Moore v. Sims

PETITIONER:Hilmar G. Moore, Raul Jimenez, Jaime Clements
RESPONDENT:John Pleasant Sims, Mary Carter Sims, Sabrina Marie Sims, Paul Edward Sims, Shawna Evette Sims
LOCATION:John G. Osborne Elementary School

DOCKET NO.: 78-6
DECIDED BY: Burger Court (1975-1981)
LOWER COURT:

CITATION: 442 US 415 (1979)
ARGUED: Feb 26, 1979
DECIDED: Jun 11, 1979
GRANTED: Oct 30, 1978

ADVOCATES:
David H. Young – for appellants
Windell Porter – for the appellees

Facts of the case

The Texas Department of Human Resources took custody of the children of John and Mary Sims after a teacher suspected child abuse. The Sims moved to modify the Harris County court order granting custody to the state. When they were not able to obtain and immediate hearing, the Sims filed a writ of habeas corpus. The court transferred the matter to Montgomery County. Rather than proceeding with the case in Montgomery County, the Sims sued in Federal district court, challenging the constitutionality of Texas’ child custody laws.

The district court issued a preliminary injunction preventing Texas from prosecuting any state suit under the child custody laws. The court held that abstention underYounger v Harris was improper because of the multifaceted nature of the litigation. The federal court addressed the constitutional issues in their decision. UnderYounger v Harris, a federal court must abstain from ruling in a case where there are pending related claims in state court. The Supreme Court heard this case on direct appeal.

Question

Did the district court have jurisdiction to rule while there were related pending state claims?

Warren E. Burger:

We will hear arguments next in Moore against Sims, Mr. Young; you may proceed when you are ready.

David H. Young:

Thank you Mr. Chief Justice.

May it please the court.

Today we are concerned with numerous sections of Title II of the Texas Family Court which is Texas’s effort to deal with the Law of Parents and Children.

It’s a codification obviously of many parts, it in part reflects in statute as a in case law as existed prior to its passage in 1973 and in part reflects what the legislature or what the case law in the absence of statute said the law was and it also of course reflects changes that the legislature made in the statutes and case law.

Those various aspects of the family court have interplay in the sections which are before you here today.

Some of the sections which we’ll be discussing are matters of law that pertain to virtually any case in the civil courts of Texas and others are sections that pertain to rather more limited aspect of child abuse and still others are sections which have only to do with certain instances or certain procedures in child abuse.

Because of the numerous chapters and sections involved, when I am making my argument, I will try to use more than merely numbers of chapters when I am describing things, for instance chapter 17, I will always try to refer to that as to the emergency protection provisions, chapter 14, I will try to remember to refer as a conservatorship or custody provisions, likewise chapter 15, termination of parental riots, chapter 11, which is involved here as well as essentially the wholly procedural chapter and chapter 34 is involved as not a judicial per se chapter at all, it’s really an investigative agency kind of chapter.

I would also like to utilize some of my time to very briefly state what the court below held because we are not appealing everything that the court below held and from reading the opposing briefs, it is at least my judgment that many of those briefs are on issues that are not before this court.

William H. Rehnquist:

It is possibly to briefly state what the court below —

David H. Young:

I hope so, I want to try, I think it’s difficult and I certainly don’t want to use that part of my time doing it.

First of all, of course, the abstention issue we clearly are appealing.

They held Section 1110 of procedural statute unconstitutional on its face because it failed to require an attorney ad litem for a child in any suit affecting a child under the Emergency Statute, the Conservatorship Statute or the Termination Statute.

We are only appealing that as to the necessity for an ad litem at the emergency hearing, the chapter 17 hearing, we are not appealing it as to its impact on any of the other proceedings, whether for conservatorship on a permanent or temporary basis or on termination.

They held in three sections, 1111, 1705, and 1706, that all were unconstitutional is failing to require an adversary hearing within 10 days of the emergency taking of the child.

We are not appealing to any of those.

They held section 1115 unconstitutional on its face as to the standard of proof saying clear and convincing evidence is required instead of preponderance, we are appealing that.

They held 1702 unconstitutional and that saying, it was unconstitutional on its face, but saying that immediately, the statute says, a child that is seized will immediately will be taken before a court or this agency seizing the child will immediately obtain a judicial sanction if you will to have possession of the child.

They interpreted that to mean that the, that immediately is the “very day” of the taking we are appealing that limited aspect of the holding.

They said that 1703 is unconstitutional on its face and that it fails to require all reasonable efforts to serve notice to one of these suits.

We are not appealing that and we would frankly characterize that as one of the more gratuitous holdings of the court below, because there is no question that all reasonable efforts should be made and were made in this instance to notify the parents of the proceedings and in fact they had actual notice.

They held section 3405 unconstitutional on its face as failing to require notice and a hearing for the parents before any psychological or psychiatric examination of the children, we are not appealing that, that wasn’t even an issue in this case.

Physical examination was an issue in this case and the court made no adverse holding as to that.

They also held the child abuse neglect reporting enquiry system unconstitutional as applied and that the state had provided for a central registry of cases of suspected abuse and those cases on that registry were not limited to instances in which a judicial determination as to the abuse have been made.

Finally they held 3408 unconstitutional on its face.

That being the confidentiality provision and held it unconstitutional and so far as it did not provide for parents to be notified of the contents of the records that the state had on them, alright or requiring the states upon request to reveal the contents of the record except for informance, we are not appealing that.

One other thing, which I think is confusing, also is that the Woods case it’s my understanding it’s not before this court.

It was consolidated on a limited issue of the right of indigence to reporting counsel and in their decision in this case and the judgment the court below said that consolidation was ill-advised.

We did not in our brief anyway cite to you what became of that case.

The court allowed the state courts to proceed and in December of 1976 some two or three months, after the decision in this case was rendered the Court of Civil Appeals reversed the judgment and restored the children to Mrs. Woods that decision is reported at 545 Southwest second 573, that reversal was based on an insufficiency of the evidence kind of question.

David H. Young:

That I hope gets me into what I would like to talk about regarding abstention, because in that case the Woods case the State Courts were allowed to function, were allowed to go ahead through their normal processes and what happened is that the parents want to talk about abstention, it’s also necessary to spend just a little bit of time on a chronology of the events that occurred.

On March 25th 1976 there was a report of child abuse at the school in question of Department of Human Resources worker went their to investigate it and the children were taken to a child welfare clinic.

The next day, the very next day, not the very day, but the very next day, a temporary order was obtained.

Day after that Paul Sims who is the subject of this litigation really, excuse me was hospitalized where he would remain for some 10 days.

On the 5th of April the first —

Thurgood Marshall:

On March ’71.

David H. Young:

I beg your pardon.

Thurgood Marshall:

On March ‘71 they went to the judge for the modifying the — .

David H. Young:

No, Your Honor there is, according to the deposition of Judge Lowy, which I will discuss; they did attempt apparently to file a motion to modify.

It’s my understanding that the District clerk said judge Lowy was not present, he being the judge which had entered the temporary or emergency order a few days before that and went to see another judge to see that he would hear it.

He evidently said he did not want to hear it, and that led.

Thurgood Marshall:

This is not the only point that’s not clear.

David H. Young:

That’s right, that’s why I am taking some time to go through it in the first place.

On the fifth however Judge Lowy was around and a hearing was had in his court room.

The fifth was the 9th day of the duration of the 10-day emergency order.

At that time plaintiffs below had pending a habeas corpus action, and a hearing was conducted at the bench, if you will, all of this is explained in some detail in Judge Lowy’s deposition and then motion to modify was never mentioned to him at that time.

William H. Rehnquist:

You said habeas action, a state habeas action?

David H. Young:

Yes.

The —

Potter Stewart:

Was the initial order which was a state court order was it not?

David H. Young:

Yes.

Potter Stewart:

Was that entered in any pending proceeding which actually had been brought?

David H. Young:

Yes, the proceeding — there were two state court proceedings before the Federal Court hearing on this.

Potter Stewart:

Briefly can you tell us what those–?

David H. Young:

Yes, the first one was the one that I mentioned on the 27th.

Potter Stewart:

Brought by whom.

David H. Young:

Brought by the state, I’ve forgotten the name of the individual, who signed the complaint but it was brought by the state, this is a day after the children were picked up at school.

They were in —

Potter Stewart:

So it was a state agency — a proceeding brought by a State agency?

David H. Young:

Yes.

Potter Stewart:

And who were the defendants or the respondents?

David H. Young:

It were the Sims, the parents, yes.

Potter Stewart:

Now that’s one–

David H. Young:

That’s one, the next one was as a result of this hearing on the 5th in Judge Lowy’s court wherein the motion for habeas was pending, also that was on the 9th or the 10th day I forgot which of this 10 day order.

Questions as to venue of these proceedings —

Potter Stewart:

Well who brought the second proceeding?

David H. Young:

This, the second proceeding was brought during a continuance of this hearing.

The hearing was convened at 10:30 in the morning as a result of the hearing Judge Lowy had substantial questions as to venue of these proceedings in his mind, it was discussed by counsel for both parties before the court, and he said he will recess this hearing until 5:00 o’clock to give the parties, both parties an opportunity to file whatever it is they’re going to file.

As a result of that at 4:00 or something, the state filed a second suit.

Potter Stewart:

In the same county or different?

David H. Young:

In Harris County, the same county.

Potter Stewart:

The same county.

David H. Young:

And as a result of that second suit—

Potter Stewart:

Naming again the Sims as –?

David H. Young:

Yes, as a result of the second suit, the Judge took an official cognizance if you will of the venue issue, transferred that second suit to Montgomery County and transferred with it the habeas action on which no action had been taken.

Potter Stewart:

Who brought the habeas action?

David H. Young:

The Sims.

Potter Stewart:

The Sims.

So we have three proceedings pending before anyone went into Federal Court?

David H. Young:

You could even say four if you wanted because at some point the Sims also brought — attempted to bring an original habeas action I believe in the Court of Civil Appeals which is an intermediate court, which they refused to take, there having been no decisions below.

Potter Stewart:

They didn’t succeed.

David H. Young:

They didn’t succeed.

But as I understand it that’s not the question.

Potter Stewart:

No, well I am trying to get the actual pending state proceedings, were the two brought by state agency, both in Harris County one transferred to some other—

David H. Young:

Montgomery County.

Potter Stewart:

Montgomery County and the habeas proceeding brought by the Sims in Harris County also transferred to Montgomery, is that it?

David H. Young:

That’s right.

Potter Stewart:

Now the initial order was entered in that first State agency proceeding was it?

David H. Young:

Yes.

Potter Stewart:

I see.

David H. Young:

That order pursuant to chapter 17 was good for only 10 days and this subsequent hearing that we are talking about not an ex-parte hearing it’s the first that had been — when the order was obtained.

Thurgood Marshall:

Was it on the 9th?

David H. Young:

It was on the fifth so it would be the 9th day I think yes, which is why I think he said, he gave him till 5 o’clock to get whatever additional pleadings, motions they would have.

That order expired by its own terms on the 10th day.

After that 10th day, there was nothing possible further to do so it’s—

Potter Stewart:

The proceeding in which that order was entered did not terminate with the expiration of the order, did it?

David H. Young:

Well, that’s a very close question and I think that’s why the second proceeding was filed seeking temporary conservatorship and why it’s that proceeding that was transferred along with the habeas to Montgomery County.

Potter Stewart:

Well let me put it to you this way.

In your abstention argument what state proceedings as pending do you rely upon?

David H. Young:

We relied this to chapter 17, was filed before any proceedings of substance on the merits in Federal Court.

Potter Stewart:

I am confused with these numbers.

David H. Young:

I am sorry I said I tried not to do it.

Potter Stewart:

Which state proceedings—

David H. Young:

The emergency proceeding filed the day after the child was picked up.

Potter Stewart:

That was pending you say when the federal suit was brought.

You said earlier –

David H. Young:

We argue that it’s a question of definition of what the — there was no order, there was order in effect by the county.

Potter Stewart:

In any event, you say the second state agency proceeding which they brought in Harris, transferred to Montgomery that certainly was a pending proceeding—

David H. Young:

Without question as was the habeas.

Potter Stewart:

As was the habeas, yes.

David H. Young:

At least probably three.

Byron R. White:

Montgomery County had joined Harris on the north.

David H. Young:

Yes, it’s immediately to the north, I don’t believe there are any counties in between, if you can’t tell one from the other it’s all urban.

John Paul Stevens:

Is it perfectly clear the second proceeding was pending because the order was entered as I, in my notice showing April 6, and wasn’t till April 19th that the federal case was filed and there’s a more than a 10 day gap and had anything — it was not another 10 day order that expired by its terms?

David H. Young:

That gets to, that’s what it was subsequently interpreted to be by the Federal Court.

It was not clear from the statute that it would expire after 10 days.

John Paul Stevens:

So if you didn’t –

David H. Young:

They didn’t believe it would expire after 10 days, but we are not appealing that aspect.

Byron R. White:

If you so view it that would no more have been pending in the first one, they’d be precisely of the same standard.

David H. Young:

Oh, yes because I distinguish between a pending law suit and an order that’s in effect.

David H. Young:

It wouldn’t be necessary for any order to be in effect to have a pending law suit in state court if my understanding is correct.

Byron R. White:

Well couldn’t the other side argue that after the 10 days it ran on till April 16th that you retained custody of the children without any legal support for what you are doing?

David H. Young:

Oh they did and that’s what they did argue on April 5th in the hearing in Federal Court, whereupon we said accepting that we didn’t use these words, but accepting that as a given then can we go file another lawsuit in Montgomery County and get all those cleared up, and it was our understanding that managing judge said, yes, whereupon we did on April, on May the 14th, whereupon the Sims is absenting themselves from anywhere where they could be served with a writ of attachment that went with that case but somehow mysteriously they must have learned about it because they returned to Federal Court on the 21st seeking a temporary restraining order against this, against the attachment.

That hearings by the way which was not, it was some 16 days after the Attorney General’s office and other defendants had entered and the appearance of some sort anyway and that hearing in Federal Court and we were never notified of the second, of the application for a temporary restraining order, there was no hearing conducted on it but it was granted.

Byron R. White:

But, if you rely on the May 14th action, the new suit brought then that is a good — almost a month after the federal case had been filed.

David H. Young:

That’s right and it’s that aspect of the confusion why in our abstention argument, we put it under several different sections and dealt with the Hicks against Miranda kind of an issue whether a federal case has — whether a State court proceeding has to be pending before there are substantial proceedings on the merit and in Federal Court as a separate issue.

When we say there was — we say we would have it either way.

Thurgood Marshall:

The temporary restraining order you were — but you were notified after it was granted.

David H. Young:

Oh sure yes, without question.

The effect of that temporary — the relief that it had been sought immediately as a result of that second suit in Montgomery County was to have child placed with his maternal grandparents where he’d been staying a good part of the time anyway and where he’d been going to school, because they resided in Harris County.

So somehow while absenting themselves from the prospects of service the Sims did find out, obviously seek out some relief from the State Court action.

I mentioned earlier, the confusion that results because the Family Code contains different things.

And one of the things that is so confusing in the first Federal Court hearing is the distinctions, are the distinctions between venue and jurisdiction on the one hand and the Family Court’s concept of continuing jurisdiction on the other.

The Sims has argued in the State Court that there was no continuing jurisdiction in that case in Harris County and therefore it should be dismissed.

Well, continuing jurisdiction didn’t have anything do to with this case.

There was no proceeding already pending in Harris County, which would have been sufficient to give the Montgomery County Court continuing jurisdiction.

Did I say there was no case pending in Montgomery County, which would — to which the Harris County Court would have had to referred it back.

What the Harris County Court did was take these arguments that both sides were making i.e. the fact the children and the parents both reside in Montgomery County and realize that mandatorily under the family court that venue was in Montgomery County while he did have jurisdiction.

He did have jurisdiction and he says in his deposition it’s sufficient to enter the show-cause order that he did and transfer it back.

Warren E. Burger:

Mr. Young, you’ve only got a couple of minutes left.

David H. Young:

I know.

Warren E. Burger:

We have to get to the heart of your case.

David H. Young:

Okay.

Maybe the last thing I better say about abstention is it Hicks does away with this Hicks against Miranda in our view does away with the race to the court house theory.

There’s no issue that all the parties had actual notice in Federal Court of what the State intended to do.

It was explicitly addressed to the Judge, we think he consented in effect to it and in any event there is no finding below of the kind of bad faith or harassment that would be necessary to overcome the abstention.

There’s not even a bad faith allegation in the pleadings, there’s one harassment allegation as to the last proceeding in Montgomery County.

No findings below about bad faith or harassment where the appellant they’re not — I realized I’ve used up virtually all of my time on only one of the three big issues of the case.

I can’t really address the other two in the remaining time.

So I’d like to just reserve the remainder of my time and abstention will solve all the other issues if it’s decided our way anyway.

David H. Young:

So I just like to reserve the rest of my time, thank you.

Warren E. Burger:

Very well.

Ms. Porter.

At sometime, perhaps the earlier the better, it will be interesting at least to me to have you give me your version of the facts very briefly.

Windell Porter:

Yes sir.

Warren E. Burger:

What happened when was this child picked up, why, and then how soon after that were these proceedings begun?

Windell Porter:

All right sir.

I’ll do that.

Let me state at the outset sir that we realized and we submit and acknowledge that there’s a compelling state interest in a state being able to pickup children in emergency situations.

Warren E. Burger:

And you concede this was an emergency?

Windell Porter:

No sir, I do not concede that this is an emergency, what we concede to sir is that there’s an interest here on the part of the state that if in fact there were any children at any particular time now or even then in danger of any harm that that state has an interest in being able to take those children into custody.

Warren E. Burger:

And primarily that’s a matter for the State Court says it not?

Windell Porter:

That particular yes sir is, what we are concerned about is what happened after the children were taken into custody.

Warren E. Burger:

Why was this particular child picked up?

Windell Porter:

Right sir.

On March 25th just briefly, a referral was made to the Child Welfare Department.

The child was picked up, three of the children were picked up not just Paul, the referral was only in respect to Paul.

On March 26, there was a suit that was filed for protection of the child, supposedly with the referral only as to Paul; the suit was filed in relationship to all three of the children.

On March 26th, the first ex parte order was issued by the Judge.

Warren E. Burger:

How soon after they were taken into custody was there a medical examination?

Windell Porter:

Sir, there was the child — the children were taken to the hospital that very day.

Potter Stewart:

Are these pictures in the appendix or those are the pictures were they taken that very day?

Windell Porter:

Your Honor, I do not know when those pictures were taken.

Those pictures were stipulated into evidence.

I would assume and usually in the regular course of business that on when Child Welfare picks up the children that the pictures are usually taken at that same time, well, this is just something from me.

Potter Stewart:

Was this about one child or all three in inspection?

Windell Porter:

Sir, I believe that those pictures are only of one child.

It is difficult to determine whether or not some of them are all three, but I believe that there only as to the one child and that is to the boy child Paul.

Potter Stewart:

Well, they are rather telling aren’t they, exhibits of child abuse?

Windell Porter:

Yes sir.

Warren E. Burger:

Were they not buttressed also by the doctor’s examination, which said that there had clearly been a case of child abuse?

Windell Porter:

Your Honor, they were buttressed by an affidavit by the doctor.

However, there was never any testimony because there was never any court hearing.

Usually, what occurs is when these particular suits are filed there’s usually an affidavit presented to the judge by the social worker or by the attorney from Child Welfare, which states what the result of the doctor’s examination is.

On March 31st, the appellees went in and sought to modify the March 26th ex parte order.

That order lasted no longer than 10 days.

After the expiration of that order pursuing to the Texas Family Court, the judge was to do either one of two things.

Order the children restored to the parents or direct Child Welfare or its attorneys to a file a suit affecting parent-child relationship.

On March 31st the appellees went into court to file a writ of habeas corpus.

I’m sorry, I left out one fact about the March 31st order.

The motion to modify, they were not even allowed to file that particular motion.

We feel that was effectively denying them any particular access.

Thurgood Marshall:

What if the judge wasn’t there?

Windell Porter:

Sir, in the request for admission, it states and admits that the motion was stamped by the clerk.

They say that the judge was not there, but then the motion was returned back to appellees.

They were not even allowed to file to leave it there and to set a hearing for another time.

Thurgood Marshall:

Is that clear?

Windell Porter:

I believe sir that it is clear from the request for admissions that are in the —

Thurgood Marshall:

That they weren’t permitted to file —

Windell Porter:

It is not clear sir from any testimony, it’s just —

Thurgood Marshall:

The court house was open.

Windell Porter:

Yes sir.

Thurgood Marshall:

And if they tended the paper with the right fees couldn’t they file any paper?

Windell Porter:

Supposedly sir, they were supposed to be able to file —

Thurgood Marshall:

What do you mean supposedly, it’s either permissible or not.

Windell Porter:

Yes sir, they should have been able to file it however —

Thurgood Marshall:

But were they.

Windell Porter:

No, sir they will not commit to that file.

Thurgood Marshall:

No, why were they denied the right to file.

Windell Porter:

I do not know sir, the judge, he was not there.

Thurgood Marshall:

Do I have to accept, is there anything in the record that shows that they were denied the right to file.

Windell Porter:

No sir.

Only the admittance —

Thurgood Marshall:

Well, how can we take your word for it, if it is not in the record?

Windell Porter:

Let me see this thing sir.

Only the admittance that it was stamped and returned to the attorney for appellees and the usual practice is that if it’s stamped it’s received and if the judge is not there then what they would do would be to set a hearing on it later on.

Then the writ of habeas corpus was filed on March 31st.

The writ was denied, the judge would not rule on the writ, because he said that he lacked jurisdiction, because the appellees were resident of Montgomery County.

After, on that same day sir, later on another suit was filed concerning — affecting the parent-child relationship.

That suit, along with the writ of habeas corpus was what was transferred to Montgomery County.

Thurgood Marshall:

Put it straight away, the one that you didn’t file?

Windell Porter:

The one sir, of March 31st that the judge refused to act on sir.

Thurgood Marshall:

Well, how could you do that then and filed?

Windell Porter:

No sir.

What the clerk refused — I understand.

Thurgood Marshall:

You see what confuses me?

On one page, you say it wasn’t filed.

And the next page it said, it was filed and transferred to Montgomery.

Windell Porter:

Yes sir.

Let me see if I can clarify this.

Thurgood Marshall:

Thank you.

Windell Porter:

The March 31st order was not a writ of habeas corpus, that motion was a motion to modify the March 26 Ex Parte Order where the judge took custody of the children for the ten-day period.

After not being permitted to have a hearing on the March 31st Motion to modify the March 26 Ex Parte Order, they then went back and attempted to file a writ of habeas corpus because at that time the Ex Parte Order pursuant to the Texas Code of Civil Procedure had expired because it only lasts for 10 days.

After refusing to rule on the writ because of lack jurisdiction, then the case was transferred to Montgomery County along with a second suit that was filed on the very same day that the parents were in Court, trying to have a hearing on writ of habeas corpus.

All of this was transferred to Montgomery County on April 5th.

It’s really interesting to know that although the parents had been in the Court room that there was still no effort to even notify them about the second Ex Parte Order that was issued.

Front of that, that order stated that a show cause hearing would be held, that is stated in blank.

It didn’t say when, where, who or what.

They were never notified of that order.

They were never notified of that particular suit for whatever reasons.

Windell Porter:

The appellee’s filed their original complaint in Federal Court on April 19th.

It is our contention that there was no pending state court proceeding in which to the appellee’s could have litigated their constitutional claims by way of a defense.

Thurgood Marshall:

It couldn’t have been in Montgomery court?

Windell Porter:

Sir, there was no action although it was transferred.

There was no action taken by the Montgomery County court to set a hearing.

Thurgood Marshall:

Could you have asked for it?

Windell Porter:

Your Honor, as far as I know and from the record, they made attempts to ask for a hearing.

Thurgood Marshall:

Where do we find that in the record?

Windell Porter:

It’s purely speculative sir.

They talk about the people going from one place to another and trying to find out what was happening in Montgomery County.

Potter Stewart:

Where those Ex Parte Orders appealable?

Windell Porter:

No sir.

They were not appealable; they are interlocutory decisions.

Further as a matter of Texas State Law, if a person wants to raise the questions concerning the constitutionality of state of seizure of children, they cannot raise them even on appeal, and the case is in REW.

We believe that this court’s ruling in Gerstein versus Pugh is applicable in this particular case.

There was nowhere for them to go.

Byron R. White:

You mean there is no court in Texas that would entertain a claim that the children were unconstitutionally seized and retained by the state?

Windell Porter:

Your Honor, the only thing that they would have been able to do and they would not had been able to raise their constitutional questions or the issues of constitutional law in either a writ of mandamus or a writ of habeas corpus, which are the two things because the writ of mandamus sir, would have dealt with whether or not the release sought, or whether or not the there was an abuse of discretion, say if a writ of mandamus had been filed for the clerk not receiving the motion to modify, or for the judge not to have any hearing on the motion to modify.

And of course, the writ of habeas corpus will only deal with who had legal custody.

Warren E. Burger:

Well isn’t that — wouldn’t that have been a sufficient remedy at that point?

Your question was whether the State of Texas had lawful custody and your client said the state does not have lawful custody and why couldn’t you resolve the constitutional questions in that proceedings?

Windell Porter:

Let me state this sir.

On May 4th, they made another attempt for motion for leave to file a writ of habeas corpus to the Texas Court of Civil Appeals, and that motion for leave to file the writ of habeas corpus was denied.

Thurgood Marshall:

Under Texas law you filed your original writs in the Court of Appeals?

Windell Porter:

Yes sir.

On this particular one.

Thurgood Marshall:

Why?

Is that statutory provision?

Windell Porter:

Yes sir, it is.

Warren E. Burger:

Could it not be filed in Montgomery?

Thurgood Marshall:

I thought you filed it in a district court.

Windell Porter:

They did attempt sir to file it in the district court in the Harris County District Court and that was where His Honor refused to even rule on the writ because of lack of jurisdiction because the family were residents of Montgomery County.

Thurgood Marshall:

They could have gone with the Montgomery County, couldn’t you?

Couldn’t you have filed a writ of habeas corpus in Montgomery County on May 4th?

Windell Porter:

If sir, there was any pending proceeding.

Thurgood Marshall:

In this particular case, could you have not file the petition that you filed in the Court of Appeals, couldn’t you have filed it into Montgomery County Court?

Windell Porter:

Your Honor, they had the choice.

Thurgood Marshall:

Couldn’t you?

Windell Porter:

Yes.

However they had a choice as to which court to go to.

Thurgood Marshall:

And why didn’t you?

Windell Porter:

Because sir, as the statute permits, they chose to file the writ of habeas corpus with the Court of Civil Appeals, which had jurisdiction over the Montgomery County Court, since they were all in the same area.

Thurgood Marshall:

Do you have jurisdiction over that case?

Didn’t it tell you it didn’t have jurisdiction?

Windell Porter:

No sir.

The Court of Civil Appeals would have had jurisdiction.

Thurgood Marshall:

Well, what did Court of Civil Appeals do to your petition?

Windell Porter:

The Court of Civil Appeals refused to even let them file it.

Thurgood Marshall:

Because it didn’t have jurisdictions?

Windell Porter:

Your Honor, no reasons were given for the refusal to file.

There was no action taken in Montgomery County by the Montgomery County Court until May 14th of 1976, and then on May 21st there was hearing then set for May 21st.

It appears so that the burden, the state was putting the burden on the family to go in and to accord themselves a hearing.

The interest that the states sought to protect, there was no danger to them.

As all of the time the children were in the custody of the state and I might point out that even though the case was transferred to Montgomery County where no action was taken in Montgomery County and it was transferred with a show cause hearing that the children remained in the custody for the entire 42-day period of the Harris County Child Welfare.

John Paul Stevens:

Ms Porter like did Justice Marshall, I don’t understand why nobody on behalf of the parents, when the children are out of their custody all this of period ran into the — why didn’t they go to the Montgomery County Court and say, hey, I want our children back.

Windell Porter:

Apparently sir, and this is just information, this is not in the record.

There was much stipulation and very little testimony.

However sir, apparently, there were attempts to find out what was going on in Montgomery County.

When the case was transferred, it was transferred by Judge Lowy, who was the Harris County District Judge with an order on it that a show cause hearing would he held.

And in accordance with Texas Civil Procedure, Rules of Civil Procedure and the Family Code, that show cause hearing should have been held by the Montgomery County Court within ten days of the issuance of that order, however it was not.

John Paul Stevens:

And when it wasn’t and all after 10 days, it seemed to be an open and shut case to go and say we want our children back, and they were not being held with any lawful authority at that point.

Windell Porter:

That’s when the decision was sir to go to the Court of Civil Appeals.

John Paul Stevens:

When I spoke to the Judge on the Court of Civil Appeals, said well why they don’t go into the County Court in Montgomery County, I would have thought.

Windell Porter:

Your Honor, no reason was given for that refusal to let them file that writ.

We do contend that there was no pending proceeding, appellant relies very heavily on Younger versus Harris.

However —

Byron R. White:

Counsel is your petition for habeas corpus in the record?

Windell Porter:

Your Honor it is on the docket.

Byron R. White:

But the –- what were your allegations in your habeas corpus petition, do you remember?

Didn’t you allege unconstitutionality in your habeas corpus petition?

Windell Porter:

No, sir.

I will have to speak sir, I was not counsel at that state, I will have to speak from my conversations with the attorney —

Byron R. White:

Have you ever read the habeas corpus petition?

Windell Porter:

Yes, sir, it just states briefly that, that the children were wrongfully in the custody of the Harris County Child Welfare, the constitutional issues are not raised, and I would think sir that —

Byron R. White:

And they could have been though, I suppose right there, it might have been denied but you could have raised, you could have alleged them I suppose.

Windell Porter:

Yes, sir.

They –-

Byron R. White:

And if it had been denied you could have appealed.

Windell Porter:

They could have been raised, however sir, general as far as writs of habeas corpus are concerned it just deals with custody and he has the right to —

Byron R. White:

I know, I know, but one ground for alleging as the Chief Justice suggested to you, one ground for claiming illegal custody would be that the state was violating the constitution by holding the children.

Windell Porter:

Yes sir, except that at that point and even at the point of the Court of Civil Appeals writ, there was no pending state proceeding both of the —

Byron R. White:

Except that one.

Windell Porter:

Both, the first one, but on May 4th when they filed in the Court of Civil Appeals.

There was no proceeding that was pending, in order for them to avail themselves of and I would think that the Younger doctrine and those related cases at least contemplate that the individuals, that the litigants have some reasonable way, some means, some real valid means of being able to raise their constitutional issues.

I’d like to speak a little about the CANRIS statue and that is the process that the state gathers information concerning abuse or alleged abuse of children.

This statue does not provide for the persons even finding out what information is alleged.

There is no opportunity there for the persons to correct the information.

Byron R. White:

Ms. Porter I understood your opponent to say that although the Court held that aspect of the statue unconstitutional they are not appealing that holding, is that right?

Windell Porter:

I understood sir, that and it could be that I misunderstood him, I thought sir that he was saying that they were not appealing that section of Chapter 34, which that deals with.

Byron R. White:

Failure to give notice to the parents.

Windell Porter:

The failure to give notice to the parents, but that failure to give notice to the parents sir that he is referring to is the failure to give notice to the parents when say child welfare is going in and requesting an order, which could issue without notice and without a hearing to have either the children or the parents examined.

And I thought that, that was what he was alluding to.

I do know that the state has put in their brief that CANRIS does not injure persons.

We feel that it does because there is no way, there is no opportunity for them to correct any information and we would think that there should be provided at least some type of opportunity.

Warren E. Burger:

Well up to now you haven’t given me any linkling of why this matter could not have been settled in the State Courts where custody of children is normally, the kind of problems that are settled there.

Up to this point, I haven’t any idea of why a Federal Court should be in this case at all.

Windell Porter:

Your Honor, the reasons are because there was, there was no pending action, both of the orders had expired.

The Montgomery County Court although they were bound to have a show cause hearing within ten days and I would say even the Harris County Court would be bound, since it was the judge in Harris County who issued that ex parte order and the show cause hearing.

That those are the reasons why it could not be resolved, there was nothing there, sir.

Warren E. Burger:

Well I confess I can’t escape the feeling on this record including the reading of the opinion of the United States District Court, that some people were more interested in a constitutional case than in trying to do something to take care of these children.

Windell Porter:

I do not have any knowledge, sir of whether or not that is true, it just appears to me that the state with all of it’s resources were putting the burden on the appellant, the appellees to raise or to find ways of having a hearing.

There was a total of 42 days here, that transpired.

The only hearing that was held was the one on April 5th in which the case was transferred from Harris to Montgomery County.

Thurgood Marshall:

From that moment on, did you ever go to the Court House in Montgomery County for any purpose?

Windell Porter:

Your Honor, I will just state what has been relayed to me.

As far as I understand and it is not in the record.

Unless it is in the deposition of Ms. Gladys Goffney, who was the attorney at that time, that efforts were made to find out what was going on in Montgomery County.

Thurgood Marshall:

But that doesn’t answer my question.

My question was did anybody represent these children, the parents or anybody in the family, at anytime go to the Court House where this case was transferred and ask anybody anything?

Windell Porter:

Your Honor, I cannot say specifically from my own knowledge that happened in respect to the parents.

Let me state as in respect to the children that had an attorney been appointed to represent the interest of the children at the initial —

Thurgood Marshall:

The answer is nobody.

Windell Porter:

No, sir.

Thurgood Marshall:

Well —

Windell Porter:

Not as to the parents.

Thurgood Marshall:

Well you’re saying all these, well I don’t know about who didn’t go, I want to know who did go?

Windell Porter:

As far as I know, no one sir.

I’d also like to point out that at that particular time, the only person, or the only persons whom we feel were adequately represented possibly at that time were the parents, because there was no attorney appointed and the Texas Statue did not require the appointment of an attorney to represent the children.

Yes, sir.

Thurgood Marshall:

Didn’t the parents come and get it there?

Windell Porter:

Yes sir, except that here –-

Thurgood Marshall:

So they could have gone, the case would have gone to Montgomery County.

Windell Porter:

They could have sir.

Warren E. Burger:

Where are these children now?

Windell Porter:

The children sir, were ordered, returned to their parents by the Federal court.

Warren E. Burger:

I suppose — how long were they in the custody of the State approximately.

Windell Porter:

They were in the custody of the State for 42 days.

Warren E. Burger:

42 days?

Windell Porter:

Yes sir.

Warren E. Burger:

By that time they probably were healed of the very serious wounds that are shown in these photographs.

Windell Porter:

Your Honor, I would like to point out that in the district court’s opinion that the court does state that there was never any evidence to show as to whether or not there was any abuse by the parents.

One of the things that happened immediately before the referral was made was that the father was at the school and he saw the child poking a pencil at a little girl and he told him to stop and the child did not stop and he paddled the child in the presence of the teacher.

Now Paul has stated and this is not in the record that he was paddled after his father left by the teacher who wanted to paddle him some more and I would just once again say that there was no determination by the Federal district court and no evidence presented as to whether or not there was any child abuse and I suppose that that would be something that would be issued, an issue in any pending state litigation.

Let me say this on the Woods case if I may.

I know what has become of the Woods case because I represent Ms. Woods again after the Court of Civil Appeals returned the child, Child Welfare reinstituted an action against her and that case is now pending, there is a final hearing now pending that case.

Warren E. Burger:

In Federal court or State court.

Windell Porter:

In State Court sir.

And I think that, the other thing that, the other reason why habeas corpus or any remedy say if there had been any pending proceeding would not be available was because in Texas by statute the ex parte orders maybe stepped, in other words if one goes into court and obtains a restraining order or an ex parte order, the statute fails to say how many you can have, however appellants have conceded to that affect and they are not contesting that, but that was one of the things that was an issue at that particular time because the court at that time had not made a determination as to whether or not the stacking where one order could be issued immediately almost after another order had been expired was unconstitutional either on its face or as applied.

The other thing is and I think that what’s happening with Mr. Woods is that this shows the likelihood of what may reoccur again.

This is not an isolated instance.

Appellant stated that the children are presented to the court.

They are not presented to the court, there was no presentation here.

As I said before we are not saying that if in the event that there is child abuse, that children should not be taken into custody but we are hoping and we are saying that should they be taken into custody then because of the fundamental rights involved because of the reciprocal rights between parents and children that a hearing should be held and that hearing should be held immediately in order to make some determination as to whether or not there is any validity say to the referral.

This was not there, by immediately sir, I would say as soon as practically possible.

Byron R. White:

Well the court below held the same day, isn’t it?

Windell Porter:

Your Honor if I may, there were two judgments and yes they did hold sir the same day.

However in the appendix, in letters passed between the appellants and the court, it does state and it does interpret that immediately or the same day has been interpreted and agreed to be 24 hours.

The Texas Department of Human Resources has gone as far as issuing directives.

I myself try these cases and we know that they have these hearings within 24 hours.

Byron R. White:

Suppose they picked up on Saturday night, when should the hearing be held?

Windell Porter:

Your Honor, there are two answers to that question.

One would be I suppose that because of the circumstances involved it should still be immediately.

The other would be to have the hearing on the next business or the next court day but it should be as soon as practically possible.

Warren E. Burger:

While your time —

Windell Porter:

I beg your pardon sir.

Thurgood Marshall:

Conroe is where Montgomery County is?

Windell Porter:

Yes sir, Conroe is a city in Montgomery County.

Okay thank you.

For those reasons I would ask that this court affirm the decision of the three judge district court.

Thurgood Marshall:

Do you have anything further Ms. Porter?

David H. Young:

Yeah.

Potter Stewart:

Before you start, do we by chance have any of the State Court appealing today, the State court proceedings in the file here?

David H. Young:

Not that I recall, I recall that the docket sheets are something were entered into evidence at the first Federal court hearing but I don’t recall that the pleadings themselves were entered.

Byron R. White:

I would have thought that might have been quite relevant to abstention issues to what the pleadings in the State courts were.

Well, but you don’t think the petitions for habeas corpus for example ever got into the record in the Federal court.

David H. Young:

Not that I recall.

Byron R. White:

I suppose they are available.

David H. Young:

Oh, certainly.

Byron R. White:

And I suppose you have copies in your own files of the pleadings in the state cases that were filed by the State.

David H. Young:

I have a five door file cabinet full of the things and I am sure it’s in there.

Byron R. White:

And you were probably served with the petition for habeas corpus too.

David H. Young:

I don’t believe so.

Well, there are many things in this case we’ve not been served with and I have no recollection.

Byron R. White:

So you have ways apparently.

We were interested in getting those pleadings as its —

David H. Young:

We could obtain them some how and submit them to the court.

Byron R. White:

I think it’ll be very good, it was an inquiry.

David H. Young:

I like the –

Byron R. White:

Well would you undertake to get them.

David H. Young:

I will.

Warren E. Burger:

The entire file.

David H. Young:

Or files as the case maybe.

Our files there maybe more files.

Warren E. Burger:

Not your files.

I want just the files in the original records.

Byron R. White:

I am interested — for myself, I am interested in the State’s pleadings, and any answers to them in the State cases and in the petition for habeas corpus that was filed.

David H. Young:

State’s pleadings are in the record.

Byron R. White:

In this record.

David H. Young:

I believe so.

Byron R. White:

Well not in the printed one —

David H. Young:

Not in the appendix but they are in the record, I understood the entire record is in there.

Byron R. White:

Well the entire record of the Three Judge court is here.

David H. Young:

Yes, I believe the State’s pleadings are there, I just do not specifically recall that the habeas —

Byron R. White:

But you don’t make the Federal habeas petition is here.

David H. Young:

I just now have, I am just reluctant to say this because I can’t specifically remember like I do remember the State’s pleadings.

Thurgood Marshall:

Now did you, did you get that from the County —

David H. Young:

I can get whatever files Harris or Montgomery County have, I assume that —

Byron R. White:

Perhaps we should examine the record here and then perhaps request from counsel copies what we need.

David H. Young:

Whichever be satisfied.

The answer to one of the questions about an open and shut case on habeas after ten days is yes.

When an order expires by the statute or by its own face, habeas, there is no need to, you can draft a habeas petition in any form you want and when.

Potter Stewart:

But not in the Court of Civil Appeal.

David H. Young:

But not in the Court of Civil Appeal, likewise a mandamus action for instance against a clerk would be brought in the District Court against a judge, it can be brought in the Supreme Court with original jurisdiction, you just have to get in the right place.

The issue as to why counsel at this argument right here, kept saying that the cases were transferred from Harris County to Montgomery County because Harris County didn’t have jurisdiction, that’s not why they were transferred.

They were transferred because Harris County didn’t have venue, Harris County did have jurisdiction, all that, all the rationale for that is in Judge Lowy’s deposition, which is also in the record in this case.

Potter Stewart:

Mr. Young Section 10 of the judgment says that Section 3408 is unconstitutional on its face and so far as it fails required reports and records of child abuse and neglect and so forth, he made available to the parents the subject of investigation, do I correctly understand you are not appealing from that.

David H. Young:

That is correct we are not appealing that.

Instead of answering some of the questions, the pictures are all of one child, Paul Sims.

Two were taken by the Child Welfare worker.

Three, by the police officer at the hospital, I don’t recall, which is, whether it’s two and three or three and two, but they are all of the same child, all within a very short span of time.

David H. Young:

The result of the Federal Court taking the view it did on abstention is of course that appellees get to litigate their constitutional claims, but nobody ever gets a hearing on the merits about what happened to this child or these children.

That’s what the state was after, that’s what the state repeatedly tried to get before the Federal Court.

The state even asked the Federal Court to being there and seeing how things were going, they even asked the Federal Court to appoint an ad litem for the child and it was denied, saying in affect why don’t you apply the same standard to yourself that you want us to follow with regard and the court didn’t do it.

With regard to the question of the motion to modify, appellants didn’t have anything to do with that.

The appellants are not the judge nor are they the District Court, normal procedure in Texas is if you file a pleading that requires a hearing is that would you go to the judge; any judge that was there in Harris County could have heard it.

It was true apparently that the judge that was there was reluctant to hear it, but there is no indication whatsoever that appellees went to him and asked him to hear it.

There is no indicate, all of the evidence is to the contrary that they fled Montgomery County to keep from having to hearing.

They said there is no hearing where they could raise all the issues, well the last thing they wanted was a hearing in Montgomery County.

They didn’t go to work.

The didn’t send the kids to school and they couldn’t be found.

The issue of whether or not an emergency order is appealed below and submit is answered by appellees own case.

The REW cite that I gave you earlier was in the Woods case, it says, at page 575 in volume 545 of Southwest Second.

An appeal could have been taken from the emergency order even though the appeal would not have stayed the order citing Section 1707 of the Family Code.

William J. Brennan, Jr.:

What is REW?

David H. Young:

REW is the State Court version of the Woods case, which was temporarily consolidated with this one and is now no longer consolidated.

It reversed the termination of criminal rights in that case, but it was on the factual insufficiency of the evidence.

There is a split in the different Courts of Civil Appeals in Texas as to whether or not all such temporary custody orders are appealable or not.

Thurgood Marshall:

(Inaudible)

David H. Young:

I suggest it should and that’s the place to resolve it and like this court one of the ways to get to the Texas Supreme Court is when there is a split in the circuit so to speak, that’s where that issue should be resolved.

With regard to CANRIS, the Child Abuse and Neglect Report and Inquiry System, the District Court didn’t say, the District Court’s opinion is not even internally consistent on this point, I don’t believe, they didn’t say we couldn’t make the investigations.

They didn’t say we couldn’t keep accusatory files.

They said we could keep investigated files, what they said was, you can’t store it and retrieve it electronically, that’s all, that’s all the opinion means on the Child Abuse and Neglect Report and Inquiry System and that is if we are here talking most of our time as we are about comity and federalism and allowing the state to go about its own business, if you can’t keep your files in the medium over your own choosing, then the Federal Courts have gone to meddling.

Byron R. White:

Could I ask you.

Was the petition for habeas corpus that was filed initially and then transferred to Montgomery County, was that petition ever acted on?

Was it ever denied?

David H. Young:

No, the normal course in Texas is if someone files a petition asking for relief they go to the judge to the clerk and get a hearing on it, and the Sims filed that petition and never asked for a hearing as far as the —

Byron R. White:

So it’s still sitting there.

David H. Young:

It is still there.

Byron R. White:

Of course if the children were ultimately returned anyway.

David H. Young:

And they were returned so long ago that it’s problematic whether we could do anything about it.

Warren E. Burger:

Well, that is moot now, isn’t it?

David H. Young:

That’s one of our contentions, yes.

The passage of time is just, we didn’t ask for termination in the first place and when we were only seeking temporary conservatorship over child to try to give him some help while he needs it.

Then once the time is passed where he needed it, there is not much point is us trying to do anything.

Warren E. Burger:

Thank you, Counsel.

The case is submitted.