APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0065)
Before: ROSENN, GARTH, and SLOVITER, Circuit Judges
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 ...