# Respondents Brief — Lehman v. Lycoming County Children's Servs. Agency > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2344%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1982 - **Citation:** 458 U.S. 502 ## Text 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 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” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2344%3A5. Public record. Not legal advice.