Hilary Davis, Individually and on Behalf of All Others Similarly Situated v. William J. Page, Jr., Etc., Circuit Judges Dixie Herlong Chastain, Etc. , 714 F.2d 512 ( 1984 )

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before GODBOLD, Chief Judge, TUT-TLE, BROWN, CHARLES CLARK, RO-NEY, GEE, TJOFLAT, HILL, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON JR., HENDERSON, REAVLEY, POL-ITZ, HATCHETT, ANDERSON, RANDALL, TATE, THOMAS A. CLARK, WILLIAMS, GARWOOD, JOLLY and HIGGIN-BOTHAM, Circuit Judges.^**

PER CURIAM:

In our prior en banc decision in this case we held that the due process clause of the fourteenth amendment requires the state of Florida to provide counsel to indigent parents whose children are the subject of dependency proceedings. Davis v. Page, 640 F.2d 599 (5th Cir.1981). The United States Supreme Court granted certiorari, vacated the judgment, and remanded the case to us for consideration in light of Lehman v. Lycoming County Children’s Services Agency, -U.S.-, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Chastain v. Davis, 458 U.S. 1118, 102 S.Ct. 3504, 73 L.Ed.2d 1380 (1982). Since our prior en banc decision, the Supreme Court has also decided Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Lehman held that federal habeas corpus jurisdiction could not be invoked to challenge state-court judgments involuntarily terminating parental rights. Lassiter held that due process requires only a case-by-case determination whether indigent parents should be provided with counsel in parental termination proceedings, rather than the appointment of counsel in all instances. We hold first that Lehman does not deprive us of jurisdiction in this case. Second, we hold that Lassiter requires that the right to counsel in Florida dependency proceedings be determined on a case-by-case basis. Finally, based on Lassiter, we hold that the district court should have dismissed the claim for relief now before us. Thus, we reverse the judgment of the district court and remand the case for the court to dismiss that claim.

I.

Because the facts of this case have been set forth in three prior opinions, Davis v. Page, 442 F.Supp. 258 (S.D.Fla.1977), aff’d in part and remanded, 618 F.2d 374 (5th Cir.1980), aff’d in part and rev’d in part on reh’g en banc, 640 F.2d 599 (5th Cir.1981), we state the essential facts briefly. On March 4, 1976, the Circuit Court of Dade County, Florida, adjudicated Carl T. Davis a dependent child without providing his indigent mother, Hilary Davis, counsel. The court placed the child in the temporary custody of the State Department of Health and Rehabilitative Services (DHRS). After petitioning the Florida Supreme Court unsuccessfully for a writ of habeas corpus, Ms. Davis brought this suit.

Davis separated her complaint into two distinct counts against two separate groups of defendants. Count I sought a writ of habeas corpus to release the Davis child from the custody of DHRS and named DHRS officials as defendants. Count II sought declaratory and injunctive relief in favor of a class of indigent parents who were not or who would not be provided counsel in dependency proceedings, and named as defendants the judges then assigned to the Juvenile and Family Division of the Dade County Circuit Court.

The district court granted summary judgment in Davis’ favor on both counts after certifying a class in count II. The DHRS officials did not appeal. The state judges appealed, and in our prior panel and en banc decisions we essentially affirmed the district court’s decision. We now reconsider these decisions in light of Lehman and Lassiter.

II.

First, we must determine the effect of Lehman on our prior en banc decision. In Lehman the Supreme Court held that federal habeas corpus jurisdiction could not be invoked to challenge state court judgments involuntarily terminating parental rights. In the case at bar, habeas jurisdiction was invoked, but in support only of count I. The count I defendants, DHRS officials, did not appeal the district court’s judgment. The only count involved in this appeal was count II. Count II was based on 42 U.S.C. § 1983 (1976 & Supp. V 1981). The district court took jurisdiction of count II pursuant to 28 U.S.C. § 1343(a)(3) and (4) (1976 & Supp. V 1981). Consequently, this appeal does not involve habeas jurisdiction and Lehman is inapplicable.

The Supreme Court’s remand to us for reconsideration in light of Lehman is nevertheless understandable. Our prior en banc opinion could be read as based in part on habeas jurisdiction. We take this opportunity to clarify any confusion that opinion may have caused. Only the count II defendants, the state judges, appealed the district court’s decision. Because the count I defendants did not appeal, the question of the applicability of habeas jurisdiction was not before us. We proceed to decide Davis’ section 1983 claim against the state judges, which is unaffected by Lehman.

III.

We now consider whether our prior en banc decision survives Lassiter. In our prior decision we held that due process requires the appointment of counsel for indigent parents in all Florida dependency proceedings. In Lassiter the Court held that due process requires only a case-by-case determination whether counsel must be appointed for indigent parents in state termination proceedings. The Court expressly rejected the notion that due process requires the appointment of counsel for indigent parents in all termination proceedings. 452 U.S. at 31, 101 S.Ct. at 2162. The question presented is, therefore, whether a proceeding in which a child is adjudicated a dependent is distinguishable from a proceeding in which parental rights are terminated, for purposes of the right to counsel under the due process clause. We apply the Lassiter analysis to dependency proceedings to resolve this question.

The Court in Lassiter began its analysis by drawing from prior cases “the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty.” 452 U.S. at 26-27,101 S.Ct. at 2159. Thus, in Lassiter the presumption was against the appointment of counsel. Similarly, in this case Ms. Davis’ physical liberty was not at stake. Therefore, the presumption was against the appointment of counsel. This case and Lassiter are not distinguishable as regards the presumption against the appointment of counsel.

The Court’s analysis next focused on the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), which requires evaluation of “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Lassiter, 452 U.S. at 2159, 101 S.Ct. at 2159. In analyzing the private interests, the Court first recognized the extreme importance of the parental interest at stake in a termination proceeding:

This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to “the companionship, care, custody and management of his or her children” is an important interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Here the State has sought not simply to infringe upon that interest but to end it. If the State prevails, it will have worked a unique kind of deprivation. A parent’s interest in the accuracy and injustice of the decision to terminate his or her parental status is, therefore a commanding one.

452 U.S. at 27-28, 101 S.Ct. at 2160 (citations and footnote omitted).

We must determine whether the parental interest asserted in a dependency proceeding is any stronger than the “commanding” interest the Court has found in a termination proceeding. In the latter, the interest is in the complete termination of parental rights. In fact, in Lassiter the Court relied on the finality of the termination decision to support its holding that a commanding interest was at stake: “Here the State has sought not simply to infringe upon [the parents’] interest but to end it. If the State prevails, it will have worked a unique kind of deprivation.” Id. (citations omitted).

In contrast to the complete and irrevocable termination present in Lassiter, the parental interest asserted in a Florida dependency proceeding will usually be in the temporary custody of the child. As we noted in our prior en banc decision:

Once a child has been adjudicated dependent the court may (1) place the child in his own home or the home of a relative under protective supervision; (2) commit the child to a licensed child-care agency; (3) commit the child to the temporary legal custody of DHRS; or (4) permanently commit the child to DHRS or a licensed child-placing agency. Fla.Stat. § 39.41(1).

640 F.2d at 601 n. 2.

Thus, although permanent commitment of the child is a possibility, it is also a possibility that the child will remain in his own home or in the home of a relative. The parental interest at stake certainly becomes greater as the deprivation approaches permanency. Supervision of the child in his own home does not amount to the “unique” type of deprivation present in Lassiter. As the Supreme Court noted in discussing New York termination proceedings in Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982) (footnote omitted):

If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedure.

The potentially disparate parental interests at stake in Florida dependency proceedings militate in favor of greater flexibility concerning the appointment of counsel, rather than a rigid rule requiring counsel in all cases. Under a flexible approach, the state judge can identify the parental interest at stake before the proceedings commence, for example the court can determine whether complete parental termination is a possibility, and then decide whether to appoint counsel. Therefore, analysis of the parental interest at stake in dependency proceedings compared to that asserted in termination proceedings reveals a balance weighted even more heavily in favor of a case-by-case approach in this case than in Lassiter.

The Supreme Court next analyzed the second prong of the Mathews test: the state’s interest. First, it noted that: “Since the State has an urgent interest in the welfare of the child, it shares the parent’s interest in an accurate and just decision.” 452 U.S. at 27, 101 S.Ct. 2160. The Court then recognized the state’s interest in an economic and efficient procedure. The Court concluded that although this latter interest was legitimate, it was not significant enough to overcome the important parental interest at stake. In this case, the state’s interest is identical to the state interest asserted in Lassiter. The state desires an accurate and just decision that can be made as economically and as efficiently as possible. Therefore, this case is indistinguishable from Lassiter regarding the second prong of the Mathews test.

The Court next applied the third prong of the Mathews test to determine “the risk that a parent will be erroneously deprived of his or her child because the parent is not represented by counsel.” 452 U.S. at 28, 101 S.Ct. at 2160. The Court reviewed the North Carolina termination procedures, which provided, inter alia, that only certain persons or agencies could file a petition to terminate parental rights; that facts be described in the petition sufficient to warrant a finding that one of the grounds for termination existed; that the parent be notified of the petition and be given 30 days to respond; that if the parent’s answer denies a material allegation raised in the petition, a lawyer must be appointed as guardian ad litem for the child at a hearing to resolve any material issues; that the court order a hearing even if the parent fails to respond to the petition; that the court find facts based on clear, cogent, and convincing evidence; and that any party could appeal within ten days of the hearing. The Court then acknowledged that based on the circumstances surrounding the hearing — which might include, for example, expert medical and psychiatric testimony, and parents with little education — an uncounselled parent might be overwhelmed by the proceeding. The Court thus recognized that the risk of an erroneous deprivation because of lack of counsel might be high in some cases.

Like the North Carolina termination statute, the Florida dependency statute has various provisions designed to ensure a correct decision: a petition can be filed only by the state attorney, an authorized agent of the division of youth services or of the division of family services, or a “person who has knowledge of the facts alleged or is informed of them and believes that they are true,” Fla.Stat.Ann. § 39.05(2) (West 1974); the petition must be in writing and must be signed by the petitioner under oath stating his good faith in filing the petition, id. § 39.05(3); a written answer to the petition need not be filed by any party, including the parent, but any matters may be pleaded orally before the court, id. § 39.07; once a petition has been filed, the court may order the child to undergo a physical or psychological examination with the parent or child’s consent, id. § 39.08; an adjudicatory hearing is held as soon after a petition is filed as is practicable, id. § 39.09(l)(a); the hearings are conducted by a judge without a jury; the rules of evidence in civil cases are applied; the state, represented by counsel, must prove its case by a preponderance of the evidence, id. § 39.09(l)(b); once a child has been adjudicated a dependent, the court must hold a disposition hearing, at which time it considers a predisposition study presented by an agent of the division of youth or of family services, id. § 39.-09(3); finally, the child or parent may appeal the dependency adjudication, id. § 39.-14(1). We believe these provisions, although differing in some respects from the North Carolina termination procedures, provide enough protection against the risk of erroneous determinations that we cannot say that indigent parents must be appointed with counsel in all Florida dependency proceedings.

In Lassiter the Court expressly recognized that termination proceedings may present complex issues involving medical and psychiatric testimony. The same is true of dependency proceedings. Similar to the situation in termination proceedings, an uncounselled parent in a Florida dependency proceeding might be overwhelmed by the circumstances. Nevertheless, there is no reason to believe that there is a greater risk of erroneous deprivation in a Florida dependency proceeding than the potentially great risk the Supreme Court recognized in North Carolina termination proceedings. Thus, the case cannot be distinguished from Lassiter on this basis.

Finally, the Court balanced the Mathews factors and weighed them against the presumption that there is no right to appointed counsel in the absence of a potential deprivation of physical liberty. The Court summarized the factors as follows:

[T]he parent’s interest is an extremely important one (and may be supplemented by the dangers of criminal liability inherent in some termination proceedings); the State shares with the parent an interest in a correct decision, has a relatively weak pecuniary interest, and, in some but not all cases, has a possibly stronger interest in informal procedures; and the complexity of the proceeding and the incapacity of the uncounselled parent could be, but would not always be, great enough to make the risk of an erroneous deprivation of the parent’s rights insupportably high.

452 U.S. at 31-32, 101 S.Ct. at 2162. The Court held that whether these factors are sufficient to overcome the presumption depends on the relative weight of the factors in each individual case:

If, in a given case, the parent’s interests were at their strongest, the State’s interests were at their weakest, and the risks of error were at their peak, it could not be said that the Eldridge factors did not overcome the presumption against the right to appointed counsel, and that due process did not therefore require the appointment of counsel.

Id. The Court thus held that due process was not so inflexible as to require the appointment of counsel in every case.

We believe the Mathews analysis leads to the same result in this case as it did in Lassiter. There is no material distinction between this case and Lassiter under any of the three Mathews prongs. The parent’s interest is an extremely important one. The state’s pecuniary interest is relatively weak. And the risk of an erroneous deprivation is potentially high. Lassiter holds that these factors must be weighed against the presumption against counsel on a case-by-case basis. We are bound by this holding.

IV.

We need not apply the Lassiter balancing test to Davis’ individual case because she was granted the habeas corpus relief she sought in count I; and the count I defendants did not appeal. All that is before us is the class claim in count II of Davis’ complaint. In this count, Davis asked for prospective declaratory and injunctive relief in favor of a class of indigent parents prohibiting the state judges of the Juvenile and Family Division of the Dade County Circuit Court from conducting dependency proceedings without appointing counsel for such parents in all cases. The very nature of the relief Davis requested in count II is inconsistent with the holding of Lassiter. Lassiter rejected a broad prophylactic approach to the appointment of counsel in cases such as the one before us, and instead adopted a case-by-case analysis. Thus, Lassiter makes any claim for class relief impossible in this case by removing the commonality of fact necessary to the maintenance of a class action. See Fed.R. Civ.P. 23(a)(2).

V.

Our function is not to question the wisdom of the Lassiter opinion, but rather to apply it straightforwardly. So applied, the conclusion is inescapable that Lassiter requires a case-by-case analysis of the right to counsel for indigent parents in Florida dependency proceedings. Lassiter has completely superseded the prior opinions in this case, and it precludes the relief Davis requested in the only count of her complaint before us on appeal. Thus, we REVERSE the judgment of the district court and REMAND for the district court to enter judgment for the defendant judges on count II of the complaint.^*

* We note that even if one believes that Lassiter does not control this case, the practical problems, arising from concerns of federalism, inherent in enjoining state judges from conducting dependency proceedings without providing indigent parents with counsel, must not be ignored. The Supreme Court has recognized such concerns in two recent opinions: Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), and Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979). Lehman, as we have noted, held that federal habeas corpus jurisdiction could not be invoked to challenge state-court judgments involuntarily terminating parental rights. Sims held that federal courts must abstain from interfering in pending state proceedings in which the state has taken temporary custody of children to prevent abuse by their parents. Both of these decisions recognize the problems that arise when federal courts interfere with state determinations involving parental rights.

If we were to affirm the district court’s decision ordering coercive relief in favor of a class in this case, the effect of our holding would be to circumvent Lehman and Sims. For example, if the state court in a different termination proceeding decided that a parent was not indigent, the parent would immediately move in federal court for coercive relief against the state judge by asking the federal court to issue an order requiring the state judge to show cause why he should not be held in contempt. If the federal court during the pendency of the state dependency proceeding issued such a show cause order, this order would violate the holding of Sims. If the federal court were to issue such an order after the dependency proceeding had concluded, the order would violate the spirit of Lehman’s holding by providing the type of collateral review that case held invalid. The question of whether a parent is truly indigent is only one example of various questions a state judge might have to decide, and that would be subject to immediate collateral federal review under the type of relief the district court fashioned in this case. Given the Supreme Court’s sensitivity to federalism concerns in this area, the practical problems involved in issuing such relief are prohibitive.