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Lehman v. Lycoming County Children's Services Agency


July 23, 1980



Author: Rosenn

Before: ROSENN, GARTH, and SLOVITER, Circuit Judges

ROSENN, Circuit Judge .

This appeal presents the important question whether federal habeas corpus is available to assert federal constitutional claims by a mother challenging state custody of her children after her rights to them have been terminated without her consent. Under such circumstances, we hold that a federal district court has jurisdiction to entertain a petition for a writ of habeas corpus and accordingly reverse the judgment of the district court dismissing the petition.


In June 1971, appellant Marjorie Lehman (Marjorie L.), then a 39-year-old mother, was living with her three sons in a squalid and vermin infested home. Anticipating the birth of another child, she sought the assistance of the appellee, Lycoming County Children's Service Agency (Agency) for temporary foster care of her three sons during her period of confinement and for relief from the distressing living conditions in her home. In September 1971, Marjorie L. gave birth to a daughter who resides with her in an apartment she maintains.

At the time the children were placed with the Agency, their mother and the Agency apparently intended that the custody be only temporary and that the children would be returned after the expected confinement and after satisfactory housing had been obtained. Despite the assistance which it provided to appellant, the Agency became convinced that she was incapable of raising her three sons. Accordingly, the Agency resisted the mother's efforts to obtain the return of her sons and subsequently filed a petition in the Court of Common Pleas of Lycoming County under section 311(2) of the Pennsylvania Adoption Act of 1970 seeking to terminate the parental rights of Marjorie L.*fn1

The court found appellant "incapable of providing minimal care, control and supervision for the three children" and that her incapacity could not be remedied. In re William Lehman, Nos. 2986-88 (C.P. Lycoming Co., June 3, 1976). Accordingly, the court granted the petition and awarded temporary custody of the children to the Agency pending placement in a foster home. The court also rejected Marjorie L.'s contention that section 311 of the Pennsylvania Adoption Act is unconstitutionally vague. On appeal to the Pennsylvania Supreme Court, she again raised her constitutional challenge. The Pennsylvania Supreme Court, however, upheld the lower court and found the statute to be constitutional. In Re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied, 439 U.S. 880 (1978).*fn2

Following the rejection of her constitutional challenge by the Pennsylvania Supreme Court, Marjorie L. filed a petition for certiorari with the United States Supreme Court.The petition was denied with three justices dissenting. 439 U.S. 880 (1978).

Thereafter, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Pennsylvania on behalf of her three sons. The petition alleged that the children are unlawfully detained and restrained of their liberty by the Lycoming County Children's Services Agency in violation of the fourteenth amendment. The petition sought to have the children released from the custody of the Agency and returned to their mother's custody. In the alternative, the petition asked for the release of the children from the Agency's custody unless within sixty days a "hearing is held in the appropriate state court and it is judicially determined to be in the best interests of the children that temporary custody remain with the [Agency]." The district court, however, dismissed the petition for lack of jurisdiction. Lehman v. Lycoming County Childrens' Service Agency, Civ. No. 79-65 (M.D. Pa., Sept. 4, 1979). In dismissing, the court relied substantially upon the holding of the First Circuit in Sylvander v. Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978). Sua sponte the court issued a certificate of probable cause pursuant to the provisions of Fed. R. App. P. 22.


The question presented on appeal, whether federal habeas corpus is available to assert federal constitutional claims challenging state custody of a child pursuant to state proceedings terminating parental rights, has been addressed by only one other federal appellate court.*fn3 In Sylvander v. Home for Little Wanderers, supra, the First Circuit considered the availability of section 1983 and federal habeas corpus to review a state adjudication that the consent of a child's maternal parent would not be required in contemplated adoption proceedings. There the child had been relainquished to a private adoption agency shortly after birth. The agency in turn had placed the child in a foster home. Thereafter, the adoption agency petitioned in the state court for authority to dispense with the mother's consent to the child's adoption. The court granted the requested authority over the mother's objections. The mother's federal constitutional challenge to the applicable state statute was subsequently rejected by the Massachusetts Supreme Judicial Court. Thereafter, she filed in federal court a complaint under 42 U.S.C. § 1983 and a habeas corpus petition under 28 U.S.C. §§ 2241 and 2254 challenging the state proceedings. The First Circuit affirmed the order of the district court dismissing both the section 1983 complaint and the habeas corpus petition.*fn4

The First Circuit's decision rested upon its perception that the state interests in family law matters outweigh the "collateral" federal interests in the adjudication of federal constitutional rights.*fn5 For the reasons set forth below, however, we disagree and accordingly decline to adopt the First Circuit's position.


Although both parties vigorously argue the merits of the constitutional issues involved in this case, it is important to remember that those issues are not now before us. Rather, we are asked only to decide the jurisdictional issue .*fn6 Our disposition of that issue depends upon our resolution of two underlying questions. The first is whether federal review of state custody proceedings terminating parental rights in a child is available under the terms of the federal habeas corpus statute, 28 U.S.C. §§ 2241, 2254. The second is whether, on balance, the exercise of federal habeas corpus jurisdiction in such cases serves concerns of federal-state comity as well as other relevant policy considrations.

At common law, the writ of habeas corpus originated as a method by which the superior courts of the common law and the chancellor could extend their jurisdiction at the expense of inferior or rival courts. Ultimately, it took form and survived as the writ of habeas corpus ad subjiciendum, by which the legality of the detention of one in the custody of another could be tested judicially. McNally v. Hill, 293 U.S. 131, 136 (1934). In its classic form the writ was directed to the disposition of the custody of a prisoner. It directed the officer to "have the body" of the prisoner "detained in our prison under your custody, together with the day and cause of his being taken and detained," before the judge at a specified time and place "to do and receive all and singular those things which our said chief justice shall then and there consider of him in his behalf." Id. at 137, n.2. Becon, in his Abridgment, 425, wrote that the writ "is the most usual remedy by which a man is restored to his liberty if he hath by law been deprived of it." Quoted in McNally v. Hill, supra, at 137 n.3.

The importance of the writ is implicitly recognized by the terms of the Constitution. Article I, section 9, clause 2 provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." The federal courts were expressly given the power to issue the writ of habeas corpus by section 14 of the Judiciary Act of September 24, 1789, 1 Stat. 73, 81, 82. The Judiciary Act of February 5, 1867, c. 28, § 1, 14 Stat. 385-86, first extended federal habeas corpus to state prisoners generally. The initial statutory authority continues, although in somewhat modified form, in title 28 of our current statutes. In modern times, the Supreme Court has stated:

The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its preeminent role is recognized by the admonition in the Constitution that: "The Privilege of the Writ of Habeas Corpus shall not be suspended...." U.S. Const. Art. I, § 9, cl. 2. The scope and flexibility of the writ -- its capacity to reach all manner of illegal detention -- its ability to cut through barriers of form and procedural mazes -- have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

Harris v. Nelson, 394 U.S. 286, 290-91 (1969). The purpose of the writ is "to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints." Fay v. Noia, 372 U.S. 391, 401-02 (1963).

The current federal habeas corpus statute provides:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that an applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existing of circumstances rendering such process ineffective to protect the rights of the prisoner.

28 U.S.C. § 2254. See 28 U.S.C. § 2241. Thus, there are four basic requirements to the exercise of federal habeas corpus jurisdiction. The person in whose behalf the petition is brought*fn7 must be (1) in "custody," (2) in violation of the federal laws or Constitution, (3) "pursuant to the judgment of a State court" and, (4) available state remedies must be exhausted.

First, it is obvious that appellant's sons are in "custody" within the meaning of the statute. In recent years the concept of custody has been expanded to include not only actual physical confinement but also other severe forms of personal restraint. See, e.g., Hensley v. Municipal Court, 411 U.S. 345 (1973) (release of petitioner on own recognizance constitutes custody within meaning of habeas corpus statute); Hammond v. Lenfest, 398 F.2d 705, 711 (2d Cir. 1968) (naval reservist who had been called to active duty but not yet reported for service was "in custody" within meaning of federal habeas statute). See also Carafas v. LaValle, 391 U.S. 234 (1968) (federal habeas corpus available although petitioner unconditionally released from prison after writ filed). Thus, "it is no longer necessary for a person to be under actual physical restrain in order to obtain habeas relief." Westberry v. Keith, 434 F.2d 623, 623 (5th Cir. 1970) (per curiam). The Commonwealth's supervisory control over the children in the case before us is sufficient to meet the custody requirement of the federal habeas statute.*fn8

Second, Marjorie L.'s petition alleges that the custody of her children is in violation of several provisions of the United States Constitution. The petition asserts that section 311(2) of the Pennsylvania Adoption Act of 1970, under the provisions of which her parental rights were terminated, is unconstitutionally vague both on its face and as applied to her. In addition, she alleges that termination of her parental rights violated the fourteenth amendment because the Commonwealth failed to utilize less drastic alternatives. Furthermore, she avers that the Commonwealth had no compelling interest in terminating her parental rights in the absence of a finding that she had failed to provide adequate child care of that she would expose her children to serious and substantial harm in the future.

Third, the Commonwealth's custody of the children is pursuant to the judgment of a state court, the Orphans Court Division of the Court of Common Pleas of Lycoming County, Pennsylvania.In Re William Lehman , Nos. 2986-88 (C.P., Lycoming Co.).*fn9 Finally, having presented her constitutional argument to the Pennsylvania Supreme Court, Marjorie L. has satisfied the exhaustion requirement of section 2254.*fn10 Accordingly, we believe that the requirements of 28 U.S.C. § 2254 have been satisfied and that, absent important reasons to the contrary, federal habeas jurisdiction is available to the appellant here.


The argument is advanced that, were we to allow the exercise of federal habeas jurisdiction in the case before us, we will have effectively allowed an end run around the preclusive effect given state court judgments under section 1983. That, however, misperceives the nature of the issue before us. We adopt a broader perspective, one which attempts to accommodate the competing federal and state interests presented by this case. There is a substantial federal interest in insuring that individual personal liberty is not unconstitutionally restrained. See Developments in the Law: Section 1980 and Federalism , 90 Harv. L.Rev. 1133, 1337 (1977). Furthermore, there is an important federal interest in the protection of family relationships.

It is undisputed that, absent prior state adjudication of the pertinent constitutional issues, actions like the one before us may be brought under section 1983.*fn11 See Smith v. Organization of Foster Families for Equality and Reform , 431 U.S. 816 (1977). In such circumstances, the state court system might be effectively circumvented and the issue presented as a matter of first consideration to the federal court.*fn12 Although we need not consider now whether section 1983 is available as a method of providing federal review of state custody of children pursuant to a state proceeding terminating parental rights, we believe that the exercise of such jurisdiction is significantly more intrusive upon state interests than is federal habeas corpus.*fn13 For the reasons stated below it appears to us that, on balance, the exercise of federal habeas corpus jurisdiction accommodates the competing interests of the federal government and of the state in the privacy of the family without sacrificing the important concerns of either.*fn14

In Sylvander v. Home for Little Wanderers, supra , the First Circuit concluded that federal habeas corpus was not an available remedy. The court reasoned that competing policy considerations militate against the exercise of federal habeas jurisdiction. The factors identified in Sylvander as militating against the exercise of federal habeas jurisdiction were primarily two: (1) exercise of habeas jurisdiction would interfere with significant state interests in the regulation of the family and domestic matters while serving only a collateral federal interest and (2) there is no need to exercise federal habeas jurisdiction because other existing avenues of relief afford sufficient protection for federal constitutional rights. We consider each of these in turn.

The state interest in family relationships is well established. Traditionally, the states have retained the authority to regulate marriage and divorce, as well as adoption and child custody. These significant state interests have been recognized by the federal courts. As the Supreme Court stated in In Re Burris , 136 U.S. 586, 593-94 (1889), [the] whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States." Thus, this court, for instance, has declined to exercise diversity jurisdiction in domestic relations suits. Solomon v. Solomon , 516 F.2d 1018 (3d Cir. 1975). See Armstrong v. Armstrong , 508 F.2d 348 (1st Cir. 1974). But this case does not involve a dispute between parents over the custody of their children. Such disputest normally involve a determination of with which parent the child will reside and who will be responsible for its care and upbringing. Even the non-custodial parent, however, will ordinarily retain some of the attributes of parenthood such as the right of visitation and, in the event of the death of the parent or child, possible interests of intestacy. The case before us, however, is not a domestic relations dispute.

This is not, then, as the dissent contends, merely a proceeding in which "a litigant uses the state's judicial machinery to establish its own right to raise a child and to invalidate some other party's right to do so." Dissent at 36 (emphasis added). Rather, it is a proceeding in which the state has itself taken temporary custody of the children after utilizing its own judicial machinery to permanently terminate in all respects the legal relationship of the children and their natural mother. Thus, it is not merely a dispute over which of the children's natural parents should raise them but whether the children should have any relationship whatsoever with their natural parent. The importance of this distinction cannot be overemphasized. The extinction of parental rights is "the most drastic measure that a state might employ, short of criminal sanctions, to protect neglected children." Note, Constitutional Limitations on the Scope of State Child Neglect Statutes, 79 Colum. L. Rev. 720, 625 (1979). Accordingly, the dissent's suggestion that the logic of our holding inexorably applies to ordinary child custody disputes between natural parents is unwarranted.

There are, on the other hand, significant federal interests implicated here. The Constitution recognizes a right to be free from unnecessary state intrusion into family relationships. The freedom of personal choice in matters of family life is protected by the Due Process Clause of the fourteenth amendment. Cleveland Board of Education v. LaFleur, supra , 414 U.S. at 639-40.*fn15

The United States Constitution recognizes a "private realm of family life which the state cannot enter." Id . at 166. This right may be characterized as the integrity of the family, see Note, Constitutional Limitations on the Scope of State Child Neglect Statutes , 79 Colum. L. Rev. 719 (1979), or of intimate association, see Karst, The Freedom of Intimate Association , 89 Yale L.J. 624 (1980), and flows from "the importance of the familial relationship, to the individuals involved and to the society, [which] stems from the emotional attachment that [derives] from the intimacy of daily association and from the role it plays in '[promoting] a way of life' through the instruction of children," Smith v. Organization of Foster Families, supra, 431 U.S. at 844. This right encompasses not only the parents' right to remain with and raise their children but the children's right to remain with and be raised by their natural parents.*fn16

The importance of familial relationships to minor children is particularly significant. An intimate relationship with a loving, caring adult is imperative for children. Most often this is provided by the natural parent and the law so presumes. The Supreme Court has observed that "historically it has been recognized that natural bonds of affection lead parents to act in the best interests of their children." Parham v. J.R., 442 U.S. 584, 602 (1979). Removal of a child from its natural parents may result in serious psychological harm and thus may inflict greater damage than the intervention was intended to prevent. Wald, State Intervention on Behalf of "Neglected" Children: A Search for More Realistic Standards , 27 Stan. L.Rev. 985, 994 (1975).

The Supreme Court has "recognized on numerous occasions that the relationship between parent and child is constitutionally protected." Quillon v. Wolcott, 434 U.S. 246, 255 (1978). Responsibility for the "custody, care and nurture of the child [resides] first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts , 321 U.S. 158, 166 (1944).

The Supreme Court has expressed in a variety of contexts an individual's right to be free of unwarranted state intrusion into family relationships. Significantly, for the purposes of the case before us, it has acted to enforce the federal interests implicated in state child custody proceedings.In Quillon v. Wolcott, supra , for instance, the Court considered the claim of an unwed father that, as a matter of due process and equal protection, he was entitled to an absolute veto over the adoption of his child. In Smith v. Organization of Foster Families, supra , the Court entertained an action under 42 U.S.C. § 1983 which alleged that the New York procedures governing the removal of foster children from foster homes violated the Due Process and Equal Protection Clauses of the Constitution. Although the court upheld the challenged statute, it recognized the importance of the biological family relationship in the nurturing and development of children. 431 U.S. at 842-45.

Furthermore, the Supreme Court has made clear that natural parents have federal constitutional rights upon which the states may not encroach. In Stanley v. Illinois , 405 U.S. 645 (1972), the Court held that an unwed father is constitutionally entitled to a hearing as to his parental fitness before his child is removed from his custody. Central to the Court's holding was its recognition of the importance of familial relationships, even those "unlegitimized by a marriage ceremony." 405 U.S. at 651.

Other federal courts have followed the Supreme Court's lead and acted to enforce these important federal rights under the civil rights statutes. In Duchesne v. Sugarman , 566 F.2d 817 (2d Cir. 1977), for example, the Second Circuit considered a damage action under the civil rights statute by a mother, on behalf of herself and her two children, for the allegedly unconstitutional action of a city child welfare bureau in taking and retaining her two children without her consent and without a hearing or court order. The court reversed the judgment of the district court dismissing the action and held that the welfare bureau's retention of custody of the children without judicial ratification amounted to a deprivation of the mother's and children's liberty interest in family privacy without due process of law. The court stated:

Here we are concerned with the most essential and basic aspect of familial privacy -- the right of the family to remain together without the coercive interference of the awesome power of the state. This right to the preservation of family integrity encompasses the reciprocal rights of both parent and children. It is the interest of the parent in the "companionship, care, custody and management of his or her children," Stanley v. Illinois , 405 U.S. 645, 651 [citations omitted] (1972), and of the children in not being dislocated from the "emotional attachments that derive from the intimacy of daily association" with the parent, Organization of Foster Families, supra , 431 U.S. at 844 [citations omitted].

566 F.2d at 825 (footnote omitted). *fn17

In Alsager v. District Court of Polk County, Iowa , 545 F.2d 1137 (8th Cir. 1976) (per curiam) (adopting the opinion of the district court), the court considered, in an action under 42 U.S.C. § 1983, a case factually very similar to the case before us. There, the parental rights of a natural mother and father "in and to" five of their six children had been terminated in state court proceedings. Subsequently, the parents brought an action in federal court challenging the state statute, under which their parental rights were terminated, as unconstitutionally vague. The Eighth Circuit found the parents' objection meritorious and held the statute vague on its face and as applied. In reaching its conclusion, the court relied on the district court's recognition of a significant and constitutionally protected liberty and privacy interest in the integrity of the family unit. See Smith v. Organization of Foster Families for Equality and Reform, supra , 431 U.S. at 842-44.*fn18

The relevant inquiry, then, is not whether the exercise of federal jurisdiction is ever appropriate in cases involving family relationships. The overwhelming weight of applicable precedent clearly indicates that such jurisdiction is not only appropriate but necessary.*fn19 Rather, the question is whether countervailing considerations of federal-state comity render inappropriate the exercise of federal habeas corpus jurisdiction.

An historical accommodation has been developed between the state and federal courts respecting the administration of federal habeas corpus. Following the Civil War, federal habeas jurisdiction was expanded to what was believed to be the constitutional limit. See Ex parte McCardle , 73 U.S. (6 Wall.) 318, 325-26 (1867). This expansion of federal habeas jurisdiction was intended to facilitate dealing with anticipated resistance to reconstruction measures planned by the Congress. But soon after the enactment of the expansive provision in the Act of February 5, 1867, the Supreme Court was faced with the issue of accommodating conflicting state and federal interests in the area of criminal justice administration. Thus, in Ex parte Royall , 117 U.S. 241 (1885), the Court held that, although the federal courts had the power to discharge a state prisoner restrained in violation of the Constitution, ordinarily the federal court should stay its hand on habeas pending completion of the state court proceeding. The considerations underlying the Court's holding were set forth in a later case:

While the federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws... the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the Federal courts charged with the duty of protecting the accused in the enjoyment of his constitutional rights should be appealed to in the first instance. Should such rights be denied, his remedy in the Federal court will remain unimpaired.

Cook v. Hart , 146 U.S. 183, 194-95 (1892). These concerns of federal-state comity are reflected in the exhaustion requirements of 28 U.S.C. § 2254.

The continuing role of federal habeas corpus jurisdiction in accommodating competing federal and state concerns was more recently expressed in Preiser v. Rodriguez , 411 U.S. 475 (1973). There, the Court considered whether section 2254, the federal habeas corpus statute, was an available federal remedy by which to obtain relief for the allegedly unconstitutional deprivation of good-conduct time credits of a prisoner. The Court held that the appropriate remedy was through petition for writ of habeas corpus. Underlying the Court's holding was its recognition that "[the] rule of exhaustion in federal habeas corpus actions is rooted in considerations of federal-state comity." Id . at 491. Thus, the Court noted that the strong policy underlying the exhaustion requirement of section 2254(b) is "to avoid the unnecessary friction between the federal and state court systems that would result if a lower federal court upset a state court conviction without first giving the state court system an opportunity to correct its own constitutional errors." 411 U.S. at 490. We think similar considerations apply here in a case involving state custody of minor children.*fn20

In the case at bar, appellant has, in conformance with federal policy, presented to and received from the state courts an adjudication of her federal constitutional claims. In particular, we take note of the well-reasoned and thoughtful opinion of Justice Roberts writing for the Pennsylvania Supreme Court. In Re William L., supra , 477 Pa. 322; 383 A.2d 1228. We are urged by the appellee that, should we grant appellant a collateral federal forum for the presentation of her constitutional claims, we will be effectively undermining the Commonwealth's interest in the sanctity of its own judicial proceedings. Were this an action under 42 U.S.C. § 1983, we might well find this argument persuasive. We have held that when a plaintiff has obtained a full and fair adjudication of his constitutional claims in a prior state court proceeding he is precluded from a later action under section 1983. New Jersey Education Association v. Burke, supra , 579 F.2d 764. The same preclusive effect, however, is not given to prior state court proceedings by the federal habeas statute. Indeed, the statute itself requires exhaustion of available state remedies prior to availing oneself of the federal habeas forum.

Here, the Commonwealth has terminated the constitutionally protected relationship of appellant and her three sons and taken temporary custody of the children. Although we express no opinion as to whether that action was appropriate, we believe that federal habeas corpus is an available remedy in this case. Our conclusion is based on the following reasons. First, federal habeas corpus rests upon the paramount importance of preventing unlawful restraint and represents a considered judgment by the Congress that federal jurisdiction should be exercised when the statutory requirements are met. In the case before us, the three sons of Marjorie L. are in the custody of the Commonwealth of Pennsylvania under the authority of an allegedly unconstitutional statute and she has exhausted available state remedies. Hence, the requirements of the federal habeas statute are met and federal habeas jurisdiction must be exercised unless there are compelling reasons to the contrary. Second, although there is an important state interest in the regulation of domestic relations, the case before us is not the typical dispute between parents for the custody of a child but concerns the power of a state to extinguish for all time the right of a natural mother in her children through a state custody proceeding. Under such extraordinary circumstances, there is an overriding federal interest in insuring that state intervention in family relationships take place within constitutional bounds. Finally, the exhaustion requirements of federal habeas corpus offer an appropriate accommodation of those competing state and federal interests by requiring that the federal claims be brought first in state court while preserving the opportunity for federal review. Federal review, of course, will be limited to the federal constitutional claims. The question of the custody of the children still remains in the state courts for determination subject to appropriate federal constitutional guidelines.*fn21

We hold, therefore, that federal habeas corpus jurisdiction may be invoked to challenge the constitutionality of a state statute by which the state has taken custody of children and has terminated without consent the rights of a natural parent to them.


Accordingly, the order of the district court dismissing appellant's petition for want of jurisdiction will be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Costs taxed against appellee.

GARTH, Circuit Judge , dissenting.

The majority opinion in this appeal acknowledges that the federal courts are not closed to custody claimants such as Ms. Lehman. Typescript at 12. It concedes that at least two different federal avenues -- appeal to the United States Supreme Court, and suit under 42 U.S.C. § 1983 -- are open to parents seeking to challenge terminations of parental rights on constitutional grounds. Nonetheless, the majority has encouraged further tension between federal and state authorities, by holding that a petition for a writ of habeas corpus is appropriate to test child custody, an area traditionally and classically reserved as a matter of state concern only. In so holding, it permits and authorizes a single (federal) judge to review a state supreme court judgment in a child custody setting, where the issue involved is simply who is best fitted to rear children -- children who, in this case, were voluntarily turned over to the state by a mother who has been held to be incapable of caring for them.


Thus, we are now called upon to determine the proper basis for a federal constitutional challenge to Pennsylvania's statutory scheme for involuntarily terminating a parent's rights in her children. In particular, we must decide whether a petition for a writ of habeas corpus is an appropriate basis for such an action. To focus our attention on such an inquiry may strike the uninitiated as a pointless enterprise, an unhappy return to the dark days of common law pleading and the forms of action, with their attendant celebration of form over substance.

Such a view, however, would miss the mark widely. There is indeed a difference -- one of the highest substantive import -- between a habeas corpus challenge and any other constitutional attack. Most importantly, habeas corpus sweeps aside the doctrine of res judicata : it allows a litigant who has fully and freely presed a claim or defense in one court to obtain a second adjudication of that issue in another court. While this characteristic of habeas is extraordinary enough when the relitigation takes place within the same judicial system -- that is, when a state court entertains the writ on behalf of a person in custody pursuant to the judgment of a court of that same state -- the writ assumes even more profound implications when its operation cuts across the federal and state judicial systems. In this latter context as I have noted, the writ empowers a single federal district judge to overrule the determination of federal issues which have been adjudicated by the highest court of a state. Thus, the assumption of habeas jurisdiction by a federal court on behalf of a party complaining of a judgment rendered against him by a state court represents a massive assertion of federal authority over the state judicial system. Such an intrusion upon state judicial authority deeply implicates the principles of comity any may impair the smooth workings of our federal system.

The awesome power of the writ, and its implications for our federalism, demand that its use be confined to its proper sphere, the preservation of individual liberty and the relief from unlawful custody. As Justice Brennan wrote for the Supreme Court in Hensley v. Municipal Court, 411 U.S. 345 (1973):

The custody requirement of the habeas corpus statute is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty. Since habeas corpus is an extraordinary remedy whose operation is to a large extent uninhibited by traditional rules of finality and federalism, its use has been limited to cases of special urgency, leaving more conventional remedies for cases in which the restraints on liberty are neither severe nor immediate.

Id . at 351.

Other commentators have expressed similar sentiments:

The historic custody requirement, although rooted in the procedural nature of the writ, took on a substantive character as habeas corpus came to be seen as an extraordinary remedy for the extraordinary restraints of custodial situations. The modern jurisdictional requirement [of custody] reflects this conception. Federal supervision of state judicial processes by means of the writ departs from traditional notions of deference owed state administration of federal law; problems of federalism aside, ordinary concepts of finality in the judicial process are displaced by the continuing availability of habeas for review of restrictions imposed by the judgments of federal courts. Therefore the restraints which have been thought appropriate for review in habeas proceedings are those which impinge with especial harshness on personal liberty -- those severe enough to warrant relitigation.

Developments in the Law -- Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1073 (1970). The need to confine habeas to its proper sphere has become even more important as the scope of constitutional errors within its reach has expanded dramatically. See id . at 1041.

recognizing the need to limit habeas to extraordinary situations -- to cases of special urgency presenting severe restraints on individual liberty, to proceedings which impinge with especial harshness on personal liberty -- I cannot believe that the present context, a custody dispute over who shall raise William, Mark and Frank Lehman, supplies an adequate justification for exercising the supremacy of federal power over the state judiciary. I can discern no historical, precedential or logical basis for the procedure established by the majority. Quite to the contrary, each of these factors points in the opposite direction. I am thus not persuaded that habeas, with its attendant extraordinary features, may be employed in cases of this type. I therefore dissent, and would hold that the writ of habeas corpus is not available in a mere child custody dispute such as the one that confronts us in this appeal.


Because the factual nature of disputes over termination of parental rights provides the context in which we must determine the availability of the writ of habeas corpus, I set out the facts of the instant appeal in somewhat greater detail than has the majority.*fn1 While I agree with the majority that this appeal does not require us to address the merits of Ms. Lehman's constitutional claims, it is only through a careful examination of the facts that we may determine whether it is an "extraordinary" case, of "special urgency," "impinging with especial harshness on personal liberty." A recital of the undisputed facts developed in the Pennsylvania state court proceedings makes it eminently clear that this is not such a case. We are not presented here with the incarceration of the three Lehman boys, nor with their confinement in any way, nor with the imposition of any restraints on their individual liberties. The facts paint a very different picture -- of a mother who is both physically and psychologically incapable of caring for her three sons, and of three boys who have stated a plain preference for the current living arrangement obtained for them by the Lycoming County Children's Services Agency.

Ms. Lehman has five children. Only the middle three, William, Frank and Mark, are the subject of this proceeding. The eldest child, a girl, has lived with Ms. Lehman's parents for many years, and Ms. Lehman apparently does not seek the return of this child. The youngest child, a girl named Tracie, has lived with her mother since her birth in 1971. In June, 1971, when Ms. Lehman was pregnant with Tracie, she voluntarily surrendered custody of her three sons to the Lycoming County Children's Services Agency (the Agency). Ms. Lehman had come to the attention of the Agency sometime earlier as a result of the deplorable living conditions that obtained in her apartment. The home was roach infested. Ms. Lehman told her caseworker from the Agency that she had seen a rat near the refrigerator. Ms. Lehman and the caseworker agreed that the home was unfit for children.

After Tracie's birth, the Agency helped Ms. Lehman find a new apartment. Ms. Lehman vacillated between seeking an apartment large enough to accommodate only herself and Tracie, and one large enough for the three boys as well. She ultimately selected one suitable only for Tracie and herself. The boys remained in foster care. In November, 1974, more than three years after she had surrendered custody of her sons, Ms. Lehman requested that the boys be returned to her; at the time, she was still in the apartment suitable only for Tracie and herself. The Agency, concluding that Ms. Lehman could not provide her sons with necessary support and supervision, declined to return them. The Agency then filed a petition in state court seeking to terminate Ms. Lehman's parental rights in the three boys, so that they could be placed for adoption without Ms. Lehman's consent.

Much of the evidence at the hearing on this petition consisted of the testimony of nutrition aides and caseworkers from the Agency who had visited with Ms. Lehman. After Tracie's birth, nutrition aides began regular visits to Ms. Lehman's home to help her maintain the household and raise her infant daughter. Ms. Lehman came to rely heavily on these aides to perform even the simplest tasks of everyday life. She made little or no progress over time in learning to handle problems without assistance. A series of incidents illustrates the depth of Ms. Lehman's incapacity. On one occasion, Tracie was sent home from school because she had lice. The nutrition aide could not make Ms. Lehman understand the need for ridding Tracie of the lice or how to perform the simple procedure for achieving this. Ultimately, as Tracie became upset about missing school, the aide herself was forced to perform the treatments.

On several occasions, Ms. Lehman has had her heat and electricity terminated for her failure to pay the bills. Once, Ms. Lehman sought emergency financial assistance to pay bills for rent, gas, water and electricity that she believed were due. On inquiry, the aide discovered that Ms. Lehman had already paid all of these bills. There was also other evidence of Ms. Lehman's incapacity to conduct her financial affairs responsibly. She told the aides on several occasions of making payment for items, such as toys, that were never delivered. She also told them of turning over her social security checks, her sole source of income, to creditors who would cash the checks, deduct amounts allegedly owed, and return to Ms. Lehman the difference.

As a result of Ms. Lehman's incapacities and the long period -- almost a decade -- since her sons have lived with her, relations between Ms. Lehman and the boys have deteriorated. The boys visited their mother in her apartment twice a month during late 1975 and early 1976 under a court ordered visitation plan. Aides present during these visits described them as "free-for-alls" in which Ms. Lehman would chase, in succession, each of the children about the apartment seeking to establish control. The two older boys appeared to do no more than tolerate their mother. The youngest boy, who has lived with a foster family since his first birthday, spent these visits watching television. Each of the boys testified in chambers that he did not want to live with his mother. The oldest boy admitted that he would not obey his mother and that She could not control him.

Other evidence at the hearing focused on Ms. Lehman's intellectual and social skills. A psychologist who administered a series of tests reported that Ms. Lehman has a mental age of six years, ten months, and that her social skills and ability to function independently were those of a twelve year old. The psychologist opined that Ms. Lehman lacked the social and intellectual maturity necessary to raise children.*fn2


Society's and, hence, the law's interest in finality, embodied in the doctrine of res judicata, is of critical significance. There comes a point in a dispute where it is more important that the matter be settled finally than that it be settled correctly. See generally Oscar Mayer & Co. v. Evans, 441 U.S. 750, 766 (1979) (Blackmun, J., concurring); Mohasco Corp. v. Silver, 48 U.S.L.W. 4851, 4856 (U.S. June 23, 1980) (Blackmun, J., dissenting).In normal litigation, our jurisprudence dictates that this point has been reached after consideration by a court of original jurisdiction and a court of review. Thus, the doctrine of res judicata bars a cause of action that had earlier been determined in court, even if the result reached in the first consideration of the cause was substantively in error.

The writ of habeas corpus recognizes, however, that this interest in finality can not transcend each and every other societal interest. It represents our society's judgment that avoiding wrongful incarceration and unlawful restrictions on liberty outweighs the otherwise compelling interest in finality of litigation. Our interest in personal liberty is one of our most highly valued constitutional rights. It is therefore not surprising that the doctrine of res judicata is no bar to federal consideration of federal constitutional defenses that were rejected by a state judicial system during a defendant's criminal trial. The magnitude of the interest in personal liberty requires and justifies the infringement of the interest in finality. As Justice Brennan wrote for the Supreme Court majority in Fay v. Noia, 372 U.S. 391 (1963),

"conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review."

Id. at 424. And, as Justice Frankfurter wrote in Brown v. Allen, 344 U.S. 443 (1953),

"no binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right."

Id. at 508 (separate opinion), quoted in Fay v. Noia, 372 U.S. 391, 422 (1963).

In deciding whether habeas corpus lies to challenge a termination of parental rights, we must determine, then, whether such a case presents the same, strong claim for overriding the interest in finality as inheres in the plea of a prisoner that he has been incarcerated in violation of the Constitution of the United States.*fn3 I think the answer is clearly no, and for much the same reasons as those expressed by the Court of Appeals for the First Circuit in Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (1st Cir. 1978). The principal reason may be plainly stated: habeas lies to challenge unlawful custody, but unlawful custody is simply not the issue in a parental rights termination case. This case, like all such cases, presents not "a struggle for liberty by one imprisoned under the aegis of the state, [but merely] the question [of] who should bring [the Lehman boys] up." Sylvander, 584 F.2d at 1113.

[The Lehman boys are] not... [detainees] or... undergoing some form of state-imposed restraint or disability, but rather [are] living with persons who have taken interim parental responsibility for [them] at the request of a private institution after a judicial determination that [they] may be adopted without parental consent. This is not the kind of custody that has traditionally prompted federal courts to assert their jurisdiction in the face of prior state adjudication. It cannot meaningfully be said that the [persons] in custody -- [the Lehman boys -- are] being held against [their] will.

Id. at 1111. It is not the children's liberty interest that is sought to be protected here, but only the right of the mother to raise them.*fn4 This interest is far indeed from the core concern of the writ of habeas corpus. I do not suggest, of course, that the child's right to remain with and be raised by his natural parents is not a constitutionally protected fundamental interest. See majority op., typescript at 15 & n. 16. But it is not the fundamental nature of the interest at stake that determines the existence of habeas jurisdiction; it is, rather, the presence of custody.I merely observe that the child's interest, since it does not satisfy the custody requirement of habeas, may not utilize habeas as a vehicle for its protection.The "custody" of a foster or adoptive parent over a child is simply not the type of custody that may be challenged through federal habeas.

The majority in effect concedes that terminations of parental rights do not implicate custody within the meaning of the habeas statute, when it acknowledges that federal habeas does not lie in "the typical dispute between parents for the custody of a child." See majority op., typescript at 23. The majority, while recognizing that custody disputes between parents are outside the scope of habeas corpus, seeks to distinguish such contests from state parental right terminations, which it holds here come within the reach of habeas. The majority argues that the present case "concerns the power of the state to extinguish for all time the rights of a natural mother in her children through a state custody proceeding," id., while this is not true of "the typical dispute between parents." Yet such a distinction, in terms of the availability of habeas, cannot be sustained. In both cases, a litigant uses the state's judicial machinery to establish its own right to raise a child and to invalidate some other party's right to do so. Thus, the status of the child is the same whether determined in a "typical dispute between parents" or in a state parental right termination proceeding. If there is "custody" within the meaning of the habeas statute in the one instance, there must necessarily be "custody" in the other.

By the same token, if the outcome of such suits -- the mere determination of who shall raise the child -- does not constitute custody within the meaning of habeas, this conclusion obtains whether that determination was made in a dispute between parents or in a parental right termination proceeding initiated by the state. These situations simply cannot be distinguished in terms of the "extraordinary restraints," 83 Harv. L. Rev. at 1073, that must be present to satisfy the custody requirement.And in both instances, the child's status at the completion of the action is the product of a state judicial decree.

Thus, the inevitable outcome of the majority's position is that habeas will lie to raise a constitutional challenge in the garden variety custody contest between a child's natural parents. Seen in this light, it is unlikely that even the majority would agree with the result that its opinion mandates.Thus, I believe that the majority must inexorably be brought to the position that habeas cannot be available in either case, if habeas is not to be extended beyond all warrant.

There is an additional reason why habeas corpus should not be available in cases of this type. The child custody context is one where the interest in finality is especially weighty, far more so than in the ordinary criminal case. It is widely recognized that children require secure, stable, long term and continuous relationships with their parents or the persons filling the role of parent. There is little that can be as detrimental to a child's sound development as prolonged uncertainty over whom he is to regard as his parents. The authorities cited by the majority, see typescript at 15-16 & n. 15, amply reflect this need for stability. And yet prolonged uncertainty in family relations must be the inevitable outcome of allowing the relitigation in federal court through habeas of federal constitutional issues that were once fully adjudicated in state court. As the First Circuit wrote in Sylvander, "[it] is by no means clear that the welfare of children and families would be promoted by creating a right to litigate in two sets of courts instead of one, thus extending the potential duration of litigation in this area." 584 F.2d at 1112. We must also recognize that the child (whose liberty interests we must presume to be implicated in order to find a basis for the extension of habeas, see note 4 supra) is little more than a pawn in the battle that engulfs him. Unlike the prisoner, who can control and direct the collateral attacks on his confinement, the child cannot call a halt to custody litigation whenever he sees fit. See Sylvander, 584 F.2d at 1112. The parties fighting over the right to raise the child will continue fighting, as Ms. Lehman has demonstrated, until there is no other forum in which they may do so. Providing another arena for this contest, by extending the federal writ of habeas corpus to custody actions, is hardly likely to serve the best interests of the child. See note 2 supra.

Nothing I have discussed here, however, should be read as a suggestion that the great writ may never be available in behalf of a child. I have indicated earlier that this case does not involve incarceration or restrictions or restraints affecting the Lehman boys' liberty -- any of which conditions might well be sufficient for habeas to lie. "Were [the Lehman boys] incarcerated in a state home, or were there other issues making this truly a struggle for liberty by one imprisoned under the aegis of the state," id. at 1113, the writ might well be available. I suggest only that parental rights termination suits, and other similar determinations of child custody, do not without more, provide a predicate for the use of federal habeas corpus.


If the inevitable result of the analysis above were that a parent in Ms. Lehman's position could never obtain a federal court adjudication of a federal challenge to the termination of her parental rights, I might hesitate long before subscribing to that view.*fn5 A litigant's right to have a federal determination of a federal constitutional claim ought not be lightly abridged. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 415 (1964). But here I face no such dilemma. Ms. Lehman had a choice of two routes to a federal determination of her constitutional challenge.

The simplest and most direct route was Ms. Lehman's right to appeal to the United States Supreme Court from the adverse judgment of the Supreme Court of Pennsylvania. By this means, Ms. Lehman could have immediately, and as a matter of right, obtained a decision from our highest court. She chose not to file an appeal, but, rather, simply petitioned for certiorari. Under 28 U.S.C. § 1257(2) (1976), a party who presents a federal constitutional challenge to a state statute, and loses in state court, as is the case here, has the right to appeal to the United States Supreme Court. The Court's appellate jurisdiction, of course, is nondiscretionary: the Court must determine cases falling within this jurisdiction on the merits, even though it need not give these cases plenary consideration. Hicks v. Miranda, 422 U.S. 332, 343-44 (1975). Thus, had Ms. Lehman invoked the Court's appellate jurisdiction, instead of petitioning for certiorari, she would have obtained a ruling on the merits of her constitutional challenge. At oral argument, counsel for Ms. Lehman conceded that the decision to forego an appeal and instead petition for certiorari was a deliberate, strategic choice: Ms. Lehman sought to avoid the res judicata effect that would attach to a summary affirmance on appeal, but not to a denial of certiorari.

The second route to a federal resolution of the federal constitutional challenge is available by the litigant reserving the federal claims during the state court litigation, and then bringing a subsequent challenge to the state statutory scheme in federal court under 42 U.S.C. § 1983 (1976). Such an approach is possible due to the limited res judicata effect accorded state court judgments in subsequent suits under § 1983, under the rule in this Circuit of New Jersey Educational Association v. Burke, 579 F.2d 764 (3d Cir.), cert. denied, 439 U.S. 894 (1978). Normally, res judicata bars the assertion of claims that were or could have been litigated in an earlier suit. In Burke, this court held that, in a later § 1983 suit, res judicata would apply only to claims that actually were litigated, rather than to those that could have been litigated, in the earlier state court suit. We said that "a state court judgment forecloses a § 1983 litigant from raising grievances in federal court only if such claims have been pressed before, and decided by, a state tribunal." 579 F.2d at 774. We so held in order to give effect to the interest in providing a federal forum for the resolution of federal claims. Thus, Burke offers another federal route to resolve Ms. Lehman's constitutional challenge to Pennsylvania's statutory scheme for the termination of parental rights.Ms. Lehman could simply have withheld her federal constitutional claims in the state court proceeding, and then brought these claims in federal court under § 1983. This gives a litigant like Ms. Lehman a choice of fora for the determination of the federal challenge: she can raise federal constitutional issues in the state court, in which case she will be barred by res judicata from raising them in federal court, or she can reserve them in the state proceeding, and assert them in federal court under § 1983.*fn6 This scheme does not, however, give the litigant a right to have the claim determined both in state and federal court -- a right that is available under habeas corpus, but unwarranted in this context.*fn7


I do not believe that mere custody disputes over who shall raise a child to maturity implicate the federal interest in personal liberty sufficiently to warrant the extension of federal habeas corpus. My conviction does not thereby preclude a litigant from obtaining federal determination of a constitutional challenge; I merely require that she choose one forum, state or federal, to make a stand on her federal constitutional claim. Because the majority's expansion of habeas provides a right to duplicative resolutions of the same constitutional issues in both state and federal court, I must respectfully dissent.

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