# Amicus Curiae Brief — Chrissy F. v. Dale

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0753%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1214

## Text

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
=
Lp a aga

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0753%3A3. Public record. Not legal advice.