Amicus Curiae Brief — Chrissy F. v. Dale

MOTION FILED &)

Fo 9 1263 No. 93-754

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHRISSY F., By Her Next Friend And

Guardian Ad Litem, Donna Medley

Petitioner,

VS.

SEBE DALE, JR. Individually and as Chancellor for the Tenth

Chancery Court District of Mississippi, GARLAND UPTON,

Individually and as Referee of the Marion County Youth Court,

PHILLIP BROADHEAD and FRED COOPER,

Respondents,

ON CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND AMICUS CURIAE BRIEF OF LEGAL

SERVICES FOR CHILDREN IN SUPPORT OF CHRISSY F.’S

PETITION FOR A WRIT OF CERTIORARI

* Karen M. Jones-Mason, Esq.

Christopher Wu, Esq.

Legal Services for Children

1254 Market St., 3rd floor

San Francisco, CA 94102

(415) 863-3762

*Counsel of Record

No. 93-754

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHRISSY F., By Her Next Friend And

Guardian Ad Litem, Donna Medley

Petitioner,

VS.

SEBE DALE, JR. Individually and as Chancellor for the Tenth

Chancery Court District of Mississippi, GARLAND UPTON,

Individually and as Referee of the Marion County Youth Court,

PHILLIP BROADHEAD and FRED COOPER,

Respondents,

ON CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND AMICUS CURIAE BRIEF OF LEGAL

SERVICES FOR CHILDREN IN SUPPORT OF CHRISSY F.’S

PETITION FOR A WRIT OF CERTIORARI

* Karen M. Jones-Mason, Esq.

Christopher Wu, Esq.

Legal Services for Children

1254 Market St., 3rd floor

San Francisco, CA 94102

(415) 863-3762

*Counsel of Record

MOTION OF LEGAL SERVICES FOR CHILDREN FOR

LEAVE TO FILE BRIEF AMICUS CURIAE

Legal Services for Children ("LSC") hereby moves for leave

to file the attached brief amicus curize pursuant to Rule 37 of the

Rules of this Court. Petitioners have consented to the filing of

this brief. Counsel for respondents, however, has been unwilling

to consent to the filing of this brief.

This case raises important questions concerning the scope of

tre Rooker-Feldman doctrine and the uncertainty of its application

in the lower courts. Amicus submit that the holding of the court

of appeals improperly extends the perimeters of the Rooker-

Feldman doctrine. If the judgment of the court of appeals is

allowed to stand, under the facts of this case, any litigant will be

effectively denied a reasonable opportunity to bring their federal

civil rights claims in either federal or state court. This case also

involves critical questions regarding the constitutional rights of

children in child abuse adjudications. All too often, these children

are subjected to repeated violations of their due process rights

and, because they lack meaningful legal representation, are

helpless to object or take remedial legal action. Amicus contend

that these children are deprived of meaningful access to state court

and are entitled to have their constitutional rights vindicated in the

federal courts.

Amicus is committed to safeguarding the rights of childrer

and has extensive experience in representing children, especially

in juvenile court proceedings.

Accordingly, amicus respectfully move for leave to file the

attached br'*f amicus cunae in order to present the Court with our

views on this important case.

Respectfully submitted,

Karen M. Jones-Mason, Esq.

(Counsel of record)

Christopher Wu, Esq.

Legal Services For Children

1254 Market St., 3rd floor

San Francisco, CA 94102

(415) 863-3762

Dated: Filed as of December 8, 1993

No. 93-754

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHRISSY F., By Her Next Friend And

Guardian Ad Litem, DONNA MEDLEY,

Petitioner,

VS.

SEBE DALE, JR. Individually and as Chancellor for the Tenth

Chancery Court District of Mississippi, GARLAND UPTON,

Individuaiiy and as Referee of the Marion County Youth Court,

PHILLIP BROADHEAD and FRED COOPER,

Respondents,

ON CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

AMICUS CURIAE BRIEF OF LEGAL SERVICES FOR

CHILDREN IN SUPPORT OF CHRISSY F.’S PETITION FOR

A WRIT OF CERTIORARI

* Karen M. jones-Mason, Esq.

Christopher Wu, Esq.

Legal Services for Children

1254 Market St., 3rd floor

San Francisco, CA 94102

(415) 863-3762

*Counsel of Record

TABLE OF CONTENTS

Pages

Re re ae

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

INTEREST OF THE AMICI ..... Aaa waa aa aoe |

SUMMARY OF ARGUMENT .................... |

TEE fr We Wile Serie ee ns i Ue 2

I. THIS COURT SHOULD GRANT THE PETITION

BECAUSE THE CIRCUIT COURTS AND DISTRICT

COURTS ARE SPLIT OVER THE SCOPE OF THE

ROOKER-FELDMAN DOCTRINE .............. 2

A. The Rooker-Feldman Doctrine ................. 3

B. The Lower Courts Are in Disagreement About the

Appropriate Scope of the Doctrine ............... 5

II. ITION

DETERMINE WHETHER CHILDREN WHO ARE

APPOINTED LEGAL COUNSEL IN CHILD ABUSE

PROCEEDINGS, PURSUANT TO STATE STATUTE,

ARE ENTITLED TO EFFECTIVE ASSISTANCE OF

RUN SC h a Woah bo CORO eek ok ec. 10

A. Effective Assistance of Counsel Is a Critical Component

ra Child’s Rig) , he C in a Child

ae he 1]

B n Receiv

CONCLUSION

“*

. 428 € 2's OF 8S 4 6 2 82 Se Ss 2 6 8 SS 4.8 2 Oe: Oo So SH.

iii

TABLE OF AUTHORITIES

Cases

Berman v. Florida Bd. of Bar Examiners, 794 F.2d 1529

Che Re ak ieee ie Sk NRE Berk 5 5

Carbonell v. L.A. Dept. of Health & Human Services,

pee ee ee er ee eee 8

Chrissy F. By Medley v. Ms. Dept. of Public Welfare,

995 F.2d 595 (Sth Cir. 1993) .........4.4... passim

Chrissy F. By Medley v. Mississippi DPW,

780 F.Supp. 1104 (S.D.Miss. 1991) ........ 9,10,11,19

Czura v. Supreme Court of South Carolina,

xe be Le Sa a re 5

District of Columbia Court of Appeals v. Feldman,

oo) | an nr freee py

Elks National Foundation v. Weber, 942 F.2d 1480

ee Say Sa are a asks 7

\

Gauthier v. Continental Diving Services

es a a 7

Greening v. Moran, 953 F.2d 301 (7th Cir. 1992) ......... %

Guess v. Board of Medical Examiners of State of N.C.,

POT Pia Pee Ce Ge FPPE) ei ets 7

Haring v. Prosise, 462 U.S. 306 (1983) ............. 6,10

Hollins v. Wessel, 819 F.2d 1073 (11th Cir. 1987) ........7

Honig v. Doe, 484 U.S. 305, 108 S.Ci. 592 (1988)... 2...

Ee

iv

bn 00 Get, Ser ULG. 2 CRRRT) oo ec bee in hs wes 11,12,13

In re Jeffrey R.L., W.Vir. __,

G55 Mme Be CH is os 60 eee h8 4 eo 12,13,16,18

LaNave v. Minnesota Supreme Court, 915 F.2d 386

ee es SI os oie ook be 6 0 6 ee ee A a ee 5

Leaf v. Supreme Court of State of Wis.,

979 F.2d 589 (7th Cir. 1992) ................ 7,8

Lowrie v. Goldenhersh, 716 F.2d 401 (7th Cir. 1983) ....... 6

Migra v. Warren City Schoo! District Board of Education,

ge Mie | Re ere eo eae 7

Razatos v. Colorado Supreme Court, 746 F.2d 1429

tbe See eee eee ee ewe ee oe ee 5

Robinson v. Ariyoshi, 753 F.2d 1468 (9th Cir. 1985) ..... 6,10

Rooker et al. v. Fidelity Trust Co. et al.,

y i gih wwii. See eee passim

Schneider v. Colegio de Abogados de Puerto Rico,

917 F.2d 620 (1st Cir. 1990), cert. denied,

U.S. , ES a WU 6 eee a wi ewes 8

Schumacker v. Nix, 965 F.2d 1262 (3rd Cir. 1992) ........ 5

Stern v. Nix, 840 F.2d 208 (3rd Cir. 1988) ............. 8

Texaco Inc. v. Pennzoil Co., 784 F.2d 1133

(2d Cir. 1986), rev’d on other grounds,

ee Se es oe i re ek ea aes 8,9

Vv

U.S. Industries Inc. v. Laborde, 794 F.Supp. 454

a ee a er 8

Valenti v. Mitchell, 962 F.2d 288 (3rd Cir. 1992) ......... 8

Wood v. Orange County, 715 F.2d 1543

te ee a ae ee ee 7,10

Worldwide Church of God v. McNair,

Be EF. Ee | er a rere 7

RULES, STATUTES AND CODES

U.S. Constitution

I i) AS re ee ie ames ee cg ae ks 10

a EE 95s a kK oes oe ow oe Oe 4,9

42 U.S.C.

EY a Lahey oti rea ew x ae Oe ema a eo uy

eS Sg giy bag sara a0 we wa Be ee ee 14,15

I 4: <i: gk ae -8O SE a a eS ke 14,15

OTHER AUTHORITIES

ABA Presidential Working Group on the Unmet

Legal Needs of Children and Their Families,

America’s Children at Risk (1993) ............... 14,16

Administration For Children, Youth and Families,

Office of Human Development Services,

U.S. Department of Health and Human

Services, National Guardian Ad Litem

as CAE Te 6 6 cee ee ete 15,16

vi

Bay Area Reasonable Efforts Project, Practice

Guidelines for Attorneys Practicing Dependency

Law in Alameda, San Francisco, and Santa Clara

a A | ee re 19

Duquette, Donald N. and Ramsey, Sarah H.,

Haralambie, Ann M., The Child’s Attorney, A Guide

ins aihlaon tn Siamese

Protection Cases, Family Law Section of

PO rrr en ree ee ree ee eo 14,16

JJA-ABA Standards for Juvenile Justice, Counsel

i rr ree «4 ss iS oa a oe ee 14,19

Kelly, Robert F. and Ramsey, Sarah H.,

Monitori , Perf 1 Evaluatin

Program Outcomes: A Case Study of Attorneys for

A N ildren,

40 Ruteers L..Rev. 8217 (1968) 0 ww ee 16,17,18

Mosteller, Robert P., Child Abuse Reporting Laws _

the Specter of Lawyer as Informant,

Poo ERG OF, eee ee 13

National Association of Counsel for Children,

Schwarzer, William W, Dealing with Incompetent

tcc tet te wes 18

Sobie, Merril, The Representation of Children:

AS | Analysis of the Bar / _

Law Guardian Study, New York State Bar Journal

ee te ee te ets 16,17,19

]

INTEREST OF AMICUS

Legal Services for Children, Inc. ("LSC"), is a private,

nonprofit law firm founded in 1975 solely to represent minors in

juvenile court and other proceedings affecting the health,

education, and welfare of children. LSC is concerned about this

case because we strongly believe that federal court access is

essential to ensure that children have some means of compelling

States to enforce the due process rights guaranteed by the 14th

Amendment. LSC is based in San Francisco, California, and has

participated in numerous cases affecting children, including Honig

v. Doe, 484 U.S. 305, 108 S.Ct. 592 (1988).

SUMMARY OF ARGUMENT

The Rooker-Feldman doctrine has produced a

significant split not only in the circuits but among the individual

courts within the circuits about the interpretation and the

application of this Court’s “inextricably intertwined" test set forth

in District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983). Further, the Fifth Circuit’s decision in this case

expands the perimeters of Rooker-Feldman farther than any other

circuit, and beyond the boundaries set by this Court’s precedents.

Moreover, amicus submits that under the precedent established by

this Court, the Rooker-Feldman doctrine does not preclude

federal subject matter juris-diction when the petitioner did not

have a full and fair opportunity to litigate her claims in state

court, and when the petitioner is not seeking to overturn the state

court’s judgment but merely trying to secure her right to

meaningful access to the courts.

This case is particularly compelling given the fact that it is

capable of repetition thousands of times over again. It should be

emphasized that the only way abused children can seek legal pro-

tection is through invoking certain state proceedings (i.e., juvenile

abuse adjudications, guardianships or divorce and custody

actions). Thus, most abused children wil) probably be involved in

a State proceeding of some kind. Under the holding in Chrissy F.

By Medley v. Ms. Dept. of Public Welfare, 995 F.2d 595 (Sth

Cir. 1993)(hereinafter "Chrissy III") these children will be com-

pletely barred from filing civil rights claims in federal court

2

whenever their due process rights are violated despite the fact they

had no meaningful legal representation in state court. Moreover,

given the fact that several commentators have noted that many

children in abuse adjudications today are receiving inadequate

legal representation, if they receive any legal representation, the

holding in Chnissy IH could be devastating to thousands of

children.

Amicus asserts sa the fundamental flaw in Chrissy III is a

failure to understand this crucial point: there is no one single

factor that is more important to the life of a child in a child abuse

adjudication than meaningful assistance of counsel. When child-

ren in abuse adjudications are deprived of meaningful assistance of

counsel they cannot thereafter sue their attorneys for malpractice,

file a complaint with the state bar or assume their own legal

representation. In addition, because child abuse adjudications are

not open to the public, it is highly unlikely that an outside third

party could know a child needed legal assistance. Thus, children

who are denied meaningful assistance of counsel are profoundly

helpless in the face of due process violations inflicted by the very

institution that is charged with their protection: the state courts.

Amicus contends that these children are effectively denied their

constitutional right to access to the courts. Therefore, amicus

strongly believes that a child’s constitutional right to access to the

courts requires that children are afforded legal representation at all

stages of a child abuse proceeding. At the very least, where a

state statute provides for the appointment of counsel for the child

in child abuse proceedings, these children should be entitled to

effective assistance of counsel.

Accordingly, this Court should grant the Petition to clarify

the application of the Rooker-Feldman doctrine. Moreover, this

Court should grant the Petition to decide whether children who,

pursuant to state statute, are appointed counsel in child abuse

adjudications, are entitled to effective assistance of counsel.

ARGUMENT

3

A. The Rooker-Feldman Doctrine.

Rooker-Feldman takes its name from two prior decisions of

this Court:

460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983) and

Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68

L.Ed. 362 (1923). In essence, the doctrine states that the federal

district court, as a court of original jurisdiction, has no authority

to conduct appellate review of the final determinations of a state

court in judicial proceedings.

In Rooker v. Fidelity Trust Co., plaintiffs brought a suit to

have a judgment of a state court declared void because it was

violative “of the contract clause of the Constitution of the United

States and the due process of law and equal protection clauses of

the Fourteenth Amendment..." Id. at 414. The district court held

that it lacked subject matter jurisdiction and dismissed the case.

This Court held that as long as the constitutional issues “actually

arose” and a “full hearing was had therein...no court of the United

States other than this court could entertain a proceeding to reverse

or modify the judgment for errors of that character..." for to do

so would be an impermissible exercise of appellate jurisdiction.

Id. at 415-416.

The Court reaffirmed Rooker in District of Columbia Court

of Appeals v. Feldman. In Feldman, the Committee on

Admissions of the District of Columbia Bar (the "Committee")

had denied plaintiffs Feldman and Hickey admission to the D.C.

bar under a rule which restricted admission to ABA-approved law

school graduates. Plaintiffs filed separate actions in the District of

Columbia Court of Appeals seeking orders allowing for a waiver

of the rule or permission to sit for the bar exam. The Court of

Appeals affirmed the Committee's decision. Thereafter, plaintiffs

filed separate suits in the federal district court alleging that the

D.C. Court of Appeals had violated their federal rights. The

district court dismissed both suits, citing lack of subject matter

jurisdiction. The Court of Appeals reversed on the ground that

the appellants’ waiver petitions emanated from proceedings that

were not judicial.

This Court noted that the District Court properly acknow-

ledged that it was without authority to review final determinations

4

of the District of Columbia Court of Appeals. Id. at 476. After

determining that the proceedings before the District of Columbia

Court of Appeals were judicial] in nature, the Court concluded that

to the extent Hickey and Feldman sought federal review of the

District of Columbia Court of Appeals’ denial of their petitions for

waiver, the U.S. District Court lacked subject matter jurisdiction.

The proper procedure was for Hickey and Feldman to seek review

in this Court under 28 U.S.C. §1257.

The Court noted that, since it will not decide federal consti-

tutional issues raised before it for the first time, "[i]t is possible

that review of a state court decision by this Court could be barred

by a petitioner’s failure to raise his constitutional claims in the

state courts." Id. at 482 n.16. The mere fact that the plaintiff

failed to raise constitutional claims in state court would not

necessarily mean, however, that the lower federal courts had

subject matter jurisdiction:

"If the constitutional claims presented to a

United States district court are inextricably

intertwined with the state court’s denial in a

judicial proceeding of a particular plaintiff's

application for admission to the state bar,

then the district court is in essence being

called upon to review the state-court decision.

This the district court may not do.” Id.

The Court then noted that by failing to raise his claims in state

court a plaintiff may forfeit his right to obtain review of the state

court decision in any federal court. Id. at 482 n.16. Thus,

federal subject matter jurisdiction exists to the extent that the

federal claims are not inextricably intertwined with the state court

judgment. If, however, this Court lacks certiorari jurisdiction

over federal claims because the plaintiff failed to raise them in

State court, and the claims are held to be "inextricably inter-

twined” with the state court proceedings the plaintiff is precluded

from bringing constitutional claims in either federal or state court.

The Court did not set forth a clear formula for determining

when federal claims are “inextricably intertwined" with state court

proceedings. General challenges to state bar admission rules were

exempted because they did not require federal review of a state

:

:

heceeceenseeeniameneiinaieuauiiaiiiaiaaial

5

court judgment. Jd. at 486. In contrast, a "particular" challenge

would require review of the constitutionality of a judgment "deny-

ing a particular application for admission to the Bar." Id. at 485.

This Court concluded that to the extent Hickey and Feldman

mounted a general challenge to the constitutionality of the bar

rules the District Court did have jurisdiction.

Lower courts have subsequently grappled with the definition

of “inextricably intertwined"; its meaning remains unclear today.

B. The Lower Courts Are in Disagreement

As noted below, the lower courts are in disagreement about

the scope and interpretation of the Rooker-Feldman doctrine.

Some courts, applying what appears to be a strictly literal

interpretation of Feldman, distinguish only between a "general

challenge” to a statute and review of a particular state court

judgment. Other courts have suggested that the Feldman doctrine

is not nécessary and use principles of res judicata instead. Still

others have incorporated claim preclusion principles into the

Feldman doctrine itself. Finally, some courts have developed their

own exceptions to the Feldman doctrine.

Several circuits have applied a strictly literal interpretation of

the Feldman distinction between “general challenges” and requests

to review "individual applications. ”’

' See Schumacker v. Nix, 965 F.2d 1262, 1266 n.6 (3rd Cir. 1992) (Rooker-

Feldman no jurisdictional obstacle where complaint presents a federal

constitutional challenge to state bar rule); LaNave v. Minnesota Supreme Court,

915 F.2d 386, 387 (8th Cir. 1990) (federal court lacks jurisdiction over

constitutional challenge to state court decision regarding state bar rules which

required plaintiffs to be graduates of ABA-approved law school); Czura v.

Supreme Court of South Carolina, 813 F.2d 644, 646 (4th Cir. 1987) (district

court lacked jurisdiction over civil rights action brought by disbarred attorney

where federal action was actually an attack on order of disbarment in his

particular case); Berman v. Florida Bd. of Bar Examiners, 794 F.2d 1529,

1530 (11th Cir. 1986) (no subject matter jurisdiction where attorney’s claim was

a challenge to denial of his application for admission to bar in state court

judicial proceeding); Razatos v. Colorado Supreme Court, 746 F.2d 1429,

1432-1433 (10th Cir. 1984) (acknowledging “inextricably intertwined” provides

6

In contrast to the rigid approach used by the courts cited

above, other courts have essentially dispensed with the Rooker-

Feldman doctrine altogether, and instead applied res judicata

(“claim preclusion"). In Robinson v, Ariyoshi, 753 F.2d 1468 (9th

Cir. 1985), vacated on other grounds, 477 U.S. 902 (1986) the

Ninth Circuit stated:

"Faced with the task of deciding our power

to review constitutional issues which arise

from a state court proceeding, we view the

res judicata requirement of full and fair

opportunity to litigate, and the Feldman

‘inextricable intertwined’ barrier to federal

jurisdiction as two sides of the same coin."]d.

The Ninth Circuit cited Haring v. Prosise, 462 U.S. 306,

103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983) for the proposition

that in a section 1983 action, collateral estoppel effect will not be

given to a state court conclusion where the complaining party did

not have full and fair opportunity to litigate a claim in state court

or where the state court demonstrated inability or unwillingness to

protect federal rights.

In a significant footnote, the court explained:

"If the procedural posture of the state court action had,

for some reason, altogether prevented the plaintiffs

from raising federal constitutional claims in their

petition for rehearing, the federal district court would

have had original jurisdiction over those claims. We

are loathe to grant less constitutional protection where

plaintiffs have responsibly exercised an opportunity to

raise their claims and have been turned away from the

State tribunal without so much as an explanation.” Jd. at

1473 n.3. (Citation omitted.)

no “bright line rule” and finding no subject matter jurisdiction over action to

review decision of Colorado Supreme Court suspending plaintiff); Lowrie v.

Goldenhersh, 716 F.2d 401, 407 (7th Cir. 1983) (federal subject matter

jurisdiction exists where attorney's complaint seeking admission to Illinois bar

could be considered a general challenge).

hineeeenenennenneeanimmeamemuaeeaaiaiel

7

Thus, a strict interpretation of Feldman might mean that a plaintiff

who was denied a full and fair opportunity to litigate claims would

be effectively precluded from presenting those claims in either

state or federal court.’

Unlike either of the approaches discussed above a number of

circuits and district courts have integrated principles of res

judicata and collateral estoppel (or “claim and issue preclusion")

into the Rooker-Feldman doctrine.

In Wood v. Orange County, 715 F.2d 1543 (11th Cir. 1983)

the court of appeals noted this limitation of Feldman:

"The rule can apply only where the plaintiff had a

reasonable opportunity to raise his federal claim in state

proceedings.... Moreover, an issue that plaintiff had no

reasonable opportunity to raise cannot properly be

regarded as part of the state case. In Feldman’s

language, the issue that such a plaintiff asks the federal

court to decide is not ‘inextricably intertwined’ with the

state court’s judgment.” Jd. at 1547.

Thus, if the plaintiff did not have a fair opportunity to litigate his

claims in state court and Rooker-Feldman bars him from bringing

up those issues in federal court, he is effectively precluded from

bringing his claims in any court.’

* Other courts have also applied a res judicata analysis. See, ¢.g., Greening

v. Moran, 953 F.2d 301, 305 (7th Cir. 1992) (cites to Migra v. Warren City

School Distnct Board of Education, 465 U.S. 75 (1984) instead of citing

Feldman to dispose of claims seeking review of state court judgment); Gauthier

vy. Continental Diving Services, 831 F.2d 559, 561 (Sth Cir. 1987) (Rooker-

Feldman close if not identical to the principle that a federal court miust give full

faith and credit to a state court judgment and expressly declining to give greater

deference to a state court judgment than a court of the state in which the

judgment was rendered).

* See also, Guess v. Board of Medical Examiners of State of N.C., 967 F.2d

998, 1004 (4th Cir. 1992); Leaf v. Supreme Court of State of Wis., 979 F.2d

589, 599 (7th Cir. 1992); Elks National Foundation v. Weber, 942 F.2d 1480,

1484 (9th Cir. 1991); Hollins v. Wessel, 819 F.2d 1073,1074 (ilth Cir. 1987);

Worldwide Church of God v. McNair, 805 F.2d 888,892 (9th Cir. 1986).

Still other courts have applied another principle borrowed

from res judicata--that claim preclusion does not apply to litigants

who were not parties in the state litigation.‘

Courts within the First, Third and Fifth Circuits have

adopted other tests for determining when a federal claim is

inextricably intertwined with a state court judgment. In applying

the Rooker-Feldman doctrine courts in the Third Circuit look at

the “nature of the relief sought in federal court."° In contrast to

the Third Circuit, courts in the First and Fifth Circuits have

explicitly rejected the “nature or basis of the desired relief”

standard and instead look to the "realistic... nature of the

underlying claim” in determining when federal claims are

inextricably bound with state court judgments.°®

Finally, some courts have allowed claims that were

considered "separable from and collateral to the merits of the state

court action.” In Texaco, Inc. v. Pennzoil Co., 784 F.2d 1133

(2nd Cir. 1986), rev'd on other grounds, 481 U.S. 1 (1987),

Texaco sought a federal court order enjoining the enforcement of

a State damage award and alleged that the Texas lien and

supersedeas bond provisions violated its federal constitutional

rights. The Second Circuit held that it had jurisdiction over

Texas’ due process and equal protection claims because those

claims had never been raised before the state court. The court

_ dat Echostar.» Sttasin.f.Ahnenten de Pete Sine. 917 F.2d 620, 629

(ist Cir. 1990), cert. denied, __ , 112 S.Ct. 865 (1992); Valenti v.

Mitchell, 962 F.2d 288, 297 (3rd Cie 1992); 7"? ga

of Wis., 979 F.2d 589, 597-98 (7th Cir. 1992), cert, denied, _—-US.

113 U.S. 2417 (1993).

* See Valenti v. Mitchell, 962 F.2d 288, 297 (3rd Cir. 1992); Centifanti v. Nix,

865 F.2d 1422, 1429 (3rd Cir. 1989); Stern v. Nix, 840 F.2d 208, 212 (3rd

Cir. 1988).

* See Carbonell v. L.A. Dept. of Health & Human Services, 772 F.2d 185, 189

(Sth Cir. 1985) ("...Feldman (citation omitted) teaches that the nature of the

underlying claim, not the nature or basis of the desired relief, directs the

answer to the appellate versus original jurisdiction inquiry."); U.S. Industries

Inc. v. Laborde, 794 F.Supp. 454, 464 (D. Puerto Rico 1992).

9

also noted that enforcement of the lien and bond provision would

deny Texaco "its right of appeal of any meaning .. ." |d. at

1157. The court categorically rejected the argument that Rooker-

Feldman precludes jurisdiction over issues which a party could

have raised in state court but chose to withhold because:

"... the theory would read 28 U.S.C. §1257 to severely

impair, perhaps negate, a litigant’s right to gain

equitable or other relief under 42 U.S.C. §1983,

Mitchum vy, Foster, 407 U.S. 225, 92 S.Ct. 2151, 32

L.Ed.2d 705 (1972), since most claims under §1983,

especially requests to enjoin ongoing state proceedings,

could be raised in a related state proceeding. To

relegate the §1983 claimant in such cases to the state

court would ignore Congress’ purpose in adopting that

statute. Section 1983 was intended to provide dual or

concurrent forums in the state and federal system,

enabling the plaintiff to choose the forum in which to

seek relief. Accordingly, it is settled law that a §1983

litigant need not first seek to vindicate his federal

claims in state court before turning to a federal court

for relief.” (Citations omitted.) Id. at 1144.

This Court reversed Pennzoil on abstention grounds

implicitly finding subject matter jurisdiction. Moreover, in

concurring opinions, a majority of the Court agreed that Rooker-

Feldman did not prohibit jurisdiction. Significantly, Justice

Brennan, the author of Feldman, noted that:

"Texaco filed the §1983 action only to protect its

federal constitutional right to a meaningful opportunity

for appellant review, not to challenge the merits of the

Texas suit. Texaco’s federal action seeking a stay of

judgment pending appeal is therefore an action

‘separable from and collateral to’ the merits of the

State-court judgment.” Jd. at 21.

Thus, claims should not be dismissed merely because they

require some consideration of the merits of the state court

judgment. Instead, courts should look to the purpose of bringing

the action.

10

Chrissy III is a tragic decision which has effectively pro-

hibited a young child from obtaining the protection of the courts.

Amicus maintains that the decision in Chrissy III amply illustrates

the concerns expressed in Wood and in Robinson regarding the

consequences to those who are denied a fair hearing at the state

level and are, thereafter, shut out of federal court by the Rooker-

Feldman doctrine. Petitioner never received a fair chance to liti-

gate any claim in state court. This child not only had no legal

representation in the Chancery Court--she was not even a party.

Because of her age and her standing she could not possibly present

any claims in the Chancery Court. No record was made of those

proceedings, and no appeal could be taken. As the district court

found, the Youth Court adjudication was a sham which "fell woe-

fully short of those basic features which mark an adequate

adjudicatory proceeding.” 780 F.Supp. at 1127.

Moreover, amicus contends that Chrissy III violates this

Court’s own precedents. In Haring v. Prosise, 462 U.S. 306,

313, 103 S.Ct. 2368, 2373, 76 L.Ed.2d 595 (1983) this Court

stated that collateral estoppel effect would not be given to a state

court opinion where the complaining party did not have a full and

fair opportunity to litigate a claim in state court or where the state

court demonstrated inability or unwillingness to protect federal

rights. To do otherwise would render the 14th Amendment

superfluous and undermine the very purpose of section 1983.

Il.

ADJUDICATIONS, PURSUANT TO

STATE STATUTE, ARE ENTITLED TO

EFFECTIVE ASSISTANCE OF COUNSEL.

Amicus strongly believes that children must be represen

by a competent attorney at all stages of a child abuse adjudication.

Had Petitioner been represented by competent legal counsel there

would have been no need to seek relief in the federal court. As

noted above, amicus asserts that the fundamental flaw in Chrissy

II] is a failure to understand that there is no factor more important

in a child abuse adjudication than meaningful assistance of

11

counsel.’ When children in abuse adjudications are deprived of

meaningful assistance of counsel they cannot thereafter sue their

attorneys for malpractice, file disciplinary complaints or assume

their own legal representation. Thus, children who are denied

meaningful assistance of counsel are profoundly helpless in the

face of due process violations inflicted by the very institution that

is charged with their protection: the state courts. Amicus

contends that these children are effectively denied their

constitutional right to access to the courts.

A. Effective Assistance of Counsel Is a Critical

f ild’s Right to A

The district court’s statement that, although the child was a

victim of a "sham" court proceeding, “[eJach of the parties, at all

times, appears to have had the best interests of Chrissy in mind"

(780 F.Supp. at 1131), reflects the discredited idea that due

process protections are not necessary for children in juvenile

proceedings because the state will adequately protect the child.

The facts of this case and many others show that is not true. That

notion was disposed of in the landmark case of In re Gault,

387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In re Gault declared that "...neither the Fourteenth

Amendment nor the Bill of Rights is for adults alone." 387 U.S.

at 13. In re Gault established that children in juvenile delinquency

proceedings were entitled to basic due process guarantees

including the right to counsel. After the Court discussed the

original intent of the early child advocates to create an informal

court system where the state, acting in its role as parens patriae,

would protect the best interests of the child, the Court explained:

"The absence of substantive standards has not

necessarily meant that children receive careful,

7 In Chrissy II] the Fifth Circuit stated that Chrissy had "knowledgeable

attorneys." Chrissy II], 995 F.2d at 599. This observation is directly

contradicted by the findings of the District Court. See Chrissy F. By Medley v.

Mississippi DPW, 780 F.Supp. 1104, 1114 (S.D.Miss. 1991); See also TT at

244, 291-93, 766-70.

12

compassionate, individualized treatment. The absence

of procedural rules based upon constitutional principle

has not always produced fair, efficient, and effective

procedures. Departures from established principles of

due process have frequently resulted not in enlightened

procedure, but in arbitrariness...Failure to observe the

fundamental requirements of due process has resulted in

instances, which might have been avoided, of unfairness

to individuals and inadequate or inaccurate findings of

fact and unfortunate prescriptions of remedy." Id. at 20-

21.

Interestingly, the opinion cited a portion of the President’s

National Crime Commission Report which stated:

"*Fears have been expressed that lawyers would make

juvenile court proceedings adversary. No doubt this is

partly true, but it is partly desirable. Informality is

often abused. The juvenile courts deal with cases in

which facts are disputed and in which, therefore, rules

of evidence, confrontation of witnesses, and other

adversary procedures are called for. They deal with

many cases involving conduct that can lead to incar-

ceration or close supervision for long periods, and

therefore juveniles often need the same safeguards that

are granted to adults. And in all cases children need

advocates to speak for them and guard their interests,

particularly when disposition decisions are made.’" Jd.

at 38 n.65.

Amicus submits that the same concerns expressed by the

Court in In re Gault apply to juvenile court abuse proceedings.

The similarity of problems juveniles encounter in the criminal

system and in the child protection courts was implicitly recognized

in the recent West Virginia case, In re Jeffrey R.L. In In re

Jeffrey R.L., = W.Vir. __, 435 S.E.2d 162 (1993) a child’s

guardian ad litem argued that the Supreme Court of West Virginia

should adopt an "effective assistance of counsel standard" for

children in child abuse adjudications precisely because child abuse

13

proceedings have “quasi-criminal overtones."* For example, in

abuse proceedings, as in criminal proceedings, no amount of

monetary compensation through a negligence suit for malpractice

can adequately compensate a child who has been a victim of

incompetent legal representation. Clearly, as in criminal cases,

the child’s liberty is at stake. Children in abuse proceedings can

be committed to locked psychiatric units, long-term residential

treatment centers or forced to live in other institutionalized

settings apart from family and friends. Finally, most critically,

ineffective assistance of counsel could allow a child to suffer

severe physical, sexual or emotional injury and even death. One

commentator has reported that on a yearly basis over one million

children suffer demonstrable harm as a result of abuse and

neglect, and over 1,100 children die as a consequence of such

abuse and neglect. Amicus contends that the stakes are just as

high, if not higher, for a child in a child abuse adjudication as for

a child in the criminal courts. Implicitly recognizing the guardian

ad litem’s argument, the Supreme Court of West Virginia held

that children in dependency proceedings were not merely entitled

to counsel at every state of a child abuse adjudication, but were

entitled to effective assistance of counsel.

Further, the informality condemned in In re Gault was

indeed present and abused here. In fact, Petitioner’s “hearing” \.as

so informal that no transcripts were made, none of the medical

evidence establishing her sexual abuse was introduced into the

record, no witnesses were called, her maternal relatives were not

given notice, and a state court judge made a real investigation

impossible. The situation was exacerbated by the fact that child

abuse adjudications are not open to the public. Therefore, any

party sincerely interested in helping Petitioner would not have

known that she needed legal assistance. Petitioner needed an

® See Petitioner's Memorandum of Law at 10, Ip re Jeffrey R.L., WV.

_, 435 S.E.2d 162 (1993).

® See Mosteller, Robert P., Child Abuse Reporting Laws and Attorney-Client

C ces: The it f er as Info t, 42 Duke

L.J. 203, 203-205 (1992).

=

advocate dedicated to her interests, especially at the disposition

stage--but she had none.

B. Children in Child Abuse Proceedings Often

Most commentators today agree that children in child abuse

adjudications must be represented by independent counsel.'° As

the ABA Presidential Working Group has stated:

"Meaningful protection of children’s rights requires that

children be represented by highly skilled counsel at

critical stages of critical proceedings. Competent

professional representation in proceedings that involve

children is vital in a system where decisions about

children’s rights and liberties...are decided.""'

Despite the critical importance of counsel, not every state

requires that children in child abuse adjudications be appointed an

attorney. One commentator has noted that prior to 1967 typically

fewer than 10% (and often fewer than 5%) of the children before

the juvenile court received legal counsel.'? Today the Federal

Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-

'© See DA-ABA ice, Counsel for Private Parties

2.3(b) (1980); ABA porn ne Group on the Unmet Legal ios -

Children and Their Families, America’s Children at Risk, 7, 51, 86 (1993)

(hereinafter “ABA Presidential Working Group") (advocating adoption of ABA

Standards Relating to Private Parties and adopting position that children should

have legal representation at all stages of child abuse proceedings); Duquette,

Donald N. and Ramen. Sarah H., Representation of Children in Child Abuse

t t t

Representation. 20 J. of Law Reform 341, 346 (1987); Haralambie, Ann M.,

and Protection Cases, Family Law Section of ABA, 1, 258 (1993) tonttieon forth

introductory comments of New York Law Guardian Representation Standards in

Child Protective Proceedings, Termination of Parental Rights Proceedings, and

Foster Care Placement and Review Proceeding); See generally, Note, California

We d itutions tion 317: ting a

Independent Counsel for all Children, 23 Loy.L.A.L.Rev. 1385 (1990).

'' ABA Presidential Working Group at 7.

'2 IJA-ABA Juvenile Justice Standards at 1.

15

5106 (hereinafter "the Act"), condition a state’s receipt of federal

funds on the state fulfilling a number of conditions, including

appointment of a guardian ad litem (herein-after "GAL") for every

child in abuse adjudications.'* The Act does not, however,

require that the guardian ad litem be an attorney.

Further, a 1990 survey indicates that despite federal statutory

requirements, less than 100% of all children receive GAL

representation in 26 states."* In six of these states less than 70%

of the children are represented. The GAL Survey reported that in

Florida 49% of the children are represented, in Nevada 32%, and

in Delaware only 22% of the children in abuse proceedings

receive GAL representation.’* State laws in 8 of the 26 states do

not require a GAL to be appointed in all cases. In addition, the

GAL Survey found little consistency between or within the states

as to who is to serve as the GAL, what the GAL’s responsibilities

are, and how conflicts are to be resolved. For instance, only 19

states and the District of Columbia have statutes which say that

the GAL must be an attorney. Only five states were found to have

a comprehensive description of the role and responsibilities of the

GAL. The responsibilities of the GAL in most other cases are

broadly defined with no specific direction as to what constitutes

minimal required effort on behalf of the child. Only 8 states, the

District of Columbia and a small number of local jurisdictions

have training for attorney GALs. The GAL survey also found that

the majority of attorney GALs do not specialize in family law.

According to the GAL Survey, "...this lack of training is

conspicuous" (id. at 42) and “[uJltimately, the lack of clear

'3 See 42 U.S.C. §5103(b)(2)(G).

'4 See Administration For Children, Youth and Families, Office of Human

Development Services, U.S. Department of Health and Human Services,

National Guardi tation at 41 (Oct. 1990) (hereinafter

"GAL Survey"). The information in this paragraph is either paraphrased or

taken directly from the GAL Survey.

'S GAL Survey at 11-12.

16

guidelines for responsibilities can lead to inadequate representation

for the child.” Id. at 44.

The GAL Survey’s concerns about adequate representation

for children in child abuse proceedings are well founded. As the

ABA Presidential Working Group reported:

"We have heard frequent allegations that some attorneys

fail to meet with clients in advance of court proceed-

ings, are not prepared for hearings and even disregard

the express wishes of their clients. This kind of

representation--where it occurs--is unacceptable and

certainly would not be tolerated where the client was an

adult able to pay the attorney’s bills. Children’s cases

are often ‘processed,’not advocated, and too frequently

children’s interests are poorly represented.”

A number of commentators have documented the inadequate

representation that children before the juvenile court too often

receive.'’ For instance, an analysis of the New York State Bar

Association Law Guardian Study (hereinafter "Law Guardian

Study") presents a shocking picture. The Law Guardian Study

conducted interviews, engaged in courtroom observation and

examined completed case files in 14 counties to determine the

'© ABA Presidential Working Group at 7.

'’ See Sobie, Merril, The Representation of Children: A Summary and Analysis

of the Bar Association Law Guardian Study, New York State Bar Journal (Feb.

1985); ABA Presidential Working Group at 7; Kelly, Robert F. and Ramsey,

Sarah H., Monitoring Attorney Performance and Evaluating Program

Outcomes: A Case Study of Attomeys for Abused and Neglected Children, 40

Rutgers L.Rev. 1217 (1988) (hereinafter "Kelly and Ramsey"); Ip re Jeffrey R.

L.. | wee ; S.E.2d (1993) (citing both New York Law

Guardian study and North Carolina study for support of holding requiring that

children be afforded effective assistance of counsel at all stages of a child abuse

—— Haralambie, Ann M., The Chis Adore Geide-to

(Family Law Section of ‘ABA 1993) onal by Howard Devideoa, Director of

the ABA Center on Children and the Law discussing “horrendous examples of

attorney malpractice--indeed, child clients treated with a complete lack of

dignity and respect”).

+ te Miia dey Be te

17

quality of the representation of children before the juvenile court.

The Law Guardian Study found:

1. 45 percent of the courtroom observations reflected

either seriously inadequate or marginally adequate representation,

27% were found to reflect — standards of ‘Tepresentation

y & Almost 1/2 of the panaiiens for which complete

transcripts were analyzed revealed apparent appealable errors on

the part of the law guardian or the judge. Yet less than 1 in 600

cases are appealed.

3. In 1/2 the proceedings it appeared that the law guardian

had accomplished little or no preparation prior to entering an

admission or otherwise disposing of the case.

4. In several cases the law guardian had not even met with

the child client prior to the hearing.

5. A complete absence of class action suits or special

litigation (clearly one of the few ways if not the only effective

way to create systemic change).

6. A staggering case load (in one major county each full-

time law guardian represents over 800 separate children/year)

which precluded the realistic probability of effective

representation.

Another study performed in North Carolina found that

experienced attorneys who worked long hours, were deeply

involved in the negotiations and the factfinding processes, and

who actually communicated with their clients were able to

influence the outcomes of their cases in a manner judged

beneficial by the study.'* Unfortunately, most North Carolina

attorneys did little or nothing in representing their child clients.

Both the Law Guardian Study and the study performed in

North Carolina noted that reasons which contributed to the poor

representation of children included a lack of guidance as to the

proper role of the attorney, a lack of specialized training in child

abuse and child development, a lack of monetary incentives, and a

lack of respect from juvenile court judges. Both studies

'® See Kelly and Ramsey at 1238-1239.

18

underscored the importance of establishing practice guidelines for

lawyers who represent children. This latter factor was recognized

by the West Virginia Supreme Court in In re Jeffrey R.L., supra,

which, as part of the court’s opinion, formally adopted practice

guidelines for attorneys representing children.

The importance of practice guidelines to aid the attorney in

determining what is "effective representation" for children cannot

be overstated, largely because there is so little systemic control

over the quality of representation rendered by juvenile court

practitioners. There are a number of reasons for this problem.

One reason is that judges do not ensure that children receive

meaningful representation. One commentator has suggested that

judges do not respond forcefully in the face of incompetent repre-

sentation because of the absence of a constitutional night to

effective assistance of counsel.'? Further, the child itself cannot

control the attorney; the child doesn’t know what constitutes

meaningful representation and may not know that the lawyer is

incompetent or inadequate. Therefore, the child is not able to file

a complaint with the state bar or pursue a civil action for mal-

practice.” This situation is exacerbated by the fact that child

abuse adjudications are not open to public scrutiny. Thus, it is

highly unlikely that a third party could come to the aid of a child

before the juvenile court. Consequently, monitoring juvenile court

attorneys is critical. As a first step, however, most of the

commentators cited have urged the adoption of practice guidelines

clearly setting forth the responsibilities and duties of attorneys

representing children.

Although not every set of guidelines sets forth identical

criteria, most agree that the attorney must, at a minimum:

1. Confer with the client without delay and as often as

necessary;

2. Conduct a prompt investigation;

'* See Schwarzer, William W., Dealing with Incompetent Counsel--The Trial

Judge’s Role, 93 Harv.L.Rev.633, 666 (1980).

® See Kelly and Ramsey at 1250.

19

3. Advise the client in terms the client can understand;

4. Make all motions, objections or requests necessary to

protect the client’s rights;

5. Conduct discovery;

6. Present and examine witnesses;

7. Advise the client of the right to appeal and file an

appeal if in the client’s interests (unless new counsel is substituted

by the court).”!

Applying these guidelines to the current case it becomes

clear that Chrissy never had any meaningful representation. The

guardian ad litems appointed to represent Chrissy never conducted

an investigation, never brought any of the doctors’ reports

establishing that Chrissy had been sexually abused into evidence,

never attempted to independently obtain any evidence regarding

the sexual abuse prior to the hearing, failed to review any of the

documents contained in the court file for the Singley-Foxworth

divorce proceeding, and never filed an appeal. 780 F.Supp. at

1114. Moreover, the guardian ad litem’s never objected to the

manner in which the hearing was conducted. Thus, the guardian

ad litems did basically nothing but sit in attendance as the state

court commissioner, not unsurprisingly, ruled that Chrissy would

remain in her paternal grandmother’s home with unrestricted

access to her by her father. This case amply illustrates the

importance of counsel to children in child abuse adjudications.

Amicus fears that if Chrissy III is allowed to stand, abused

children who are the victims of procedural due process violations

and ineffective assistance of counsel will be effectively barred

*! The following rules appear in JA-ABA Joint Commission on Juvenile Justice

Standards, Standards Relatin Counsel for Private Parties (1980); National

Association of Counsel for Children, Suggested Guidelines for the Guardian Ad

Litem (1977); New York Law Guardian Representation Standards in Child

Protective Proceedings, Termination of Parental Rights Proceedings, and Foster

Care Placement and Review Proceedings, Adopted by the New York State Bar

Association’s Committee on Juvenile Justice and Child Welfare; Bay Area

Reasonable Efforts Project, Practice Guidelines for Attommeys Practicing

Dependency Law in Alameda, San meee and Santa Clara Counties (1989,

updated 1992).

20

from having their constitutional claims heard in either state or

federal court. It should be emphasized that child abuse victims

can seek legal protection only in state court proceedings--either in

a custody and divorce case or a juvenile court abuse adjudication.

Thus, most seriously abused children will probably be involved in

a State proceeding of some kind. Accordingly, situations such as

the one at bar are capable of repetition over and over. Where the

child has not been meaningfully represented, a fact not at all

uncommon in the juvenile courts today as the above discussion

demonstrates, he/she will not be able to assert her constitutional

claims in state court. Yet, under Chrissy III, if she then attempts

to file suit in federal court alleging her constitutional claims, the

court will hold that she should have raised those issues in state

court despite the fact that the child was incapable of asserting

those claims. This case illustrates the essential problem with the

Chrissy III decision: a five year old cannot speak for herself--she

is incapable of instructing her attorney to allege her constitutional

claims or to take remedial legal action. What exactly the Fifth

Circuit expected Chrissy to do in this situation is unclear. It

appears fairly obvious that a five-year-old child could do nothing

to protect herself. Chrissy’s situation was compounded by the fact

the hearing was held in secret with no notice to her maternal

grandparents. Thus, there was no one who could have known

what had happened and rendered legal assistance. Consequently,

without competent counsel, Chrissy was completely helpless to

challenge a judge who was determined to prevent a meaningful

hearing. Amicus submits, therefore, that this child was denied her

federally protected constitutional right to access to the courts.

Amicus further urges this Court to grant the Petition to confirm

that where a state statute provides for appointment of counsel for

children in child abuse proceedings, those children are entitled to

effective assistance of counsel.

CONCLUSION

For the reasons stated herein, this Court should grant the petition.

Respectfully submitted,

Karen M. Jones-Mason, Esq.

(Counsel of record)

Christopher Wu, Esq.

Legal Services For Children

1254 Market St., 3rd floor

San Francisco, CA 94102

Dated: Filed as of December 8, 1993

AMICUS CURIAE

BRIEF

NO. 93-754

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHRISSY F., By Her Next Friend And

Guardian AdLitem, DONNA MEDLEY,

Petitioner,

VS.

SEBE DALE, JR, Individually And As Chancellor For

The Tenth Chancery Court District of Mississippi,

GARLAND UPTON,

Individually and as Referee of the

Marion County Youth Court,

PHILLIP BROADHEAD and FRED COOPER,

Respondents.

BRIEF OF AMICUS CURIAE IN SUPPORT OF

PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Alliance for the H. Joan Pennington, Esq.

Rights of Children (Counsel of Record)

P.O. Box 3826 National Center for

Merrifield, VA 22116 Protective Parents

(703) 255-2643 Trenton, NJ 08618

(609) 394-1506

The Alliance for the Rights of Children and

the National Center for Protective Parents

hereby move for leave to file the brief for

amicus curiae pursuant to Rule 37 of the

Rules of Court. The petitioners have

consented to the filing; counsel for the

respondents have not consented.

NO. 93-734

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

CHRISSY F., By Her Next Friend And

Guardian AdLitem, DONNA MEDLEY,

Petitioner,

V5.

SEBE DALE, JR, Individually And As Chancellor For

The Tenth Chancery Court District of Mississippi,

GARLAND UPTON,

Individually and as Referee of the

Marion County Youth Court,

PHILLIP BROADHEAD and FRED COOPER,

Respondents.

BRIEF OF AMICUS CURIAE IN SUPPORT OF

PETITION

FOR WRIT OF CERTIORARI TO THE UNITED

STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

Alliance for the H. Joan Pennington, Esq.

Rights of Children (Counsel of Record)

P.O. Box 3826 Nationa] Center for

Merrifield, VA 22116 Protective Parents

(703) 255-2643 Trenton, NJ 08618

(609) 394-1506

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENTS OF INTEREST OF THE AMICI

CURIAE :

ISSUES PRESENTED

SUMMARY OF THE ARGUMENT

ARGUMENT

1. JURISDICTION.

0. MEANINGFUL ACCESS TO

COURTS ;

CONCLUSION

Ankenbrandt vy. Richards,

—_US.___ , 1125S. Ct. 2206 (1992)

244 U.S. 25, 37 S.Ct. 492 (1926)

Haze)-Atlas Glass Co, y,

322 U.S. 238 (1944) .

Nelson y. United States

(9th Cir. 1948) 169 F.2d 833

310 U.S. 381, 60 S.Ct. 907 (1963)

44 US. (3 How.) 413 [11 LEd. 658]

5, 6

rr ge

National Center For Protective Parents

in Civil) Child Serua) Abuse Cases

1906 Ruverside Drove o Trenton NJ 08616 © 609-394 15066 Fan 605.384.2574

STATEMENT OF INTEREST

The National Center for Protec-

tive Parents, Inc. is a privately and

state-funded, not-for-profit, tax-exempt

national resource center, formed for the

purpose of researching the causes for

the system's failure to protect children

from incest, and to remedy the situation

whenever possible. In the process of

carrying out this function, the NCPP has

compiled a great deal of specialized

information about incest cases, which

would ordinarily not be available to the

courts.

I have read all briefs submitted

by the parties and offer this Amicus

Curiae Brief in order to provide

additional information which has not

been provided in the briefs of the

parties.

As a resource center, the NCPP

offers parents assistance ranging from a

simple referral for evaluation, to

providing a free training program for

attorneys which results in pro bono

representation for indigent parents. A

major goal of the Center is to convince

parents to seek justice within the

system, instead of running and hiding.

ELSI

‘Date cutive Diregtor

ALLIANCE FOR THE ® "Ss OF CHILDREN

P.C ay gage

Mewes zie

703) 25-260) - Paco, 025-5229

Fay. 763~425-~a54)

STATEMENT OF INTEREST

The Alliance for the Rights of

Children (ARCH) is a privately funded,

non-profit, tax-exempt corporation

formed for the purpose of providing

Support to child victims of sexual abuse

and their protective caretakers

(parents, grandparents, relatives).

ARCH is a national alliance of chila

advocacy organizations, Organizations

fighting domestic violence, church and

service organizations, as well as

individual professionals and citizens

who are concerned with the escalation of

violence against children in our society

and the lack of adeguate legal

protection for them and their

caretakers. ARCH provides a referral

System, a telephone helpline, educa-

tional and informational materials and

emotional support. We also “track”

specific cases all over the U.S. to

Getermine how the courts in each state

are handling cases of reported abuse.

ARCH is particularly interested

in the Chrissy Foxworth case because its

outcome will impact thousands of cases

throughout the country: A parent

re-ports suspected sexual abuse of her

child, medical and psychological experts

confirm the abuse, but the court

Gisregards the evidence and accuses the

mother of making false allegations and

of brainwashing the child, the alleged

abuser gets unsupervised or no visits.

The protective parent has limited

choices: She can hide her child and go

to jail, as did Dr. Elizabeth Morgan;

she can go into hiding with her child

(unfortunately Chrissy Foxworth's mother

died while she and her child were in

hiding), or she can comply with the

judge's order and send her child into

what amounts to court-ordered rape of

her child.

7 0 —_

of: | ae A OTe rhA3

Glennie Rohelier, President Date

Alliance for the Rights of Children

ISSUES PRESENTED

1. Whether the federal district court lacks subject

matter jurisdiction to hear the civil rights claims of an

abused child that the child welfare investigative

procedures and the Youth Court proceedings mandated

for her protection by the Constitution of the United

States and the Child Abuse Prevention and Treatment

Act (42 USC 5101 et seq.) were violated by Mississippi

state judicial officers on the grounds that her claims

were “inextricably intertwined” with the state court

custody proceedings?

2. Whether the existing Mississippi state statutes

and procedures provided adequate due process

protections to this child such that any violations of her

rights could be review by the Mississippi state courts?

— . Pee eee Gee - - ee ee 7 re ee i

SUMMARY OF ARGUMENT

Chrissy F. was returned to the State of

Mississippi from the protective custody of the

California Juvenile Court, and the home of her foster

mother, DONNA MEDLEY, upon the agreement by

Chancellor Sebe Dale, Jr. that she would be afforded a

competent and fair hearing of her allegations of sexual

abuse by her father in the Youth Court of Mississippi.

In fact, once she returned to Mississippi, Chrissy's

rights to access to courts, to due process, to

representation by an independent attorney and/or

guardian ad litem, were trammeled in a sham

proceeding that even the Fifth Circuit acknowledged

violated her rights.

There have been three opinions by the Fifth

Circuit in this case; Chrissy I, issued September 11,

1989, reversed the district court's initial order

dismissing the case for lack of federal subject matter

jurisdiction; Chrissy II was an interim appeal of the trial

court's preliminary orders regarding immunity

defenses of severa] defendants, and Chrissy II, issued

July 7, 1993, reviewing the judgment after trial in the

district court. Nevertheless, despite two previous

reviews, the last panel of the Fifth Circuit held that

federal subject matter jurisdiction was improper, and

rendered a decision for the defendants.

———

Amici urge that there is indeed federal

jurisdiction over constitutional and statutory claims

such as Chrissy's, and further, that the jurisdiction,

which cannot be unilaterally reversed by a _—e

panel of the same court.

Amici also urge that for children like Chrissy

whose only legal protections were those given her by

the officers of the State court proceedings which

violated her rights, she cannot rely on state proceedings

to vindicate those same rights. The core of society's

‘protective scheme for abused children is access to.

welfare and youth court proceedings; if a child is

denied meaningful access to those proceedings, she has

no protection at all.

|

TUREDICTION

The Fifth's Circuit's opinion, wherein Justice

Jones claims that the Court had never really determined

that subject matter jurisdiction existed in its two

previous decision, runs counter to the Constitutional

precept of Article I]. The Courts must have before

them an actual case or controversy and will not render

an “advisory” opinion; yet Justice's Jones’ opinion holds

that the Fifth Circuit decision in 1989 was solely a

discussion of party standing/representation and the

1991 decision was an academic discussion of the state of

federal] law regarding governmental] immunities. Thus,

the Fifth Circuit concludes that not only did the District

Court labor over this case for 4 years, but the Fifth

Circuit worked on it in 1989 and 1991 without any need

to do s0.

In August 1988, Judge Barbour summarily

dismissed the entire action on the ground that there

was not federa] subject matter jurisdiction. This

dismissal was appealed by the plaintiff and the issue

was extensively briefed and argued in the Fifth Circuit.

The defendants raised an inquiry about the status of

Ms. Medley which had_ NOT been raised or ruled upon

in the District court and therefore was clearly not an

issue on appeal before the Fifth Circuit.

In its decision of 1989, (reproduced at p. A-9 of

Appendix to Petition for Writ of Certiorari) the Fifth

Circuit panel acknowledged that the issue before it was

federal] subject matter jurisdiction. The Court held that

the “primary concern on remand should be to assure

that Chrissy's interest in vindicating her statutory and

constitutional rights are properly protected,” and

reversed the lower court's ruling on jurisdiction The

panel's discussion about possible issues concerning the

appropriateness of the guardian ad litem — and it is

important to note that the Court specifically advised it

was not ruling on Ms. Medley's status — correctly

suggests that when the matter is remanded, it is within

the trial court's discretion to determine who should

represent Chrissy's needs. If the first panel had not

concluded that the District Court had jurisdiction, there

was no authority to remand the matter for a

consideration of appointment of a guardian ad litem, or

anything else.

The Fifth Circuit, in its second opinion, issued

March 8, 1991, (at p. A-13 of Appendix to Petition for

Writ of Certiorari) ruled on issues of immunity raised

by several defendants, clearing the way for the case to

proceed to trial.

Immunity is granted to certain judicial

actors, in part, to protect their time from being

needlessly consumed in improper litigation Immunity

issues have priority for that very reason, so that judicial

officers can return to their duties. But immunity does

3

not become an issue unless and until it has been

established that the court has jurisdiction to go forward.

Clearly the district court, having been directed by the

reversal of its 1989 dismissal, went forward in

preparation of the trial. If the Fifth Circuit, finding for

the plaintiffs in its second opinion as it did, still wanted

to avoid a meritless trial, it could have concluded at

that time that the Court lacked subject matter

jurisdiction. It did not. In fact, the opinion spoke with

a clear and compelling voice for the adjudication of the

alleged constitutional] violations:

“If the allegations of the

complaint are proved, the state-official

defendants violated at least some of

Chrissy's clearly established

constitutional! rights, and we therefore

affirm the denial of the motion to

dismiss...” [USCA, Fifth Circuit,#90-

1332, at 2670)

"The alleged acts of the defendants from

whom damages are sought would, if

proved, constitute a violation of

Chrissy's clearly established right to

access to the Mississippi Youth Court.

Meaningful access to the courts is a

fundamental constitutional right,

grounded in the First Amendment right

to petition and the Fifth and Fourteenth

Amendment due process clauses."

“In her complaint, Chrissy also alleges

violation of a clearly established

Fourteenth Amendment right to

protection from the deprivation of her

liberty interest in not being abused. The

nature of the liberty interest

safeguarded by the Fourteenth

Amendment, like that of the property —

interest, is defined at least in part by

state law Chrissy's claim is not,

therefore, merely one for enforcement of

state law but for the enforcement of a

federal constitutional right even though

the protected liberty right is defined by

state law.” [USCA Fifth Circuit, #90-

1332, at 2677]

The time-worn precept that subject matter

jurisdiction can be raised at any time must have some

logical limits. Two panels of the Fifth Circuit realized

that this case was NOT about custody of Chrissy, nor a

review of the Chancery Court's ruling in her parents

divorce. This case is about the right of an abused child

to have the protections of due process and the courts,

rights which are proclaimed by the United States

Constitution, the federal Child Abuse Prevention and

Treatment Act, and the Civil Rights Acts of 1873, but

which are rendered virtually useless by the 1993

decision saying that she cannot seek to enforce them in

the federal courts. ©

In 1992, this Court reviewed the “domestic

relations” exception to federal court jurisdiction. in

Ankenbrandt v. Richards, — US. ~, 112 S.Ct. 2206 (1992)

and held that jurisdiction remains for cases, even

® BEST AVAILAB

among parents and children, which seek remedies © er

than straight-forward decrees of divorce, suppor., or

custody. Similarly, Chrissy's case is not a custody claim

against her father: it is against the social welfare and

judicial processes which failed her.

The fina) Fifth Circuit opinion in Chrissy's case

should also be reviewed because it has erroneously

overlooked the law of the case and called into question

jurisdictional issues ruled upon in 1989.

Where a question of law once determined is

sought to be re-itigated upon a second appeal to the

same appellate court, it is well settled that the first

determination is the law of the case and, absent

circumstances leading to a miscarriage of justice, will

not be re-examined. The principle holds even if the

issue sought to be re litigated is the subject matter

jurisdiction of the court in the first appeal. As the Court

said as early as Washington Bridge Co, v. Stewart 44

US. (3 How.) 413 [11 LEd. 658)): “After a case has been

decided upon its merits, and remanded to the court

below, if it is again brought up on a second appeal, it is

then too late to allege that the court had not jurisdiction

to try the first appeal.”

“Federal courts, both trial] and appellate, long

ago established the general rule that they would not

alter or set aside their judgments after the expiration of

the term at which the judgments were finally entered.

Branson vy. Schulten, 104 US. 410, 26 LEd.797. This

salutary general rule springs from the belief that in

most instances society is best served by putting an end

to litigation after a case has been tried and judgment

entered.” Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 244 [ 64 S.Ct. 997, 1000, 88 LEd. _—

(1944).

“The Haze)-Atlas Glass Co. case. . . restates the

holdings in a long line of cases that a [federal] court,

after the term has expired, has not the power to set

aside a judgment wrongly concluding as a matter of

law that the facts shown in the record conferred

jurisdiction, and this although the question of the

absence of jurisdiction was not raised in the tria! or

appellate courts assuming it. Among such cases are

Washington Bridge Co. v, Stewart, 3 How. 413, 423, 11

L.Ed. 658...where on a second appeal the Supreme

Court refused to entertain a motion to set aside its

decision of a first appeal which had been taken from a

non-appealable interlocutory order, a fact not called to

its attention on the first appeal,” Nelson y. United

States (9th Circ. 1948) 169 F.2d 833, 835.

“The suggestion that the doctrine of res judicata

does not apply unless the court rendering the judgment

had jurisdiction of the cause is sufficiently answered by

Stoll vy. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 LEd. 104

and Treinies v. Sunshine Mining Co,, 308 US. 66, 60

S.Ct. 44, 84 LEd. 85.. As held in those cases, in general

the principles of res judicata apply to questions of

7

jurisdiction as well as to other matters whether it be

jurisdiction of the subject matter or of the

partes."(Sunshine Anthracite Coal Co. v, Adkins., 310

US. 381, 403, 60 S.Ct 907, 917, 984 LEd. 1263.)

“Whether a particular issue was actually litigated

is immaterial in view of the necessary conclusion that

there was full opportunity to litigate it and that it was

adjudicated by the decree. Cromwell vy. County of

Sacramento, 94 U.S. 351, 352, 24 LEd. 195; Grubb vy.

Public Utilities Commission, 281 U.S. 351, 352, 24 L-Ed.

195; Gmubb v, Public Utilities Commission, 281 US. 470,

479, 50 S.Ct. 374, 378, 74 L.Ed. 972; Chicot County

Drainwage District v. Baxter State Bank [308 US. 371,

60 S.Ct. 317, 84 L-Ed. 329.” Sunshine Anthracite Coa]

Co. v, Adkins, 310 U.S. 494, 503, [61 S.Ct. 326, 330; 85

L.Ed. 297] (1963)

Thus, while the Fifth Circuit, in its 1989 opinion

did not extensively discuss its reasoning, by reversing

the dismissal on grounds of subject matter jurisdiction,

it clearly held that there was jurisdiction in the federal

courts. In reversing the order of dismissal and

remanding for further proceedings consistent with its

Opinion, and even suggesting that there should be

judicial inquiry into the status of the guardian ad litem,

the Court tacitly found that there would be further

proceedings and hence that subject matter jurisdiction

existed in the cause.

“A court that renders judgment against a

defendant thereby tacitly asserts, if it does not do so

expressly, that it has jurisdiction over that defendant.”

Chicago Life Ins. Co. v, Cherry, 244US. 25, 29 [37 S.Ct,

492, 493] (1926). The Fifth Circuit court in 1989,

reversing the order of dismissa] and remanding for

further proceedings consistent with its opinion, and

even suggesting that there should be judicial inquiry

into the status of the guardian ad litem, tacitly found

that there would be further proceedings and hence that

subject matter jurisdiction existed in the cause.

0

MEANINGFUL ACCESS TO COURT

The Fifth Circuit suggested that any federal

claims which Chrissy, a seven year old child, might

have against the state of Mississippi officials, should

have been raisedby her in the state court proceedings.

While that precept of judicial efficiency is

appropriate in some disputes, when the core claim of

the child is the fundamental] unfairness of the state

proceeding itself, efficiency is a useless direction. [F the

child's complaint is that her court-appointed guardians

ad litem did not adequately represent her in the state

court proceeidngs, if her father has been given custody,

her mother is dead, and her maternal relatives haven't

even been notified about the hearing, WHO is it who

will even advise her of her right to appeal? Who will

9

tell the child that she can raise her claims of

constitutional violations in the courts of Mississippi?

If Chrissy had been appointed an attorney or

guardian ad litem by the Chancery Court in 1987, if

Chrissy had had the benefit of a competent and

complete DPW child-abuse investigation by Hancock

County in 1986, if the Mississippi officials had complied

with the agreement with the California juvenile court in

1987, if the California court had been afforded co-

operation and been allowed to contribute to the

investigations and proceedings in the Mississippi Youth

Court in December 1987, if Chrissy's maternal

grandparents and relatives had received notice of the

proceedings and had been afforded the opportunity to

present evidence and participate, if Chrissy had an

independent attorney appointed for her in the Youth

Court who would have presented evidence, talked to

witnesses, and insisted upon record, then perhaps the

Court could say that her interests had been adequately

protected

However, the Fifth Circuit is in error believing

that Ms. Medley was ever involved, noticed or

participated in the state court proceedings in

Mississippi. Indeed, no one from the California courts

or child welfare department were even advised of the

Youth Court proceedings in Mississippi until a

newspaper story reciting the Chancery Court custody

decision was published on January 4, 1988.

10

And herein lies the fundamental wrong in this

case. The State of Mississippi through its judicial

officers, took away from Chrissy every protection that

her family and our society afforded to her; and then,

did not protect her.

Time and again, Chrissy was refused an

attorney: even after her mother died, Judge Dale

refused to appoint a guardian ad litem for her, and

refused her maternal great grandmother's attempt to

pursue an appeal on her mother's behalf. Judge Dale

stopped the child/abuse investigation in Hancock

County in 1986; he stopped it again in 1987 when

Chrissy was returned from California. He instructed

the psychologist and social workers not to discuss

abuse with her; he ordered evaluations of Chrissy

without the knowledge of her court-appointed

guardians ad litem. (In fact, Judge Dale did not believe

Chrissy should have an independent advocate: he

testified that he regarded himself as the child's “Super-

Guardian”, and believed he should hold the total

authority over her custody.)

In order to bring Chrissy back to Mississippi, the

California Court forced Dale to agree to secure a child

welfare abuse investigation and to initiate appropriate

Youth Court proceedings intended to provide Chrissy

a fair judicial hearing.

Yet once Chrissy was returned to Mississippi,

Judge Dale issued orders concerning

medical/psychiatric evaluations and temporary

11

custody without the guardians ad litem's knowledge:

he reviewed those reports without notice to the

guardians ad litem or family. Judge Dale allowed a

taped interview of Chrissy without adequate

protections and without notice to her guardians ad

litem, by the same loca] district attorney who testified

that although Chrissy's father, Tim Foxworth, had lied

on his polygraph exam, he had not so advised the

Court because he believed it to be insignificant Dale

appointed Garland Upton as referee to conduct the

Youth Court proceedings, even though Upton had been

Tim Foxworth's attorney in a previous divorce. Referee

Upton conducted “hearings” without declaring this

conflict, without adequate notice to the parties, without

a reporter present, and without any sworn testimony or

evidence. None of the medical reports documenting

Chrissy's sexual abuse by her father were even

introduced into evidence; in fact, no decision was

actually ever rendered. Upton “remanded the case to

the files"; four days later, Judge Dale, as Chancellor,

issued his "final" Chancery order leaving Chrissy in the

custody of her father .

If Chrissy had had a truly independent attorney

and a guardian ad litem, wouldn't that guardian have

assured that Chrissy's other relatives be notified of the

proceedings? Wouldn't s/he have communicated with

the social workers and professionals who had examined

Chrissy?

Wouldn't s/he have assured that the child

12

Wouldn't s/he have assured that the child

welfare investigations in Mississippi and California

were co-ordinated and presented to the Court?

Wouldn't the numerous medical and psychology

reports dating all the way back to 1986 have been

admitted into evidence? Wouldn't a guardian ad litem

insist on a record? Insist on a decision?

Yet the Fifth Circuit holds that Chrissy — the

child — should have raised her complaint about the

fundamental unfairness of these proceedings, in the

very same proceedings. And that the federal courts are

not available to her to secure her due process rights.

CONCLUSION

Amica urge the Court to understand that there is

a fundamental miscarriage of justice in the Fifth

Circuit's decision and issue the Writ of Certiorari to the

Fifth Circuit in this case.

December 8, 1993

Respectfully submitted,

ALLIANCE FOR THE RIGHTS OF CHILDREN

THE NATIONAL CENTER FOR PROTECTIVE

PARENTS

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