ-

ment; however, this is too often not the reality of life.

Therefore, governments have instituted and labored

over statutes and standards by which conduct is to be

measured, whether by a private individual or, in this

-45-

instance, a county social agency. Therein, are persons

trained to aid others in recognizing and striving to meet

these minimal standards of parental action, duties, and

responsibilities. These persons are guided by legislative

mandates, their lifelong experience, and their decisions

and actions are overseen in particular instances by a

state court.

This Pennsylvania legislation, upheld by the seminal

decision herein (In Re: William L., Supra), fairly puts the

parent on notice that parental rights can be terminated

when there is an abandonment or refusal to provide, or

incapability of providing essential parental care. Addi-

tionally, definite testimony was shown in this Lehman

matter that the causes and conditions of the incapacity

could not be remedied. This language of the Legislature,

coupled with the array of Pennsylvania cases which de-

velop the elements of what parental duties and re-

sponsibilities consist of, give very definite guidelines for

interpretation of the law when applied to particular

factual circumstances. Thereby, the Pennsylvania Supreme

Court in January of 1978 upheld the constitutionality of

this very statute and based their holding upon a firm

gridwork of decisions from this Court which have been

cited by both parties again in 1982. The direct appeal to

-46-

this Court of the alleged unconstitutionality of the

statute was waived by Marjorie Lehman’s same at-

torneys herein, and should not now form the foundation

for collateral attack to justify federal courts taking

jurisdiction under the habeas corpus statute.

As Judge Levin H. Campbell, Judge of the First

Circuit Court, in the Syivander decision states:

“The final answer is not to be found be-

tween the covers of treatises on federal law

but requires a judgment as to ethical, societal

and perhaps even religious values at stake in

weighing the rights of the natural parent

against the putative well-being of the child.”

Id., 584 F.2d at 1109.

This Court is urged to affirm the decision of the Third

Circuit, and maintain the proper roles of the state and

federal courts in these parental rights termination mat-

ters.

CONCLUSION

IN SUMMARY, it is urged that the great Writ of

Federal Habeas Corpus has not been and should not be

applied and extended to a federal constitutional chal-

lenge by a mother on behalf of minor children that arose

-47-

from a decree of involuntary termination of parental

rights leading to adoption under state law. Initially, the

natural mother has no legal standing to bring such an

action on behalf of minor children who are not “in

custody” pursuant to the dictates of federal statutory

and decisional law. An extension of federal habeas

corpus jurisdiction into this parental termination area

would lead to intervention into intra-family disputes,

and transcend the evolving balance between federal

and state interests.

WHEREFORE, Respondent prays that the United

States Supreme Court hold that habeas corpus juris-

diction does not extend to this matter involving the

termination of parental rights under state law.

Respectfully submitted,

CHARLES F. GREEVY, Ill

29 West Fourth Street

Williamsport, PA 17701

(717) 326-6561

Attorney for Respondent

Dated: January 25, 1982

- 48 -

December 20, 1976

SUMMARY: LEHMAN VISITATION PETITION

The subject of resuming visitation for Marge Leh-

man with her three sons has been discussed with each

of the boys and/or their foster mothers so that their

feelings and wishes may be taken into consideration by

the court before a final decision is made. The last official

visit for the Lehmans was on May 4, 1976, afterwhich

the court ruled in favor of terminating Marge Lehman’s

parental rights and these visits were discontinued.

(Note: This latest petition states that visits were held

both in July and August of 1976, but neither the boys,

their foster mothers nor our records could verify this.)

On 11/22/76, | talked with Frank Lehman about

having visits with his mother again. Frank will be thirteen

on 12/22/76 and is the oldest of the Lehman boys.

Frank said it didn’t matter to him whether or not he had

any more visits with his mother. He added that it

wouldn't bother him if he didn’t see her again. | asked

Frank if he enjoyed his visits before and all he said was

that he and the other boys always ended up wrestling

and fighting with each other. Frank made it very clear

that he never wants to live with his mother again and

feels that it would be better if he could be adopted by

some family. Frank’s foster mother told me that Frank

was usually upset by these visits and was quite unruly

and unmanageable afterwards.

On 11/17/76, | talked with eleven year old Billy

Lehman about visitations. Of all three boys, Billy seemed

to be the most upset by the possibility of having to re-

establish any contact whatsoever with his mother. Billy

EXHIBIT “A”

(CONT.)

- 49 -

considers himself to be a very active member of his

foster family, and can hardly wait to be adopted by thei.

His foster parents have told him all they are waiting for is

a final decision from the courts. The foster mother and

Billy himself reported that he would become extremely

disturbed and upset several days before and after a

visit. Just discussing this matter with Billy was enough

to worry him.

On 11/22/76, ! made a visit to the foster home of

seven year old Mark Lehman. Mark was quite young

when he was removed from his mother’s home and, ac-

cording to the foster mother, has never expressed any

close feelings for his mother or brothers and sister. She

said he never mentions any of them except for those

days he visits with them...Mark’s foster family is also

waiting to adopt him.

Present agency policy interprets termination of

parental rights by the local court as a final decision and

will uphold all that a termination implies until such

termination is reversed by a higher court.

SUBMITTED BY: /s/Nancy L. Wollett

Nancy L. Wollet, Caseworker

Lycoming County Children’s Services

NLW/elg r

EXHIBIT “A”