Opposition Brief — Aleman v. Sugarman

LE COPY

: Is THE MICHAEL RODAK, JR.6

Supreme Court of the United States

OCTOBER ‘1. ERM, 1972

No. 72-989

In the Matter of the Petition

of

Maxum. Ateman, next friend of Davm Atzeman, infant,

Petitioner-A ppellant,

against

Jouz M. Svaarmay, as Commissioner of the

New York City Department of Social Services,

Respondent-A ppellee.

Ox Perrrion ror a Wart or Certiorari To THE UNITED

Srares Court or Appeals ror THE Seconp CiacultT

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BRIEF IN OPPOSITION

Norman RepdLicz,

Corporation Counsel,

Attorney for Respondent-Appellee,

Municipal Building,

New York, N. Y. 10007.

566-4337

TABLE OF CONTENTS

ArcuMent—Habeas corpus relief was properly de-

nied where petitioner has failed to exhaust state

remedies

Conclusion

TABLE OF AUTHORITIES

Cases:

Allen v. Leeke, 328 F. Supp. 292

Baldwin v. Lewis, 442 F. 2d 29

Boyd v. State of Oklahoma, 375 F. 2d 481

Briggs v. Missouri, 321 F. Supp. 649

Cruysen v. Scudder, 215 F. 2d 512

Dana v, Tracy, 360 F. 2d 545

Desiree T, Matter of, 64 Misc. 2d 28

Fay v. Noia, 372 U.S. 391

Gary, Matter of, 37 A D 2d 932

Hawk, Ex Parte, 321 U.S. 114

Johnson v. Middlebrooks, 383 F. 2d 386

Lucas v. State of Michigan, 420 F'. 2d 259

TABLE OF CONTENTS

Matter of Beaton, 30 N Y 2d 352

May v. Anderson, 395 U.S. 528

Nelson v. George, 399 U.S. 224

Oliver v. State of California, 364 F. 2d 311

Picard v. Connor, 404 U.S. 270

Scarpetta v. Spence-Chapin Adoption, 28 N Y 2d 185

Stanley v. Illinois, 405 U.S. 645

United States ex rel. Brabham, 282 F. Supp. 105 ....

United States ex rel. Carter v. York, 430 F. 2d 1329 .._

United States ex rel. Griffin v. Martin, 409 F’. 2d 1300

United States ex rel. Molinas v. Mancusi, 370 F. 2d

601, cert. den. 386 U.S. 984

United States ex rel. Storch v. Maroney, 231 F. Supp. :

United States ex rel. Touhy v. Ragen, 224 F. 2d 611

Statutes:

28 U.S.C. § 2254

New York CPLR 5521

New York Family Court Act:

Iw THE

Supreme Court of the United States

OCTOBER TERM, 1972

>

No. 72-989

In the Matter of the Petition

of

Mayve, AtemaN, next friend of Davm ALemay, infant,

Petitioner-Appellant,

against

Juiz M. Sucarman, as Commissioner of the

New York City Department of Social Services,

Respondent-Appellee.

Ow Petrrion For a Writ oF CERTIORARI TO THE UNITED

Srates Court oF APPEALS FOR THE SECOND Circuit

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_

BRIEF IN OPPOSITION

Statement

In a habeas corpus proceeding arising from a state

neglected child proceeding, the petition seeks a writ of

certiorari to review an order of the Court of Appeals,

Second Circuit, entered October 18, 1972, which unani-

mously affirmed an order of the District Court for the

Southern District of New York (Weinreb, J.), entered

April 5, 1972, that dismissed the petition.

Issues

The issue is whether a party who brings a state habes

corpus proceeding may bypass it and seek federal habess

corpus. The District Court held no, citing 2 US¢

§ 2254(b) and many cases for the settled rule that a pei.

tioner must exhaust his state remedies, including appeal,

before seeking federal habeas corpus relief. Its determing

tion was affirmed without opinion.

Facts

(1)

On May 21, 1971, the New York City Department of

Social Services brought a neglect petition for the protec.

tion of an infant, David Aleman (8a-10a).° The petition

alleged (9a):

“Child is likely to suffer serious harm in that re

spondent mother has a serious psychiatric problem

Has been diagnosed as schizophrenic and psychotic.

Since the birth of David May 15, 1971, mother has

displayed marked agitation, suspiciousness, paranoia,

rapid mood change, and even while feeding the infant

has been observed from giggling to depression to sleep.

Mother has been on 24 hour suicide watch since May

18, 1971. Mother has three (3) children in addition

to the infant David, and these children were found to

be neglected children by this Court and are currently

in foster homes through McMann [sic] Shelter. Re

spondent father has in the past appeared and disap

peared for extended periods of time, has not been em-

ployed since 1965, and has indicated he may leave again

as soon as things settle down.”

* Parenthetical references with suffix “a” o » ore

appendix in the Circuit Court. Parenthetical references with-

out suffix are to appellant's appendix to this Court.

(2)

Hearings were held on July 14 and July 29, 1971. Both

parents attended with counsel (2, 19).

Dr. Van Daele, a psychiatrist, testified that he had been

seeing the mother since August 1970, following her dis-

charge from Metropolitan Hospital. He had received a

history from the hospital that the mother had struck and

injured her child Manuel at a time when he was two months

old while attempting to hit another child (2-3). The hos-

pital diagnosis was schizophrenia, paranoid type (3). Dr.

Van Daele’s diagnosis was the same (id.). He said that

return of one child, Manuel, would help the mother. He

testified that, although the mother had shown some im-

provement, it was always possible that she would suffer

recurring episodes, which would place her children at risk

(4).

At a further hearing on July 29, 1971, testimony and a

record were received in evidence of a previous proceeding

in which three older children (Belinda, age 8; Esperanza,

6, and Manuel, now 14 months) were found to be neglected

children (5).

The mother did not testify (6). Counsel for the peti-

tioner, the father, made several motions to dismiss the

neglect petition involving David on grounds of lack of

jurisdiction, statutory vagueness and violation of rights

under the First Amendment (35a).

The motions were denied, and the petitioner took the

stand (6). He acknowledged that he was the father of

David, Manuel and Esperanza (id.). He testified that he

had been away at sea and had returned to New York in

November 1970 (id.).

The Family Court found (7):

“The entire record establishes by a preponderance

of the evidence that the mother has been and continues

he was living with the mothe and caring for her (9),

Upon return to him and his wife of the children, he ix.

tended to return to Puerto Rico (10). His affidavit elng.

dates his testimony, stating that he intends to go back tp

Puerto Rico where his family can help take care of th

wife while he goes back to work (17). His job is in the

merchant marine (16).

Family Court held (11):

**The record in this case and the appearance of the

mother establish beyond any doubt that the home of

the father and the mother is surely not a home ia

which adequate care, mothering, or even minimum

supervision needed by David can be provided.”

for in the McMahon Shelter (17a).

The mother filed a notice of appeal from the disposi-

tional order of Family Court, but she has not perfected it

The petitioner applied to the Supreme Court, New York

County, for a writ of habeas corpus. On March 9, 1972,

the Supreme Court transferred the petition to the Family

Noting that the father was unwilling to wait for the

Family Court disposition and New York appellate proce-

dures, and sought habeas corpus in the federal court, the

Court stated (28):

“It is surely hornbook law by now that a petitioner

fore seeking federal habeas corpus relief. Considera-

tions of comity and respect for state procedures re-

quire that the state courts be given the opportunity

to correct any constitutional errors.”

The opinion said that the petitioner might yet succeed

in the Family Court and in any event had not exhausted

state appellate procedures. It added (29):

“While petitioner attempted to explain his bypass

of the New York courts upon a claim that time is too

critical for resort to them, there is no indication that

New York, has been dilatory in its procedures ; indeed,

any delay in New York’s appellate review may be the

result of the petitioner’s decision to move by petition

for habeas corpus rather than taking a direct appeal,

and by his failure to perfect the proceeding in i)

Family Court, as acknowledged upon the argument of

this petition. There is no reason to believe that peti.

tioner will not receive prompt appellate adjudicatign

of his claims in the New York courts if he so desires”

[Citing New York CPLR 5521; ef. New York Family

Court, Act, § 1112].

On appeal, the Second Circuit affirmed unanimously,

without opinion.

Statute

28 United States Code § 2254 provides in pertinent part:

Ҥ 2254 state custody; remedies in federal courts.

* oa .

(b) An application for a return of habeas corpus

in behalf of a person in custody pursuant to the judg.

ment of a state court shall not be granted unless it

appears that the applicant has exhausted the remedies

available in the courts of the state, or that there is

either an absence of available state corrective process

or the existence of circumstances rendering such proe-

ess ineffective to protect the rights of the prisoner.”

ARGUMENT

Habeas corpus relief was properly denied where

petitioner has failed to exhaust state remedies.

(1)

This brief maintains that certiorari should be denied

because this case presents no novel or substantial Federal

question. It is well settled that a petitioner must exhaust

his state remedies before seeking federal habeas corpus.

28 U.S.C. § 2254(b) ; Ex Parte Hawk, 321 U.S. 114, 116-117

7

(1944) ; Nelson v. George, 399 U.S. 224, 229 (1970) ; Picard

; 404 U.S. 270, 275 (1971); United States ex rel.

Molinas Vv. ,

den. 386 U.S. 984 (1967) ; United States ex rel. Griffin v.

Martin, 409 F. 2d 1300 (2nd Cir., 1969); United States ex

rel. Carter v. York, 430 F. 2d 1329 (2nd Cir., 1970).

Petitioner has failed to satisfy this requirement. His

state habeas corpus petition, referred by the New York

Supreme Court to the Family Court (a State Court), pur-

suant to New York State Constitution, Art. 6, § 13, par. ¢,

and Family Court Act, § 651, is still pending. Should it be

decided adversely to him, he could appeal to the Appellate

Division, First Department, and to the New York Court of

As the District Court noted (27), such an appeal

could be joined with the mother’s pending appeal to the

Appellate Division.

Thus, the state courts would have “the initial opportu-

nity to pass upon and correct” the alleged violations of

federal rights. Absent such an initial opportunity, it would

be contrary to federal policy and “unseemly to our dual

system of government”’ for the federal District Court to

consider habeas corpus. Picard v. Connor, supra, 404 U.S.

20, 275.

(2)

Coneeding these principles, petitioner’s brief seeks to

avoid them and excuse his neglect to pursue state remedies

upon grounds which are incorrect and ineffectual as a

matter of law and fact.

Petitioner maintains that he will not receive a fair hear-

ing before the Family Court. It is scandalous to argue

that the multi-part Family Court, upon a lawful consti-

tutional referral from the State Supreme Court, will neg-

lect its duty of considering afresh the contentions raised

by the habeas corpus petition. The statement in peti-

tioner’s brief (p. 24) that the same Family Court judge

who heard the original proceeding is likely to hear th)

State habeas corpus motion is casuistry. petitioner's

As

counsel undoubtedly knows, Judge Po.ier has retired,

state’s appellate courts will not grant a full and fair reviey,

corpus should issue forthwith, have been advanced and re

jected many times. Cruysen v. Scudder, 215 F. 2d 512 (9

Cir., 1954); Dana v. Tracy, 360 F. 2d 545 (1st Cir., 1966) ;

United States ex rel. Storch v. Maroney, 231 F. Supp. 38

(D.C. Pa., 1964). Mere anticipation of an adverse decision

or the lack of probability of success will not excuse a fail.

ure to exhaust state remedies. Boyd v. State of Oklahoma,

375 F. 2d 481 (10th Cir., 1967); Oliver v. State of Cali.

fornia, 364 F. 2d 311 (9th Cir., 1966) ; United States ex rel,

Touhy v. Ragen, 224 F. 2d 611 (7th Cir., 1955).

(3)

The petitioner also claims that the exhaustion doctrine

should be disregarded because pursuit of his remedies in

the state courts would involve delay. However, as Dis-

trict Court pointed out, there was no showing that the

state courts had been dilatory, and the petitioner acknowi-

edged on oral argument that his own decision to move by

habeas corpus rather than direct appeal, -complicated by

the failure to perfect the habeas corpus proceeding in the

Family Court, may have created delay (29).

Where the need for expeditious review is urgent and

counsel for the appellant acts appropriately, the New

York appellate courts provide extremely rapid review. A

number of election cases have moved from nisi prius court

decision to Court of Appeals decision within a week

Other types of cases where speed was of the essence have,

at times, taken little longer. There are indications that

the petitioner in this matter could, had he sought it and

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had his counsel taken the proper steps, have obtained a

rapid review by the State courts.

For example, in Matter of Gary, 37 AD 2d 932 (ist

Dept. 1971), where a parent in a neglect proceeding raised

jurisdictional issues similar to those raised here, an ap-

from a Family Court order of June 1, 1971 was de-

cided November 4, 1971 by the Appellate Division (a

‘od of five months despite summer recesses). In

Scarpetta Vv. Spence-Chapin Adoption, 28 NY 2d 185

(1971), cited by the petitioner, a November 24, 1970 order

of the Supreme Court was decided by the New York Court

of Appeals on April 7, 1971 (about four months).

By contrast, the petitioner, who brought the instant

federal habeas corpus on OF about March 22, 1972, was

denied relief by the District Court April 5, 1972. His

counsel did not seek a stipulation concerning the appendix

until early in June, 1972, and the appeal was heard and

decided in the September 1972 term of Circuit Court. The

instant petition for certiorari will necessarily involve fur-

ther delay. It is noteworthy that the order of the Second

Cireuit is dated October 18, 1972, and that the petition for

certiorari was not served on this office until January 15,

1973. Therefore, it is apparent that he would have ob-

tained a quicker determination if he had assiduously pur-

sued his state remedies, as did the parties in the Gary

and Scarpetta cases.

In any event, mere anticipation of delay in state habeas

corpus or other post-decisional proceedings is not grounds

for bypassing the state courts. Baldwin v. Lewis, 442 F.

94 29 (7th Cir., 1971); Allen v. Leeke, 328 F. Supp. 292

(D.C., 8. C. 1971).

(4)

As an excuse for his delay, the petitioner pleads inabil-

ity to obtain transcripts of previous hearings in the Family

Court. However, the questions of jurisdiction and consti-

tutionality which he seeks to raise by habeas corpus do not

—m-t FROoCe 4al FPCarTon rR.

10

necessarily require these transcripts as his brief below,

dicated (p. 16). ae

Counsel asserts that he ordered the But

his affidavit (19) alleges nothing as to the follow-up steps

he took to obtain them; nor does it delineate petitioner;

need of them. This is insufficient. A party raising sq

an argument must factually show that he pursued all stat

avenues to secure the records and why they are necessary

for the particular issues he seeks to raise. Briggs v. Stat

of Missouri, 321 F. Supp. 649 (D.C., Mo., 1971); see als

Cruysen v. Scudder, 215 F. 2d 512 (9th Cir., 1954) ; Johnson

v. Midlebrooks, 383 F. 2d 386 (5th Cir., 1967).

It should be pointed out that ordinarily there does not

appear to be any problem in obtaining transcripts from the

Family Court promptly. This office regularly handle

many matters in that court. While it rarely orders a trap.

script, when it has ordered one it has been provided quickly,

sometimes within a few days. In addition, the Legal Aid

Society handles many Family Court cases in which this of.

fice is its adversary. Repeatedly we have been shown tran.

scripts obtained by the Legal Aid Society within a week or

two after a hearing in that Court was completed.

(5)

While we see no reason why there should be any inordi-

nate delay in deciding the petitioner’s state habeas corpus

proceeding and appeals from it, provided petitioner pur-

sues his remedies efficiently, we cannot agree with the the

ory of his brief that speed is the primary consideration

here. The primary consideration in a case involving neg-

lect is the welfare of the child. Family Court Act, § 1011;

Matter of Desiree T., 64 Misc 2d 28, 34 (Fam. Ct., Kings

Co., 1970).*

* Petitioner’s brief (p. 26) challenges this position, but it in

consistently quotes, with approval (p. 16), language to the same

effect in a concurring opinion in May v. Anderson, 345 US. 528

(1953).

ll

In the instant case, involving a mentally disturbed

mother and a frequently absent father, a too hasty decision

holds the potential of tragic consequences to the infant.

Petitioner would place an unreasonable burden upon the

District Court when he demands a bypassing of state due

process and a summary disposition under these circum-

stances.

(6)

Petitioner cites Fay v. Noia, 372 U.S. 391 (1963). The

unusual facts in that case were that Noia, sentenced to

life for first degree murder, did not appeal the conviction,

apparently because of fear that he might be sentenced to

death if retried. However, his co-defendants did exhaust

their appeal and other state remedies and eventually were

freed by federal habeas corpus on the grounds of coerced

confession. At this point, Noia sought relief in the state

courts only to be met by the circumstance that his time to

had long expired and that coram nobis was not ;

available, absent an appeal. This Court ultimately granted

him habeas corpus, stating that state avenues were no

longer available to Noia when he sought federal habeas

corpus. The Court said (372 U.S. 435):

“We hold that § 2254 is limited in its application to

failure to exhaust state remedies still open to the ha-

beas corpus applicant at the time he files his applica-

tion in District Court.”

This erodes petitioner’s position. The state habeas

corpus which he initiated and then neglected is still pend-

ing. Any subsequent appeals arising from it are still open

tohim. He, therefore, cannot escape the rule that a party

who applies for state post-decisional relief must complete

that course before turning to federal District Court. United

States ex rel. Brabham, 282 F. Supp. 105 (D.C., Pa., 1968).

In Lucas v. State of Michigan, 420 F. 2d 259 (6th Cir.,

1970), cited by the petitioner, the Court of Appeals waived

12

the requirement of exhaustion where there was a disting

line of cases in the state’s highest appellate court

to petitioner’s position that the search and seizure pro.

sion of the Michigan Constitution was in conflict with ty

United States Constitution, Fourth Amendment. In gy

instant case the petitioner does not contend that the Ney

York Court of Appeals has adopted a fixed position on the

issues he would raise.

The issue of denial of counsel that petitioner seeks t

raise is not present in the case at bar which involves only

the child David, for petitioner admittedly had counsel jp

this case (19). In any event, petitioner’s brief (p. 14), by

citing Matter of Beaton, 30 NY2d 352 (1972), concedes

that the New York State Court of Appeals can and wil

give due consideration to such an issue, if properly raised,

Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972), |

also cited by petitioner, holds that an unmarried father |

cannot be denied custody of his child without a hearing.

This has no application to the instant case where the

record shows that there were several hearings at which the

petitioner appeared with counsel.

CONCLUSION

The petition for a writ of certiorari should be denied.

February 13, 1973

Respectfully submitted,

Norman Rep.icg,

Corporation Counsel,

Attorney for Appellee.

Stantey Bucussaum,

Irvine GEeNn,

Of Counsel.

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