                 United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                 _____________

                                 No. 96-1409EM
                                 _____________


United States of America              *
ex rel. Keith Mueller,*               *
for and on behalf of,                 *
and as parent and natural             *
Guardian of, Matthew A.               *
Mueller and Scott D.                  *
Mueller,                              *   On Appeal from the United
                                      *   States District Court
           Appellant,                 *   for the Eastern District
                                      *   of Missouri.
     v.                               *
                                      *
                                      *
Missouri Division of                  *
Family Services,                      *
                                      *
           Appellee.                  *

                                 ___________

                   Submitted:     April 17, 1997

                        Filed:   June 11, 1997
                                 ___________

Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and FAGG, Circuit
      Judges.
                              ___________


RICHARD S. ARNOLD, Chief Judge.




     *
      We have reproduced the caption here exactly as it appears in
the petition which initiated this proceeding in the District Court.
In fact, the United States has nothing to do with this case. This
is a privately initiated action, and we are aware of no authority
that permits the petitioner, Keith Mueller, to describe himself as
a "relator" or to designate the United States as a party.
        This is a petition for writ of habeas corpus under 28 U.S.C.   § 2241.
The petitioner, Keith Mueller, alleges that his two sons, Matthew A.
Mueller and Scott D. Mueller, are in the custody of an agency of the State
of Missouri, the Missouri Division of Family Services (DFS), and that their
custody is contrary to the Constitution of the United States.    The District
        1
Court       dismissed the case for want of jurisdiction.    The appellee, an
agency of the State of Missouri, has made no submission in this Court.      We
affirm.


                                      I.


        This case comes to us with a complicated procedural history in the
state courts.     We base our recitation of that history on the pleadings in
the District Court and on the opinion in a related state-court case, C.M.
v. K.M., 878 S.W.2d 55 (Mo. App. 1994).     In 1987, Keith Mueller sought sole
custody of his children, alleging that his former wife's new husband had
sexually abused them.        The trial court awarded temporary custody to
Mueller, but later modified the order to vest custody in DFS.          After a
hearing in February 1989, Judge Chancellor, sitting at the time in Division
15 of the Circuit Court for the City of St. Louis, awarded custody of the
children to Mueller, finding as a fact that Mueller's former wife's new
husband had sexually abused the children.     In May, Judge Chancellor heard
additional evidence that showed continued abuse, amended his visitation
order to restrict further the time the children could spend with their
mother, and transferred the case to the Juvenile Court.    The Juvenile Court
then entered an order




        1
      The Hon. Carol E. Jackson, United States District Judge for
the Eastern District of Missouri.

                                      -2-
explaining that it would retain jurisdiction over any new matters arising
in relation to the case.


     In 1992, Mueller's former wife filed a motion in the Juvenile Court
for a new custody trial or for an amendment of the judgment.    Her motion
alleged that the 1989 order was based on evidence that was misleading,
because Mueller allegedly had coached the children before they testified
and had failed to disclose pertinent evidence to his expert witness.   She
also alleged that new evidence existed of abuse that occurred six months
after the last contact between the children and her new husband, of
continuing abuse despite the children's separation from her husband, and
of disagreements between the children and Mueller regarding the alleged
abuse, resolved by his yelling at the children.    In total, she asserted,
the evidence supported an award of custody of the children to her.
     On January 8, 1993, Judge Baker, siting in the Juvenile Court,
granted the motion and remanded the case to Division 15 for a new trial.
On January 12, Judge Gallagher became the presiding judge of the Juvenile
Court, and issued an order confirming Judge Baker's remand order and noting
that the Juvenile Court no longer had jurisdiction over the matter.     On
January 18, Mueller appealed the new-trial order.      On January 25, the
children's mother filed a motion "nunc pro tunc" in the Juvenile Court that
asked the Court to have DFS assume legal and physical custody of the
children.   Judge Baker granted this motion.   On the basis of this order,
a DFS employee sought and obtained from Judge Gallagher, on March 30, an
order that the police take custody of the children and deliver them to DFS.
On April 8, the police found Mueller's children in St. Louis County and
took them to DFS in the City of St. Louis.


     On May 17, 1994, the Missouri Court of Appeals reversed the grant of
a new trial, holding that the mother had failed to comply




                                   -3-
with the evidentiary requisites, such as affidavits, necessary to support
her motion.       See C.M. v. K.M., supra, 878 S.W.2d at 59.       The court
therefore vacated both the remand order and the nunc pro tunc custody
order.      Id. at 60.


      The next day, however, a DFS employee petitioned the Juvenile Court
to   vest    custody of the children in DFS, alleging that Mueller had
emotionally abused the children.        The Court granted the petition and
awarded temporary custody to DFS.    The Court denied Mueller's subsequent
motion to dismiss, which asserted that the Court lacked jurisdiction, and
his alternative motion to transfer the case to the Juvenile Court for the
county in which Mueller then resided.     Mueller then petitioned for habeas
corpus relief, seeking to have DFS discharge his children, in the Circuit
Court for the City of St. Louis, the State's Court of Appeals, and its
Supreme Court, each of which denied Mueller's requested relief.
      In 1995 Mueller then filed this petition on behalf of his children
for a writ of habeas corpus in the District Court.      His petition alleged
that his children were being illegally restrained of their liberty by DFS.
He also alleged that his former wife's new-trial motion and subsequent nunc
pro tunc custody motion were entered without notice to him or a hearing,
that the judge issued his March 30 detention order without jurisdiction and
without notice or hearing, and that the May 18, 1994, order that relodged
custody of the children with DFS was entered without jurisdiction.     Thus,
contends Mueller, none of the custody orders pursuant to which DFS could
claim it holds the children is valid:    the first one was vacated on appeal;
the second was granted without jurisdiction, because the judge had no
related case pending before him, the children did not reside in the City
of St. Louis, and there was no notice or hearing; and the third was entered
without jurisdiction because the children were neither residents of the




                                    -4-
City nor lawfully present there.   Consequently, Mueller contends, the only
currently valid custody order is the one entered for him in 1989.


                                     II.


     The District Court, citing Lehman v. Lycoming County Children's
Services Agency, 458 U.S. 502 (1982), and Amerson v. Iowa, 59 F.3d 92 (8th
Cir. 1995) (per curiam), cert. denied, 116 S. Ct. 791 (1996), held that it
had no jurisdiction.    Lehman holds, in general, that federal courts have
no jurisdiction in habeas corpus to determine parents' right to custody of
their minor children, even if it is alleged that custody was obtained by
means that violate the Federal Constitution.   Mueller points to a footnote
in Lehman, in which the Supreme Court expressly reserved from its holding
the question of the "availability of federal habeas when a child is
actually confined in a state institution rather than being at liberty in
the custody of a foster parent pursuant to a court order."   458 U.S. at 511
n.12, 102 S. Ct. at 3237 n.12.


     We think that this Court's opinion in Amerson has effectively
resolved, at least for purposes of the present case, the issue reserved by
the Supreme Court in its Lehman footnote.   Amerson was a case much like the
present one.   A mother brought a petition for federal habeas corpus as next
friend for her son.    The son was in the custody of the Iowa Department of
Human Services, having been determined by a juvenile court to be a "child
in need of assistance," Iowa Code § 232.2(6)(c)(2) (1991).   We affirmed the
decision of the District Court to dismiss the habeas petition for want of
jurisdiction, and we did so even though the child had been placed in a
number of state institutions by order of the state court.          We said:
"Although [the child] has been housed in state




                                     -5-
institutions, we do not believe that he is 'in custody' within the meaning
of the habeas statute."   59 F.3d at 94.


     The child in Amerson, like the children in this case, had not been
incarcerated as punishment for crime, or as a consequence of a finding of
delinquency.   The State has assumed custody of Mueller's children because,
in the judgment of a state court, this is in the best interests of the
children.   What we said in Amerson is equally applicable here:


                  We also note that many of the prudential
            considerations discussed by the Supreme Court in
            Lehman are present in this case. See Lehman, 458
            U.S. at 512-15, 102 S. Ct. at 3237-39. Iowa has a
            great    interest   in   the    finality   of   its
            determinations related to the type of care and
            custody that is appropriate for M.H., and direct
            appellate review of the . . . custody process
            provides M.H. an adequate means for asserting his
            basic federal rights.     See Iowa Code § 232.133
            (1995) (providing for appellate review of decisions
            of juvenile courts); see also Lehman, 458 U.S. at
            511 n. 14, 515, 102 S. Ct. at 3237 n.14, 3239.


59 F.3d at 95.   This case involves essentially a family matter, a question
of the best interests of children, and the message of the Supreme Court in
Lehman and of this Court in Amerson is that federal habeas is, in general,
not available in such situations.         We therefore feel constrained by
precedent to agree with the District Court that there is no federal
jurisdiction in this case.


     Another matter deserves some comment.        The Missouri Division of
Family Services is the appellee in this Court.        It has, nonetheless,
virtually ignored this appeal.    It did not file a brief.   We entered an
order warning the Division that if it failed




                                    -6-
to file its brief by a certain extended date, fixed in the order, it would
be barred from later filing a brief, participating in oral argument, or
otherwise being heard in connection with the appeal.   There was no response
to this order.   Thus, the Division has won its case, but no thanks to any
efforts of its own.   We would like to think that this conduct on the part
of the Division, or its lawyers, was not consciously intended to show
disrespect for this Court.   We must say that this sort of conduct is not
what we expect of lawyers practicing before us.    The Clerk of this Court
is directed to send a copy of this opinion to the Governor and the Attorney
General of Missouri, for such action, if any, as they think appropriate.


     The judgment is affirmed.


     A true copy.


           Attest:


                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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