Winston ex rel. Winston v. Children & Youth Services of Delaware County

GARTH, Circuit Judge,

dissenting:

I cannot agree with the court’s disposition of the Winston claim. In my opinion, the Winstons’ claim is obviously moot, or, at the very least, the district court should have abstained from reaching a merits decision.

I

On December 28, 1989, almost two years ago, the Court of Common Pleas restored Samuel Jr. to the physical custody of his father. 1 Since that date, no question concerning the CYS visitation policy could arise, inasmuch as Samuel Jr. has resided with his father. 2 State court hearings reviewing Samuel Jr.’s custody continue, however, and are thus ongoing. 3 Samuel Jr.’s return to his father’s physical custody, therefore, immediately raises concerns as to whether the relinquishment of custody by Delaware County’s Children’s and Youth Services moots the Winstons’ entire action.

A.

To overcome mooting of an action, where a plaintiff seeks equitable relief for a past harm, the plaintiff must establish that the challenged harm was too short in duration to be litigated to conclusion during its pendency, and that the harm is capable of repetition yet evading review. See, e.g., Honig v. Doe, 484 U.S. 305, 318 , 108 S.Ct. 592, 601 , 98 L.Ed.2d 686 (1988). In assessing the likelihood that a plaintiff will again be subject to a given injury, the Court has generally been unwilling to assume that the party seeking relief will repeat the type of misconduct that placed him in the position underlying his claim. Id.

In Murphy v. Hunt, 455 U.S. 478 , 102 S.Ct. 1181 , 71 L.Ed.2d 353 (1982) (per cu-riam), Hunt, charged with first degree sexual assault, challenged the denial of his application for bail. Hunt claimed that the *1394 Nebraska Constitution’s limitation on bail in cases of first degree sexual offenses, violated his federal constitutional rights. The Court noted that his “claim to pretrial bail was moot once he was convicted,” id. at 481 , 102 S.Ct. at 1183 , and Hunt could not show a “reasonable expectation” or “demonstrated possibility,” id. at 483 , 102 S.Ct. at 1184 , that he would again “be in a position to demand bail before trial.” Id. at 484 , 102 S.Ct. at 1184 . The Court stated that it had “never held that a mere physical or theoretical possibility was sufficient to satisfy” the test that a harm be capable of repetition yet evading review. Id. at 482 , 102 S.Ct. at 1183-84 . See O’Shea v. Littleton, 414 U.S. 488, 497 , 94 S.Ct. 669, 676-77 , 38 L.Ed.2d 674 (1974) (unlikely that parties challenging discriminatory bond-setting, sentencing, and jury-fee practices would again violate valid criminal laws).

In light of Supreme Court precedents, I have serious concerns as to whether the Winstons have established a reasonable likelihood that they will be subject to the same circumstances, i.e., being deprived of Samuel Jr.’s custody, again. Honig, 484 U.S. at 318 , 108 S.Ct. at 601 . See Supp. Brief of Appellants at 5-7.

While Samuel Jr. has been returned to his father’s custody, the Winstons remain subject to the court-ordered supervision of CYS. Yet, for Samuel Jr.’s present custody status to be reversed, it would require his father to be arrested once again. It should be remembered that Winston Sr. had been arrested for what appears to be a most minor infraction. Indeed, the record discloses (A83-84) that he was arrested on a minor drug possession charge, that he was imprisoned in default of bail, that he was released from the Delaware County Prison eleven days later (A94) and that he was placed on probation.

Like the courts in Murphy and O’Shea , I am not prepared to concede or foresee the likelihood of Mr. Winston’s future involvements with the law, even though I acknowledge that Samuel Jr.’s mother may continue to forego future physical custody of Samuel Jr. by her continued abuse of alcohol and drugs. See City of Los Angeles v. Lyons, 461 U.S. 95, 109 , 103 S.Ct. 1660, 1669 , 75 L.Ed.2d 675 (1983) (capable of repetition doctrine applies “only in exceptional situations, and generally only where the ... plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality”); Cospito v. Heckler, 742 F.2d 72, 79 (3d Cir.1984) (case moot because no “reasonable expectation that the same complaining parties would be subject to the same action again”), cert. denied, 471 U.S. 1131 , 105 S.Ct. 2665 , 86 L.Ed.2d 282 (1985).

The Supreme Court’s discussion in Preiser v. Newkirk, 422 U.S. 395 , 95 S.Ct. 2330 , 45 L.Ed.2d 272 (1978) of the reasonable expectation of a wrong being repeated in the context of mootness is instructive. Newkirk had been incarcerated in a maximum security institution until 1971. He was then transferred to a medium security institution. In 1972, Newkirk, who had apparently agitated for a “prisoners’ union,” was transferred to a maximum security institution. He then brought a § 1983 action against the Superintendent of the medium security prison and against the State Commissioner of Correctional Services for a declaratory judgment that his transfer was in violation of the Constitution. He also sought an injunction prohibiting future transfers without a hearing. Subsequently, Newkirk was returned to Walkill, the medium security prison.

The district court held that Newkirk’s constitutional rights had been violated, but denied an injunction against future summary transfers. The Court of Appeals affirmed the district court with some modifications, and held that Newkirk’s action was not moot since Newkirk remained subject to a new transfer at any time.

Contrary to the Court of Appeals, the Supreme Court in holding that Newkirk’s action was moot, stated:

[A] federal court has neither the power to render advisory opinions nor “to decide questions that cannot affect the rights of litigants in the case before them.” Its judgments must resolve “ ‘a real and substantial controversy admitting of specific relief through a decree of *1395 a conclusive character, as distinguished from an opinion advising what the law would be on a hypothetical state of facts.’ ” ... “The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.”

Id. at 401 (citations omitted). The Court took note of circumstances strikingly analogous to the circumstances present in the Winstons’ case. Referring to Newkirk’s fear of retransfer to a maximum security institution, Chief Justice Burger wrote:

“Any subjective fear Newkirk might entertain of being again transferred, under circumstances similar to those alleged in the complaint, or of suffering adverse consequences as a result of the 1972 transfer, is indeed remote and speculative and hardly casts that ‘continuing and brooding presence’ over him that concerned the Court in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122 [ 94 S.Ct. 1694, 1698 , 40 L.Ed.2d 1 ] (1974).”

Here, the prospect of Winston Sr.’s rearrest is as “remote and speculative” as Newkirk’s fear of retransfer. Winston Jr. has now spent an uneventful two years in residence with his father and nothing appears of record which would bear out a claim that Winston Sr.’s rearrest, if it ever occurred, was “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id., quoting Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273 , 61 S.Ct. 510, 512 , 85 L.Ed. 826 (1941). 4

Thus, on the present record, no showing appears that there is a reasonable expectation that Winston Sr. will again be arrested and be unable to provide custodial care for Samuel Jr.

B.

Even if the assessment of Winston Sr.’s future arrest status is considered to be flawed, and the record is devoid of any evidence to that effect, nonetheless, the Winstons have not shown that their claims will evade review, an essential component of the mootness doctrine. 5 As the Supreme Court noted in DeFunis v. Odegaard, 416 U.S. 312 , 94 S.Ct. 1704 , 40 L.Ed.2d 164 (1974):

just because this particular case did not reach the Court until the eve of the petitioner’s graduation from law school, it hardly follows that the issue he raises will in the future evade review. If the *1396 admission procedures of the Law School remain unchanged, there is no reason to suppose that a subsequent case attacking those procedures will not come with relative speed to this Court.

Id. at 319 , 94 S.Ct. at 1707. The Winstons note in their initial brief to this Court that CYS’s visitation policy affects, at any given time, 175 to 200 children in Delaware County, or approximately 35 to 40% of the children in CYS out-of-home placements, and can last “for six months, ten months, fifteen months, and longer.” Brief of Appellant at 7 (citing A81-82). The Winstons’ term of restricted visitation was relatively brief when compared to the custodial terms of the other children, and there is no reason to think that another family, subject for a longer period of time to CYS’s visitation policy, will not successfully litigate a claim challenging it. 6

Moreover, Samuel Jr.’s custody has been, and is presently, the subject of constant state court review, see note 3, supra. Those court decrees have in each instance detailed the conditions and terms of Samuel Jr.’s custody. I am mindful that, in the event CYS, in the future, was to seek custody over Samuel Jr. once again, it would be obliged to do so through court proceedings in the Court of Common Pleas of Delaware County, Pennsylvania. Such proceedings would necessarily permit an immediate opportunity for either or both of Samuel's parents to challenge the frequency and extent of visitation rights. Hence, because of the state court’s conscientious and continuing supervision over Samuel Jr.’s custody, there can be no practical possibility of any claim made by the Winstons, respecting visitation rights, evading review.

I do not argue that the “evading review” criterion of the mootness doctrine can be satisfied by state court actions. I make reference to the supervision of the Common Pleas court over Samuel Jr.’s custody only to point out that, pragmatically, review of Samuel Jr.’s status has been constant, consistent and continuing, since his original custody by CYS.

In view of the return of Samuel Jr. to the legal custody of both parents and more particularly to the physical custody of his father, and in view of the resultant inapplicability of the challenged CYS visitation policy, and in view of the fact that the circumstances giving rise to Samuel Jr.’s custody by CYS are remote, speculative, and not foreseeable as being repeated, and would almost certainly not evade review, it is evident to me that the Winstons’ claims are moot. I would vacate the district court’s judgment in favor of the defendants and remand the case to the district court with instructions that it be dismissed. See United States v. Munsingwear, Inc., 340 U.S. 36 , 71 S.Ct. 104 , 95 L.Ed. 36 (1950). Cf. Clarendon v. Nu-West Industries, 936 F.2d 127 (3d Cir.1991) (Sloviter, C.J.).

II

A.

Although I am convinced under any test that this appeal has been mooted, I am not persuaded by Judge Sloviter’s opinion that we should nevertheless treat with the merits of the case.

It is clear to me that the district court should have abstained and remitted the proceeding to the state court for its determination. The majority opinion holds that because no cross-appeal was filed by CYS, we may not consider the issue of abstention as it is not preserved for appeal. (Maj. Op. at 1384-86).

Yet, in Rhoads v. Ford Motor Co., 514 F.2d 931, 934 (3d Cir.1975), Judge Aldisert, writing for our court, stated that the failure to file a cross appeal did not preclude our consideration of the particular issues:

While better practice would have dictated that Rhoads file a protective cross appeal, in these circumstances we will not allow his failure to file a notice of appeal to preclude our review of the record. In this respect, we follow the rule we recently invoked in a modified *1397 context: once appellate jurisdiction attaches, “ ‘the power of the court of appeals should be plenary to the extent that it chooses to exercise it. A court should not close its eyes to what is plainly there.’ ” McCreary Tire & Rubber Co. v. CEAT S.p.A., 501 F.2d 1032, 1038 (3 Cir.1974), [sic.] quoting 9 J. Moore, Federal Practice ¶ 110.25[1], at 273 (2d ed. 1973).

The authorities on which Judge Sloviter relies are not otherwise. None of those authorities denies that a Court of Appeals has plenary power “to the extent that it chooses to exercise it.” Even if Rhoads did not provide authority, as it indeed does, for us to consider abstention in our present context, we may still consider the issue of abstention, even without a cross appeal, because CYS neither seeks to increase its rights nor decrease the rights of the Winstons. See Scott v. University of Delaware, 601 F.2d 76 , 82 n. 12 (3d Cir.1979); 15 C. Wright & A. Miller, Federal Practice and Procedure, § 3904 (1976).

Here, CYS had fully prevailed in the district court, even though its contention that the district court should abstain had been rejected. Hence, CYS’s position may best be characterized as arguing that if the district court’s judgment in its favor is not affirmed, then we should instruct the district court to dismiss the action and abstain pursuant to Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1970), thereby leaving the state court available to resolve the interests of the parties. Nor can it be said that CYS is seeking in any way to lessen the rights of the Winstons. The district court ruled against the Win-stons on the merits and thus, at this stage, the Winstons have a judgment against them. The only result of abstention would be to permit the Winstons to litigate visitation issues in the state court — indeed, in the very state court that has been exercising continual supervision over the terms and conditions of Samuel Jr.’s custody.

Judge Adams in his concurrence in Scott v. University of Delaware, 601 F.2d 76, 91-92 (3d Cir.1979), also addressed the issue of an litigant who had prevailed in the district court but who had not cross-appealed:

Inasmuch as the purpose for filing a notice of appeal or notice of a cross appeal is to invoke appellate jurisdiction to review a judgment and to have the adversary notified that the judgment is being challenged. I see no reason to require the appellee to file a cross appeal in order to preserve a backup ground for protecting a judgment that has been rendered in its favor when an appeal has already been filed from that judgment. ... Such an appellee is likely to neglect to file a cross appeal because he is satisfied with the ultimate outcome of the trial.

Thus, under any authority, but particularly under Rhoads , it is plain to me that the issue of visitation, if not moot, as I believe it clearly is for the reasons which I have noted above, should be the subject of abstention under Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1970). The failure of CYS, which had received a favorable order from the district court, to file a cross-appeal, should not make us “close our eyes to what is plainly there,” see Rhoads, 514 F.2d at 934 ,—a matter of vital state concern presently being monitored by the Court of Common Pleas of Delaware County.

The cases cited by Judge Sloviter (Maj. Op. at 1385-86) for the proposition that CYS’s failure to cross-appeal constitutes a waiver of the abstention issue, hold no more than that we may exercise our equitable powers to rule on such an issue. The fact that Brown v. Hotel Employees, 468 U.S. 491 , 104 S.Ct. 3179 , 82 L.Ed.2d 373 (1984), McLaughlin v. Pernsley, 876 F.2d 308 (3d Cir.1989), and Wisniewski v. Johns-Mansville Corp., 812 F.2d 81 (3d Cir.1987) declined to entertain the merits of the “waived” claims in their particular cases cannot require us to decline consideration of the abstention issue here.

To the contrary, an appropriate exercise of our equitable powers pursuant to controlling precedent in this Circuit would require consideration of whether the district court should have abstained. See Scott v. *1398 University of Delaware, 601 F.2d 76 (3d Cir.1979); Rhoads v. Ford Motor Co., 514 F.2d 931 (3d Cir.1975). Rhoads and Scott furnish ample authority for us to entertain the merits of abstention even absent CYS’s cross-appeal.

Significantly, Judge Sloviter has neither addressed nor mentioned Rhoads or Scott in her “waiver” discussion. Had she done so, it is evident to me that she could not have concluded that, by failing to cross-appeal, CYS had waived the question of abstention.

Under the circumstances present here, a federal court should not intrude in the state processes involving family custody issues, but rather, should abstain.

The notion of “comity” includes “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.” ... Minimal respect for the state processes, of course, precludes any presumption that the state courts will not safeguard federal constitutional rights.

Middlesex Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 431 , 102 S.Ct. 2515, 2520-21 , 73 L.Ed.2d 116 (1982) (emphasis in original) (citations omitted).

Based on these principles, “[t]he Younger doctrine, which counsels federal court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff.” Moore v. Sims, 442 U.S. 415, 423 , 99 S.Ct. 2371, 2377 , 60 L.Ed.2d 994 (1979) (citing Younger v. Harris, 401 U.S. 37 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971)). A federal court should abstain in a case where a state proceeding involving important state interests is ongoing, in which the federal plaintiff had an opportunity to raise his or her federal claims. See Moore, 442 U.S. at 423-25 , 99 S.Ct. at 2377-78 . Because the Winstons are currently subject to ongoing state proceedings 7 that determine, on a continual basis, their custody and visitation rights as to Samuel, Jr., the district court should have abstained if the state’s interest in this litigation is strong, as it is, and if the Winstons had an opportunity to present their federal claims in state court.

B.

First, the Supreme Court has clearly established that “[fjamily relations are a traditional area of state concern.” Moore, 442 U.S. at 435 , 99 S.Ct. at 2383 . 8 In Moore , *1399 the Court held that, in light of pending state proceedings involving alleged instances of child abuse, a federal district court should not have exercised its jurisdiction in that case to hold various aspects of the Texas Family Code to be unconstitutional. Id. at 418 , 99 S.Ct. at 2374-75 . Following a report from school authorities, the Texas Department of Human Resources, (“Department”), took temporary custody of the three Sims children to protect them from physical abuse by their parents. Id. at 419 , 99 S.Ct. at 2375 . The Simses challenged the constitutionality of the state statute under which their children were placed in the Department’s custody, and, after a long and winding road through the state and federal courts, a three judge panel of the federal district court entered a preliminary injunction enjoining the Department from prosecuting any state proceeding under the challenged state statutes until the case was resolved by the three judge panel. Id. at 420-22 , 99 S.Ct. at 2375-77 . The district court ultimately concluded that Younger abstention was unwarranted in the case, and addressed the merits of the Sims’ due process challenges:

In holding that the federal district court should have abstained pursuant to Younger , the Supreme Court noted, among other things, that family relations are traditionally an area of state concern, that the state has a compelling interest in removing victims of child abuse quickly and effectively from their parents, and that “[w]e are unwilling to conclude that state processes are unequal to the task of accommodating the various interests and deciding the constitutional questions that may arise in child-welfare litigation.” Id. at 435, 99 S.Ct. at 2383 .

Here, as in Moore , the Commonwealth and its agency are parties to the state proceedings, and the temporary removal of a child from his or her parents for protective purposes is “ ‘in aid of and closely related to criminal statutes.’ ” Id. at 423 , 99 S.Ct. at 2377 (quoting Hoffman v. Pursue, Ltd., 420 U.S. 592, 604 , 95 S.Ct. 1200, 1208 , 43 L.Ed.2d 482 (1975)). The existence of such circumstances determines the applicability of Younger abstention in a federal action, Moore, 442 U.S. at 423 , 99 S.Ct. at 2377 , and the nature of the state’s interest in this case is indistinguishable from the state’s interest in Moore , where the court upheld that interest as paramount. Id. at 435 , 99 S.Ct. at 2383 . Pennsylvania, then, clearly has a strong interest in administering its child welfare procedures and in adjudicating controversies that arise from that administration, and this case is a classic example of the type of state interest which calls for Younger abstention.

C.

Second, the Winstons may be afforded a federal forum only if the state proceedings did not provide an adequate opportunity to present their federal claims, id. at 430, 99 S.Ct. at 2380-81 , and they must sustain the burden of showing that a state procedural law barred them from presenting those claims. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 , 107 S.Ct. 1519, 1527-28 , 95 L.Ed.2d 1 (1987). While the Winstons have broadly asserted that they had no opportunity to raise their federal claims at the state level, and have stated that their challenge to the CYS policy was not at issue in the state court hearings, they have done no more than offer these assertions. Supp. Brief of Appellant at 10, 12. They have pointed to no state rule or law that precluded them from putting their federal claims at issue in the ongoing state proceeding.

As the Court noted in Moore , the “question is whether [the] challenge can be raised in the pending state proceedings subject to conventional limits on justiciability.” Moore, 442 U.S. at 425 , 99 S.Ct. at *1400 2378 . Here, as in Moore , the state forum appears to be as accommodating as the federal courts and “abstention is appropriate unless state law clearly bars the interposition of the [federal] claims.” Id. at 425-26 , 99 S.Ct. at 2378-79 . See McTeague v. Sosnowski, 617 F.2d 1016, 1021 (3d Cir.1980) (“If deference to the state proceeding means that she will be unable to raise her concerns, abstention may be inappropriate.”). The Winstons have not met their burden of establishing that state procedures were inadequate for the adjudication of their federal claims, in that they had no opportunity to present those claims. See Moore, 442 U.S. at 430 n. 12, 99 S.Ct. at 2381 n. 12.

Although the Winstons in their abstention brief have made no claim that they could not present their federal contentions in the Pennsylvania Court of Common Pleas, the majority opinion nevertheless argues that “it is highly unlikely that the plaintiffs’ entire challenge encompassed in their federal section 1983 action would have been cognizable in the dependency/custody proceeding that was in progress in the Pennsylvania Court of Common Pleas.” (Maj.Op. at 1385-86).

The “highly unlikely” characterization adopted by the majority relies on the terms of 42 Pa.C.S.A. § 761(a) which provides that “[t]he Commonwealth Court shall have original jurisdiction of all civil actions or proceedings ... [ajgainst the Commonwealth government, including an officer thereof, acting in his official capacity.” Hence, the majority opinion concludes that because the Winstons challenge the DPW regulations, such a challenge would have to be mounted in the Commonwealth Court and could not be asserted in the Court of Common Pleas of Delaware County, which is the court that has been overseeing Samuel Jr.’s custody. Abstention, according to the majority opinion, would not lie, because the very visitation issue which the Win-stons desire to litigate could not be litigated in the Court of Common Pleas.

This argument, never advanced even by the Winstons, is governed by § 761(b), which although cited in the majority opinion (Maj.Op. at 1386), is never explained. Section 761(b) provides that the jurisdiction of the Commonwealth Court is not exclusive “with respect to actions or proceedings by the Commonwealth government, including any officer thereof, acting in his official capacity, where the jurisdiction of the court shall be concurrent with the several courts of common pleas.”

It must be remembered that the original action was commenced when CYS, a department of the Commonwealth, filed a Petition for Adjudication of Dependency of Samuel Jr. on July 7, 1989, in the Court of Common Pleas. It was the Winstons who brought the federal action, attacking the constitutionality of various regulations and policies. Therefore, Fawber v. Cohen, 516 Pa. 352 , 532 A.2d 429 (1987), cited in the majority opinion at p. 1386, which was an action brought by an individual against the Commonwealth in the Cumberland County Court of Common Pleas, is clearly inappo-site.

Here, the action that was brought in the Court of Common Pleas was brought by the Commonwealth against the Winstons. Hence, as I have pointed out, § 761(a) has no application, because that section only refers to actions brought against and not by the Commonwealth. Accordingly, § 761(b) is the relevant statute because it would apparently provide for concurrent jurisdiction in the Court of Common Pleas, and nothing appears that would preclude the Winstons from asserting their arguments in the Common Pleas Court. We therefore would not “undermine our precedent” (Maj.Op. at 1386) in ruling on the doctrine of abstention, inasmuch as we know of no authority which could bar abstention where all qualifications for abstention are met including jurisdiction in the state court where all claims may be litigated, particularly where § 761(b) affords concurrent jurisdiction.

D.

The Winstons argue, however, that abstention is inappropriate because their case consists primarily of a challenge to the CYS policy, rather than a broad challenge *1401 to a state statute. 9 The considerations to which the Court pointed as counseling abstention when broad-based challenges are made to state statutes, however, are the same considerations that counsel abstention here. See Moore, 442 U.S. at 428-29 , 99 S.Ct. at 2379-80 . 10

First, the Court pointed to Pullman concerns, i.e., that a federal court should not be forced to interpret state law without the benefit of state court consideration, such that the federal constitutional determination is not binding on the state courts, thus rendering the federal ruling effectively advisory in nature. Id. at 428 , 99 S.Ct. at 2379-80 . While there is not a weighty Pullman concern at issue here, the Win-stons argued in the district court that CYS’s policy was in violation of the state regulation, and the state court has not as yet had an opportunity to interpret the regulation. 11 The state court could even interpret it to preclude the agency policy that the Winstons challenge. Any federal ruling as to the federal constitutional or statutory validity of that policy would then have been meaningless.

Second, and more important to this case, the Court pointed to the “need for a concrete case or controversy.” Id. The Court noted that this concern is usually enhanced by the scope of the challenge. Id. Yet, it is abundantly clear that, in this case, the Winstons cannot point to a present injury-in-fact that would support the need for a federal court to resolve a concrete case or controversy. 12 Quite to the contrary. As I have pointed out, the action brought by the Winstons has been mooted out by Samuel Jr.’s return to his father’s custody. See Part I, supra.

Third, the court pointed to the concern for allowing state courts to be the principal expositors of state law. Moore, 442 U.S. at 429 , 99 S.Ct. at 2380 . While it is true that this concern may weigh more heavily when an entire state statutory scheme is at issue, it is not true that it is of no consequence at all when a “mere” regulation or policy is in question. As the state points out, if a statewide regulation or policy is to be interpreted, or especially if it is to be struck down, it is in the interest of comity that a state court rather than a federal court render such a ruling. 13 Thus if the Winstons’ action is not deemed moot and their appeal dismissed, as I believe it should be, I would alternatively vacate the district court’s order and remand the case to the district court with instructions to that court that it dismiss the Winston case without prejudice on the basis of abstention. See Williams v. Red Bank Board of Ed., 662 F.2d 1008 , 1022 (3d Cir.1981).

Ill

For the reasons that I have stated above in Part I, I believe that the Winstons’ action is clearly moot. Thus, I would dismiss their appeal. See Munsingwear, 340 U.S. at 36 , 71 S.Ct. at 104 .

Alternatively, I would vacate the judgment and remand the case with instructions that the district court dismiss the case *1402 without prejudice pursuant to the doctrine of abstention. See Williams, 662 F.2d at 1022. Because the majority of the court refuses to dismiss the Winstons’ appeal by reason of mootness or to direct the district court to dismiss the action by reason of abstention, I respectfully dissent.

. Since that date, the Court of Common Pleas has awarded legal custody of Samuel to both parents, although he remains solely in his father’s physical custody. See In the Interest of: Samuel Winston, unpublished order, J.V. #21033 (Court of Common Pleas of Delaware County March 12, 1991).

. At least as of October 1990, Maryann Winston’s visitation schedule with Samuel was governed by court order. See In the Interest of: Samuel Winston Jr., unpublished order, J.V. #21033 (Court of Common Pleas of Delaware County October 16, 1990) (setting out the terms of Mr. Winston's required cooperation with CYS):

H. That he only allow Mrs. Winston visitation with SAMUEL WINSTON, JR. when she is sober and under control and then in a neutral setting. Mr. Winston agrees to the following visitation schedule: 1. While Mrs. Winston is residing at Keystone Center, Mr. Winston will bring the children there every Saturday from 1:00 to 3:00 p.m. 2. While Mrs. Winston is residing at the halfway house or such other treatment center, Mr. Winston shall bring the children there every Saturday from 1:00 to 3:00 p.m. subject to the availability of transportation, being within a reasonable distance, and the regulations of the treating facility. If the visitation does not occur every week and the parties are not able to agree on alternative visitation, then either party may return to Court for a determination of this matter. 3. After two months from this date of October 16, 1990, Mr. Winston will allow Mrs. Winston to visit the children at their home or at a mutually agreeable neutral location which may include parks, restaurants, and malls every Saturday from 1:00 to 3:00 p.m. subject to Mrs. Winston’s continued treatment.

.After Samuel Jr. was taken into protective custody in June, 1989, a "right to detain” hearing took place on June 28, 1989, and was followed by another hearing and adjudication of dependency on July 11, 1989. The Winstons filed their federal action on August 23, 1989. Since that time, the state court has held review hearings on October 17, 1989, December 19, 1989, March 21, 1990, October 16, 1990 and March 12, 1991. A hearing had been scheduled for September, 1991, but was continued on court order to October 29, 1991.

. Both Judge Sloviter and I agree that the Win-stons’ injunctive claim is no longer viable in light of Samuel Jr.’s residence with his father. (Maj.Op. at 1384).

. Judge Sloviter, writing for the majority, relies upon Praxis Properties, Inc. v. Colonial Savings Bank, 947 F.2d 49 (3d Cir.1991) and Ameron, Inc. v. United States Army Corps of Engineers, 787 F.2d 875 (3d Cir.1986), in support of her holding that the issue of Samuel Jr.’s custody by CYS is capable of repetition yet will evade review. (Maj.Op. 1383-84). Praxis and Ameron both differ significantly from the circumstances presented here. Both Praxis and Ameron involved 90-day stay periods which had been exceeded and which could not be reviewed within the statutory time limits provided. In Praxis, RTC was entitled to a 90-day stay under 12 U.S.C.A. § 1821 (d)(12). In Ameron, the constitutionality of the 90-day automatic stay provision was at issue. Both 90-day stay provisions were held to be too short to ever be fully litigated and appealed. Thus, they were both held to satisfy the "evading review” requirement, just as in Roe v. Wade, 410 U.S. 113, 125 , 93 S.Ct. 705, 713 , 35 L.Ed.2d 147 (1973), it was held that the “266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete." Here, however, it has been almost two years since Samuel Jr.'s custody was returned to his father, and no event has occurred since that time which would disturb Samuel Sr.'s custody of his son. Hence, the characterization in the majority opinion, that Samuel Jr.’s custody is "temporary” and "evasion of review will ... occur time and time again” (Maj.Op. at 1384) has no basis in fact or evidence, and is postulated only to support the majority's erroneous conclusion that the issue of Samuel Jr.’s custody is not moot.

Moreover, a concern as to whether class certification should or should not have been granted cannot be the reason for a non-mootness determination, as the majority opinion has apparently held, see Maj.Op. at 1384. If an issue is moot, then it is moot regardless of whether other consequences may be deemed to flow from the court’s decision. If the district court might hereafter certify a class, such a decision can have no bearing on the present circumstances of Samuel Jr.’s custody, which, as I have discussed in text, is an issue that, at this time, does not present a case or controversy.

. The likelihood of a party completing litigation on such a claim appears especially high if viewed in light of a party's option to make a claim for damages.

. The custody proceedings by the Commonwealth against the Winstons are clearly "ongoing” or “pending” for purposes of the Younger doctrine because the Court of Common Pleas of Pennsylvania has retained jurisdiction over the custody of Samuel Jr., see note 3, supra.

Unlike McTeague v. Sosnowski, 617 F.2d 1016, 1020 (3d Cir.1980), where the parties were "in dispute about whether there is a state proceeding pending or whether the Family Court’s order was final,” the Winstons have not argued that the state court order is final, but merely that the "state case is presently being reviewed only one time every six months, and is, therefore, not ‘active’ or ongoing.” Supplemental Brief of Appellant at 10.

As I have earlier noted, the state proceeding is ongoing not only in the sense that the Court of Common Pleas is scheduled to review the case on October 29, 1991, but also in the sense that that court is prepared to review Samuel Jr.’s custody before that date at the request of any party. The Winstons' claim that the state proceeding is not ongoing is, therefore, without merit.

. See also United States v. Yazell, 382 U.S. 341, 352 , 86 S.Ct. 500, 506-07 , 15 L.Ed.2d 404 (1966) (In holding that, in the absence of specific federal legislation, federal interests should not override Texas state coverture rules, the Court noted that: "Both theory and the precedents of this Court teach us solicitude for state interests, particularly in the field of family and family-property arrangements. They should be over-ridden by the federal courts only where clear and substantial interests of the National Government, which cannot be served consistently with respect for such state interests, will suffer major damage if the state law is applied."), cited in, Lehman v. Lycoming County Children’s Services, 458 U.S. 502, 512 , 102 S.Ct. 3231, 3237-38 , 73 L.Ed.2d 928 (1982) (declining to extend federal writ of habeas corpus to challenges to state child-custody decisions).

See also In re Burrus, 136 U.S. 586, 597 , 10 S.Ct. 850, 854 , 34 L.Ed. 500 (1890) (district court *1399 did not have jurisdiction over case concerning family relationships and child custody): Solomon v. Solomon, 516 F.2d 1018, 1024-26 (3d Cir.1975) (District court had no jurisdiction in domestic relations action for nonsupport filed in federal court on basis of diversity because of "domestic relations doctrine,” which is that generally, "the federal courts do not have jurisdiction in domestic relations suits,” based on "modern view" that “state courts have historically decided these matters and have developed both a well-known expertise in these cases and a strong interest in disposing of them.”).

. It is true that the Moore court does indicate that the sweeping nature of a broad challenge to a complex statutory scheme “has traditionally militated in favor of abstention, not against it." Moore, 442 U.S. at 427 , 99 S.Ct. at 2379 (emphasis in original). This observation, however, was a comment upon the district court’s intimation to the contrary, and cannot be read to mean that abstention is not required where a challenge to a state regulation and policy is made on relatively narrow grounds.

. They also argue in passing that abstention is inappropriate because they raise a federal statutory, as well as a constitutional challenge. While Moore does speak of constitutional claims, the Winstons provide no basis for their suggestion that federal statutory challenges are not subject to the analysis of Moore .

. See A5 n. 1 and A7 n. 4. While the district court took note of this state law claim, it did not dispose of it in any way.

. Samuel Jr. has been returned to the custody of his father, and the Winstons are not currently subject to the CYS policy as to biweekly visitation. See supra § I for discussion of mootness.

. While a showing of bad faith or harassment or other sources of “great, immediate, and irreparable harm” may require a federal court to intervene, the Winstons have made no such allegation here. See Moore, 442 U.S. at 432-33 , 99 S.Ct. at 2381-82 .