Sims v. STATE DEPT. OF PUBLIC WELFARE, ETC.

This civil action is a challenge to the constitutionality of portions of Chapters 11, 14, 15, 17, and 34, Title 2, Texas Family Code, seeking declaratory, injunctive, and monetary relief. The plaintiffs in the Sims case are two adult parents and their three *1183 minor children who seek relief from the actions of the Harris County Child Welfare Unit of the State Department of Public Welfare. Additionally, the case of Woods v. Jimenez, Civil Action No. 76-H-1120, pending in this district, was consolidated with the Sims case solely on the issue of the right of indigent parents to counsel in suits for the termination of the parent-child relationship.

Pursuant to 28 U.S.C. §§ 2281, 2284, a three-judge district court was convened to determine the constitutional issues. The court has carefully considered the extensive briefs, the arguments of counsel, and the evidence presented, and concludes that the case is properly before the court for determination, that certain portions of the Texas Family Code are violative of minimal constitutional standards, and that appropriate declaratory and injunctive relief is necessary.

The threshold issue is that of abstention in light of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), Huffman v. Pursue, Ltd.; 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), and Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Having viewed the instant case with an eye to the notions of comity and federalism which underlie Younger’s policy of equitable restraint, this court concludes that abstention is not warranted and would be improper under the unique and compelling circumstances of this case.

A chronology of the events which precipitated the filing of this suit is necessary. In March, 1976, the Sims children lived with their parents in Montgomery County, Texas, and attended the John G. Osborne Elementary School in the Houston Independent School District, located in Harris County, Texas. On March 25, 1976, the Harris County Child Welfare Unit received a telephone report from the school that Paul Sims was possibly the victim of child abuse. In response to that call, caseworker Rex Downing, visited the school and, on the same date, took possession of the „three Sims children pursuant to Section 17.01 of Title 2 of the Texas Family Code. 1 The next day, March 26, the Child Welfare Unit instituted a “Suit for the Protection of a Child in an Emergency” pursuant to Chap *1184 ter 17, which was filed in Juvenile Court Number One of Harris County, Texas, Cause No. 38,295, and concerned all three of the Sims children. Also on March 26, 1976, Judge Robert L. Lowry of the Harris County Juvenile Court issued an ex parte order pursuant to Section 17.04, which has the effect of removing the children from the custody of their parents. Section 17.05 provides that such an order is of ten days in duration, and, upon the expiration of the order, the court is required to either order the restoration of the children to their parents or direct that a “Suit Affecting the Parent-Child Relationship” be filed.

On March 31, 1976, the plaintiff-parents sought to present to Judge Lowry a motion for modification of the March 26 Order, pursuant to Section 17.06. Although that section requires that a hearing be held on the motion, no hearing was in fact held. Rather, evidence before this court on May 5, 1976, indicates that the motion was not presented to Judge Lowry because of his temporary absence and was returned to counsel for the parents. Later on March 31, 1976, counsel for the parents filed with the Juvenile Court Number One, a petition for a writ of habeas corpus, Cause No. 1,069,341.

On April 5, 1976, a hearing was held before Judge Lowry on the parents’ petition for a writ of habeas corpus. This was the first time since their seizure that the children were brought before the court for any hearing and the first time the parents were given any opportunity to appear. However, the merits of the dispute were never addressed. At the April 5 hearing, Judge Lowry determined that the children were residents of Montgomery County and, despite their custody in Harris County, transferred the matter to Montgomery County. Later on April 5, at Judge Lowry’s direction pursuant to Section 17.05(b)(2), the Harris County Child Welfare Unit filed a “Suit affecting the parent-child relationship” in Harris County. This second petition by the current defendants was filed in the same Cause No. 38,295 as the original emergency suit filed under Chapter 17. Finally, on April 5, 1976, Judge Lowry issued another ex parte temporary order pursuant to Section ll.ll. 2 The order directed that the children continue in the possession of the Harris County Child Welfare Unit and purported to set a hearing upon its expiration. However, the order setting the hearing was entered in blank and to date the blanks have never been completed.

On April 6, 1976, the “Suit affecting the parent-child relationship” (Cause No. 38,-295), which supplanted the emergency suit, and the habeas corpus action (Cause No. 1,069,341) were officially transferred to the District Court of Montgomery County and assigned to the docket of Judge Ernest A. Coker, Sr. The transfer was apparently made sua sponte under Section 11.06(a) despite the requirement that it be transferred upon a timely motion. 3 It is stipulated that from April 6,1976, to May 5,1976, when the first hearing was conducted in this action, no notice, citation or process of any kind was served upon the plaintiff-parents with regard to the Montgomery County cases, nor were they afforded a hearing of any kind before the District Court of Montgomery County. During the entire time, the children remained in the custody of the Harris County Child Welfare Unit.

*1185 On April 19, 1976, the plaintiffs filed their Original Complaint in federal court. On May 4,1976, the plaintiffs filed a motion for leave to file an original petition for a writ of habeas corpus with the Texas Court of Civil Appeals for the 14th District, which was denied on the same date. The next day, the managing judge of the three-judge district court conducted an evidentiary hearing at which the court found that the children were not in the legal custody of the defendants because the ex parte temporary order under Chapter 17, dated March 26, and the ex parte order under Section 11.11, dated April 5, had both expired. The court ordered that the Sims children be returned to their parents, but did not enjoin the Department of Public Welfare from taking action under state law to properly establish a temporary conservatorship over the children. Therefore, on May 14, 1976, the Department of Public Welfare filed another “Suit affecting the parent-child relationship” in the Juvenile Court of Montgomery County. This action concerned Paul Sims only.

The Juvenile Court on May 14, 1976, established a temporary managing conservatorship for the child and set a hearing for May 21. On May 21, upon the motion of the plaintiffs, the managing judge of the three-judge panel temporarily enjoined the hearing in Montgomery County. Subsequently, after a hearing, the three-judge court extended the restraining order and enjoined any further state proceeding under the challenged statutes pending determination of the plaintiffs’ constitutional challenges.

I. ABSTENTION ISSUE

As a preliminary matter, the parties are in dispute as to whether there is a pending state action. Although the Chapter 15 action filed on May 14, 1976, was obviously not pending on the date the federal action was instituted, the original “Suit affecting the parent-child relationship” which was filed on April 5, 1976, and. transferred to Montgomery County from Harris County on April 6 was pending on April 19 and, along with the action filed on May 14, remains on the docket of the District Court of Montgomery County. The plaintiffs’ argument that there is no pending proceeding because the temporary orders have expired is therefore without merit. See Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). Although, as we note infra, there is no pending state judicial proceeding with regard to some aspects of the plaintiffs’ complaint, abstention must still be addressed because of the proceeding filed on April 5, 1976.

The extent to which Younger principles apply to a case where the pending state action is civil in nature is still unclear. The first acknowledged extension of Younger to civil cases involved a nuisance proceeding which was “more akin to a criminal prosecution than are most civil cases.” Huffman v. Pursue, Ltd., supra, 420 U.S. at 604, 95 S.Ct. at 1208. However, more recently, in Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977), and in Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977), the Supreme Court extended the coverage of Younger to an even broader range of civil cases. In each of the two most recent decisions, the court has reserved the issue of whether Younger principles apply to all civil cases. We believe that the facts of the instant case do not require abstention and, moreover, the nature of the constitutional challenge lodged against the questioned statutory scheme presents a compelling reason for this court to serve as the “primary and powerful” source for vindication of federally protected constitutional rights. Steffel v. Thompson, 415 U.S. 452, 464, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974).

In Huffman the Court emphasized that the fact that the state’s criminal process was not involved was not determinative. Rather, a federal court considering an injunction against a pending state proceeding must carefully weigh the notions of comity and federalism and allow the state to effectuate its own policies through “a forum *1186 competent to vindicate any constitutional objections interposed against those policies.” Huffman v. Pursue, Ltd., 420 U.S. at 604, 95 S.Ct. at 1208 (1975). The plaintiff in Huffman sought an injunction against the execution of a judgment entered in a pending nuisance action brought by the State of Ohio. Because such a federal injunction would disrupt “that State’s efforts to protect the very interests which underlie its criminal laws and to obtain compliance with precisely the standards which are embodied in its criminal laws,” abstention was required. 420 U.S. at 605, 95 S.Ct. at 1208. The Court, therefore, extended the Younger policies of nonintervention to civil cases where the Court could find that a federal injunction would be “an offense to the State’s interest . . . every bit as great as it would be were this a criminal proceeding.” 420 U.S. at 604, 95 S.Ct. at 1208. It was at this early stage of the evolution of Younger to civil cases, that this court issued its preliminary injunction on June 18, 1976.

Since Huffman, this court has received the Supreme Court’s guidance in Juidice and in Trainor, both expanding the original narrow application to civil cases in a manner requiring this court to carefully reflect on its judicial responsibilities with respect to the vindication of these plaintiffs’ constitutional rights.

In Juidice v. Vail, supra, Younger principles were held to prevent a federal court from enjoining a state judicial contempt proceeding on the basis of the weight to be given “a State’s interest in the contempt process, through which it vindicates the regular operation of its judicial system.” 430 U.S. at 335, 97 S.Ct. at 1217, 51 L.Ed.2d at 384. Acknowledging that such an interest is perhaps “not quite as important as is the State’s interest in the enforcement of its criminal laws, ... or even its interest in the maintenance of a quasi-criminal proceeding such as was involved in Huffman,” the Court labeled the interest in contempt proceedings as “of sufficiently great import.” 430 U.S. at 335, 97 S.Ct. at 1217, 51 L.Ed.2d at 384. In finding that “the contempt power lies at the core of the administration of a State’s judicial system,” 430 U.S. at 335, 97 S.Ct. at 1217, 51 L.Ed.2d at 384, the Court continued to concern itself with a pending state action which, like a criminal prosecution or nuisance proceeding, was unique to the governmental role of a state.

In Trainor v. Hernandez, supra, the Court appears to have expanded the types of state civil proceedings requiring the application of Younger principles. In Trainor the State of Illinois brought a civil action against the appellees seeking a return of welfare payments alleged to have been wrongfully received and sought a writ of attachment. The three-judge court enjoined the attachment and declared the Illinois Attachment Act to be unconstitutional. In remanding to the lower court for consideration of whether the attachment statute provides a debtor with a proper forum for his constitutional challenge, the Supreme Court noted that the principles of Younger and Huffman apply to injunctions against actions “brought by the State in its sovereign capacity,” 431 U.S. at 444, 97 S.Ct. at 1918, 52 L.Ed.2d at 496, rejecting the argument that attachment was not a remedy unique to the state and emphasizing, instead, that the state was a party to the attachment in its underlying role of administering public assistance programs. The Court concluded that a federal injunction’s “disruption of suits by the State in its sovereign capacity, when combined with a negative reflection on the State’s ability to adjudicate federal claims” dictated abstention unless “extraordinary circumstances were present.” 431 U.S. at 446, 97 S.Ct. at 1919, 52 L.Ed.2d at 497.

It is in this legal and factual setting that this court decides that Younger and its progeny do not require application of their principles to the current dispute between these plaintiffs and the State of Texas. Although Juidice and Trainor have expanded the types of civil cases to which Younger extends, it is clear that neither decision purports to apply Younger principles to all civil litigation between a state and its citi *1187 zens. Juidice, 430 U.S. at 338, 97 S.Ct. at 1218, 51 L.Ed.2d at 385 n. 13 (1977); Trainor, 430 U.S. at 338, 97 S.Ct. at 1918, 52 L.Ed.2d at 496 n. 8 (1977). From this we conclude that because of the wide range of interests and circumstances that could conceivably be present in a civil dispute, the proper role of a federal court is to carefully analyze each dispute individually with an equitable view toward the principles of comity and federalism and a careful study of the state action involved. 4 This court considers the Younger principles inapplicable here for two reasons: the nature of the state action and the nature of the plaintiff’s challenge.

First, the action taken by the State of Texas against the plaintiffs is multifaceted. Unlike a criminal prosecution, or a nuisance, contempt, or attachment proceeding, there is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds. Many of the challenged actions taken by the state do not and will not involve any judicial proceeding. 5 Certainly as to these, there is no pending state civil litigation about which even to consider abstention. The only pending state suit is the one pending in Montgomery County, filed on April 5, 1976. Because the dispute between the plaintiffs and the State of Texas concerns more than a single state judicial action to which plaintiffs could raise a constitutional defense, Younger principles are inapplicable. See Younger, 401 U.S. at 46, 91 S.Ct. 746 (1971). The entire statutory scheme by which Texas attempts to deal with the problem of child abuse has been challenged and should be viewed as an integrated whole. This court will not consider part of the scheme and abstain from another part. To do so would seriously jeopardize any hope for an effective statutory scheme and, in the name of comity and federalism, do violence to the state functions those principles seek to protect.

As a second independent basis for the inapplicability of Younger principles, we note that the plaintiffs’ constitutional challenge is directed primarily at the legality of the children’s seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate. See Gerstein v. Pugh, 420 U.S. 103,108 n. 9, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger. Cf. Newton v. Burgin, 363 F.Supp. 782 (W.D.N.C.1973), aff’d, 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974).

Even if the nature of the state action and the constitutional challenge were such as to require the application of Younger principles, it is clear that there exists here circumstances where, even though the principles are otherwise applicable, a federal court should not abstain. Certainly, the threatened injury to the plaintiffs is both great and immediate. As we note infra the constitutional issues raised by the plaintiffs reach the application of due process in an area of the greatest importance to our society, the family. The constitutional infirmities recognized by this court, if uncorrected, would cause an injury to these plaintiffs far greater than a deprivation of a mere property interest. Furthermore, it has been recognized that where, as here, the plaintiff may not raise all of his constitutional claims as a defense in a single state proceeding, the necessary irreparability is present. *1188 Younger v. Harris, 401 U.S. at 46, 91 S.Ct. 746 (1971). When reviewing a statute permitting the North Carolina authorities to take custody of children without a hearing under certain circumstances, the court in Newton v. Burgin, supra, observed that “the deprivation of custody prior to the civil proceeding is an irreparable injury which is both great and immediate . . . and . will not be dissipated in the state proceeding.”

Of course, we realize that the mere facial invalidity of a statute does not in itself justify federal interference. Younger v. Harris, 401 U.S. at 54, 91 S.Ct. 746 (1971); Huffman v. Pursue, Ltd., 420 U.S. at 602, 95 S.Ct. 1200 (1975). While it is clear that intervention is warranted where a statute is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence, and paragraph,” Watson v. Buck, 313 U.S. 387, 402, 61 S.Ct. 962, 967, 85 L.Ed. 1416 (1941), such a finding is not the only justification for federal action. In Younger the Court explained:

There may, of course, be extraordinary circumstances in which the necessary irreparable injury can be shown in the absence of the usual prerequisites of bad faith and harassment. For example, as long ago as the Buck case, supra, we indicated:

It is of course conceivable that a statute might be flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it. 313 U.S. at 402 [61 S.Ct. 962],

Other unusual situations calling for federal intervention may also arise, but there is no point in our attempting now to specify what they might be.

401 U.S. at 53-54, 91 S.Ct. at 755.

In addition to this court’s finding, infra, that several sections of the Texas Family Code are “flagrantly and patently” violative of federal constitutional requirements, the “unusual” circumstances referred to in Younger are present here and compel this court to grant equitable relief. Recognizing that more than a “highly unusual factual situation” must be present, Trainor v. Hernandez, 431 U.S. at 442, 97 S.Ct. at 1917-1918, 52 L.Ed.2d at 494-95 n.7 (1977), we find the confusion, the procedural irregularities, and the absence of a fair opportunity to present constitutional claims at a meaningful time to be such as to justify federal equitable relief even if Younger principles did apply.

As a general expression of the extraordinary and compelling circumstances present here, this court finds an absence for these plaintiffs of “an opportunity to fairly pursue their constitutional claims in an ongoing state proceeding.” Juidice, 430 U.S. at 338, 97 S.Ct. at 1218, 51 L.Ed.2d at 396 (1977) citing Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). 6 Unlike the plaintiff in Juidice, the Sims plaintiffs have not failed to avail themselves of any opportunities in the state procedures. Despite serious constitutional objections to its burden-of-proof requirement, the plaintiffs sought a modification of the original ex parte order pursuant to Section 17.06. Although mandated by the statute, no hearing was afforded them. Plaintiffs also sought to raise their objections in an application for a writ of habeas corpus, but, when they were prepared to seize this opportunity to be heard, the matter was transferred to Montgomery County, and, despite the parents’ presence in court earlier that day, the court issued another ex parte custody order and set a hearing in Montgomery County for an uncertain time in the future. Certainly, such efforts to earn an opportunity to be heard are more than sufficient before seeking relief in federal court on April 19, 1976.

The plaintiffs’ having sought through diligent efforts an opportunity to be heard in *1189 a state proceeding, this court must conclude that whatever opportunities exist for them are not such as to allow them to “fairly pursue” their constitutional objections. In reaching such a conclusion, we are mindful that “[t]he policy of equitable restraint . is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Kugler v. Helfant, 421 U.S. 117, 124, 95 S.Ct. 1524, 1531, 44 L.Ed.2d 15 (1975), quoted in Trainor, 431 U.S. at 434, 97 S.Ct. 1917, 52 L.Ed.2d at 494 (1977). Analogized to a civil dispute, no such premise can be found here. This court has already chronicled the attempts by the plaintiffs to receive any hearing in state court. The plaintiff-parents were separated from their children for a period of 42 days without a hearing — a period ended only-by an order of this court. The burdensome irregularities encountered by these plaintiffs in seeking a state forum for their constitutional claims illustrate to this court that in practice the state procedures operate in such a manner as to prevent or, at the very minimum, substantially delay the presentation of constitutional issues. Under such circumstances, abstention would be inappropriate. See, Developments — Section 1983, 90 Harv.L.Rev. 1133, 1325 (1977).

In addition to the apparent procedural futility of requiring the plaintiffs to proceed with the pending suit, the statutory scheme on its face fares no better. The very nature of the constitutional challenge here is to the fairness of the state procedure. Such being the case, especially when compounded by the irregularities present here, it “plainly appears” that the state forum would not offer these plaintiffs adequate protection in their challenge to the state procedures, even assuming all matters could be raised in a defense to the pending “Suit affecting the parent-child relationship.” Gibson v. Berryhill, 411 U.S. 564, 569, 93 S.Ct. 1689, 1693, 36 L.Ed.2d 488 (1973).

Therefore, because of the failure of the state to follow its procedures and because of the futile efforts of the plaintiffs to seek relief in the state system, 7 this court finds that there is for these plaintiffs no “opportunity to fairly pursue their constitutional claims in an ongoing state proceeding.”

Accordingly, this court holds that abstention is not required because Younger principles do not apply to this dispute between the plaintiffs and the State of Texas and, even if such principles do apply, there exist extraordinary circumstances which compel this court to provide a federal forum for the vindication of these plaintiffs’ constitutional rights. Having so decided, we must address the merits of the plaintiffs’ case.

II. MERITS

At the outset it must be noted that there is no dispute between the parties as to the gravity of child abuse and the compelling state interest in quickly and effectively removing the victims of child abuse from their parents. Similarly, the parties agree that where real, immediate, and irreparable physical harm is likely the state has an interest in taking so-called “emergency” *1190 possession of the children. The gravamen of the plaintiffs’ complaint is that in effectuating the legitimate state interest, the Texas Family Code does so in a manner which contravenes basic constitutional principles. They have mounted a broad-based challenge to Chapters 11, 14, 15, 17, and 34 of Title 2, Texas Family Code.

This court has, upon the advice of both parties, carefully viewed the challenged provisions as being interdependent. Briefly, the procedure under surveillance here begins with Chapter 34, which is concerned with the reporting of suspected child abuse and the initial investigative steps by the State Department of Public Welfare. Once suspected abuse is identified under Chapter 34, Chapter 17 enables the State to take possession of the victims for the “Protection of [a] Child in [an] Emergency.” 8 By the terms of Section 17.05(b)(2), the State may then institute a “Suit affecting the parent-child relationship.” This term of art is defined in Section 11.01(5) as

“a suit ... in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought.”

Such a suit, therefore, refers both to a Chapter 14 proceeding, in which the appointment of a conservator is sought, and to a Chapter 15 proceeding, which is entitled “Termination of the parent-child relationship.”

In the suit filed by these defendants at the direction of Judge Lowry, pending in Montgomery County, only Chapter 14 relief was being sought at the time the court issued the preliminary injunction. Consequently, the defendants have questioned the standing of the Sims parents to challenge the constitutionality of any part of Chapter 15. This court finds, however, that the spectre of a Chapter 15 suit involving the Sims family is sufficient to confer standing. See O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). The caseworker assigned to investigate the Sims family, Rex Downing, t