Petition — Davis v. Gladstone
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83-7893
DiticaSusreme Cou
FIL rt, U.S.
ED
NO. NOV 9 1983
in the _ ae
Supreme Court
of the
Wnited States
October Term, 1983
HILARY DAVIS,
Petitioner
vs.
WILLIAM E. GLADSTONE, ADELE SEGALL
FASKE, RALPH B. FERGUSON, Jr.,
SEYMOUR GELBER, and SIDNEY SHAPIRO,
Juvenile Judges of the Dade County,
Florida Circuit Court,
Respondents
PETITION FOR A WRIT OF CERTIORARI |
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
MICHAEL R. MASINTER
Nova University Center
for the Study of Law
3100 S.W. 9th Avenue
Fort Lauderdale, Florida 33315
(305) 522-2300
ROBERT F. ROACH
ROBERT R. DORMER
Florida Rural Legal Services, Inc.
Counsel for Petitioner
QUESTION PRESENTED FOR REVIEW
Whether, in light of the irreparable damage to the
parent-child relationship inherent in prolonged separation
and the documented great risk of erroneous deprivation,
indigent parents in formal, fault based dependency
adjudicatory proceedings have a right under the
fourteenth amendment to court appointed counsel
whenever the state seeks to take custody of a child for.
a prolonged or indefinite time.
TABLE OF CONTENTS
Page
a civ k ep rds cases acecvvces iii
ED 2
Statement Regarding Jurisdiction .............. 2
Constitutional Provisions Involved ............. 2
i ETC eee ee 3
Reasons Why The Writ Should BeGranted....... 7
ES 16
sc eke bee cenc coves.
Opinion and Judgment of Court of Appeals,
714 F.2d 512 (5th Cir. 1983) (en bane)......... A-1
Order of Supreme Court, Chastain vu. Davis,
ee rr ee A-54
Amended Final Judgment of District Court . .A-55
Onder Certifying Class .................... A-58
TABLE OF AUTHORITIES
Cases Pages
D.H. v. Polen,
396 So.2d 1189
Sema Se I BOND soos # s conite os mals 12
Gagnon v. Scarpelli,
ee BE eI UTEEER & S.0,<ain's ss v's @ bo Cate eee 10
In re A.Z.,
383 So.2d 934 (Fla. Dist. Ct. App. 1979)....... 14
In re Pendarvis,
133 So.2d 424 (Fla. Dist. Ct. App. 1961)....... 10
In re R.W.H.,
375 So.2d 321 (Fla. Dist. Ct. App. 1979) ....... 14
Lassiter v. Department of Social Services
of Durham County, North Carolina,
Lr eS | Pee enrpee errr r 3, 5, 7, 8,
11, 13, 15
Lehman v. Lycoming County Children’s Services
Agency,
ee nS CD a vie Roms nas haan wee nee 5
Pendarvis v. State,
104 So.2d 651 (Fila. Dist. Ct. App. 1958) ....... 10
TABLE OF AUTHORITIES (Continued)
Cases Pages
Pendarvis v. State,
115 So.2d 81 (Fla. Dist. Ct. App. 1959)........ 10
Santosky v. Kramer,
EE «5 f'n cow ho are kao 13
STATUTES AND RULES
EE Bac 60s Carus pas. Gene cine ih neue 4
ns Uk 7 bxuie.0':ce thie Haewae 4
I sate ok iss x rs aaa ee 4,5
en MID 9 5 's's w bey ov petanes eemeaen 9
MOE 5 cnc saves spine ede deenaeet en 12
ek | Perr rere rrr 12
fe SPOT T rere ere re. 12
Pe RROD i o'can os cones she nile pweus 12
DEMON: 05 v0s5s) oeansevecechewnael 12
iv
TABLE OF AUTHORITIES (Continued)
Cases Pages
OTHER AUTHORITIES
Bowelby, Child Care and the Growth of Love
ED ee sy ac eae ON ORS aw ke ate pe a
Buxbaum, The Problem of Separation and the
Feeling of Identity, Child Welfare (1955) .........
Geiser, The Illusion of Caring: Children in
Do i. a dot ek vewke desea wes
Goldstein, Freud, & Solnit, Before the Best Interest
I Se Oe ee i ee
Goldstein, Freud, & Solnit, Beyond the Best Interest
oe ks cs hur o daw eek men
NO.
in the
Supreme Court
of the
United States
OCTOBER TERM, 1983
Hilary Davis,
Petitioner
vs
William E. Gladstone, Adele Segall Faske, Ralph B.
Ferguson, Jr., Seymour Gelber, and Sidney Shapiro,
Juvenile Judges of the Dade County, Florida Circuit
Court,
Respondents
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
Petitioner, Hilary Davis, respectfully prays that a
writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals For the
Fifth Circuit sitting en banc entered in this proceeding
on September 15, 1983.
Opinions Below
The opinion of the United States Court of Appeals
is reported at 714 F.2d 512 (5th Cir. 1983) (en banc). The
earlier en bane opinion of the Court of Appeals is
reported at 640 F.2d 599 (5th Cir. 1981) (en banc). The
panel opinion of the Court of Appeals is reported at 618
F.2d 374 (5th Cir. 1980). The opinion of the District
Court is reported at 442 F.Supp. 258 (S.D. Fla. 1977).
Jurisdiction
The judgment of the United States Court of Appeals
for the Fifth Circuit was entered September 15, 1983.
This Court’s jurisdiction is invoked under 28 U.S.C.
§1254(1).
Constitutional Provision Involved
United States Constitution, Amendment 14, Section 1
All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside.
No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
STATEMENT OF THE CASE
This case presents the important but unanswered
question of whether indigent parents in accusatory
dependency adjudicatory proceedings have a
constitutional right to court appointed counsel whenever
the state seeks to take custody of a child for a prolonged
or indefinite time. Petitioner seeks a writ of certiorari
to review the en banc decision of the United States
Court of Appeals for the Fifth Circuit holding that the
right to counsel must be determined on a case by case
basis. Petitioner seeks reversal of that decision and
reinstatement of the earlier en banc judgment of that
court holding that in dependency adjudicatory
proceedings, the parent’s far greater liberty interest
in actual care and custody of a child, the formal, accusatory
nature of the proceedings, and the inherently greater
risk of erroneous deprivation overcome the Lassiter wv.
Department of Social Services of Durham County, North
Carolina, 452 U.S. 18 (1981) presumption to require
court appointment of counsel whenever the state seeks
custody for a prolonged or indefinite time.
The State of Florida files over 1,000 petitions each
year in the Dade County Circuit Court seeking to
adjudicate a child dependent based upon allegations of
abuse, abandonment, or neglect. The great majority of
abuse and neglect petitions result in an adjudication of
dependency and temporary commitment of the child to
foster care for a prolonged or indefinite period under
the aegis of the Florida Department of Health &
Rehabilitative Services (DHRS). In its most recent
evaluation, DHRS found that the mean stay in foster
care for dependent children is 2 years and 10 months.’
A Dade County Grand Jury investigation of foster care
found that in 36 percent of cases examined, children
had been in foster care more than 5 years.’
Asserting a claim under 42 U.S.C. §1983 and its
jurisdictional counterparts, 28 U.S.C. §1343 and §1331,
petitioner brought this action following exhaustion of
state judicial remedies challenging a Dade County Circuit
Court order adjudicating her son dependent and
committing him to state custody. Petitioner alleged
that she was deprived of the custody of her son in
violation of the fourteenth amendment because, although
she was indigent and unsuccessfully sought to obtain
counsel, respondents did not appoint counsel for her at
the dependency adjudicatory hearing. Petitioner sought
the return of her son, Car! Davis, a judgment declaring
that the fourteenth amendment required the appointment
of counsel for indigent parents in dependency adjudicatory
hearings, and an injunction requiring respondents to
appoint counsel for indigent parents in dependency
adjudicatory hearings.
After an evidentiary hearing, the District Court
entered an order declaring petitioner’s claim for
declaratory and injunctive relief against respondents
maintainable as a class action. Subsequent to class
‘An Evaluation of Child Welfare Services, Office of Evaluation,
Florida Department of Health & Rehabilitative Services at 30-31
(1979). The report found children who had been in foster care for
as long as 17 years and 8 months. Jd.
"Id., at 71-73
certification, the Dade County Circuit court returned
temporary custody of Carl Davis to petitioner subject
to the court’s continuing jurisdiction and supervision
as a dependent child still legally a ward of the state.
In an opinion reported at 442 F.Supp. 258 (S.D.
Fla. 1977), the District Court held that indigent parents
have an absolute right to counsel in dependency
adjudicatory hearings. The court's judgment declared
a right to counsel under the fourteenth amendment,
ordered the return of petitioner's son based upon the
violation of that right and ordered respondents to appoint
counsel in dependency proceedings. A panel of the
United States Court of Appeals for the Fifth Circuit
affirmed, Davis v. Page, 618 F.2d 374 (5th Cir. 1980),
and the Court of Appeals reheard the case en banc.
Upon rehearing, the Court of Appeals modified the
judgment of the district court, holding that a right to
court appointed counsel in dependency adjudicatory
proceedings arises only when the state seeks custody
for a prolonged or indefinite period. Davis v. Page, 640
F.2d 599 (5th Cir. 1981) (en banc).
Respondents filed a petition for certiorari, and
while that petition was pending, the Court decided
Lassiter v. Department of Social Services of Durham
County, 452 U.S. 18 (1981) and Lehman v. Lycoming
County Children’s Services Agency, 458 U.S (1982).
The Court granted the petition, vacating the judgment
of the Court of Appeals for reconsideration in light of
Lehman.
On remand, the Court of Appeals again heard the
case en banc, ruling that the district court had j
to decide petitioner's claim under 42 U.S.C. §1983 and
that despite the significant differences between formal
adjudicatory proceedings and subsequent informal
proceedings to terminate parental rights, Lassiter
nevertheless required only a case by case right to
court appointed counsel. Ten members of the Court of
Appeals dissented, arguing that Lassiter applied properly
required reinstatement of the former en banc judgment
declaring a right to court appointed counsel in dependency
adjudicatory proceedings in which the state seeks
prolonged or indefinite custody of a child.
On October 11, the Court of Appeals granted
petitioner's motion for a stay of the mandate, staying
its mandate until November 10, 1983.
REASONS WHY THE WRIT
SHOULD BE GRANTED
This case presents the important but unanswered
question of whether indigent parents have a right to
court appointed counsel in accusatory dependency
adjudicatory proceedings. In Lassiter u Department
of Social Services of Durham County, North Carolina,
452 U.S. 18 (1981), the Court balanced the limited liberty
interest of a parent who had previously lost custody of
her child at stake in informal proceedings to terminate
parental rights against the state’s interest in ending
the uncertainty attending the child’s alreay prolonged
stay in foster care, conc..ding that under those
circumstances, the fourteenth amendment guarantees
only a case by case right to counsel. As the Court
observed in Lassiter, informal dispositional proceedings
to terminate parental rights are the conclusion of a
process which begins with accusations of abuse, neglect,
or abandonment in state initiated adjudicatory
proceedings to remove a child from the custody of its
varents. In formal adjudicatory proceedings, the liberty
interest of the parent at issue is actual care and custody
of a child. Because the unrestricted liberty interest in
care and custody at risk in formal adjudicatory
proceedings far outweighs the judicially curtailed interest
at risk in informal termination proceedings, and because
the risk of erroneous deprivation of that interest is
significantly greater, the Lassiter balancing test tips
in favor of appointed counsel whenever the state seeks
prolonged or indefinite custody.
La
A. The Parent’s Interest in Actual Care and
Custody at issue In Adjudicatory Proceedings
is Greater Than the Judicially Curtailed Interest
of a Parent Previously Deprived of Care and
Custody at Issue in Termination Proceedings.
As Lassiter recognizes, the parent’s interest in
care, custody, and companionship of her child is profound.
The core of that liberty interest is actual care and
custody, a fundamental interest which is not at stake in
termination proceedings.’ Medical evidence in the record
below and generally accepted medical literature make
clear the great damage which occurs to the parent-
child relationship and to the child’s development when
the state intrudes into an intact family unit to remove
a child for a prolonged or indefinite time.‘ Subsequent
"Proceedings to terminate parental rights presuppose a previous
adjudication of dependency and commitment to foster care. As
Lassiter notes, termination proceedings focus upon parental! conduct
subsequent to the loss of custody. In North Carolina , there is an
absolute right to counsel in adjudicatory proceedings, N.C.G.S.
7-A-587.
‘442 F.Supp. at 261 n.7. The devastating impact of prolonged
separation upon the parent-child relationship and upon the child is
well documented. Bowelby, Child Care and the Growth of Love
13-20 (2d ed. 1965); Buxbaum, The Problem of Separation and the
Feeling of Identity, Child Welfare 9 (1955); Geiser, The Illusion of
Caring: Children in Foster Care 35-129 (1972); Goldstein, Freud &
Solnit, Beyond the Best Interest of the Child 9-38 (1973). An
evaluation by DHRS of child welfare services indicates that some
19% of children in foster care in Florida are emotionally disturbed.
An Evaluation of Florida's Child Welfare Services, at 33.
restoration of custody cannot erase that damage,’ and
termination of parental rights cannot exacerbate it.°
Termination of parental rights is ultimately the
legal recognition that the parent-child relationship is
dead. The actual death of that relationship occurs prior
to the initiation of termination proceedings, and is the
all but inevitable result of prolonged separation. Thus,
in every meaningful sense, far greater interests are at
stake when the state first seeks prolonged or indefinite
custody in the adjudicatory proceeding than when it
seeks judicial recognition of the consequences of that
separation in a termination proceeding.
The interest of the parent at stake when the state
seeks prolonged or indefinite custody in an adjudicatory
hearing is reinforced by the peculiar structure of Florida
proceedings. Once an adjudication of dependency enters,
the nature of further state proceedings shifts dramatically.
A child committed to temporary state custody remains
in state custody until a court orders otherwise or the
child reaches the age of 18.’ All subsequent proceedings
are disposition hearings in which a parent must prove
that, because of developments subsequent to adjudication,
‘Goldstein, Freud, & Solnit, supra at 38.
*As the duration of separation increases, the case for termination
becomes compelling; the child's interest dictates permanent placement
in a new home to fill the void created by prolonged separation.
See generally Goldstein, Freud, & Solnit, supra; Goldstein, Freud,
Before the Best Interests of the Child (1980).
"Fla. Stat. §39.41(1Xe).
restoration of custody is in the best interest of the
child. Florida courts . ‘ave held:
Evidence that may be totally inadequate to
deprive a parent of the custody of his child in
the first instance may be altogether adequate
to support the court’s refusal to restore custody
to the parents once the child has become a
ward of the state.’
Thus, the liberty interest of a parent is greatest when
the state initiates a dependency adjudicatory proceeding
to remove her child for a prolonged or indefinite period.
B. Florida Adjudicatory Proceedings Are Formal
Accusatory Proceedings Which Differ
Significantly From Informal North Carolina
Termination Proceedings
Florida has no countervailing interest in informality
at dependency aviudicatory proceedings, for it has
invested them with all the trappings of formal accusatory
proceedings. By contrast, North Carolina termination
proceedings are the last stage of what is at least a two
stage process which resembles other proceedings in
which counsel is provided on a case by case basis.
In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the
Court found that critical differences between criminal
trials and probation revocation hearings assured that
*Pendarvis v. State, 104 So.2d 651, 652 (Fla. Dist. Ct. App.
1958); see also Pendarvis v. State, 115 So.2d 81 (Fla. Dist. Ct. App.
1959) and Jn re Pendarvis, 133 So.2d 424 (Fla. Dist. Ct. App. 1961).
10
case by case appointment of counsel was sufficient to
assure due process in revocation hearings. The Court
noted that in revocation hearings, the respondent has
been adj. ticated at fault in a prior accusatory proceeding
in which he was represented by counsel. The Court
"f° noted that revocation hearings are informal
abilitative, dispositional proceedings.
In Lassiter, the Court found North Carolina
termination proceedings to share many of the
characteristics of revocation hearings. Abby Lassiter
had been found to have neglected her child in a prior
adjudicatory hearing’ which she declined to attend.”
Had she attended the original adjudicatory proceeding,
Abby Lassiter would have had court appointed counsel
as a matter of right.'’ The question in the informal
termination proceeding was whether her interest in
having her son reared by his grandmother outweighed
his interest in a secure, stable and loving houae, a
question presenting no difficult points of substantive
or procedural law. Thus, the termination proceeding
was a disposition hearing whose focus was the well
being of a child previously found to have been seriously
neglected. Given the focus of the proceeding and its
informality, the Court reasoned counsel would not always
be necessary to assure due process.
Florida adjudicatory hearings share none of the
qualities which the Court identified in North Carolina
°452 U.S. at 20, 22-23.
"Jd. at 33.
"Td. at 29 n.4.
ll
es
termination proceedings as those factors which weigh
against the appointment of counsel. Under Florida law,
an adjudicatory proceeding in which the state seeks
prolonged or indefinite custody is a formal accusatory
proceeding in which the state must prove that a parent
has abandoned, abused, or neglected her child.” The
state is always represented by counsel under formal
rules of evidence, and in abuse and neglect proceedings,
the child always is represented by a guardian ad litem.”
Parents who elect to testify must be warned that their
testimony may be used against them at a subsequent
criminal trial.'* The evidence which will prove abuse or
neglect at an adjudicatory hearing will also tend to
establish the crimes of child abuse and neglect as well
as the crime of contributing to the dependency of a
minor.” By statute, an adjudication of dependency “shall
not preclude a subsequent prosecution of a parent or
any other person who contributes to the delinquency
or dependency of the child.””
“By statute, children are dependent if they are abandoned,
abused, neglected, habitually truant, persistently disobedient,
surrendered for adoption, or permanently run away. Fla. Stat.
§31.0%1). However, a dependency adjudication founded upon proof
of habitual truancy, persistent disobedience, or persistently running
away will in the first instance only result in state supervision of
the child in the home of parents or relatives. D.H. vu. Polen, 396
So.2d 1189 (Fla. Dist. Ct. App. 1981).
“Fla. Stat. §§39.404(3), 39.408(1Xb); Fla. R. Juv. P. 8.300
“Fla. R. Juv. P. 8.190(f).
“Fla, Stat. §§827.03, 827.04, 827.05.
“Fla. Stat. §827.04(3).
.
7.
The criminal implications of Florida adjudicatory
proceedings and their focus upon parental misconduct
clearly distinguish them from the relatively informal
North Carolina termination proceedings. In Lassiter,
the Court recognized that_a state's interest in informality
can militate against an absolute right to counsel. By
establishing formal accusatory proceedings, Florida has
foresworn any interest in informality. Thus, in the
Lassiter calculus, the state interest in informality is
always at its weakest in Florida adjudicatory proceedings.
C. There is a Great Risk of Erroneous Deprivation
in Florida Dependency Proceedings.
The record below established by uncontroverted
evidence the risk of erroneous deprivation.’ No party
has yet suggested that petitioner's child should have
been removed from her custody. An attorney who has
prosecuted more than 100 dependency adjudicatory
proceedings on behalf of DHRS stated in his affidavit
that unrepresented parents rarely cross-examine
witnesses, submit documentary evidence, call witnesses,
or present a defense (R at 141). Because unrepresented
parents do not understand the proceedings, many “sit
mute and passive and do nothing in their own defense,
thereby giving, wrongfully, the impression that they
just don’t care.” (R at 142).
The transcript to the adjudicatory hearing
demonstrates what happens to a lay parent unfamiliar
"See Santosky v. Kramer, 455 U.S. 745, 762 (1982) concluding
that “At such a proceeding numerous factors combine to magnify
the risk of erroneous factfinding.”
13
with the judicial process. Without counsel, plaintiff
was reduced to “little more than a spectator.” The
protection theoretically afforded her by ordinary rules
of evidence quickly dissolved in a torrent of inadmissible
hearsay and opinion testimony. Plaintiff never understood
that temporary custody could last until her child became
an adult, and lacking legal training, she was unable to
participate effectively in the proceedings. Unfortunately,
her case was not unique.”
It is evident that counsel can contribute substantially
to prevention of an erroneous adjudication of dependency.
Beyond excluding the inadmissible evidence, counsel
in this case could have argued persuasively that the
evidence was inadequate to sustain an adjudication of
dependency, pointing out that plaintiff's former husband
injured her son, that she was separated from him, and
that readily available public assistance programs would
have provided a regular and secure income with which
to house and care for her son. In light of testimony that
plaintiffs former husband represented a continuing
threat to the safety of plaintiff and her son, counsel
could have argued that rather than removing the child
from his mother, the state should either prosecute her
former husband or initiate civil commitment proceedings.
“See, e.g., In re A.Z., 383 So.2d 934 (Fla. Dist. Ct. App. 1979);
In Re R.W.H., 375 So.2d 321 (Fla. Dist. Ct. App. 1979). In both
cases, parents were fortunate enough to obtain counsel after the
hearings in question, and secured reversals of the dependency
adjudications. Had they not obtained counsel, there would have
been no appeal, their cases never would have come to light, and
they would have found themselves in the same position as the
great majority of unrepresented parents — childless.
14
Because plaintiff was not represented by counsel, none
of these arguments were made, and she lost custody of
her child for one year.
Under the three pronged analysis of Mathews,
reaffirmed -in Lassiter, an indigent parent has a right
to counsel in dependency adjudicatory proceedings in
which the state seeks prolonged or indefinite custody.
The case by case right respondents advocate, a right
which has existed in Florida since 1975, has not worked,”
and cannot work. While a trial judge in a termination
proceeding has a substantial record based upon earlier
dependency proceedings to assist him in determining
whether to appoint counsel, the factors by which courts
might make case by case judgments in adjudicatory
proceedings are unknowable in advance of the
proceedings. The right to be heard must encompass
the right to counsel in adjudicatory proceedings in
which the state seeks prolonged or indefinite custody.
"To date, not a single decision of a Florida appellate court has
reversed an adjudication of dependency resulting in a temporary
commitment to DHRS for failure to appoint counsel.
15
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the United
States Court of Appeals for the Fifth Circuit.
Respectfully submitted,
Michael R. Masinter
Nova University Center for the
Study of Law
3100 S.W. 9th Avenue
Fort Lauderdale, Florida 33315
(305) 522-2300
Robert F. Roach
Florida Rural Legal Services, Inc.
305 North Jackson Avenue
Bartow, Florida 33830
Robert R. Dormer
Florida Rural Legal Services, Inc.
2209 Euclid Avenue
Fort Myers, Florida 33901
Counsel for Petitioner
16
Appendix
Hilary DAVIS, individually and on behalf
of all others similarly situated,
Plaintiffs-A ppellees,
v
William J. PAGE, Jr., etc., et al.,
Defendants,
Circuit Judges Dixie Herlong Chastain, etc., et al.,
Defendants-A ppellants.
No. 78-2063.
United States Court of Appeals,
Fifth Circuit.*
Sept. 15, 1983.
After the United States District Court for the
Southern District of Florida, Sidney M. Aronovitz, J.,
442 F.Supp. 258, granted summary judgment in favor
of parent seeking writ of habeas corpus to release her
child from custody of state officials, and seeking
declaratory and injunctive relief in favor of class of
indigent parents who were not or would not be provided
counsel in dependency proceedings, a panel of the Court
of Appeals, 618 F.2d 374, affirmed in part and remanded,
and on rehearing en banc, the Court of Appeals, 640
F.2d 599, affirmed in part and reversed in part. The
United States Supreme Court, __ U.S. __., 102 S.Ct.
5504, 73 L.Ed.2d 1380, vacated and remanded. On remand,
*Former Fifth Circuit case, Section 9(1) of Public Law
96-452 — October 14, 1980.
App. 1
the Court of Appeals held that: (1) due process requires
only case-by-case determination whether counsel must
be appointed for indigent parents in state dependency
proceedings, and (2) count which sought declaratory
and injunctive relief in favor of class of indigent parents
who were not or would not be provided counsel in
dependency proceedings would be dismissed.
Reversed and remanded.
Tjoflat, Circuit Judge, filed specially concurring
opinion, in which Brown, Clark, James C. Hill, Albert
J. Henderson, Hzetchet:, Garwood, and E. Grady Jolly,
Circuit Judges, joined.
R. Lanier Anderson, III, Circuit Judge, filed specially
concurring opinion.
Randall, Circuit Judge, filed specially concurring
opinion, in which Reavley, Circuit Judge joined.
Garwood, Circuit Judge filed specially concurring
opinion.
Vance, Circuit Judge, filed dissenting opinion, in
which Godbold, Chief Judge, Tuttle, Alvin B. Rubin,
Kravitch, Johnson, Politz, Tate, Thomas A. Clark, and
Jerre S. Williams, Circuit Judges, joined.
Appeal from the United States District Court for
the Southern District of Florida.
App. 2
ON REMAND FROM THE SUPREME
COURT OF THE UNITED STATES
Before GODBOLD, Chief Judge, TUTTLE, BROWN,
CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL,
RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON
JR., HENDERSON, REAVLEY, POLITZ, HATCHETT,
ANDERSON, RANDALL, TATE, THOMAS A. CLARK,
WILLIAMS, GARWOOD, JOLLY and HIGGINBOT-
HAM, Circuit Judges.**
PER CURIAM:
In our prior en banc decision in this case we held
that the due process clause of the fourteenth amendment
requires the state of Florida to provide counsel to
indigent parents whose children are the subject of
dependency proceedings. Davis v. Page, 640 F.2d 599
(5th Cir.1981). The United States Supreme Court granted
certiorari, vacated the judgment, and remanded the
case to us for consideration in light of Lehman u Lycoming
County Children’s Services Agency, US. , 102
S.Ct 3231, 73 L.Ed.2d 928 (1982). Chastain vu Davis,
—__._. U.S. ___, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982).
Since our prior en banc decision, the Supreme Court
has also decided Lassiter u Department of Socie! Services,
452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).
Lehman held that federal habeas corpus jurisdiction
could not be invoked to challenge state-court judgments
**Judge Peter T. Fay was a member of the Court that heard
oral argument but did not participate in the decision of this case.
Judge Sam D. Johnson recused himself and did not participate in
the consideration or decision of this case.
App. 3
involuntarily terminating parental rights. Lassiter held
that due process requires only a case-by-case
determination whether indigent parents should be
provided with counsel in parental termination
rather than the appointment of counsel in all instances.
We hold first that Lehman does not deprive us of
jurisdiction in this case. Second, we hold that Lassiter
requires that the right to counsel in Florida dependency
proceedings be determined on a case-by-case basis. Finally,
based on Lassiter, we hold that the district court should
have dismissed the claim for relief now before us. Thus,
we reverse the judgment of the district court and
remand the case for the court to dismiss that claim.
I.
Because the facts of this case have been set forth
in three prior opinions, Davis v. Page, 442 F.Supp. 258
(S.D.Fla.1977), aff'd in part and remanded, 618 F.2d 374
(5th Cir.1980), aff'd in part and rev'd in part on reh'g en
banc, 640 F.2d 599 (5th Cir.1981), we state the essential
facts briefly. On March 4, 1976, the Circuit Court of
Dade County, Florida, adjudicated Carl T. Davis a
dependent child without providing his indigent mother,
Hilary Davis, counsel. The court placed the child in the
temporary custody of the State Department of Health
and Rehabilitative Services (DHRS). After petitioning
the Florida Supreme Court unsuccessfully for a writ of
habeas corpus, Ms. Davis brought this suit.
Davis separated her complaint into two distinct
counts against two separate groups of defendants. Count
I sought a writ of habeas corpus to release the Davis
child from the custody of DHRS and named DHRS
App. 4
officials as defendants. Count II sought declaratory
and injunctive relief in favor of a class of indigent
parents who were not or who would not be provided
counsel in dependency proceedings, and named as
defendants the judges then assigned to the Juvenile
and Family Division of the Dade County Circuit Court.
The district court granted summary judgment in
Davis’ favor on both counts after certifying a class in
count II. The DHRS officials did not appeal. The state
judges appealed, and in our prior panel and en banc
decisions we essentially affirmed the district court's
decision. We now reconsider these decisions in light of
Lehman and Lassiter.
Il.
{1} First, we must determine the effect of Lehman
on our prior en banc decision. In Lehman the Supreme
Court held that federal habeas corpus jurisdiction could
not be invoked to challenge state court judgments
involuntarily terminating parental rights. In the case
at bar, habeas jurisdiction was invoked, but in support
only of count I. The count I defendants, DHRS officials,
did not appeal the district court’s judgment. The only
count involved in this appeal was count II. Count II
was based on 42 U.S.C. § 1983 (1976 & Supp. V 1981).
The district court took jurisdiction of count II pursuant
to 28 U.S.C. § 1343(aX3) and (4) (1976 & Supp. V 1981).
Consequently, this appeal does not involve habeas
jurisdiction and Lehman is inapplicable.
The Supreme Court’s remand to us for
reconsideration light of Lehman is nevertheless
understandabie. Our prior en banc opinion could be
App. 5
read as based in part on habeas jurisdiction. We take
this opportunity to clarify any confusion that opinion
may have caused. Only the count II defendants, the
state judges, appealed the district court’s decision.
Because the count I defendants did not appeal, the
question of the appiicability of habeas jurisdiction was
not before us. We proceed to decide Davis’ section 1983
claim against the state judges, which is unaffected by
Lehman.
ITI.
[2} We now consider whether our prior en banc
decision survives Lassiter. In our prior decision we
held that due process requires the appointment of counsel
for indigent parents in all Florida dependency proceedings.
In Lassiter the Court held that due process requires
only a case-by-case determination whether counsel must
be appointed for indigent parents in state termination
proceedings. The Court expressly rejected the notion
that due process requires the appointment of counsel
for indigent parents in all termination proceedings. 452
U.S. at 31, 101 S.Ct. at 2162. The question presented is,
therefore, whether a proceeding in which a child is
adjudicated a dependent is distinguishable from a
proceeding in which parental] rights are terminated,
for purposes of the right to counsel under the due
process clause. We apply the Lassiter analysis to
dependency proceedings to resolve this question.
The Court in Lassiter began its analysis by drawing
from prior cases “the presumption that an indigent
litigant has a right to appointed counsel only when, if
he loses, he may be deprived of his physical liberty.”
452 U.S. at 26-27, 101 S.Ct. at 2159. Thus, in Lassiter
App. 6
the presumption was against the appointment of counsel.
Similarly, in this case Ms. Davis’ physical liberty was
not at stake. Therefore, the presumption was against
the appointment of counsel. This case and Lassiter are
not distinguishable as regards the presumption against
the appointment of counsel.
The Court’s analysis next focused on the balancing
test set forth in Mathews v. Eldridge, 424 U.S. 319, 335,
96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), which requires
evaluation of ‘the private interests at stake, the
government’s interest, and the risk that the nrocedures
used will lead to erroneous decisions.” Lassiter, 452
U.S. at 2159, 101 S.Ct. at 2159. In analyzing the private
interests, the Court first recognized the extreme
importance of the parental interest at stake in a
termination proceeding:
This Court’s decisions have by now made
plain beyond the need for multiple citation
that a parent’s desire for and right to “the
companionship, care, custody and management
of his or her children” is an important interest
that “undeniably warrants deference and, absent
a powerful countervailing interest, protection.”
Here the State has sought not simply to infringe
upon that interest but to end it. If the State
prevails, it will have worked a unique kind of
deprivation. A parent’s interest in the accuracy
and injustice of the decision to terminate his
or her parental status is, therefore a commanding
one.
452 US. at 27-28, 101 S.Ct. at 2160 (citations and footnote
omitted).
App.7
We must determine whether the parental interest
asserted in a dependency proceeding is any stronger
than the “commanding” interest the Court has found in
a termination proceeding. In the latter, the interest is
in the complete termination of parental rights. In fact,
in Lassiter the Court relied on the finality of the
termination decision to support its holding that a
commanding interest was at stake: “Here the State has
sought not simply to infringe upon [the parents’] interest
but to end it. If the State prevails, it will have worked
a unique kind of deprivation.” Jd (citations omitted).
In contrast to the complete and irrevocable
termination present in Lassiter, the parental interest
asserted in a Florida dependency proceeding will usually
be in the temporary custody of the child. As we noted
in our prior en banc decision:
Once a child has been adjudicated dependent
the court may (1) place the child in his own
home or the home of a relative under protective
supervision; (2) commit the child to a licensed
child-care agency; (3) commit the child to the
temporary legal custody of DHRS; or (4)
permanently commit the child to DHRS or a
licensed child-placing agency. F'la.Stat. §39.41(1).
640 F.2d at 601 n.2.
Thus, although permanent commitment of the child
is a possibility, it is also a possibility that the child will
remain in his own home or in the home of a relative.
The parental interest at stake certainly becomes greater
as the deprivation approaches permanency. Supervision
of the child in his own home does not amount to the
App. 8
“unique” type of deprivation present in Lassiter. As
the Supreme Court noted in discussing New York
termination proceedings in Santosky v. Kramer, 455
U.S. 745, 753-54, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599
(1982) (footnote omitted):
If anything, persons faced with forced dissolution
of their parental rights have a more critical
need for procedural protections than do those
resisting state intervention into ongoing family
affairs. When the State moves to destroy
weakened familial bonds, it must provide the
parents with fundamentally fair procedure.
The potentially disparate parental interests at stake
in Florida dependency proceedings militate in favor of
greater flexibility concerning the appointment of counsel,
rather than a rigid rule requiring counsel in all ceses.
Under a flexible approach, the state judge can identify
the parental interest at stake before the proceedings
commence, for example the court can determine whether
complete parental termination is a possibility, and then
decide whether to appoint counsel. Therefore, analysis
of the parental interest at stake in dependency
proceedings compared to that asserted in termination
proceedings reveals a balance weighted even more heavily
in favor of a case-by-case approach in this case than in
Lassiter.
The Supreme Court next analyzed the second prong
of the Mathews test: the state's interest. First, it
noted that: “Since the State has an urgent interest in
the welfare of the child, it shares the parent's interest
in an accurate and just decision.” 452 U.S. at 27, 101
S.Ct. 2160. The Court then recognized the state's interest 4
App. 9
—
in an economic and efficient procedure. The Court
concluded that although this latter interest was legitimate,
it was not significant enough to overcome the important
parental interest at stake. In this case, the state's
interest is identical to the state interest asserted in
Lassiter. The state desires an accurate and just decision
that can be made as economically and as efficiently as
possible. Therefore, this case is indistinguishable from
Lassiter regarding the second prong of the Mathews
test.
The Court next applied the third prong of the
Mathews test to determine “the risk that a parent will
be erroneously deprived of his or her child because the
parent is not represented by counsel.” 452 U.S. at 28,
101 S.Ct. at 2160. The Court reviewed the North Carolina
termination procedures, which provided, inter alia, that
only certain persons or agencies could file a petition to
terminate parental rights; that facts be described in
the petition sufficient to warrant a finding that one of
the grounds for termination existed; that the parent be
notified of the petition and be given 30 days to respund;
that if the parent's answer denies a material allegation
raised in the petition, a lawyer must be appointed as
guardian ad litem for the child at a hearing to resolve
any material issues; that the court order a hearing
even if the parent fails to respond to the petition; that
the court find facts based on clear, cogent, and convincing
evidence; and that any party could appeal within ten
days of the hearing. The Court then acknowledged that
based on the circumstances surrounding the hearing —
which might include, for example, expert medical and
psychiatric testimony, and parents with little
education — an uncounselled parent might be overwhelmed
by the proceeding. The Court thus recognized that the
App. 10
risk of an erroneous deprivation because of lack of
counsel might be high in some cases.
Like the North Carolina termination statute, the
Florida dependency statute has various provisions
designed to ensure a correct decision: a petition can be
filed only by the state attorney, an authorized agent of
the division of youth services or of the division of
family services, or a “person who has knowledge of the
facts alleged or is informed of them and believes that
they are true,” Fla.Stat.Ann. §39.05(2) (West 1974); the
petition must be in writing and must be signed by the
petitioner under oath stating his good faith in filing the
petition, id. §39.05(3); a written answer to the petition
need not be filed by any party, including the parent,
but any matters may be pleaded orally before the
court, id. §39.07; once a petition has been filed, the
court may order the child to undergo a physical or
psychological examination with the parent or child's
consent, id. §39.08; an adjudicatory hearing is held as
soon after a petition is filed as is practicable, id §39.0%1Xa);
the hearings are conducted by a judge without a jury;
the rules of evidence in civil cases are applied; the
state, represented by counsel, must prove its case by a
preponderance of the evidence, id. §39.09(1Xb); once a
child has been adjudicated a dependent, the court must
hold a disposition hearing, at which time it considers a
predisposition study presented by an agent of the division
of youth or of family services, id. §39.09(3); finally, the
child or parent may appeal the dependency adjudication.
id. §39.14(1). We believe these provisions, although
differing in some respects from the North Carolina
termination procedures, provide enough protection against
the risk of erroneous determinations that we cannot
App. 11
say that indigent parents must be appointed with counsel
in all Florida dependency proceedings.
In Lassiter the Court expressly recognized that
termination proceedings may present complex issues
involving medical and psychiatric testimony. The same
is true of dependency procee« ‘ngs. Similar to the situation
in termination proceedings, an uncounselled parent in
a Florida dependency proceeding might be overwhelmed
by the circumstances. Nevertheless, there is no reason
to believe that there is a greater risk of erroneous
deprivation in a Florida dependency proceeding than
the potentially great risk the Supreme Court recognized
in North Carolina termination proceedings. Thus, the
case cannot be distinguished from Lassiter on this
basis.
Finally, the Court balanced the Mathews factors
and weighed them against the presumption that there
is no right to appointed counsel in the absence of a
potential deprivation of physical liberty. The Court
summarized the factors as follows:
[Tjhe parent’s interest is an extremely important
one (and may be supplemented by the dangers
of criminal liability inherent in some termination
proceedings); the State shares with the parent
an interest in a correct decision, has a relatively
weak pecuniary interest, and, in some but not
all cases, has a possibly stronger interest in
informal procedures; and the complexity of
the proceedings and the incapacity of the
uncounselled parent could be, but would not
always be, great enough to make the risk of an
App. 12
erroneous deprivation of the parent’s rights
insupportably high.
452 U.S. at 31-32, 101 S.Ct. at 2162. The Court held that
whether these factors are sufficient to overcome the
presumption depends on the relative weight of the
factors in each individual case:
If, in a given case, the parent’s interests were
at their strongest, the State’s interests were
at their weakest, and the risks of error were
at their peak, it could not be said that the
Eldridge factors did not overcome the
presumption against the right to appointed
counsel, and that due process did not therefore
require the appointment of counsel.
id. The Court thus held that due process was not so
inflexible as to require the appointment of counsel in
every case.
We believe the Mathews analysis leads to the same
result in this case as it did in Lassiter. There is no
material distinction between this case and Lassiter
under any of the three Mathews prongs. The parent’s
interest is an extremely important one. The state’s
pecuniary interest is relatively weak. And the risk of
an erroneous deprivation is potentially high. Lassiter
holds that these factors must be weighed against the
presumption against counsel on a case-by-case basis.
We are bound by this holding.
App. 13
IV.
[3] We need not apply the Lassiter balancing test
to Davis’ individual case because she was granted the
habeas corpus relief she sought in count I, and the
count I defendants did not appeal. All that is before us
is the class claim in count II of Davis’ complaint. In this
count, Davis asked for prospective declaratory and
injunctive relief in favor of a class of indigent parents
prohibiting the state judges of the Juvenile and Family
Division of the Dade County Circuit Court from conducting
dependency proceedings without appointing counsel
for such parents in all cases. The very nature of the
relief Davis requested in count II is inconsistent with
the holding of Lassiter. Lassiter rejected a broad
prophylatic approach to the appointment of counsel in
cases such as the one before us, and instead adopted a
case-by-case analysis. Thus, Lassiter makes any claim
for class relief impossible in this case by removing the
commonality of fact necessary to the maintenance of a
class action. See Fed.R.Civ.P. 23(a\(2).
V.
Our function is not to question the wisdom of the
Lassiter opinion, but rather to apply it straightforwardly.
So applied, the conclusion is inescapable that Lassiter
requires a case-by-case analysis of the right to counsel
for indigent parents in Florida dependency proceedings.
Lassiter has completely superseded the prior opinions
in this case, and it precludes the relief Davis requested
in the only count of her complaint before us on appeal.
Thus, we REVERSE the judgment of the district court
App. 14
and REMAND for the district court to enter judgment
for the defendant judges on count II of the complaint.*
*We note that even if one believes that Lassiter does not
control this case, the practical problems, arising from concerns of
federalism, inherent in enjoining state judges from conducting
dependency proceedings without providing indigent parents with
counsel, must not be ignored. The Supreme Court has recognized
such concerns in two recent opinions: Lehman u Lycoming County
Children's Services Agency, _______._ US. 102 S.Ct.
3231, 73 L.Ed.2d 928 (1982), and Moore vu Sims, 442 U.S. 415, 99
S.Ct. 2371, 60 L.Ed.2d 994 (1979). Lehman, as we have noted, held
that federal habeas corpus jurisdiction could not be invoked to
challenge state court judgments involuntarily terminating parental
rights. Sims held that federal courts must abstain from interfering
in pending state proceedings in which the state has taken temporary
custody of children to prevent abuse by their parents. Both of
these decisions recognize the problems that arise when federal
courts interfere with state determinations involving parental rights.
If we were to affirm the district court's decision ordering
coercive relief in favor of a class in this case, the effect of our
holding would be to circumvent Lehman and Sims. For example, if
the state court in a different termination proceeding decided that
a parent was not indigent, the parent would immediately move in
federal court for coercive relief against the state judge by asking
the federal court to issue an order requiring the state judge to
show cause why he should not be held in contempt. If the federal
court during the pendency of the state dependency proceeding
issued such a show cause order, this order would violate the
holding of Sims. If the federal court were to issue such an order
after the dependency proceeding had concluded, the order would
violate the spirit of Lehman's holding by providing the type of
collateral review that case held invalid. The question of whether a
parent is truly indigent is only one example of various questions a
state juige might have to decide, and that would be subject to
immediate collateral federal review under the type of relief the
district court fashioned in this case. Given the Supreme Court's
sensitivity to federalism concerns in this area, the practical problems
involved in issuing such relief are prohibitive.
App. 15
TJOFLAT, Circuit Judge, with whom BROWN,
CHARLES CLARK, HILL, HENDERSON, HATCHETT,
GARWOOD and JOLLY, Circuit Judges, join, specially
concurring:
Although I concur in the judgment of the court to
reverse and remand count II to the district court to
enter judgment for the defendant judges, I would order
the entry of that judgment for different reasons. I
believe that Davis’ count II claim against the state
judges for declaratory and injunctive relief never
presented a case or controversy. As the per curiam
opinion states, the district court certified a class and
granted all the relief Davis requested under count II.
In deciding whether Davis was an adequate class
representative, the court should have first decided
whether Davis’ individual claim for relief against the
judges presented a case or controversy. See East Texas
Motor Freight System, Inc. v. Rodriguez, 431 U.S. 395,
403-04, 97 S.Ct. 1891, 1896, 52 L.Ed.2d 453 (1977) (“[TyJhese
plaintiffs lacked the qualifications to be hired as line
drivers. Thus, they could have suffered no injury as a
result of the alleged discriminatory practices [against
line drivers], and they were therefore simply not eligible
to represent a class of persons who did allegedly suffer
injury.”) (footnote omitted); 3BJ. Moore & J. Kennedy,
Moore’s Federal Practice § 23.-04(2], at 120-27 (2d ed.
1982). Specifically, the court should have determined
whether it could have ordered any relief against the
Dade County circuit judges that would have been of
any benefit to Davis. As Chief Justice Hughes recognized
in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227,
241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937): “[The
controversy] must be a real and substantial controversy
App. 16
EE SST
admitting of specific relief through a decree of a conclusive
character . . .” Because the district court’s grant of
declaratory or injunctive relief against the judges would
have been of no benefit to Davis, I would hold there
was no case or controversy between Davis and the
judges. Therefore, I would not decide the merits of the
purported class claim.
The wrong alleged in count II was that judges had
violated the constitutional rights of Davis and other
indigent parents and were continuing to violate the
constitutional rights of indigent parents by their practice
of not appointing counsel in dependency proceedings.
The district court could have granted no remedy of
benefit to Davis against the judges for the alleged
violation in her case, however, because the dependency
proceeding involving her child had concluded.' At that
point, any claim Davis may have had against the judge
in her case or the other judges assigned to the Juvenile
and Family Division for declaratory and injunctive relief
was moot. See C & C Products, Inc. u Messick, 700
F.2d 635, 636 (11th Cir.1983) (if events preclude the
grant of effective relief, case is moot). Davis did not
allege that she might be a defendant in future dependency
‘Thus, this is not a case in which one in Davis’ position
brought a federal suit for declaratory and injunctive relief during
the state dependency proceeding. Presumably, no problem of case
or controversy would arise in that context. Other barriers to
relief would most likely arise, however, including, most notably,
abstention. See Moore v. Sims, 442 US. 415, 99 S.Ct. 2371, 60
L.Ed.2d 994(1979).
App. 17
proceedings.’ Neither an injunction mandating that the
judges appoint counsel to indigent parents in the future
nor a declaration that the judges’ practice of denying
counsel to indigent parents was unconstitutional would
have been of any benefit to Davis because the proceeding
involving her child had concluded.’
One might argue that a declaration of the
unconstitutionality of the judges’ practice would have
benefited Davis because it might have cast doubt on
the constitutionality of the judgment under which DHRS
*Thus, Davis’ claim did not fall within the “capable of repetition
yet evading review” exception to the mootness doctrine. See C &
C Products, Inc. v. Messick, 700 F.2d 635, 637-38 (11th Cir.1983). If
count II of Davis’ complaint had presented a live case or controversy
against the judges at the time her suit was filed and at the time
the class was certified, the fact that Davis’ individual claim might
have become moot would not have mooted the case because the
interests of the class would still have been live. See Sosna vu. Jowa,
419 U.S. 393, 398-403, 95 S.Ct. 553, 556-59, 42 L.Ed.2d 532 (1975).
But this case is distinguishable from Sosna because Davis’ complaint
never presented a case or controversy against the judges. Therefore,
the district court should not have certified the class. See Sosna,
419 U.S. at 402, 95 S.Ct. at 559 (“There must . . . be a named
plaintiff who has [an article III] case or controversy at the time
the complaint is filed, and at the time the class action is certified
by the District Court pursuant to Rule 23. . . .” (footnote omitted).
*Count II of Davis’ complaint could not have been interpreted
to have asked for damages. Furthermore, the judges would have
been immune from damages liability. See Stump u Sparkman, 435
U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).
App. 18
had custody of her child.‘ This argument does not,
however, respond to the observation that Davis alleged
no case or controversy against the judges because she
sought no relief from them. Even if DHRS had been
joined as a party defendant in court II of Davis’ complaint,’
the only relief Davis requested or could have obtained
for her benefit was the return of her child from DHRS.
Davis could have obtained no relief from the judges.*
We should not allow an indirect lawsuit aimed at only
one party to be brought against different parties, who
are powerless to take any action of benefit to the
plaintiff. A case or controversy must exist between the
plaintiff and each defendant. See, e.g., Northern Virginia
Women’s Medical Center v. Balch, 617 F.2d 1045, 1049
(4th Cir.1980). Because Davis’ controversy was only
with DHRS, we should not consider any possible effect
relief entered against the judges might have had on
DHRS.
‘Such a declaration would not necessarily impugn the
constitutionality of the proceeding involving the Davis child.
Conceivably, a court could decide that although Davis’ proceeding
on the whole satisfied due process, nonetheless the likelihood of
due process violations occurring in other cases because of the
deprivation of counsel was so great that a prophylactic rule was
needed to prevent the withholding of counsel.
‘Davis never mentioned DHRS as a party in count II. This
does not reflect an oversight on Davis’ part, but rather reflects a
recognition of the separate nature of counts | and II.
‘It is hard enougn to determine what relief Davis sought from
the judge who presided over the dependency proceeding involving
her child. It is even harder to fathom what relief she sought i:om
the other judges.
App. 19
Firmly established case law recognizes that once a
proceeding has ended and there is no sufficient allegation
that the petitioner may again be involved in a similar
proceeding, no case or controversy exists between the
petitioner and the judge who had presided over the
proceeding. In O'Shea wu Littleton, 414 U.S. 488, 94
S.Ct. 669, 38 L.Ed.2d 674 (1974), nineteen named
individuals brought a civil rights action, individually
and on behalf of a class of citizens of Cairo, Illinois,
against, among others, a magistrate and an associate
judge of the local county circuit court. The suit alleged
that the defendants had engaged in certain
unconstitutional practices affecting the individuals and
the class, including illegal bond-setting, sentencing, and
jury-fee practices. The Court held that petitioners had
failed to establish a case or controversy against
respondents for equitable relief because it was too
speculative whether petitioners would be subject to
the alleged illegal practices in the future. The Court
held: “Past exposure to illegal conduct does not in
itself show a present case or controversy regarding
injunctive relief, however, if unaccompanied by any
continuing, present adverse effects.” Jd. at 495-96, 94
S.Ct. at 676; see also City of Los Angeles v. Lyons,
US. 103 S.Ct. 1660, 75 L.Ed.2d 675
(1983); Rizzo vu. Goode, 423 U.S. 362, 96 S.Ct. 598, 46
L.Ed.2d 561 (1976). Although in the case at bar Davis
was suffering the continuing adverse effect of being
deprived of her child, at the time she brought her suit
for declaratory and injunctive relief it was DHRS who
was responsible for this circumstance. Davis’ claim for
injunctive and declaratory relief against the judges
had passed.
In Slavin v. Curry, 574 F.2d 1256, modified, 583
F.2d 779 (5th Cir.1978), Slavin brought an action under
App. 20
42 U.S.C. §1983 alleging that a state judge and others
had conspired to deprive him of due process and equal
protection by framing him on state criminal charges.
Slavin was convicted of those charges in a trial before
the state judge. His conviction was reversed on appeal.
Slavin alleged that the judge took certain acts throughout
his trial to rig the case against him, including ordering
court reporters to alter the transcript of his trial to
make it more likely his conviction would be upheld on
appeal. He sought a declaratory judgment that the
judge had infringed on his constitutional rights by
these actions.
In dismissing the complaint against the judge, the
district court relied in part on the absence of an active
controversy between Slavin and the judge. The court
of appeals first recognized “that courts will grant
declaratory relief only if there is ‘a substantial controversy
of sufficient immediacy and reality between parties
having adverse legal interests.” 574 F.2d at 1264 (quoting
Wolfer v. Thaler, 525 F.2d 977, 979 (5th Cir. 1976)). The
court then tried to determine the present stage of the
state criminal proceedings against Slavin. It recognized
that a state jury had convicted Slavin, but that this
conviction had been reversed on appeal. It noted that
Slavin had been reindicted, but it did not know whether
any further proceedings had occurred. The court held:
In this case, whether there is . . . a substantial
controversy will depend upon Slavin’s current
condition. If he has not been retried on the
same charges, these defendants may continue
to infringe his constitutionally guaranteed rights.
If that possibility were proved, the district
court is not foreclosed from enjoining the judge
App. 21
and others from continuing their conduct. It
may be, however, that Slavin has been retried
and found innocent. If that be true, the district
court will probably conclude that equitable
relief would be inappropriate. Jf Slavin is
presently in prison after having been convicted,
whatever controversy may exist would be
between Slavin and the state official responsible
for continuing his imprisonment. Under those
circumstances, there would be no controversy
between the judge and Slavin. Because we do
not know which of those conditions is true, we
remand the claim against Judge Lindsey to
the district court for further proceedings.
574 F.2d at 1264 (emphasis added).
The court thus recognized that if the state criminal
proceedings had ended in Slavin's conviction, there
would no longer be a controversy between Slavin and
the judge. Rather, the controversy would be between
Slavin and “the state official responsible for continuing
his imprisonment,” i.e., the warden. On petition for
rehearing, the court was informed that Slavin had pled
guilty to the charges aileged in the second indictment
before the same state judge, who sentenced him to a
term of imprisonment of two to four years. The court
withdrew as moot its prior discussion of the validity of
equitable relief against the judge, including the paragraph
quoted above. Slavin v. Curry, 583 F.2d 779 (5th Cir.
1978).
In withdrawing as moot that paragraph, however,
the court actually reaffirmed the language describing
what in fact had occurred: “If Slavin is presently in
App. 22
prison after having been convicted, whatever controversy
may exist would be between Slavin and the state official
responsible for continuing his imprisonment. Under
those circumstances, there would be no controversy
between the judge and Slavin.” Because Slavin had
been convicted and sentenced, he no longer had any
controversy with the judge, and the court’s prior
discussion of equitable relief against the judge had
been rendered moot. Cf. Northern Virginia Women’s
Medical Center v. Balch, 617 F.2d 1045, 1049 (4th Cir.
1980) (holding that action against state judges for
declaration that their judgments of acquittal in certain
criminal cases were void did not present case or
controversy because “[a] declaration on the invalidity
of these judgments would have been nothing more
than a gratuitous comment without any force or effect.”).
As did O'Shea and Slavin, the case at bar involved
a suit for equitable relief against state judges who
presided over a proceeding that terminated prior to
suit.’ 1 agree with the reasoning the O'Shea and Slavin
opinions illustrate. Once the state proceeding has ended,
and there is no allegation that the petitioner may be
involved in a similar proceeding in the future, a federal
declaration or injunction against a state judge serves
no purpose. Just as Slavin’s controversy was no longer
with the judge, but with the warden, Davis’ controversy
was no longer with the judges, but with DHRS. It was
"We recognize that in Slavin petitioner sued only one judge,
whereas here Davis is suing a number of judges. Slavin did not
allege that the judge who presided over his state trial acted in
conformity with any judicial practice, whereas Davis does. This
distinction is not relevant to our case-or-controversy analysis.
App. 23
DHRS who allegedly was depriving Davis of her
constitutional rights by acting pursuant to an
unconstitutional decision. Whatever constitutional
deprivation may have occurred by the judge rendering
the unconstitutional decision or by other judges acting
under the same unconstitutional practice was no longer
remediable in a suit against the judges. Thus, no
controversy existed between Davis and the state judges.
The case-or-controversy problem would have been
apparent at an earlier stage of the litigation had the
district court recognized that Davis brought two separate
lawsuits. These suits were based on two different statutes,
brought against two different groups of defendants,
claiming two different factual bases in support of relief,
and asking for totally different forms of relief. The
first suit was based on the habeas corpus statute; it
was brought against DHRS, who had custody of the
Davis child; it claimed that Davis’ proceeding was rendered
fundamentally unfair in violation of the due process
clause because Davis was not provided counsel; and it
asked for the release of the Davis child. In sharp contrast,
the second suit was brought under section 1983; it was
brought against the state judges only; it alleged that
due process violations occur in so many cases in which
indigent parents are not provided counsel that a
prophylactic rule requiring the appointment of counsel
in all cases is needed; and it sought the broad remedy
of declaratory and injunctive relief against the state
judges.
Faced with these two separate lawsuits, the district
court should have separated them. Different concerns
come into play in each suit. The factual basis necessary
to support the first suit is narrow: evidence showing a
App. 24
single due process violation. In contrast, the factual
basis necessary to support the second suit involves a
showing of a pervasive due process violation which
occurs in almost every case. Concerns of federalism,
comity, and traditional notions of equity obviously play
a part in the second suit but do not in the first. The
error the district court made was in mistaking Davis’
live case or controversy with DHRS for a live case or
controversy with the judges. Had the court separated
the two lawsuits as I have described, it would have
become obvious to it that Davis had no case or controversy
with the judges.
Based on the foregoing reasoning, I concur in the
judgment of the court.
R. LANIER ANDERSON, III, Circuit Judge,
concurring specially:
I concur in all of the per curiam opinion for the
court except for the final footnote. Although I acknowledge
the gravity of the concerns expressed there, I am not
yet prepared to concur in the conclusions expressed in
the final footnote of the per curiam opinion.
The application of Lassiter vu. Department of Social
Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640
(1981), to this case presents a close and difficult issue.
Although Judge Vance has articulated an intelligible
distinction, I conclude ultimately that the holding and
rationale of Lassiter require the disposition announced
in the per curiam opinion I now join. While it is clear to
me that due process will require counsel in most cases
of this kind (unless saved by a determination that the
evidence was sufficiently great “that the absence of
App. 25
counsel’s guidance ... did not render the proceedings
fundamentally unfair,” Lassiter, 452 U.S. at 33, 101
S.Ct. at 2162), a proper reading of Lassiter, in my
judgment, calls for a case-by-case rather than a per se
approach.
RANDALL, Circuit Judge, with whom REAVLEY,
Circuit Judge, joins, specially concurring:
For the reasons set forth in the Per Curiam opinion,
I concur in the dismissal of the plaintiffs’ section 1983
claim for failure to state a claim. I do not agree with
the unsupported statement in the Per Curiam opinion
that “Lassiter makes any claim for class relief impossible
in this case by removing the commonality of fact necessary
to the maintenance of a class action,” slip op. at 16074
at , nor do I understand why the statement
appears in the opinion. If it is correct, then we have no
plaintiff and no case or controversy, and the dismissal
of the complaint would not be a dismissal for failure to
state a claim (as it is intended to be) but would instead
be a dismissal for want of jurisdiction.
Finally, I think it important for this court to recognize
that the Supreme Court of Florida in 1975 adopted the
case-by-case approach to the right to counsel for indigent
parents in Florida dependency proceedings, the approach
that a majority of this court has now concluded is
required by Lassiter. Potvin v. Keller, 313 So.2d 703
(Fla. 1975).
GARWOOD, Circuit Judge, specially concurring:
I concur in the Court’s per curiam affirmance and
in Judge Tjoflat’s special concurrence. With regard to
App. 26
the latter, I append these observations. In her brief to
this Court on the origina! en bane submission, Davis
characterized her action below, and the trial court’s
judgment. as follows:
“Neither her complaint nor her motion for
summary judgment sought to enjoin any pending
state proceeding. Rather she sought her relief
from a past dependency adjudication and
prospective relief to assure the appointment
of counsel in future dependency proceedings.
The amended final judgment below does not
enjoin any pending dependency proceedings;
it vacates a past adjudication and directs the
appointment of counsel in future adjudicatory
proceedings.” (Emphasis added.)
Obviously, the words ‘‘a past dependency
adjudication” and “a past adjudication,” refer to, and
only to, the adjudication respecting the Davis child.'
A fair reading of Davis’ complaint compels the
conclusion that the habeas corpus was the only count
under which relief was sought as to past dependency
adjudication, and that the only such past adjudication
‘Essentially the same position is taken by Davis in her brief
to this Court following remand from the Supreme Court, viz:
“Neither her complaint nor her motion for summary
judgment sought to intrude into any pending dependency
adjudicatory proceeding. Rather, be sought relief from
the past adjudication based upon her right to counsel.
The amended final judgment does not enjoin any pending
dependency proceeding.” (Emphasis added.)
App. 27
in issue was that respecting the Davis child.’ Likewise,
it is clear that the relief which the district court ultimately
granted to Davis individually was based entirely on
her habeas count.’
*The introductory portion of the complaint accurately
characterized it as follows:
“Petitioner brings this action in two counts, Count J
being a petition for Writ of Habeas Corpus seeking the
release of a minor child from the custody of a social
welfare agency of the State of Florida. The child's natural
mother is seeking to invalidate a state court judgment
adjudicating her child dependent because, though she
was indigent, she was not provided counsel to represent
her in the dependency action wherein she was deprived
of the custody of her child. The mother contends that it
is a violation of her constitutional right to due process
of law and equal protection under the law for the state
to interfere with her fundamental right to the care,
control, and custody of her natural child, without affording
her counsel, if she is indigent, to represent her in such
proceedings. Count I] of this complaint is a class action
brought against the Juvenile Court Judges of Dade
County, Florida to declare unconstitutional the practice
and policy in the Juvenile Court of conducting dependency
proceedings against indigent parents without providing
them counsel at the state’s expense. Petitioner on behalf ©
of herself and all others similarly situated further seeks
to enjoin said practice and policy.” (Emphasis added.)
*This is clear from the district court's opinion. See Davis uv.
Page, 442 F.Supp. 258, 259 n. 1 and accompanying text
(S.D.Fla. 1977): |
“In a separate count, Plaintiff seeks a writ of habeas
corpus to secure the release of her child from the
App. 28
Accordingly, it is proper to regard count two, the
class action count and the sole count which is before us,
as pertaining only to future dependency proceedings,
which is the way Davis characterizes it and the relief
granted pursuant to it. This is particularly appropriate
because with regard to concluded proceedings res judicata
would bar relief (except pursuant to habeas corpus,
were it otherwise available), see Kremer v. Chemical
Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72
L.Ed.2d 262 (1982); Allen vu. McCurry, 449 U.S. 90, 101
S.Ct. 411, 66 L.Ed.2d 308 (1980), and with regard to
pending proceedings relief would be barred by abstention.
Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d
994 (1979).
I agreed with Judge Tjoflat, for the reasons so
well set forth in his concurring opinion, that Davis was
not a proper class representative and that as to past
adjudications the judges were not proper defendants. I
(Footnote 3 Continued)
continuing supervision by the Florida Department of
Health and Rehabilitative Services under the continuing
jurisdiction of the Dade County Circuit Court.’
“' Plaintiff originally sought restoration of custody.
However, during the course of these procedings, custody
was restored to her subject to supervision by the state
and the continuing jurisdiction of the Circuit Court.
The plaintiffs child is still ‘in custody’. See Jones v.
Cunningham, 371 U.S. 236 (83 S.Ct. 373, 9 L.Ed.2d 285]
(1963). See also Carafas vu. LaVallee, 391 U.S. 234 [88
S.Ct. 1556, 20 L.Ed.2d 554] (1968); Hensley u Municipal
Court, 411 U.S. 345 [93 S.Ct. 1571, 36 L.Ed.2d 294]
(1973).”
App. 29
am also of the opinion that a “class” of parents who
might while indigent at some later time be the subject
of future dependency proceedings brought in Dade
County, and for whom the courts would not appoint
counsel though counsel were to be needed, desired,
and otherwise unavailable, is simply too indefinite to
present a case or controversy appropriate for the exercise
of federal judicial power under Article III. Such a class
is not sufficiently definable, for purposes of the
characteristics that are relevant to distinguishing it
from the population generally, by reference to existing
facts. It thus differs not only from classes defined by
immutable characteristics, such as race or sex, but also
from those defined by current conditions, such as those
who at the time of suit in fact reside in a state and then
desire to procure a divorce in its courts but have not
lived there long enough to fulfill a one-year residency
requirement. See Sonsa v. Jowa, 419 U.S. 393, 95 S.Ct.
553, 42 L.Ed.2d 532 (1975). Unlike those instances, here
one cannot at the time of suit confidently identify even
some presently existing individuals who are members
of such a “class.”* See e.g., Thomas v. Clarke, 54 F.R.D.
245, 249 (D.Minn. 1971) (three-judge court); Cunningham
‘Even if the “class” included those who had been subjects of
dependency proceedings, respecting such class niembers the judges
were not proper defendants, as Judge Tjoflat’s concurring opinion
points out. Moreover, if the “prospective” class forms an inappropriate
basis for exercise of case or controversy federal judicial power
under Article III, this result should not be changed by expansion
of the class definition to include those who under settled judicial
doctrines of res judicata and abstention are not entitled to relief.
Particularly is this so where, as here, the class relief sought and
granted was entirely prospective and for the benefit of the future
“class.”
App. 30
v. Ellington, 323 F.Supp. 1072, 1074 (W.D.Tenn. 1971)
(three-judge court); Rappaport v. Katz, 62 F.R.D. 512,
514 (S.D.N.Y. 1974), Lamb v. Hamblin, 57 F.R.D. 58, 60
(D.Minn. 1972).
Accordingly, I join in Judge Tjoflat’s special
concurrence, and would additionally reach the same
result because there is, in my view, no proper class in
respect to count two. I also join in the per curiam
affirmance, particularly in light of the considerations
expressed in the footnote to that opinion.
VANCE, Circuit Judge, with whom GODBOLD,
Chief Judge, TUTTLE, RUBIN, KRAVITCH, FRANK
M. JOHNSON, JR., POLITZ, TATE, THOMAS A.
CLARK and WILLIAMS, Circuit Judges, join dissenting:
I respectfully dissent from the majority's reversal
of the district court’s judgment and remand for entry
of judgment for defendants.’
‘In the body of my dissent ! undertake to address the merits
of the question before us. I should point out, however, that the
conclusion of the majority that there is an absence of the commonality
requirement of Fed.R.Civ.P.23(aX2) is based upon faulty logic.
First, Davis had an individual claim. The record does not support
the parsing of the pleadings in the rigid manner the majority
opinion adopts. Count II of the complaint adopts all of the allegations
of Count I. The complaint also contains a prayer for general relief
without reference to any count. It was under the general prayer
that the dependency adjudication was declared null and void.
Second, when the class was certified by the district court. the
common question presented was whether appointment of counsel
to indigent parents in Florida dependency proceedings was required
(Footnote continued on next page)
App. 31
In our previous en banc opinion in this case, Davis
v. Page, 640 F.2d 599, 601, 602 (5th Cir.1981) (en banc)
we held that jurisdiction as to Davis’ claim against the
judges of the Florida state courts was properly founded
on both federal habeas corpus, 28 U.S.C. §2254, and 42
U.S.C. §1983. The Supreme Court vacated and remanded
to us for consideration in the light of Lehman u Lycoming
Country Childrens’ Services Agency, _._____—*vU'S..
102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In Lehman,
the Court held that federal habeas corpus jurisdiction
under section 2254 could not be invoked to challenge
the constitutionality of a state statute under which a
state had obtained custody of children and had terminated
involuntarily the parental rights of the natural parent.
If we narrowly read the Supreme Court’s charge to us in
this case, we now would be constrained to find that our
original holding remains valid and intact under the
alternative jurisdictional base of section 1983.
We would be remiss in our responsibilities, however,
if we did not also recognize that in the interim between
our first en banc opinion and the Supreme Court remand
the Supreme Court also decided Lassiter u Department
of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981). The Lassiter opinion, holding that counsel is
not constitutionally required in North Carolina termination
(Footnote 1 Continued)
by the due process clause of the fourteenth amendment. As a
result of the Lassiter decision, the issue has been narrowed and
focused, so that, as the majority opinion recognizes, the common
class question before us is, in effect, whether, under the balancing
test established in Lassiter, appointment of counsel is constitutionally
required under the due process class. Lassiter has sharpened the
focus of the issue. But it has by no means nullified it.
App. 32
of parental rights proceedings, bears heavily on the
substantive issue in this case. The Lassiter opinion, in
effect, forces us to reconsider our substantive as well
as our jurisdictional holding on this remand.’
In Lassiter the Supreme Court applied a balancing
test, based upon the three pronged test of Mathews uv.
Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18
(1976), to determine whether counsel is constitutionally
required in civil proceedings impinging upon parental
rights.
*In his special concurrence, Judge Tjoflat reasons that Davis’
claim against the judges never presented a live case or controversy
because the dependency proceedings were concluded prior to the
initiation of this action. This view was rejected by a majority of
this court during conference.
It is true that while the case was pending in district court,
the Florida state court returned Car! Thor to his mothers’ physical
custody, granting Ms. Davis relief in her claim against the DHRS.
But this only partially ameliorated the injury for which she sought
relief. Under the state court order, Carl Thor remained subject to
the state judge’s judgment and retention of jurisdiction (in effect
legal custody). Legal custody was transferred back to Ms. Davis
from the Florida courts only through the declaratory judgment of
the district court. The state court judges were clearly proper
defendants to this action, because it was the court alone, not the
DHRS, which has legal custody. Davis thus had a live claim against
the judges at the time of her action in district court. This case is,
therefore, obviously different from O'Shea wu Littleton, 414 U.S.
488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Slavin vu Curry, 574 F.2d
1256, modified, 583 F.2d 779 (5th Cir.1978), and the other cases
relied on by Judge Tjoflat, in which the alleged injury was past
and the possibility of future injury purely speculative.
(Footnote continued on next page)
App. 33
The case of Mathews v. Eldridge, 424 U.S. 319,
335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, propounds
three elements to be evaluated in deciding
what due process requires, viz., the private
interests at stake, the government’s interest,
and the risk that the procedures used will lead
to erroneous decisions. We must balance these
elements against each other, and then set their
(Footnote 2 Continued)
Despite Judge Tjoflat’s contrary view, the Sosna requirements
have been fully complied with in this case. In Sosna uv Jowa, 419
U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975), the Supreme
Court considered a situation identical to this one in its essential
elements. A Fed.R.Civ.P. 2(bX2) class action was brought, requesting
declaratoiy and injunctive relief prohibiting judges of the state
courts of Iowa from acting pursuant to an allegedly unconstitutional
state statute. By the time of appellate review, the individual claim
of the named plaintiff had become moot. The Court held that:
There must not only be a named plaintiff who has such
a case or controversy at the time the complaint is filed,
and at the time the class action is certified by the
District Court pursuant to Rule 23, but there must be a
live controversy at the time this Court reviews the
case. . . The controversy may exist, however, betweena
named defendant and a member of the class represented
by the named plaintiff, even though the claim of the
named plaintiff has become moot.
Id. at 402, 95 S.Ct. at 559 (emphasis added). Accord Franks uv.
Bowman Transp. Co., 424 U.S. 747, 752-57, 96 S.Ct. 1251, 1258-60,
47 L.Ed.2d 444 (1976). In a class action, dismissal is appropriate
only where, as in O'Shea v. Littleton, the controversy is moot as to
all class members.
(Footnote continued on next page)
App. 34
net weight in the scales against the presumption
that there is a right to appoint counsel only
where the indigent, if he is unsuccessful, may
lose his personal freedom.
Lassiter v. Department of Social Services, 452 U.S. at
28, 101 S.Ct. at 2160. We now apply the Lassiter test to
Florida dependency proceedings.
(Footnote 2 Continued)
In this case the complaint was filed on June 22, 1976 and the
class was certified on December 22, 1976, prior to both the order
of the Florida circuit court returning Carl to the physical care of
his mother under the continuing jurisdiction of the Florida circuit
courts on January 28, 1977, and the judgment of the federal
district court, declaring the adjudication of dependency to be null
and void, on January 25, 1978. The controversy remains live as to
thousands of other members of the class who are routinely denied
counsel.
The Supreme Court has interpreted Sosna as establishing a
substantive principle for determining case and controversy
requirements in Rule 23(bX2) class actions, not merely a formalistic
chronological requirement. “Sosna contemplates that mootness
turns on whether, in the specific circumstances of the given case
at the time it is before [the court], an adversary relationship
[exists] sufficient to fulfill” the purposes of the personal stake
prong of the Article III case and controversy requirement. Franks
v. Bowman Transp. Co., 424 U.S. at 755-56, 96 S.Ct. at 1259-60.
“{TJhe purpose of the personal stake’ requirement is to assure
that the case is in a form capable of judicial resolution. The
imperatives are . . . sharply presented issues in a concrete factual
setting and self-interested parties vigorously advocating opposing
positions.” United States Parole Comm'n v. Geraghty, 445 U.S.
388, 403, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). In the case
before us, the fundamental Article III factors are amply met.
App. 35
The Florida statutory scheme involved in this case
is virtually identical to that which governs state
proceedings to intervene in the parent-child relationship
in inost other states. In Florida, as is typical of other
states, these proceedings are divided into two stages.
The first or adjudicatory stage, that described by
the Supreme Court in the post Lassiter case of Santosky
v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982), is a formal trial. The issue at trial is the fitness
of the parent, and therefore the parent’s right to custody.
Once adjudicated, this decision has full res judicata
effect. Rules of evidence apply, witnesses are examined
and cross-examined, the state is represented by legal
counsel, and, by statute in most states, the parent has
a right to appointed counsel. Plaintiffs in this case
contend that Florida parents, also, have a right to
counsel in these adjudicatory proceedings under the
due process clause of the United States Constitution.
The second stage of these proceedings is the
dispositional stage. It is generally informal in nature,
like an administrative hearing. Although a parent may
come to these proceedings at a disadvantage, because
of a prior adjudication of unfitness, no question of
parental fitness or of a constitutional right to custody
is involved. Rather, the main issue is what placement
will be in the best interests of the child. It is this
second, dispositional stage of the proceeding at which
the Lassiter Court determined that counsel is not
constitutionally required.
The difference between the adjudicatory and
dispositional stages of these proceedings is critical to
the constitutional issue in this case.
App. 36
The Private Interest
Parents have a fundamental constitutional right
to “bring up children,’ Meyer vu. Nebraska, 262 US.
390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1922), to
retain custody of their children, and to raise them as
they see fit. The Supreme Court has stated “It is cardinal
with us that the custody, care and nurture of the child
reside first in the parents whose primary function and
freedom include preparation for obligations the state
can neither supply nor hinder,” Prince vu. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944).
The constitutional rights of a parent are not limited to
physical custody of a child. They include the right to
“direct his destiny” and “the liberty . . . to direct [his]
upbringing and education.” Pierce v. Society of Sisters,
268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070
(1925). They include the right to make decisions about
his care and education, whether or not these deviate
from the cultural norm. See, e.g., Parham v. J.R., 442
U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Wisconsin
v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15
(1972); Pierce vu. Society of Sisters. As the Supreme
Court recently emphasized in the post-Lassiter case of
Santosky v. Kramer, 455 U.S. at 753, 102 S.Ct. at 1394:
[Freedom of personal choice in matters of family
life is a fundamental liberty .... Natural
parents have a fundamental liberty interest
. . . in the care, custody, and management of
their child.
App. 37
(emphasis added). In addition, “The law's concept of
the family [has]. . . historically . . . recognized that
natural bonds of affection lead parents to act in the
best interests of their children.” Parham v. J.R., 442
U.S. at 602, 99 S.Ct. at 2504.
As a consequence of the dependency adjudication
in the State of Florida, the parents’ right to custody,
the right to freely decide how the child will be raised,
and the legal assumption that such decisions will be in
the child’s best interest, are destroyed. When a child is
adjudicated dependent in the State of Florida, the
fundamental familial bond is severed, the child becomes
a ward of the courts, and the rights of the parent are
permanently “forfeited” to the courts of Florida. Pendarvis
v. State, 104 So.2d 651, 652 (Fla.1958) (Pendarvis I).
Once the court obtains jurisdiction of a dependent child,
the jurisdiction continues unabated, unless relinquished
by court order, until the child reaches eighteen years
of age. Fla.Stat.Ann. §39.40 (West 1983). The court may
remove the child from the parental home, and place
him in the care of those whom it finds more suitable.
Id. at §39.41 (West 1983). In Pendarvis I, 104 So.2d at
652, the Florida Supreme Court emphatically described
the death blow dealt to parental rights by an adjudication
of dependency:
Once a child has been lawfully declared to be a
dependent or delinquent child, it becomes a
ward of the state and a broad discretion is
vested in the juvenile court to do those things
App. 38
which appear to be in the best interest of the
child.
As a matter of course such adjudication frequently
results, as it did here, in the immediate physical removal
of a child from his parents’ custody. The courts exercise
this discretion, however, even when a dependent child
is allowed to remain in the parental home. In such
circumstances, the child is virtually paroled to the
parent under the court’s “protective supervision.”
Fla.Stat.Ann §39.41(1Xa). Until the child reaches legal
majority he or she may live with the parent only at the
discretion and sufferance of the Florida courts, and
only under the conditions they prescribe. /d. At any
time, by petition of any interested person, and without
the need for further adjudicatory proceedings, or any
evaluation of parental fitness, the child may be removed
from the parent’s home, if the court determines, after
an informal hearing, that such is in the child’s best
interest. Jd. at §39.41(1Xe). The parent’s custody of the
child may be questioned and interrupted at any time
by administrative type hearings. Although the parent
may participate in those hearings, to retain custody,
the parent will be forced to prove, by a preponderance
of the evidence, that continued custody is in the child’s
best interest. Jd. at §§39.408(2) and 39.41. Even in
circumstances where active court supervision is at a
minimum, the spectre of judicial interference places a
lasting chill on the exercise of fundamental parental
rights.
Despite its recognition of the “commanding” interests
of parents, the majority concludes, on the basis of
App. 39
Lassiter, that these interests are insufficient to overcome
the presumption against a right to counsel. The parental
interest involved in dependency proceedings, however,
is different from and greater than that involved in the
termination proceedings at issue in Lassiter. First,
unlike termination proceedings, which place the final
formal attestation on long severed domestic and emotional
bonds, dependency proceedings are an initial state
interference into an intact familial unit. The strenght
of parental rights is at its pinnacle when parent and
child dwell together in an intact domestic unit. As the
Supreme Court observed in Stanley v. Illinois, 405 U.S.
645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), the
“integrity of the family unit” has found protection in
the due process clause of the fourteenth amendment,
Meyer v. Nebraska, 262 U.S. at 399, 43 S.Ct. at 626, the
equal protection clause of the fourteenth amendment,
Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110,
1113, 86 L.Ed. 1655 (1942), and the ninth amendment,
Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct.
1678, 1688, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring).
The intact family unit is accorded the additional protection
of the right to privacy which derives from the first,
third, fourth, fifth and ninth amendments. See Griswold
v. Connecticut, 381 U.S. at 484-85, 85 S.Ct. at 1681-82.
The Supreme Court has recognized the difference between
the rights of parents who reside with their children
and those who do not. Compare Stanley v. Illinois,
(holding that unwed widowed fathers who live with
their children have a due process right to a hearing
before the children may be removed from their custody)
with Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54
L.Ed.2d 511 (1978) (holding that unwed fathers who do
not reside with their children have no constitutional
right to withhold consent to their adoption by resident
App. 40
stepfathers). Once children are removed from the natal
home, the rights of natural parents compete with those
of parent surrogates. Smith v. Organization of Foster
Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14
(1977).
Second, in contrast to the termination proceeding,
the dependency proceeding is the critical stage in the
adjudication of parental rights because it is the only
point at which the issue of parental fitness is litigated,
and is dispositive. As the Florida Supreme Court stated
in Pendarvis I:
Evidence that may be totally inadequate to
deprive a parent of the custody of his child in
the first instance may be altogether adequate
to support the court’s refusal to restore custody
to the parent once the child has become a
ward of the state.
104 So.2d at 652.
A preeminent principle which emerges from our
review of the right to counsel cases decided by the
Supreme Court is that, when fundamental liberty interests
are involved, counsel is generally mandatory at the
“adjudicatory’’ stage and discretionary at the
“dispositional” stage. For example, in Jn re Gault, 387
U.S. 1, 31 n. 48, 87 S.Ct. 1428, 1445 n. 48, 18 L.Ed.2d 527
(1967), extending the right to counsel to juvenile
delinquency proceedings, the Court stated “[WJhat we
hold in this opinion with regard to procedural
requirements at the adjudicatory stage has no necessary
applicability to other steps of the juvenile process.”
App. 41
The basis for the distinction is illuminated by
comparison of the Court’s opinion in Mempa vu Rhay,
389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) and
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36
L.Ed.2d 656 (1973). In Mempa the Court found a per se
right to counsel at combined probation revocation and
sentencing proceedings. The Court explained:
Townsend [v. Burke, 334 U.S. 736, 68 S.Ct.
1252, 92 L.Ed. 1690], Moore, and Hamilton [v.
State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7
L.Ed.2d 114]... clearly stand for the
proposition that appointment of counsel for an
indigent is required at every stage of a criminal
proceeding where substantial rights of a criminal
accused may be affected ... Even more
important in a case such as this is the fact that
certain legal rights may be lost if not exercised
at this stage.
Id. 389 U.S. at 134-35, 88 S.Ct. at 256-57. By contrast, in
Gagnon, the Court found that the right to counsel must
be determined on a case-by-case basis at proceedings
for purposes of probation revocation only. The Court
found that such proceedings were “not a part of a
criminal prosecution” 411 U.S. at 781, 93 S.Ct. at 1759.
Rather, they were informal dispositional proceedings
-through which a placement was made on the basis of
rights and interests previously adjudicated. The fact
that Mempa and Gagnon are criminal proceedings, while
termination and dependency proceedings are civil is
not controlling because the right to counsel derives
from the due process clause, as well as the sixth
amendment. Jn re Gault, 387 U.S. at 20, 87 S.Ct. at
1439.
App. 42
In Lassiter, the Supreme Court extended the
reasoning of Gagnon to a civil context, holding that the
right to counsel at termination proceedings must be
decided on a case-by-case basis. Like the probation
revocation proceedings in Gagnon, the North Carolina
termination proceedings in Lassiter are essentially
dispositional. In many states, such proceedings are
actually called “dispositional” proceedings. Permanent
custody of the child is awarded in the manner determined
to be in the child’s best interest. As the Florida Supreme
Court described the comparable proceeding in Pendarvis
IT, 115 So.2d 81, 82 (Fla. lst DCA 1959):
[T]he factors to be considered by the Juvenile
Judge necessarily include: the age of the child,
the periods of time he has spent with his natural
parents, at institutions, and with foster parents,
the effect of removing him from his foster
home, and the affection, economic and
psychological well-being, and cultural advantages
which he can reasonably anticipate from his
foster parents.
No fundamental liberty interest of the parent is
adjudicated at termination proceedings, because the
fundamental right to the care and custody of one’s
children has already been adjudicated, and lost, at the
earlier proceedings where the parent has been adjudged
unfit.
Just as Lassiter is analogous to Gagnon, Davis is
analogous to Mempa and to Gideon v. Wainwright, 372
U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The
dependency proceeding is the critical stage at which
the substantive issue of fitness, upon whic! the parental
App. 43
right to custody depends, is adjudicated. Once severed
or stigmatized, the presumption can never be regained —
despite a subsequent showing that the parent is fit.
The Government Interest
As the Supreme Court recognized in Santosky v.
Kramer, 455 U.S. at 766, 102 S.Ct. at 1401:
Two state interests are at stake in parental
rights .. . proceedings—a parens patriae
interest in preserving and promoting the welfare
of the child and a fiscal and administrative
interest in reducing the cost and burden of
such proceedings.
The interest of the state as parens patriae is identical
to the interest of the child. Children have a fundamental
need for stable environments and human relationships.
“To safeguard the right of parents to raise their children
as they see fit, free of government intrusion, except in
cases of neglect and abandonment, is to safeguard each
child’s need for continuity.” Goldstein, J., A. Freud and
A. Solnit, Beyond the Best Interests of the Child 7
(1979). “So long as a child is a member of a functioning
family, his paramount interest lies in the preservation
of his family.” Goldstein, J., A. Freud and A. Solnit,
Before the Best Interests of the Child 5 (1973). Therefore,
the interest of the state as parens patriae at a termination
proceeding where the state seeks to permanently separate
a child from a parent already formally adjudicated
unfit, is opposite to its interest at a dependency proceeding
where a valid determination of parent fitness is crucial
to deciding what is in the child's, and thus the state's,
App. 44
best interest. “[T]he State registers no gain towards
its declared goals when it separates children from the
custody of fit parents. Indeed, if [the parent is fit] the
State spites its own articulated goals when it needlessly
separates [the child] from his family.” Stanley uv Illinois,
405 U.S. at 652-53, 92 S.Ct. at 1213. The difference
between the parens patriae interest at dependency
proceedings and at termination proceedings was clearly
stated by the Supreme Court in Santosky:
[While there is still reason to believe that
positive, nurturing parent-child relationships
exist, the parens patriae interest favors
preservation, not severance, of natural familial
bonds...
The State’s interest in finding the child an
alternative permanent home arises only “when
it is clear that the natural parent cannot or
will not provide a normal family home for the
child.” At the factfinding, the goal is served
by procedures that promote an accurate
determination of whether the natural parents
can and will provide a norma! home.
455 U.S. 766-67, 102 S.Ct. at 1401, quoting N.Y.McKinney’s
Social Service Law §384-b.1.(aXiv) (emphasis added).
Against the strong interest of the state as parens
patriae in providing counsel at dependency proceedings
must be balanced the state’s relatively weaker fiscal
and administrative interest in inexpensive, expeditious
proceedings.
App. 45
The Risk of Erroneous Results
As the Lassiter Court employed the Mathews wu.
Eldridge calculus, the unlikelihood that the procedures
used in North Carolina termination proceedings would
lead to erroneous decisions weighed particularly heavily
in the decision against a per se right to counsel. The
Court emphasized that: (1) the termination proceedings
are informal and do not employ the rules of evidence;
(2) the state is frequently unrepresented by counsel; (3)
no difficult or troublesome points of substantive or
procedural law are involved; and (4) the termination
proceeding is the final step in a series including
dependency and neglect proceedings at which the mother
has the right to appointed counsel under state law.
Lassiter v. Department of Social Services, 452 U.S. at
29-31, 101 S.Ct. at 2160-2161.
The factors evaluated by the Lassiter Court were
derived from those used to determine the right to
counsel in criminal proceedings. Thus, in Argersinger
v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530
(1972), Mempa v. Rhay and Gideon v. Wainwright the
Court held that criminal defendants had a right to
counsel because substantive rights were adjudicated
in a formal adversarial context. By contrast, in Gagnon
v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656
(1973), the Court held that the right to counsel in parole
revocation hearings should be determined on a case-by-
case basis because there is no de novo determination of
rights and the proceedings are informal and
nonadversarial.
It is clear, when these factors are applied to Florida
dependency proceedings, that the risk of erroneous
App. 46
results is comparable to that in the Gideon-Argersinger
line of cases and dispositively different from that of
Gagnon and Lassiter. Under Florida law, an adjudicatory
proceeding in which the state seeks prolonged or indefinite
custody is a formal accusatory proceeding in which the
state must prove that a parent has abandoned, abused
of neglected a child. The state is always represented
by counsel, Fla.Stat.Ann. §39.404(3) (West 1983). Formal
rules of evidence are employed. Jd. at §39.408(1Xb). By
a recent Florida Supreme Court ruling, 418 So.2d 1004
(Fla. 1982), Rule 8.300 of the Florida Rules of Juvenile
Procedure has been amended to require the appointment
of a guardian ad litem to represent the child in all
abuse and neglect proceedings. Thus, every interest
but the parent’s is now represented by counsel. The
issue of fitness is a subtle and difficult question of law.
A fitness determination involves not only sensitive
factual determinations but legal judgments on the meaning
of psychological, sociological and medica! conclusions
drawn from these facts. The issues which may be
adjudicated are speculative and far reaching. See In re
J.L.P., 416 So0.2d 1250 (Fla. 4th DCA 1982) (holding that
an adjudication of dependency can rest solely upon
evidence that a parent is likely to abuse or neglect a
child, even though the parent has never done so).
The unfairness which besets an unrepresented
mother in dependency proceedings was well summarized
in our initial panel opinion in this case:
The dependency proceeding is complex in terms
of the procedural, evidentiary and substantive
law applicable to the hearing *» wddition to
this confusing legal framewo: \ ''w parent is
confronted with “the full paeep'y of the
App. 47
traditional weapons of the state.” The state is
represented by the state attorney; it has access
to public records concerning the family and to
the services of, social workers, psychiatrists
and psychologists. Those representing the state
have experience in legal proceedings and the
ability to examine witnesses, present evidence,
and argue skillfully that the child should be
adjudicated dependent. Unrepresented parents,
in contrast, will normally not cross-examine
witnesses, submit evidence, call witnesses, or
present a defense. They do not understand
the rules of procedure or substantive
law ... [TJhey may not even understand the
legal significance and effect of the proceedings.
Davis v. Page, 618 F.2d 374, 380-81 (5th Cir. 1980).
Because parents subject to dependency proceedings
“are often poor, uneducated, or members of minority
groups, such proceedings are often vulnerable to
judgments based on cultural or class bias.” Santosky v.
Kramer, 455 U.S. at 763, 102 S.Ct. at 1399 (citation
omitted). Accord Smith u Organization of Foster Families,
431 U.S. at 833-35, 97 S.Ct. at 2103-04.
The dangers of erroneous results are not merely
hypothetical. Unrepresented parents lose custody of
their children significantly more often than parents
represented by counsel. See Schecter, Lowell, F., The
Pitfalls of Timidity: The Ramifications of Lassiter v.
Department of Social Services, 8 No.Ky.L.Rev. 435 (1981);
Note, Representation in Child-Neglect Cases: Are Parents
Neglected? 4 Col.J. of L. and Soc. Prob. 230 (1968).
App. 48
The consequences of erroneous determinations are
illustrated by the facts of this case.
At no time did Hilary Davis show a hint of unfitness
or inadequacy as a mother. Rather, she suffered an
adjudication of dependency because of rational and
sensible efforts she made to protect and raise her son.
On January 30, 1976, Hilary Davis’ husband beat
fourteen month old Car] Thor until he broke the baby’s
arm. Ms. Davis immediately took her son to the hospital -
where she spent the night with him. Determined to leave
her husband, because of his violence towards Carl, Ms.
Davis turned to the state for help. Because she was
indigent and separated from her husband, Ms. Davis
would have qualified for financial assistance and medical
care under the AFDC program.
Instead, the state responded on February 4, 1976
by initiating a dependency proceeding to remove Carl
from his mother’s custody. At an initial hearing, later
that same day, the state court entered an order releasing
Carl from the hospital into state custody pending a
formal adjudicatory hearing on March 4, 1976. Hilary
Davis attended the hearing without counsel. The judge
did not offer to appoint counsel for her, but suggested
she obtain counsel for the adjudicatory hearing.
Hilary Davis was poor and thus unable to retain
private counsel. Recognizing her need for legal assistance,
she tried repeatedly to secure the services of an attorney
employed by Legal Services of Greater Miami, Inc. She
was unable to get a lawyer and had to appear at the
App. 49
of justice which ensued is well described in the district
court opinion.
Without benefit of counsel, Hilary Davis
was little more than a spectator in the
adjudicatory proceeding. She was ignorant of
the law of evidence, and of the substantive
law governing dependency proceedings. She
sat silently through most of the hearing, and
fearful of antagonizing the social workers,
reluctantly consented to what she believed
would be the placement of her child with the
state for a few weeks.
.. . Carl Thor Davis was adjudicated
dependent, committed to temporary custody
of the Department of Health and Rehabilitative
Services pursuant to Fla. Stat. Sec. 39.10(4)
and Sec. 39.11(1Xc). At the conclusion of the
hearing, the Court told Hilary Davis to contact
a lawyer. She was not advised of her right
under Fla. Stat. Sec. 39.14(1) to appeal from
the adjudication of dependency.
442 F.Supp. at 260-61. Hilary Davis lost custody of Carl
not because she was an unfit parent but because she
was poor and innocent of the subtleties of legal
proceedings.
Florida asserts that it considers providing counsel
to indigents such .as Davis on a case-by-case basis. See
In re D.B., 385 So.2d 83, 90-91 (Fla.1980). But counsel is
routinely denied to thousands of indigent parents involved
in dependency proceedings. Defendants admitted in the
App. 50
original pleadings in this case that it was the policy and
practice of Dade County circuit judges to conduct
dependency proceedings without appointing counsel
for indigent parents.
Resolution of this factual conflict is unnecessary
in my view because of the constitutional deficiency of
the claimed case by case consideration, as is so poignantly
demonstrated by this case.
To me, the fundamental parental interest involved,
the strong interest of the state as parens patriae compared
to its relatively weak fiscal and administrative interest,
and the great risk of erroneous results, would seem to
mandate, under the test applied in Lassiter, a per se
right to counsel in Florida dependency proceedings.
That the majority reaches a different result may be
due to the extremely broad language of Justice Blackmun’s
Lassiter dissent. The characterizations of the North
Carolina termination proceedings in the majority and
dissenting opinions are hard to reconcile. While the
majority opinion stresses the informality of the
proceedings the dissent describes them as resembling
“in many respects a criminal prosecution,” Lassiter uv.
Department of Social Services, 452 U.S. at 43, 101 S.Ct.
at 2168, “distinctly formal and adversarial.” id, having
“virtually all the attributes of a formal trial,” id. at 45,
101 S.Ct. at 2619, and “clearly adversarial and punitive,”
id. at 49, 101 S.Ct. at 2171. While the majority opinion
notes the absence of “specially troublesome points of
law, either procedural or substantive” id. at 32, 101
S.Ct. at 2162, the dissent describes these same proceedings
as “quintessentially legal,” id. at 44, 101 S.Ct. at 2168,
and posing legal issues that “are neither simple nor
easily defined” with standards that are “imprecise and
App. 51
open to the subjective values of the judge.” /d. at 45,
101 S.Ct. at 2169. While the majority emphasizes that
the state is often unrepresented by counsel, id. at 29,
101 S.Ct. at 2160, the dissent states that “The State
has legal representation through the county attorney
... And, of course, the State’s counsel himself is an
expert in the legal standards and techniques employed
at the termination proceeding.” Jd. at 43, 101 S.Ct. at
2168.
¥ |
These descriptions are disturbingly discongruent.
But the law to which they relate is clearer. In civil
proceedings infringing severely upon fundamental
parenta! rights, the degree to which the formal adversarial
nature of the proceeding increases the risk of erroneous
results is determinative of the right to counsel issue.
We should not decide this case by comparing Florida
dependency proceedings with the functionally dissimilar
North Carolina termination proceedings. Rather, we
should apply the Lassiter rationale to the Florida
proceedings before us and determine whether, in the
absence of counsel, they create a constitutionally
significant risk of erroneous results.
In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982), decided subsequent to Lassiter,
the Supreme Court reviewed the factfinding stage of
New York state permanent neglect proceedings which
are identical to Florida dependency proceedings in tre
following aspects. The state is directly pitted against
the parent, marshalling an array of public resources to
prove that the parents are unfit to raise their own
children. The proceeding bears many of the indicia of a
criminal trial, is conducted pursuant to the formal rules
of evidence, and involves the examination and cross-
App. 52
examination of witnesses. The Court concluded, as I
conclude now, that “At such a proceeding numerous
factors combine to magnify the risk of erroneous
factfinding.” Jd. at 762, id. at 1399.
Right to counsel was not considered in Santosky
because parents have a statutory right to counsel under
New York law. Similarly, in North Carolina, parents
have a statutory right to counsel at the critical fitness
determination proceedings which precede the termination
proceedings at issue in Lassiter. Lassiter u Department
of Social Services, 452 U.S. at 43 n. 10, 101 S.Ct. at 2168
n. 10. It is error to unduly consider the details of
Florida dependency procedures at the sacrifice of their
substance. In a long line of decisions the Supreme
Court has enunciated a critical distinction. Due process
requires the appointment of counsel in proceedings
entailing substantive adjudications of fundamental liberty
interests. See Argersinger v. Hamlin; Gideon v.
Wainwright. But proceedings which merely involve
placement on the basis of previous substantive
adjudications require counsel only, where, under the
specific facts of the case, lack of counsel would be
fundamentally unfair. See Gagnon v. Scarpelli. While
the Lassiter proceedings belong in the latter category,
the proceedings at issue here belong in the former. The
majority's conclusion that Lassiter controls is incorrect
because dependency and termination proceedings are
different in kind as well as in degree.
Upon reconsideration I would reinstate the prior
en banc judgment.
App. 53
SUPREME COURT OF THE
UNITED STATES
No. 80-1888
Dixie Herlong Chastain,
Circuit Judges, etc., et al.,
Petitioners,
v.
Hilary Davis, etc.
ON WRIT OF CERTIORARI to the United States
Court of Appeals for the Fifth Circuit.
THIS CAUSE having been submitted on the petition
for a writ of certiors | and response thereto,
ON CONSIDERATION WHEREOPF, it is ordered
and adjudged by this Court that the judgment of the
above court in this cause is vacated with costs, and
that this cause is remanded to the United States Court
of Appeals for the Fifth Circuit for further consideration
in light of Lehman v. Lycoming County Children's
Services, 458 U.S. ____ (1982).
IT IS FURTHER ORDERED that the petitioners,
Dixie Herlong Chastain, Circuit Judges, etc., et al.,
recover from Hilary Davis, etc. Two Hundred Dollars
($200.00) for their costs herein expended.
July 2, 1982
Clerk's costs: $200.00
App. 54
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 76-1068-CivSMA
HILARY DAVIS, et al.,
Plaintiff,
vs.
WILLIAM J. PAGE, JR.,
et al.,
Defendants.
AMENDED FINAL JUDGMENT
PURSUANT TO a Memorandum Opinion granting
Summary Judgment in favor of the Plaintiff, HILARY
DAVIS, entered on November 23, 1977, and the Final
Judgment entered of even date therewith, and pursuant
to Federal Rules of Civil Procedure 65(d), the said
Final Judgment is hereby modified and amended.
Thereupon, it is:
ORDERED AND ADJUDGED as follows:
1. That the class affected herein is composed of
all indigent parents who have been or may be Defendants
in child dependency and neglect proceedings in the
Juvenile and Family Division of the Circuit Court of
Dade County, Florida without being advised of their
App. 55
rights to counsel or afforded the right to Court appointed
counsel;
2. That Plaintiff, HILARY DAVIS, and the Class
described are entitled to notification of their right to
Court appointed counsel immediately following service
of a Dependency Petition or seizure of a child, and that
Plaintiff HILARY DAVIS and the Class described are
entitled to the assistance of Court appointed counsel
immediately following service of a Dependency Petition
or seizure of a child, unless the right to counsel is
knowingly and intelligently waived;
3. That the defendants-judges, their successors
in office, agents and employees, and all other persons
in active concert and participation with them are hereby
ordered and directed to notify Plaintiff and the class
described herein of their right to the assistance of
Court-appointed counsel, and to appoint counsel to those
members of the Class who do not knowingly and
intelligently waive their right to counsel.
4. That the adjudication of dependency entered
in Dade County Circuit Court against Plaintiffs, HILARY
DAVIS sad CARL THOR DAVIS, be and the same is
hereby set aside and is declared to be null and void;
5. That judgment be and it is hereby entered in
favor of Plaintiff and against the defendants-judges in
their representative capacities (not individually nor
personally) as Judges of the Juvenile and Family Division
of the Circuit Court of Dade County, Florida, for a
reasonable attorney's fee in the sum of $4,000.00 and
Court costs in the amount of $30.80, aggregating $4,030.80.
App. 56
DONE AND ORDERED at Miami, Florida this 25
day of January, 1978.
/s/ Sidney M. Aronovitz
UNITED STATES
DISTRICT JUDGE
ec: Michael R. Masinter, Esq.
Chester G. Senf, Esq.
Thomas A. Beenck, Esq.
Stephen W. Bricker, Esq.
App. 57
[FILED DEC. 22 1979}
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
NO. 76-1068-CIV-SMA
HILARY DAVIS, et al.,
Petitioner,
vs.
WILLIAM J. PAGE, JR., et al.,
Respondents.
ORDER ALLOWING ACTION TO BE
MAINTAINED AS A CLASS ACTION
THIS IS AN ACTION for declaratory and injunctive
relief* brought by Hilary Davis against the judges of
the Juvenile and Family Division of the Circuit Court
of Dade County, Florida. Plaintiff seeks to maintain
this s.‘t as a class action on behalf of herself and all
other indigent persons who have been or may be
defendants in child dependency and neglect proceedings
in the state courts.
The matter is before the Court on Plaintiff's Motion
to Declare Action maintainable as a Class Action.
(*) Count II only. Count I is a Petition for Writ of Habeas-
Corpus by the Petitioner, individually.
App. 58
+
in
‘ _ 7 te ad
The essence of Plaintiff's claim is the alleged
unconstitutionality of the practice and policy in the
juvenile court of conducting dependency proceedings
against indigent parents without providing them counsel
at the state’s expense.
The issue of whether to maintain this suit as a
class action was briefed and a hearing on said motion
was held on September 2, 1976, and thereafter, a second
hearing was held on November 9, 1976, at which time
the Court took the matter under advisement.
Rule 23 of the Federal Rules of Civil Procedure
requires a two-step analysis in order to determine whether
a particular case can be maintained as a class action.
First, the case must meet all of the general standards,
provided in subsection (a) which are designed to test
the feasibility and fairness of the class action format as
a vehicle for resolving the case. Once the general
requirements are met, the case must then fit into one
of the three categories of class action set out in subsection
(b).
The four standards which must be met as a pre-
requisite to maintenance of any class action as provided
by Rule 23(a) are as follows:
(1) the elass is so numerous that joinder of
all members is impracticable, (2) there are
questions of law or fact common to the class,
(3) the claims or defenses of the representative
parties are typical of the claims or defenses of
the class, and (4) the representative parties
will fairly and adequately protect the interests
of the class.
App. 59
APPLICATION OF RULE 23a) STANDARDS
1. The Class is so Numerous that Joinder of all
Members is Impracticable — 23(a\1).
The adjudication of the legal interest of large
numbers of people in one proceeding creates a risk
that not everyone will receive a thorough airing of his
claims, and this risk should be assumed only when
joinder of all interested parties is not feasible. No
magic figure can be used as an infallible guide to determine
when the number of class members becomes so great
as to satisfy this requirement.
In this case, the record reveals there are in excess
of 1200 persons yearly who are defendants in child
dependency and neglect proceedings in the Juvenile
and Family Division of the Circuit Court of Dade County,
Florida. Of these 1200 persons, a minimum of 180
defendants have income below the state’s definition of
poverty. A great many more above the poverty level
cannot afford the expense of private counsel.
The Court finds, therefore, that the class of potential
plaintiffs in this case is so numerous that joinder of all
members thereof is impractical. Mungin u Florida East
Coast Railway, 318 F.Supp. 720 (M.D. Fla. 1970), Affd
per curium, 441 F2d 728 (5th Cir. 1971).
2. There are Questions of Law or Fact Common
to the Class — 23(a\2).
As the Ninth Circuit has held in a case on point,
Cleaver v. Wilcox, 499 F.2d 940 (9th Cir. 1974), so too
this Court finds that the question of law at issue is
App. 60
whether or not the Due Process clause and Equal
Protection Clause of the Fourteenth Amendment to
the United States Constitution require appointment of
counsel for indigent persons who are defendants in
dependency proceedings applies with equal force to all
prospective members of the class. See also, Sullivan v.
Houston Independent School District, 307 F. Supp. 1328,
1337-38 (S.D. Tex. 1969), (requirement met where each
_ ‘nber of the class is subject to the same specific sort
. alleged deprivation of constitutional rights as the
representative party).
3. The Claims or Defenses of the Representative
Parties are Typical of the Claims or Defenses of the
Class — 23(aX3).
Like the adequate representation requirement of
23(aX4), discussed below, the provisions of 23(aX3) serves
to protect the rights of the absent members of the
class. Since, in this case, all members of the class will
be bound by the judgment of this Court, the contentions
of the representative need not be precisely the same as
the members of the class down to the most subtle
nuance. As the Court noted in Siegal u Chicken Delight,
Inc., 271 F.Supp. 722 (N.D. Calif. 1967), “Rule 23(aX3)
does not require that all members of the class be
identically situated, if there are substantial questions
either of law or fact common to all.” 271 F.Supp. at
726-27.
This Court holds that plaintiff's claims are sufficiently
typical of the claims of the class as to meet the
requirements of 23(aX3).
4. The Representative Parties Will Fairly and
Adequately Protect the Class — 23(aX4).
App. 61
The final 23(a) requirement designed to insure the
fairness and feasibility of class action is the necessity
for representatives who will protect the interest of the
absent members of the class. In Eisen uv Carlisle &
Jacquelin, 391 F.2d 555 (2d Cir. 1968), amplified, 479
F.2d 1005 (2d Cir. 1973), rev'd on other grounds, 417
U.S. 156 (1974), the Court listed several essentials of
adequate representation: (1) the party's attorney be
qualified, experienced, and generally able to conduct
the proposed litigation, and (2) that the compatibility of
the interests and assertions of the representative with
those of the class are the same.
The affidavits of plaintiffs attorneys show that
they possess the ability and means to carry on this
litigation. Moreover, the Court finds that plaintiff's
interest in seeking to assert her right to appointed
counsel does not conflict with those of the class, and as
such, satisfies the Rule 23(aX4) requirement. Davis vu
Weir, 497 F.2d 130, (5th Cir. 1974); Sullivan u Houston
Independent School District, supra.
The requirements of 23(a) having been met, therefore,
the Court must now focus upon the second step of the
analysis, i.e., the requirements of Rule 23(b).
APPLICATION OF RULE 23(bX2) STANDARDS
As noted above, plaintiff need only bring herself
within one of the three categories of class actions set
out in Rule 23(b). In this case, it is alleged that the
action is maintainable as a 23(b\2) class action. Rule
23(bX2) provides for class action when—
App. 62
“. . . the party opposing the class has acted
or refused to act on grounds generally applicable
to the class, thereby making appropriate final
injunctive relief or corresponding declaratory
”
relief with respect to the class as a whole . . .
Thus, (bX2) contains two requirements that must be
met before a suit can qualify as a class action under its
terms:
1. The action for which redress is sought must
be generally applicable to the class; and
2. Injunctive or declaratory relief generally
applicable to the class must be appropriate. See 7A
Wright & Miller, Federal Practice and Procedure, Sec.
1775 (1972).
The practice of defendants in conducting dependency
proceedings without providing indigent parents with
counsel is alleged to violate the due process and equal
protection clauses of the law. If the defendants’ practices
with respect to plaintiff violate the due process and
equal protection of the law, those practices would be
generally applicable to and violate the due process and
equal protection with respect to every member of the
proposed class. Accordingly, declaratory and injunctive
relief could be appropriately entered with respect to
the class. Cleaver v. Wilcoz, supra.; See also Anderson
v. Denny, 365 F.Supp. 1254 (E.D. Va. 1973).
In view of the foregoing, it is,
App. 63
ORDERED AND ADJUDGED as follows:
1. That Plaintiff's Motion to Declare Action
Maintainable as a Class Action is hereby GRANTED.
2. That the class is defined as all indigent persons
who have been or may be defendants in dependency
and neglect proceedings in the Juvenile and Family
Division of the Circuit Court of Dade County, Florida,
without being afforded the right to counsel at state’s
expense, and without being advised of their right to
counsel;
3. That Carol Hewett, Esq., Michael R. Masinter,
Esq. and Stephen Bricker, Esq. shall represent Plaintiffs
as co-counse]l for and on behalf of the class.
DONE AND ORDERED at Miami, Florida this 22
day of December, 1976.
/s/ Sidney M. Aronovitz
UNITED STATES
DISTRICT JUDGE
ec: Carol Hewett, Esq.
J. Robert Olian, Esq.
Chester Senf, Esq.
Stephen Bricker, Esq.
App. 64
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