LEHMAN v. LYCOMING COUNTY CHILDREN’S SERVICES, 458 U.S. 502 (1982)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 80-2177.
Argued March 30, 1982 Decided June 30, 1982

Petitioner voluntarily placed her three sons in the legal custody of respondent county agency, which in turn placed them in foster homes. Thereafter, a Pennsylvania state court terminated petitioner’s parental rights with respect to her sons because of parental incapacity, and the Pennsylvania Supreme Court affirmed. Petitioner then filed an action in Federal District Court, seeking a writ of habeas corpus under 28 U.S.C. § 2254(a), which requires a district court to entertain an application for such a writ in behalf “of a person in custody” pursuant to a state-court judgment in alleged violation of the Federal Constitution. She requested a declaration of the invalidity of the Pennsylvania statute under which her parental rights were terminated and an order releasing her sons to her custody. The District Court dismissed the petition on the ground that respondent’s custody over petitioner’s sons was not the type of custody to which § 2254(a) may be addressed. The Court of Appeals affirmed.

Held: Section 2254(a) does not confer jurisdiction on federal courts to consider collateral challenges to state-court judgments involuntarily terminating parental rights. Pp. 508-516.

(a) Although the scope of the federal writ of habeas corpus has been extended beyond that which the most literal reading of the statute might require, the writ has not been considered a generally available federal remedy for every violation of federal rights. The writ’s availability has been limited to challenges to state-court judgments in situations where, as a result of a state-court criminal conviction, a petitioner has suffered substantial restraints not shared by the public generally, and the petitioner has been found to be “in custody” within the meaning of § 2254(a). Here, petitioner’s children are not in the “custody” of the State in the way in which this term has been used in determining the availability of the writ of habeas corpus. They are in the “custody” of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. They suffer no restraint on liberty not shared by the public generally, cf. Jones v. Cunningham, 371 U.S. 236; Hensley v. Municipal Court,

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411 U.S. 345, nor do they suffer “collateral consequences” sufficient to outweigh the need for finality, cf. Carafas v. LaVallee, 391 U.S. 234. To extend the federal writ to challenges to state child-custody decisions based on alleged constitutional defects collateral to the actual custody decision would be an unprecedented expansion of the jurisdiction of the federal courts. Pp. 508-512.
(b) Federalism and the exceptional need for finality in child-custody disputes also argue strongly against the grant of the writ here. Extended uncertainty for the children would be inevitable in many cases if federal courts had jurisdiction to relitigate state custody decisions. Pp. 512-514.
(c) Habeas corpus has been used in child-custody cases in many States and in England, and 28 U.S.C. § 2255, authorizing federal-court collateral review of federal decisions, could be construed to include the type of custody to which petitioner’s children are subject. But reliance on what may be appropriate within the federal system or within
a state system is of little force where, as in this case, a state judgment is attacked collaterally in a federal court. Petitioner would have the federal judicial system entertain a writ that is not time-barred to challenge collaterally a final judgment entered in a state judicial system. Pp. 514-515.

648 F.2d 135, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, REHNQUIST, STEVENS, and O’CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 516.

Martin Guggenheim argued the cause for petitioner. With him on the brief was Burt Neuborne.

Charles F. Greevy III argued the cause and filed a brief for respondent.

JUSTICE POWELL delivered the opinion of the Court.

The question presented is whether the habeas corpus statute, 28 U.S.C. § 2254, confers jurisdiction on the federal courts to consider collateral challenges to state-court judgments involuntarily terminating parental rights.

I
The facts of this case are described in detail in In re William L., 477 Pa. 322, 383 A.2d 1228, cert. denied sub nom.

Page 504

Lehman v. Lycoming County Children’s Services, 439 U.S. 880
(1978), the Pennsylvania Supreme Court decision terminating the parental rights of petitioner Marjorie Lehman with respect to three sons born in 1963, 1965, and 1969.[1] In 1971, Ms. Lehman discovered that she was pregnant again. Because of housing and other problems related to the care of her sons, Ms. Lehman voluntarily placed them in the legal custody of the Lycoming County Children’s Services Agency, and it placed them in foster homes.

Although Ms. Lehman visited her sons monthly, she did not request their return until 1974. At that point, the Lycoming County Children’s Services Agency initiated parental termination proceedings. In those proceedings, the Orphan’s Court Division of the Lycoming County Court of Common Pleas heard testimony from Agency caseworkers, a psychologist, nutrition aides, petitioner, and the three sons.[2]
The judge concluded: “[I]t is absolutely clear to the court that, by reason of her very limited social and intellectual development combined with her five-year separation from the children, the mother is incapable of providing minimal care, control and supervision for the three children. Her incapacity cannot and will not be remedied.”[3] In re Lehman, Nos. 2986, 2987, and 2988, p. 4 (Ct. Common Pleas, Lycoming County, Pa., June 3, 1976).[4] The court therefore

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declared that petitioner’s parental rights respecting the three sons were terminated.

The Pennsylvania Supreme Court affirmed the termination order based on “parental incapacity, which does not involve parental misconduct.” In re William L., supra, at 331, 383 A.2d, at 1232. It held that the legislature’s power to protect the physical and emotional needs of children authorized termination in the absence of serious harm or risk of serious harm to the children and in the absence of parental misconduct. The court stressed that, “[i]n the instant cases, the basis for termination is several years of demonstrated parental incapacity . . . .” Ibid. It also held that the statute was not unconstitutionally vague either on its face or as applied.

Petitioner sought this Court’s review in a petition for certiorari rather than by appeal.[5] We denied the petition Lehman v. Lycoming County Children’s Services, 439 U.S. 880
(1978). Petitioner then filed the instant proceeding on January 16, 1979, in the United States District Court for the Middle District of Pennsylvania, seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2241 and 2254. Petitioner requested (i) a declaration of the invalidity of the Pennsylvania statute under which her parental rights were terminated; (ii) a declaration that petitioner was the legal parent of the children; and (iii) an order releasing the children to her custody unless within 60 days an appropriate state court judicially determined that the best interest of the children required that temporary custody remain with the State.

The District Court dismissed the petition without a hearing. Relying primarily on Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103 (CA1 1978), the court concluded that “the custody maintained by the Respondent over the three Lehman children is not that type of custody to which the federal habeas corpus remedy may be addressed.”Lehman v. Lycoming County Children’s Services Agency, Civ. No. 79-65 (MD Pa. 1979), reprinted in App. to Pet. for Cert. 135a, 147a.

Sitting en banc, the Court of Appeals for the Third Circuit affirmed the District Court’s order of dismissal by a divided vote of six to four. 648 F.2d 135 (1981). No majority opinion was written. A plurality of four, in an opinion written by Judge Garth, concluded that “disputes of the nature addressed here and which essentially involve no more than the question of who shall raise a child to maturity, do not implicate the federal interest in personal liberty sufficiently to warrant the extension of federal habeas corpus.” Id., at 146. In support of this conclusion, Judge Garth reasoned that “[i]t is not the liberty interest of the children that is sought to be protected in such a case, but only the right of the particular parent to raise them.” Id., at 140 (footnote omitted).

A second plurality of four, in an opinion written by Judge Adams wrote that it “would appear to be both unwise and impolitic for the federal courts to uncover a whole new font of jurisdiction. . . .” Id., at 151. He would have disposed of the case on the ground that Ms. Lehman did not have standing

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to assert a habeas corpus action on behalf of her children. See id., at 151-155. This view was based on the conclusion that once a parent’s rights have been terminated in a state proceeding, a parent is no longer presumed to represent the interest of the child. See id., at 153-154.[6]

The question presented to this Court can be stated more fully as whether federal habeas corpus jurisdiction, under § 2254, may be invoked to challenge the constitutionality of a state statute under which a State has obtained custody of children and has terminated involuntarily the parental rights of their natural parent. As this is a question of importance not heretofore considered by this Court, and one over which the Circuits are divided,[7] we granted certiorari. 454 U.S. 813
(1981). We now affirm.

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II A
Petitioner seeks habeas corpus collateral review by a federal court of the Pennsylvania decision. Her application was filed under 28 U.S.C. § 2254(a):

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

Although the language of § 2254(a), especially in light of § 2241, suggests that habeas corpus is available only to challenge the convictions of prisoners actually in the physical custody of the State,[8] three modern cases have extended it to other situations involving challenges to state-court decisions.[9]

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The first of these cases is Jones v. Cunningham, 371 U.S. 236 (1963), in which the Court allowed a parolee to challenge his conviction by a habeas petition. The Court considered the parolee in “custody” for purposes of § 2254(b) because “the custody and control of the Parole Board involve significant restraints on petitioner’s liberty . . . which are in addition to those imposed by the State upon the public generally.”371 U.S., at 242. And in Carafas v. LaVallee, 391 U.S. 234 (1968), the Court allowed the writ in a challenge to a state-court judgment even though the prisoner, incarcerated at the time the writ was filed, had finished serving his sentence during the proceedings. The custody requirement had, of course, been met at the time the writ was filed, and the case was not moot because Carafas was subject to “`collateral consequences'” as a result of his conviction, id., at 237, and “is suffering, and will continue to suffer, serious disabilities . . . .” Id., at 239. Most recently, in Hensley v Municipal Court, 411 U.S. 345 (1973), the Court allowed the writ to be used to challenge a state-court conviction even though the defendant had been released on his own recognizance after sentencing but prior to the commencement of his incarceration. The Court held that the defendant was in the custody of the State for purposes of § 2254(b) because he was “subject to restraints `not shared by the public generally,'”411 U.S., at 351 (citation omitted) — indeed, his arrest was imminent.[10]

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Thus, although the scope of the writ of habeas corpus has been extended beyond that which the most literal reading of the statute might require, the Court has never considered it a generally available federal remedy for every violation of federal rights. Instead, past decisions have limited the writ’s availability to challenges to state-court judgments in situations where — as a result of a state-court criminal conviction — a petitioner has suffered substantial restraints not shared by the public generally. In addition, in each of these cases the Court considered whether the habeas petitioner was “in custody” within the meaning of § 2254.[11]

Ms. Lehman argues that her sons are involuntarily in the custody of the State for purposes of § 2254 because they are in foster homes pursuant to an order issued by a state court. Her sons, of course, are not prisoners. Nor do they suffer any restrictions imposed by a state criminal justice system. These factors alone distinguish this case from all other cases in which this Court has sustained habeas challenges to state-court judgments. Moreover, although the children have been placed in foster homes pursuant to an order of a Pennsylvania court, they are not in the “custody” of the State in the sense in which that term has been used by this Court in determining the availability of the writ of habeas corpus. They are in the “custody” of their foster parents in essentially the same way, and to the same extent, other children are in the custody of their natural or adoptive parents. Their situation in this respect differs little from the situation

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of other children in the public generally; they suffer no unusual restraints not imposed on other children. They certainly suffer no restraint on liberty as that term is used i Hensley and Jones, and they suffer no “collateral consequences” — like those in Carafas — sufficient to outweigh the need for finality. The “custody” of foster or adoptive parents over a child is not the type of custody that traditionally has been challenged through federal habeas.[12] Ms. Lehman simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights.[13]

Although a federal habeas corpus statute has existed ever since 1867, federal habeas has never been available to challenge parental rights or child custody.[14] Indeed, in two cases, the Court refused to allow the writ in such instances Matters v. Ryan, 249 U.S. 375 (1919); In re Burrus, 136 U.S. 586 (1890). These decisions rest on the absence of a federal question, but the opinions suggest that federal habeas corpus is not available to challenge child custody. Moreover,

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federal courts consistently have shown special solicitude for state interests “in the field of family and family-property arrangements.”United States v. Yazell, 382 U.S. 341, 352
(1966). Under these circumstances, extending the federal writ to challenges to state child-custody decisions — challenges based on alleged constitutional defects collateral to the actual custody decision — would be an unprecedented expansion of the jurisdiction of the lower federal courts.[15]

B
Federalism concerns and the exceptional need for finality in child-custody disputes argue strongly against the grant of Ms. Lehman’s petition.[16] The writ of habeas corpus is a major exception to the doctrine of res judicata, as it allows relitigation of a final state-court judgment disposing of precisely the same claims. Because of this tension between the State’s interest in finality and the asserted federal interest, federal courts properly have been reluctant to extend the

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writ beyond its historic purpose. As Judge Campbell noted in Sylvander v. New England Home for Little Wanderers:

“Federal habeas involves a substantial thrust by the federal system into the sphere normally reserved to the states and hence a change in the federal-state balance. This is so because the federal habeas remedy, as recently fashioned, offers a federal forum regardless of what state proceedings have already taken place and in effect allows a single federal district judge to overrule the judgment of the highest state court, unfettered by the constraints of collateral estoppel and res judicata.” 584 F.2d, at 1111-1112.[17]

The State’s interest in finality is unusually strong in child-custody disputes. The grant of federal habeas would prolong uncertainty for children such as the Lehman sons, possibly lessening their chances of adoption. It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child’s sound development as uncertainty over whether he is to remain in his current “home,” under the care of his parents or foster parents,

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especially when such uncertainty is prolonged. Extended uncertainty would be inevitable in many cases if federal courts had jurisdiction to relitigate state custody decisions.[18]

III
Petitioner argues that habeas corpus should be available to her because it has been used as a procedure in child-custody cases in various States and in England. She notes that, i Jones v. Cunningham, 371 U.S., at 238-240, the Court indicated that in construing the habeas statute, reference may be made to the common law and to practices in the States and in England. It is true that habeas has been used in child-custody cases in England and in many of the States. See id., at 239-240, and n. 8, 12, and 13, citing Ford v. Ford, 371 U.S. 187 (1962); Boardman v. Boardman, 135 Conn. 124, 138, 62 A.2d 521, 528 (1948); Ex parte Swall, 36 Nev. 171, 174, 134 P. 96, 97 (1913); Ex parte M`Clellan, 1 Dowl. 81 (K. B. 1831) Earl of Westmeath v. Countess of Westmeath, as set out in reporter’s footnote in Lyons v. Blenkin, 1 Jac. 245, 264, 37 Eng. Rep. 842, 848 (Ch. 1821). As these cases illustrate, the term “custody” in 28 U.S.C. § 2255 — authorizing federal-court collateral review of federal decisions — could be construed to include the type of custody the Lehman children are subject to, since they are in foster homes pursuant to court orders. But reliance on what may be appropriate within the federal system or within a state system is of little force where — as in this case — a state judgment is attacked collaterally in a federal court. It is one thing to use a proceeding called “habeas corpus” in resolving child-custody disputes within a single system obligated to resolve such disputes.

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The question in such a case may be which procedure is most appropriate. The system is free to set time limits on the bringing of such actions as well as to impose other requirements to ensure finality and a speedy resolution of disputes in cases involving child custody or termination of parental rights. In this case, however, petitioner would have the federal judicial system entertain a writ that is not time-barred to challenge collaterally a final judgment entered in a state judicial system. In Sylvander v. New England Home for Little Wanderers, the Court of Appeals for the First Circuit gave a compelling answer to this argument:

“Federal habeas when applied to persons under state control is a procedure of unique potency within the federal-state framework, having far different and more far-reaching consequences than a state’s utilization of habeas within its own system. State utilization of habeas to test the legal custody of a child is part of the fabric of its reserved jurisdiction over child custody matters. If a habeas remedy were not provided, some other procedure would be needed to effectuate the state’s substantive interest in these relationships. It is purely a matter of procedural detail whether the remedy is called `habeas’ or something else. The federal government, however, has no parallel substantive interest in child custody matters that federal habeas would serve. The sole federal interest is in the constitutional issues collateral to such disputes. At bottom, the question is whether these constitutional issues can be adequately raised through the usual channels — appeal, certiorari and the civil rights statutes — or whether the vehicle of federal habeas, with its unique features, is required.” 584 F.2d, at 1111.

IV
The considerations in a child-custody case are quite different from those present in any prior case in which this Court has sustained federal-court jurisdiction under § 2254. The

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federal writ of habeas corpus, representing as it does a profound interference with state judicial systems and the finality of state decisions, should be reserved for those instances in which the federal interest in individual liberty is so strong that it outweighs federalism and finality concerns.[19] Congress has indicated no intention that the reach of § 2254 encompass a claim like that of petitioner. We therefore hold that § 2254 does not confer federal-court jurisdiction. The decision below, affirming the denial of a writ of habeas corpus, therefore is affirmed.

It is so ordered.

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

Although I can sympathize with what the Court seeks to accomplish in this case today, I cannot reconcile myself to its holding that “§ 2254 does not confer federal-court jurisdiction,”ante, this page, to consider collateral challenges to state-court judgments involuntarily terminating parental rights. In my view, the literal statutory requisites for the exercise of § 2254 federal habeas corpus jurisdiction are satisfied here — in particular, the requirement that petitioner’s children must be “in custody.” Because I believe the Court could have achieved much the same practical result in this area without decreeing a complete withdrawal of federal jurisdiction, I respectfully dissent.

I
Justice Black, speaking for a unanimous Court in Jones v Cunningham, 371 U.S. 236, 243 (1963), observed that the

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federal writ of habeas corpus “is not now and never has been a static, narrow, formalistic remedy.”

“While limiting its availability to those `in custody,’ the statute does not attempt to mark the boundaries of `custody’ nor in any way other than by use of that word attempt to limit the situations in which the writ can be used. To determine whether habeas corpus could be used to test the legality of a given restraint on liberty, this Court has generally looked to common-law usages and the history of habeas corpus both in England and in this country.” Id., at 238.

Even a brief historical examination of common-law usages teaches two lessons: first, for centuries, the English and American common-law courts have had the undisputed power
to issue writs of habeas corpus ordering the release of children from unlawful custody; and, second, those courts have exercised broad discretion in deciding whether or not to invoke that power in a given case. English common-law courts traditionally were authorized to order the release of minor children from unlawful custody.[1] Relying on the English tradition, American state courts very early asserted their own power to issue common-law habeas writs in child-custody matters. See generally Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi. L. Rev. 243, 270-274 (1965).

While acknowledging that “habeas has been used in child-custody cases in England and in many of the States,” ante, at 514, the Court suggests that a state court derives its authority

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to issue a writ of habeas corpus in such disputes not from the common law, but from “`the fabric of its reserved jurisdiction over child custody matters.'” Ante, at 515, quotin Sylvander v. New England Home for Little Wanderers, 584 F.2d 1103, 1111 (CA1 1978). While such a conclusion is not illogical, it is surely a historical. Contrary to the Court’s suggestion, it is not “`purely a matter of procedural detail whether the [state] remedy is called “habeas” or something else.'” Ibid. A state court’s traditional power to issue a writ of habeas corpus to free a confined child always has been derived directly from the nature of the writ, not from any reserved jurisdiction over child-custody matters.[2]

The codification of the writ into federal law indicates no congressional intent to contract its common-law scope. The sparse legislative history of the predecessor statute to 28 U.S.C. § 2254, the Habeas Corpus Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385, gave “no indication whatever that the bill intended to change the general nature of the classical habeas jurisdiction.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 476-477 (1963) (emphasis in original).[3] Nor, since

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that time, has this Court ever held that the congressional purpose originally underlying the statute barred use of the federal writ to free children from unlawful state custody.[4]
The Court’s more recent precedents have firmly established § 2254’s “in custody” requirement as its most flexible element, stressing that the test of “custody” is not present physical restraint, but whether “there are other restraints on a man’s liberty, restraints not shared by the public generally, which have been thought sufficient in the English-speaking world to support the issuance of habeas corpus.” Jones v Cunningham, 371 U.S., at 240.

Today the Court bows in the direction of this historical precedent only by leaving open the possible availability of federal habeas if a child is actually confined in a state institution, rather than in the custody of a foster parent pursuant to a court order.[5] Ante, at 511, n. 12. At the same time, however,

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the Court presents three reasons why federal courts lack “jurisdiction” to issue writs of federal habeas corpus to release children from the latter form of state custody. Not one of these reasons is sufficient to erect a jurisdictional, as opposed to a prudential, bar to federal habeas relief.[6]

First, the Court restrictively reads Jones v. Cunningham, supra; Carafas v. LaVallee, 391 U.S. 234 (1968); an Hensley v. Municipal Court, 411 U.S. 345 (1973), and deems those three cases to involve only substantial and unusual restraints suffered by individuals “as a result of a state-cour criminal conviction.” Ante, at 510 (emphasis added). Yet those decisions plainly drew no distinction between criminal

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and civil detention. To the contrary, they declared in unusually broad and expansive language that the habeas writ must be widely available “as a remedy for severe restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S., at 351.[7] Indeed, for its interpretation of the statutory “custody” requirement, Jones itself expressly relied on the fact that at common law, English courts had “permitted a parent to use habeas corpus to obtain his children from the other parent, even though the children were `not under imprisonment, restraint, or duress of any kind.'”371 U.S., at 239, citing Earl of Westmeath v. Countess of Westmeath, as set out in a reporter’s footnote in Lyons v. Blenkin, 1 Jac, 245, 264, 37 Eng. Rep. 842, 848 (Ch. 1821).

Second, the Court argues that children living with foster parents somehow are not in the State’s “custody” because “they suffer no unusual restraints not imposed on other children.” Ante, at 511. Yet because unadopted children whose ties with their natural parents have been severed are wards of the State, the State decides where they will live, reserves the right to move them to new physical settings at will, and consents to their marriage, their enlistment in the Armed Forces, as well as all major decisions regarding medical, psychiatric, and surgical treatment. See Tr. of Oral Arg. 7 and 18, citing 23 Pa. Cons. Stat. § 2521(c) (1980).

This Court has found the statutory concept of “custody” broad enough to confer jurisdiction on federal courts to hear

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and determine habeas applications from petitioners who have freely traveled across state borders while released on their own recognizance, Hensley v. Municipal Court, supra, and who are on unattached, inactive Army Reserve duty, Strait
v. Laird, 406 U.S. 341 (1972). Under these precedents, I have difficulty finding that minor children, who as state wards are fully subject to state-court custody orders, are not sufficiently and peculiarly restrained to be deemed “in custody” for the purposes of the habeas corpus statute. Cf Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 501 (1973) (opinion concurring in result); Hensley v. Municipal Court, 411 U.S., at 353 (opinion concurring in result). Equally important, “[w]ith respect to the argument, that some force or improper restraint must be used, in order to authorize the Court in removing an infant from the custody of any one,” historical authorities show that “it is not necessary that any force or restraint should exist on the part of the person having the custody of the infant towards it.” Ex parte M`Clellan, 1 Dowl. 81, 84 (K. B. 1831) (Patteson, J.). Accord: R. Hurd, A Treatise on the Right of Personal Liberty and on the Writ of Habeas Corpus 455 (1858); W. Church, A Treatise of the Writ of Habeas Corpus 555 (1886).

Third, the Court asserts that “[f]ederalism concerns and the exceptional need for finality in child-custody disputes argue strongly against the grant of Ms. Lehman’s petition.”Ante, at 512. While I am fully sensitive to these concerns, once again I cannot understand how they deprive federal courts of statutory jurisdiction to entertain habeas petitions. Although the Court’s decisions involving collateral attack by state prisoners against state criminal convictions have recognized similar federalism and finality concerns, they have never held that those interests erect jurisdictional bars to relief. To the contrary, the Court has carefully separated the question whether federal courts have the power to issue a writ of habeas corpus from the question whether “in some circumstances considerations of comity and concerns for the

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orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”Francis v. Henderson, 425 U.S. 536, 539 (1976). See als Stone v. Powell, 428 U.S. 465, 478, n. 11, and 495, n. 37 (1976) (“Our decision does not mean that the federal court lacks jurisdiction over such a claim . . .”); Fay v. Noia, 372 U.S. 391, 425-426 (1963).

II
As a matter of history and precedent, then, “[t]here can be no question of a federal district court’s power to entertain an application for a writ of habeas corpus in a case such as this. . . . The issue . . . goes rather to the appropriate exercise of that power.” Francis v. Henderson, 425 U.S., at 538-539. Cf. 648 F.2d 135, 155 (CA3 1981) (en banc) (Seitz, C.J., concurring). In my view, the difficult discretionary question in this case is whether, 11 years after petitioner voluntarily relinquished her sons to state custody and 4 years after the involuntary termination of her parental rights was affirmed on direct appeal, she remains a proper “next friend” to apply for the federal habeas writ on behalf of her natural children.

As amended in 1948, the federal habeas statute permits a third-party application for habeas relief only if it is “signed and verified by the person for whose relief it is intended or by someone acting in his behalf.” 28 U.S.C. § 2242 (emphasis added). “But one who so signs and verifies does not thereby become the applicant”; the person under detention remains the real party in interest. Nash ex rel. Hashimoto v. MacArthur, 87 U.S.App.D.C. 268, 270, 184 F.2d 606, 608
(1950), cert. denied, 342 U.S. 838 (1951). For that reason, the “next friend” application has been uncommonly granted, see Weber v. Garza, 570 F.2d 511, 513-514 (CA5 1978) United States ex rel. Bryant v. Houston, 273 F. 915, 916
(CA2 1921); United States ex rel. Funaro v. Watchorn, 164 F. 152, 153 (CC SDNY 1908), and has not been made available automatically even to the natural parents of a habeas

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petitioner. See, e. g., Evans v. Bennett, 467 F. Supp. 1108, 1110 (SD Ala. 1979). Cf. Gilmore v. Utah, 429 U.S. 1012, 1013-1014 (1976) (BURGER, C.J., concurring).

Historically, the English common-law courts permitted parents to use the habeas writ to obtain custody of a child as a way of vindicating their own rights. American common-law courts, however, soon relied on Lord Mansfield’s language in King v. Delaval, see n. 1, supra, to resolve custody disputes initiated by way of a habeas writ in a manner best adapted to serve the welfare of the child. See Oaks, Habeas Corpus in the States — 1776-1865, 32 U. Chi. L. Rev., at 270 and 274. Thus, the American common-law rule came to be that “the parent stands in court as the real party in interest, upon his natural right of parent; but he is liable to be defeated by his own wrongdoing or unfitness and by the demands and requirements of society that the well-being of the child shall be deemed paramount to the natural rights of an unworthy parent.” Hand, Habeas Corpus Proceedings for the Release of Infants, 56 Cent. L. J. 385, 389 (1903).

Similarly, the federal courts have interpreted the writ as being available only to serve the best interest of the child. “`When a party comes here, using the privilege of acting on the behalf and as the next friend of infants, it is his bounden duty to show that he really acts for the benefit of the infants, and not to promote purposes of his own.'” King v. McLean Asylum of Massachusetts General Hospital, 64 F. 331, 356
(CA1 1894), quoting Sale v. Sale, 1 Beav. 586, 587, 48 Eng. Rep. 1068, 1069 (1839). “[I]n such cases the court exercises a discretion in the interest of the child to determine what care and custody are best for it in view of its age and requirements.”New York Foundling Hospital v. Gatti, 203 U.S. 429, 439 (1906).[8]

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Against this historical background, then, I find most telling the Court’s observation that “Ms. Lehman simply seeks to relitigate, through federal habeas, not any liberty interest of her sons, but the interest in her own parental rights.” Ante, at 511. As the Court notes, the record reveals no evidence that any of the sons wanted to return to their natural mother. See ante, at 504, n. 2. Moreover, in filing her federal habeas petition, petitioner expressly did not seek to disturb the state trial court’s factual findings. See Brief for Petitioner 6. Those findings made “absolutely clear . . . that, by reason of her very limited social and intellectual development combined with her five-year separation from the children, [petitioner] is incapable of providing minimal care, control and supervision for the three children. Her incapacity cannot and will not be remedied.” In re William L., 477 Pa. 322, 345, 383 A.2d 1228, 1239-1240, cert. denied sub nom. Lehman v Lycoming County Children’s Services, 439 U.S. 880 (1978).

On such a record, I believe that the District Court could have found, as a discretionary matter, that petitioner had not made a sufficient showing that she acted in the interests of the children to warrant issuing her the writ as their “next friend.”[9] Indeed, I believe that the common-law habeas

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corpus tradition would have supported recognition of broad district court discretion to withhold the writ in all but the most extraordinary cases, where the district court had strong reason to believe both that the conditions of the child’s confinement unconstitutionally constrained that child’s liberty, and that release of the child to his natural parent very likely would serve the child’s best interest.

Such a ruling would not have been inconsistent with the Court’s decision today, which expressly bases denial of habeas relief on a need to reserve the federal writ “for those instances in which the federal interest in individual liberty is so strong that it outweighs federalism and finality concerns.”Ante, at 516. Indeed, I cannot understand why the Court’s explicit balancing approach yields a strict jurisdictional bar. A discretionary limit would have allowed the writ to issue only in those very rare cases that demanded its unique “capacity to . . . cut through barriers of form and procedural mazes.” Harris v. Nelson, 394 U.S. 286, 291 (1969). Because the Court overrides contrary history and precedent to find that habeas jurisdiction does not lie, I dissent.

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