Petition for A Writ of Certiorari — Winston ex rel. Winston v. Children & Youth Services

Supreme Court brief1992

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

SAMUEL WINSTON, JR., a minor by his

parents, MARYANN AND SAMUEL WINSTON, SR.

and MARYANN WINSTON and SAMUEL WINSTON,

SR.,

Petitioners

Vv.

CHILDREN AND YOUTH SERVICES OF DELAWARE

COUNTY, H. SCOTT CAMPBELL, SANDRA

CORNELIUS, COUNTY OF DELAWARE and JOHN F.

WHITE, JR.,

Respondents

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Jon J. Auritt, Esquire

Counsel of Record

for Petitioners

130 E State Street

Media, PA 19063

(215) 565-7530

February 28, 1992

QUESTIONS PRESENTED FOR REVIEW

l. Whether the constitutional

professional judament standard of Youngberg as

applied to children in foster care placement

requires that child welfare agencies fashion

visitation plans that are individualized and

that seek to encourage and maximize contact

between these children and their parents

whenever appropriate, when the goal of the

agency is to reunify the family.

2. Whether parents and their children in

foster care placement have associational

rights under the First and Fourteenth

Amendments to the United States Constitution

which afford them a right to individualized

visitation plans, which seek to encourage and

maximize visitation whenever appropriate, when

the goal of the child welfare agency is to

reunify the family.

3. Whether 8671(a)(15)(B) of the federal

Adoption Assistance and Child Welfare Act, 42

U.S.C. 88670, et seg., which requires that

States make "reasonable efforts" to reunify

children in foster care placement with their

families, creates an enforceable right under

42 U.S.C. 81983 and/or under the Act itself to

individualized visitation plans which seek to

ipelasene and maximize contact between these

children and their parents whenever

appropriate, when the goal of the child

welfare agency is to reunify the family.

LIST OF PARTIES

The varties to the proceedings below were

Petitioners Samuel Winston, Jr., a minor by

his parents, Maryann and Samuel Winston, Sr.,

on behalf of himself and all others similarly

Situated, and Maryann Winston and Samuel

Winston, Sr., on behalf of themselves and all

persons similarly situated. Respondents

included Children and Youth Services of

Delaware County, H. Scott Campbell, Sandra

Cornelius, County of Delaware and John F.

White, Jr.

iii

TABLE OF CONTENTS

Page

GUBSL ECM PREBOMEGU sci ccc rcenesetocce sae 1

Dae UE CURR CS CK Ghee ON A eOS eae eee iii

ec Mee ogy Se ee 1v

Sues: Me RE Os 6 6 a0 0 8 0346 O ORR OS vil

re car ee ee 6 65s eS ene CO ee eee ee l

"FS oi ty oC RUN an ee re nee ae aa 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

oN ee eee ee ee ee ee ee ee ee eee eee ee 2

Sees Ur Ce COB e ck hkc oad bee eae ee ewes 5

REASONS FOR GRANTING THE WRIT.......... cece ll

I. THE CONSTITUTIONAL PROFESSIONAL

JUDGMENT STANDARD OF YOUNGBERG

AS APPLIED TO CHILDREN IN FOSTER

CARE PLACEMENT REQUIRES THAT

VISITATION PLANS FOR THESE CHILDREN

AND THEIR PARENTS BE INDIVIDUALIZED

AND FASHIONED IN SUCH MANNER AS TO

ENCOURAGE AND MAXIMIZE VISITATION

WHENEVER APPROPRIATE, WHEN THE GOAL

OF THE CHILD WELFARE AGENCY IS TO

oo) 5S gf iid gS gee eee Lo

A. The anonlication of the

Youn rq professional judgment

iil.

Page

Standard to determine the visitation

rights of children in foster care

placement raises an important question

of federal law which has not been, but

should be, settled by this

Gk b.0 eH as Oi ok bee bw ee ew ee 14

B. The lower court erred in holding

that the Youngberg professional judgment

standard does not require individualized

visitation plans that seek to encourage

and maximize the visitation of children

in foster care placement with their

ig Ls Peer e rT ere ee Te ee ee rae eee eee 18

PARENTS AND THEIR CHILDREN IN

FOSTER CARE PLACEMENT HAVE

ASSOCIATIONAL RIGHTS UNDER THE FIRST

AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION, WHICH

AFFORD THEM A RIGHT TO INDIVIDUALIZED

VISITATION PLANS WHICH SEEK TO

ENCOURAGE AND MAXIMIZE VISITATION

WHENEVER APPROPRIATE, WHEN THE GOAL

OF THE CHILD WELFARE AGENCY IS TO

ROEES SE PLU ok cea 6a eh eek e ens sss 23

SECTION 671(a)(15)(B) OF THE FEDERAL

ADOPTION ASSISTANCE AND CHILD WELFARE

ACT, 42 U.S.C. 8670, ET SEQ., WHICH

REQUIRES THAT STATES MAKE "REASONABLE

EFFORTS" TO REUNIFY CHILDREN IN FOSTER

CARE PLACEMENT WITH THEIR FAMILIES,

CREATES AN ENFORCEABLE RIGHT UNDER 42

U.S.C.81983 AND/OR UNDER THE ACT ITSELF TO

INDIVIDUALIZED VISITATION PLANS WHICH SEEX

TO MAXIMIZE CONTACT BETWEEN THESE CHILDREN

AND THEIR PARENTS WHENEVER APPROPRIATE,

siete

Page

WHEN THE GOAL OF THE CHILD WELFARE AGENCY

IS TO REUNIPY THE PAMILY....cccccccccvess 26

A. The lower courts are in need of

guidance in interpreting the parameters

of the “reasonable efforts" provision,

§8671(a)(15)(B), of the

B. The lower court erred in holding

that the "reasonable efforts" provision,

§671(a)(15)(8), of the AAA. does not

create an enforceable right to

individualized visitation plans which

seek to encourage and maximize contact

between children in foster care

placement and their

DREONSS oc ccc receeseseceseesececsecees 33

C. The interpretation of the

"reasonable efforts" provision

§671(a)(15)(B), of the AAA to include

visitation rights would not “open the

flood gates" to federal court litigation

and would not unduly interfere in the

internal operations of local child

WOLERES AGENCIES... wccccsscnssscecsecsss 38

CONCLUSION... ccc ccc cnccccncccnseccccsccesseseces 40

APPENDIX... ccc ccc ccc ccc csenececseseceseeeenceses

Opinion and Judament of the Court

CE AGMORLGs occ cccceceeeesecesessasecesesess la

Memorandum and Order of the District

TABLE OF AUTHORITIES

CASES Page

Aristotle P. v. Johnson. 721 F.Supp. 1002

(N.D. Zak, 1989) *eeeeeeeeeeeeeseeeeeeee SE shicé@4e4

Artist M., et al. v. Gordon Johnson

Gary T. Morgan, 917 F.2d 980 (7th Cir.

B.H. v. Johnson, 715 F.Supo. 1387 (N.D. Ill.

ERE. SSC Sess eecesenccccccccccs 32

Board of Directors of Rotary International

v. Rotary Club of Duarte, 481 U.S. 537,

Se CME PES SC Secs cscs ec c ccc cess ccccs 24

City of Dallas v. Stanglin, 490 U.S. 19, 109

EPC PSCC he SS cee ccc ese ccc ec cccces 25

Cleveland Board of Education v. LaFleur, 414 U.S.

Sy Sr 23

Doe v. New York City Department of Social

Services, 649 F.2d 134 (2nd Cir. 1981)......... 17

Duchesne v. Sugarman, 566 F.2d 817 (2nd

CARLES cE SS sec esesscceccesccccce 23

DeShaney v. Winnebago County Social Services

Department, 489 U.S. 189, 109 S.Ct. 998

DPPC CACM CRESS SSC Ce occ e ee cecrcccccs 16,17

Fanning v. Montgomery County Children

And Youth Services, 702 F. Supp. 1184,

PC CE TCC CSRS AGS See cecscesccrcces 14,16,24

Fay v. South Colonial Central School

OLOersee, BGs Fc 2G 2h CEM CEE. LISS de nccccnses 39

Gardner v. Parson, 874 F.2d 131 (3d Cir.

4. 3 Pasha 29 ae ag ge ere aera ee er ee 39

Griswold v. Connecticut, 381 U.S. 479, 85

ees ee CRE Ea b o b 6 6.0:66 6066.0 0b 080 OCS RESO 6

In re Burns, 519 A4.2d 638 (Del. 1986).......... 30

In re Kenny F., 786 P.2d 699 (N.M. Apo.

SOUS T a eae OHS RKE OD 6 SS ST RRER EDS DORE DADE DOR OBER 30

In re M.H., 444 N.W.2d 110 (Iowa App. 1989)....30

In re S.A.D., 555 4.2 123 (LOSS)... cece eees 30

In re Scott County Master Docket, 672

F.Supp. L152 CD.MInM. LOSF) 2... ccc cece cccccssves 29

Lashawn v. Dixon, 762 F.Supp. 959 (D.D.C.

4.) PP ery errr y Tere eee eT eee Le 29

Moore v. East Cleveland, 431 U.S. 494, 97 S.Ct.

hot Beh: ga ree eee eee ee ee 23

Norman v. Johnson, 729 F.Supo. 1182 (N.D.

tee) | eS ew eT Tere ee ee et ee ee ee ee 29

Pennhurst State School & Hospital v.,

Halderman, 451 U.S. L, LOL S.Ct. 1531 (1981)...34

Prisco v. United States Devartment of

roe. Cae Fee Oe Coes GEEs CPOE ceceweweses 14

Vili

R.C. v. Hornsby, No. 88-D-1170-N, slip op.

ee ee oe. FOS e. twee we cere asace 30

Rinderer v. Delaware County Children

and Youth Services, 703 F. Supp. 358

i 14

Roberts v. United States Jaycees,

ne re Dee C.0b, Se Ch PCS osc ccc eecescns 25

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705

eh ec ep he eee eee ene eeeseeeec’ 6

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.

Se a 14,15,24

Scrivner v. Andrews, 816 F.2d 261 (6th Cir.

PTT ee Le eee esc tenes anes PTETEEET ETT 31

Stanley v. Illinois, 405 U.S. 645,

a Ee Bs } Pr a eee ee 14

Suter v. Artist M., No. 90-1488 (U.S.

Supreme Court, October Term, 1990)

OT PCC TT ELECTR LEEEEE eee 27,28,29,32, 34

Taylor by and through Walker v. Ledbetter,

818 F.2d 791 (llth Cir. 1987), (en banc),

cert denied, 489 U.S. 1965, 109 S.Ct. 1337

ara area aaa 17

Wilder v. Virginia Hospital Assoc., U.S. ’

SS Sg +) 1 ee ) TD rr ee 28, 34

Williams v. Carros, 576 F.Supp. 545 (W.D. Pa.

OE a era ee ee ee ee ae ee eee 16

Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452

NTT Tree eee PEPE eee Tee 13,17,18,24

Page

a aay

STATUTES

S Bi@cG. BLOG) oa ohne ek 06k 0 0neen bene eee 2

28 U.S.C. BEFES (a(S), Cb ccc ca csavcksecn cures y

42 0.8.6. BOTG« OO COG ck ie sees tease passsim

FACE VEGLELE | Pewee PUCLeT Tere ee eee ee 35, 38

¥ele UEGL DLE } eS wees eer rr ee passim

WAL tit! Peewee werererrrreerrraTreTris ts ee 35, 38

94 7 ¢ ) Perea er ea ee ee ee 35, 38

Vil¢Qld.) Pewee ereeeeReTETECCCLTTe hee 36, 38

VilGPil) Peer eeTEPEEereEPeCrT ST eT ee Pe eee 36

C2 U.8.C. BUGO9 vcn nc ccs eee eccasvecs sda veee passim

S§ Pa. Code 83130. GO (a) << ccnccccessceerenen 4,7,k2

CONSTITUTIONAL PROVISIONS

First Amendment to the United States

COMBE ELCUCEOR . coc cones cee eeneeeed ea teaee ss passim

Ninth Amendment to the United States

CemSPSSCOSEOR. «nn ccc ee bees cue ee neh eee eee 6,10

Fourteenth Amendment to the United States

GCORBUCLEUTLOR «coco cece hee ee eke nessa es passim

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1991

SAMUEL WINSTON, JR., a minor by his parents,

MARYANN and SAMUEL WINSTON, SR., and

MARYANN WINSTON and SAMUEL WINSTON, SR.,

Petitioners

Vv.

CHILDREN AND YOUTH SERVICES OF DELAWARE

COUNTY. H. SCOTT CAMPBELL, SANDRA CORNELIUS,

COUNTY OF DELAWARE, JOHN F. WHITE, JR.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners, Samuel Winston, Sr., Maryann

Winston, and Samuel Winston, Jr., respectfully

request that a Writ of Certiorari issue to

review the Judgment and Opinion of the United

States Court of Appeals for the Third Circuit

entered on November 7. 1991.

OPINIONS BELOW

The Ovinion of the United States Court of

Appeals for the Third Circuit is set forth in

full in the Appendix at p.la of this Petition.

The Opinion of the United States District

Court for the Eastern District of Pennsylvania

is reported at 748 F.Supp. 1128 (E.D. Pa.

1990) and is set forth in full in the Appendix

at p. 54a of this Petition.

STATEMENT OF JURISDICTION

The judgment of the United States Court

of Appeals for the Third Circuit was entered

on November 7, 1991. A timely petition for

rehearing was denied by the United States

Court of Appeals on December 3, 1991, as set

forth in the Appendix at p. 7la of this

Petition. The jurisdiction of this Court is

invoked pursuant to 28 U.S.C. 81254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

ee United States Constitution, Amendment

One, which provides:

Congress shall make no law...

abridging the freedom of speech, or of the

press; or the right of the people peaceably to

assemble...

2. United States Constitution, Amendment

Fourteen, which provides:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the

egual protection of the laws.

3. Section 671(a)(15)(B) of the Adoption

Assistance and Child Welfare Act, 42 U.S.C.

8670, et seq. which provides in relevant part:

wit

In order for a state to be eligible

for payments under this part, it shall have a

plan aporoved by the Secretary which...

(15)...provides that, in each case,

reasonable efforts will be made...

(B) to make it possible for the child

to return to his home..

4. 42 U.S.C. 81983 which provides:

Every person who, under color of any

statute, ordinance, regulation, custom, or

usage of any State or Territory or the

Disgrict of Columbia, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction

thereof to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for

redress. For the nurposes of this section,

any Act of Congress applicable exclusively to

the District of Columbia shall be considered

to be a statute of the District of Columbia.

5. 55 Pa. Code 83130.68(a) which

provides:

(a) The county agency shall provide

opportunity for visits between the child and

parents as frequently as possible but no less

frequently than once every two weeks...

—

idawts

STATEMENT OF THE CASE

This case presents important issues

regarding the constitutional and statutory

rights of children in foster care placement

and their parents to visitation with each

other, in cases in which the child welfare

agency is seeking to reunify the family.

Petitioners assert a constitutional and

statutory right to individualized visitation

plans which seek to encourage and maximize

contact between these children and their

parents. The Third Circuit opinion in this

case recognized a clear vorofessional consensus

"that parents' visitation should be a part of

reunification efforts to the fullest extent

that the circumstances of an individual case

allow," (App. 23a) but went on to hold that

the uniform, one hour every other week

visitation policy challenged in the case was

—

not unconstitutional and did not violate the

"reasonable efforts" provision of

8671(a)(15)(B) of the Adoption Assistance and

Child Welfare Act ("AAA"). Petitioners seek

clarification from this Court on these

matters.

Petitioners originally brought this

action pursuant to 42 U.S.C. 81983 alleging

that the challenged visitation policy of

Respondent Children and Youth Services of

Delaware County ("CYS") and the Department of

Public Welfare of Pennsylvania ("DPW")

regulation governing that policy violated the

First, Ninth,! and Fourteenth Amendments to

+ In conjunction with their First and

Fourteenth Amendments claims, Petitioners

claimed a violation of their rights

encompassed by the penumbral zone of privacy

created by the Ninth Amendment. Griswold v.

Connecticut, 381 U.S. 479, 85 S.Ct. 1678

(1965); Roe v. Wade, 410 U.S. 113, 93 S.Ct.

705 (1973).

the United States Constitution and the

Adoption Assistance and Child Welfare Act

("AAA"), 42 U.S.C. 8620-28, 670-79(a).

CYS's policy. as stipulated by the

parties, provides for initial visitation of

only one hour every two weeks between parents

and their children in agency care placement

outside of their home in cases where

visitation takes place at the CYS office and

reunification is the CYS stated goal. The

challenged DPW regulation. 55 Pa. Code

§3130.68(a). sets the minimum visitation

between parents and their children in out of

home placement at once every two weeks, but

does not specify a minimum hourly amount.

Petitioners assert that one hour biweekly

visitation is tantamount to no visitation and

is manfestly "unreasonable" and a violation of

the statutory and constitutional rights of

—"

these children and their families.2

Plaintiffs requested that the aforementioned

CYS policy and DPW regulation which permits

only this biweekly hour of visitation be

declared illegal and unconstitutional, and

that Defendants be enjoined from enforcement.

Petitioner Samuel Winston, Jr., (three

years old at the time) was removed from the

custody of his parents, Petitioners Maryann

Winston and Samuel Winston, Sr., by Respondent

CYS and placed ina foster home. Thereafter,

for over three months, Petitioners were

Subjected to the above-described one hour

< Petitioners do not allege that one hour

biweekly visitation (or even less or no

visitation) is not appropriate in a certain

limited number of cases, when the child

welfare agency can produce evidence that

increased visitation would be harmful to the

child. Presumably, the number of these cases

would be minimal within the category of cases

with which Petitioners are concerned, those in

which the stated goal of the child welfare

agency is to reunify the family.

biweekly visitation policy of Respondent Cys,

even though it was always CYS's goal to return

Samuel Winston, Jr. to the care of his

parents, the parents continously requested

more visitation and there was no valid reason

why the visits could not be increased.

The Petitioner’ initial complaint was

filed in the United States District Court for

the Eastern District of Pennsylvania on August

23, 1989, naming as defendants Children and

Youth Services of Delaware County, H. Scott

Campbell, Sandra Cornelius, County of

Delaware, John F. White, Jr., and Department

of Public Welfare of the Commonwealth of

Pennsylvania. Federal jurisdiction was

invoked pursuant to 28 U.S.C. 81343(a)(3) and

(4) which provide for original jurisdiction in

the district courts for all actions authorized

by 42 U.S.C. 81983. Petitioners sought

declaratory an? injunctive relief on behalf of

themselves and other similarly situated. On

November 16, 1989, upon stipulation of all

parties, DPW was dismissed as a defendant. On

December 18, 1989, the Court denied

Petitioners' application for class

certification.

By Order and Memorandum entered in favor

of the Defendants and against the Plaintiffs

on September 25, 1990, the District Court

ruled that CYS's visitation policy and DPW's

regulation governing that policy did not

violate the AAA or the First, Ninth, and

Fourteenth Amendments to the United States

Constitution (App. 54a).

On October 24, 1990, Plaintiffs filed an

appeal to the United States Court of Appeals

for the Third Circuit. On November 7, 1991,

the Court of Appeals affirmed the District

Court Order (App. la). On November 21, 1991,

Plaintiffs petitioned for panel rehearing.

This petition was denied by the Court of

Appeals on December 3, 1991 (App. 7la).

REASONS FOR GRANTING THE WRIT

This petition for writ of certiorari

raises important issues regarding the rights

of children in foster care placement and their

parents. It is Petitioners' position that

these families have a constitutional and a

Statutory right to individualized visitation

plans which seek to encourage and maximize

visitation whenever appropriate, when the goal

of the child welfare agency is to reunify the

family. Petitioners have challenged the

Stipulated policy of Respondent Children and

Youth Services of Delaware County based on its

across-the-board application of only one hour

every two weeks of visitation between these

ee ea

children and their parents. 3

The Respondent CYS policy affects

hundreds of Delaware County Children at any

given time, as stipulated by CYS. Similarly

restrictive policies are presently affecting

thousands of children throughout the state of

Pennsylvania. These types of volicies are

having disastrous consequences for large

numbers of children and their families

throughout the country, Petitioners request

this Court to grant the instant writ in order

to protect the constitutional and statutory

visitation rights of these families.

2 Petitioners have also challenged the DPW

regulation, 55 Pa, Code §3130.68(a) setting

minimum visitation between parents and their

children in foster care at once every two

weeks because it allows and encourages grossly

limited visitation. Since this regulation, on

its face, allows biweekly visitation of one

hour (or less) it is unconstitutional and a

violation of 8671(a)(15)(B) of the AAA for the

reasons set forth throughout this Petition.

I. THE CONSTITUTIONAL PROFESSIONAL

JUDGMENT STANDARD OF YOUNGBERG AS APPLIED TO

CHILDREN IN FOSTER CARE PLACEMENT REQUIRES

THAT CHILD WELFARE AGENCIES FASHION VISITATION

PLANS THAT ARE INDIVIDUALIZED AND THAT SEEK TO

ENCOURAGE AND MAXIMIZE CONTACT BETWEEN THESE

CHILDREN AND THEIR PARENTS WHENEVER

APPROPRIATE, WHEN THE GOAL OF THE AGENCY IS TO

REUNIFY THE FAMILY.

Petitioners request this Court to

establish the constitutional standard to be

applied with regard to the visitation rights

of children in temporary foster care

placement. The lower court erroneously

interpreted the "professional judgment"

Standard enunciated by this Court in Youngberg

v. Romeo, 457 U.S. 307, 102 S.Ct. 2452 (1982)

to deny the constitutional rights of the

Winston Petitioners. Petitioners assert that

that standard mandates that child welfare

agencies individualize and seek to maximize

visitation plans whenever appropriate, when

the goal is to reunify the family.

A. The application of the

Youngberg professional judgment standard

to determine the visitation rights of

children in foster care placement raises

an important question of federal law

which has not been, but should be,

settled by this Court.

It has long been established that parents

have a fundamental liberty interest in the

care, custody and management of their children.

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.

1388 (1982); Stanley v. Illinois, 405 U.S. 645,

651, 92 S.Ct. 1208 (1972); Prisco v. United

States Department of Justice, 851 F.2d 92 (3d.

Cir. 1988); Rinderer v. Delaware County

Children and Youth Services, 703 F. Supp. 358

(E.D. Pa. 1987). This liberty interest is

protected by the substantive due process of the

Fourteenth Amendment to the United States

Constitution. Rinderer, supra; Fanning v.

Montgomery County Children and Youth Services,

702 F. Supp. 1184, 1190 (E.D. Pa. 1988).

This Court has recognized that this

fundamental interest is of critical importance

and "far more precious than any vroperty

rights." Santosky, supra at 758. The rights

at stake clearly extend to situations in which

the state has temporarily removed a child from

the custody of his parents. In Santosky, this

Court held:

"The fundamental liberty interest of

natural parents in the care, custody and

management of their child does not evaporate

Simply because they have not been model parents

or have lost temporary custody of their child

to the state. Even when blood relationships

are strained, parents retain a vital interest

in preventing the irretrievable destruction of

their family life."

Santosky, at 754.

Moreover, denying or extremely limiting

contact between family members after the

removal of children from the parental home has

been specifically recognized as a violation of

Substantive due process rights. Fanning, supra;

Artistotle P. v. Johnson, 721 F. Supp. 1002

(N.D. Ill. 1989) (sibling visitation);

Williams v. Carros, 576 F.Supp. 545 (W.D. Pa.

1983),

As part of the substantive due process

analysis, this Court has held that "when the

State takes a person into its custody and holds

him there against his will, the Constitution

imposes upon it a corresponding duty to assume

some responsibility for his safety and general

well-being." DeShaney v. Winnebago County

Social Services Department, 489 U.S. 189, 109

S.Ct. 998 (1989).

In dicta, the DeShaney court acknowledged

that the foster home situation, in which the

state had previously removed the child from

"free society", might be "sufficiently

analogous to incarceration or

institutionalization to give rise to an

affirmative duty to protect," DeShaney at 1006,

n.9. Cases from other circuits have adopted

this analogy. See Taylor by and through Walker

v. Ledbetter, 818 F.2d 791, 797 (llth Cir.

1987), (en banc), cert. denied, 489 U.S.1065,

109 S.Ct. 1337 (1989); Doe v. New York City

Department of Social Services, 649 F.2d 134,

141-42 (2nd Cir. 1981); Artistotle, supra.

Courts have applied a "professional

judgment" standard in determining whether a

plaintiff's substantive due process rights have

been violated in state custodial cases.

Pursuant to this analysis, “...liability may be

imposed only when the decision by the

professional is such a substantial departure

from accepted professional judgment, practice

Or standards as to demonstrate that the person

responsible actually did not base the decision

On such a judgment." Youngberg, supra.

This Court has not yet evaluated the

"professional judgment" standard and analyzed

Youngberg in the context of foster care

placement. The instant writ requests this

Court to apply that standard to determine the

visitation rights of these children. This is

an important question of federal law, of

Critical significance to large numbers of

children and their families who have been

temporarily separated due to the actions of a

child welfare agency. As discussed below,

visitation between these children and their

parents has been recognized as the most

important factor in achieving the goal of

reunifying these families.

B. The lower court erred in holding

that the Youngberg professional judgment

standard does not require individualized

visitation plans that seek to encourage

and maximize the visitation of children

in foster care placement with their

parents.

The judgment of professionals with regard

;

to visitation between children in placement and

their parents when the goal is to reunify the

family is undisputed. This standard was

unequivocally enunicated by the Third Circuit

in the decision below:

"The professional consensus undoubtedly

is that parental visitation should be a

part of reunification to the fullest

extent that the circumstances of an

individual case allow."

(App. 23a)

Despite this recognition, the Court held

that the uniform and meager visitation policy

at issue in the case was not a deviation from

professional judgment standards. Petitioners

submit that the professional judgment in this

Critical area of child welfare is not in

dispute, as recognized by the Third Circuit,

Respondent CYS, and sources throughout the

country.

The unchallenged trial testimony of

Petitioners' exnert witness, David Fanshel,

des Sant

D.S.W. is persuasive on this issue. Dr.

Fanshel is a highly qualified expert in the

field of social work and probably the foremost

national expert on foster care and the need for

adequate visitation between children in

placement and their parents. He testified at

the trial below that visitation is essential in

order for families to work out their problems ©

and achieve reunification. Moreover, he stated

that one hour biweekly visitation is

insufficient, abnormal, obnoxious and

traumatic, especially to a young child, and

that a minimum schedule of four hours a week

should be utilized.

In addition, Petitioners, as well as

Doctor Fanshel, provided and/or cited to a

variety of professional sources, all indicating

that the uniform and meager visitation policy

at issue was a substantial departure from

professional judgment. The Third Circuit

OP Le ee

)

;

opinion below recognized that these authorities

urge "frequent visitation" (App. 27a).

Petitioner Samuel Winston, Sr., confirmed this

consensus by testifying to the sadness, fear,

and emotional upheaval created in his young son

(Petitioner Samuel Winston, Jr.), due to the

meager visitation permitted by the CYS policy.

Respondent CYS also confirmed the

undisputed professional consensus by its own

written policy statement which recognizes that

visitation plans should be developed on a

"case-by-case basis individualized to meet the

child's needs," and should be "as liberalized

as possible". CYS provided no authority

contrary to the professional judgment of Dr.

Fanshel and Petitioners' additional sources,

but rather, supported this consensus.

The overwhelming professional consensus

mandates that visitation services be

individualized to withstand constitutional

muster. In addition, these visitation plans,

by clear professional consensus, must seek to

encourage and maximize visitation whenever

appropriate, when the goal is reunification.

The one hour biweekly visitation policy upheld

by the court below is tantamount to no

visitation. Such a policy is a substantial

departure from accepted professional judgment

as expressed above and is a clear infringement

on the constitutional rights of children in

placement. Petitioners request this Court to

grant this writ to rectify the error of the

court below in upholding the challenged cys

policy.

’ II. PARENTS AND THEIR CHILDREN IN FOSTER

_ CARE PLACEMENT HAVE ASSOCIATIONAL RIGHTS UNDER

' THE FIRST AND FOURTEENTH AMENDMENTS TO THE

' UNITED STATES CONSTITUTION, WHICH AFFORD THEM A

RIGHT TO INDIVIDUALIZED VISITATION PLANS WHICH

SEEK TO ENCOURAGE AND MAXIMIZE VISITATION

WHENEVER APPROPRIATE, WHEN THE GOAL OF THE

CHILD WELFARE AGENCY IS TO REUNIFY THE PAMILY.

As the second prong to the Fourteenth

Amendment's substantive due process analysis,

it has long been established that the

Amendment's liberty interests also include the

right to associate with one's relatives and the

freedom to maintain and mold ongoing family

relationships. Moore v. East Cleveland, 431

U.S. 494, 97 S.Ct. 1932 (1977) (plurality

opinion); Cleveland Board of Education v.

LaFleur, 414 U.S. 632, 639, 94 S.Ct. 791 (1974)

("Freedom of personal choice in matters of

marriage and family life is one of the

liberties protected by the Due Process Clause

of the Fourteenth Amendment."); Duchesne v.

Sugarman, 566 F.2d 817 (2nd Cir. 1977).

+44

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Courts have recognized that parents and

children in foster care placement situations

maintain their Fourteenth Amendment

associational rights. Aristotle, supra at 1005-

1008; Fanning, supra at 1190. As discussed

previously in this Petition, parents do not

lose their fundamental liberty interests in

their children simply because the state has

assumed custody. Santosky, supra. These

rights may be abridged only when the "demands

of an organized society" outweigh the parents'

interests. Fanning, supra, citing Youngberg,

supra at 320. The Third Circuit decision below

failed to evaluate Petitioners' claim under

this prong of the Fourteenth Amendment.

In addition, the Third Circuit failed to

recognize that Petitioners have rights of

association under the First Amendment. See

Board of Directors of Rotary International v.

Rotary Club of Duarte, 481 U.S. 537, 107 S.Ct.

‘~

1940 (1987); Roberts v. United States Jaycees,

468 U.S. 609, 104 S.Ct. 32 (1984).

These rights have been specifically

recognized in the context of foster care

placement. Aristotle, supra. In Aristotle, the

Court determnined that plaintiffs' First

Amendment claim must be evaluated under a

heightened level of scrutiny, and that in order

to infringe on these rights the state needed a

compelling interest that could not be achieved

though less restrictive means. Artistotle,

Supra, Citing City of Dallas v. Stanglin, 490

U.S. 19 , 109 S.Ct. 1591, 1594 (1989); Roberts,

Supra. Even though the plaintiff children in

Aristotle did not challenge the defendants'

action in initially removing them from their

parents' care, they were still able to

challenge the subsequent restrictive visitation

policy (between siblings) as an infringement on

their associational rights without compelling

- 25

Pe ee

reason.

This Court should grant the instant writ

to rectify the error of the court below and to

establish that parents and their children in

foster care placement have associational rights

under the First and Fourteenth Amendments. The

uniform and meager visitation policy of

Respondent CYS violated these rights of

association.

III. SECTION 671(a)(15)(B) OF THE FEDERAL

ADOPTION ASSISTANCE AND CHILD WELFARE ACT, 42

U.S.C. $8670, ET SEQ., WHICH REQUIRES THAT

STATES MAKE "REASONABLE EFFORTS" TO REUNIFY

CHILDREN IN FOSTER CARE PLACEMENT WITH THEIR

FAMILIES, CREATES AN ENFORCEABLE RIGHT UNDER 42

U.S.C. $1983 AND/OR UNDER THE ACT ITSELF TO

INDIVIDUALIZED VISITATION PLANS WHICH SEEK TO

ENCOURAGE AND MAXIMIZE CONTACT BETWEEN THESE

CHILDREN AND THEIR PARENTS WHENEVER

APPROPRIATE, WHEN THE GOAL OF THE CHILD WELFARE

AGENCY IS TO REUNIFY THE PAMILY.

Petitioners request that the Court

establish the parameters for individual

enforcement of the "reasonable efforts"

provision of 8671(a)(15)(B) of the AAA. This

provision mandates that states which

participate in the federal foster care program

and receive federal funding must make

reasonable efforts to achieve the goal of

family reunification. Pennsylvania is a

participating state and requires its county

child welfare agencies (including Respondent

CYS ) to adhere to the provisions of the Act.

This Court has accepted certiorari and

heard argument in a case from the Seventh

Circuit which also concerns the "reasonable

efforts" provision of the AAA. In Suter v.

Artist M., No. 90-1488, petitioners, the

Director and Guardianship Administrator of the

child welfare agency for the state of Illinois,

argued that the "reasonable efforts" provision

is too vague and amorphous to create any

individual enforceable rights under 42 U.S.C.

§1983. The instant Petitioners strongly

disagree for the reasons provided by the

respondents in Suter.

The standard for enforcing federal

statutory rights under §1983 was most recently

enunciated by this Court in Wilder v. Virginia

Hospital Assoc., U.S. » £410 S.Ct. 2510

(1990). This standard was properly applied in

the Seventh Circuit case, Artist M. et al. v.

Gordon Johnson and Gary T. Morgan, 917 F.2d 980

(7th Cir. 1990). The Third Circuit opinion in

the case below similarly held that

§671(a)(15)(B) creates rights enforceable by

private parties (App. 20a).

Because the Third Circuit has ruled that

the "reasonable efforts" provision is privately

enforceable, this Petition will not address

that broader issue but, rather, refer this

Court to the case below and to the argument

presented by the respondents in Suter.

Petitioners urge this Court to grant the

instant writ to determine whether

_ ee ee

8671(a)(15)(B) creates an enforceable right

(under §81983 or under the AAA itself) to

individualized visitation plans which seek to

encourage and maximize contact beetween

parents and their children in placement.

Obviously, Petitioners' request can be granted

only if this Court affirms the Seventh Circuit

decision in Suter, and rules that the

"reasonable efforts" provision is privately

enforceable.

A. The lower courts are in need of

guidance in interpreting the parameters

of the “reasonable efforts" provision,

§671(a)(15)(B), of the AAA.

The lower courts have increasingly found

the "reasonable efforts" provision of the AAA

to be enforceable. Winston, supra. (App. 20a);

Artist M., supra; Lashawn v. Dixon, 762 F.Supo.

959 (D.D.C. 1991); Norman v. Johnson, 739

F.Supp. 1182, 1187 (N.D. Ill. 1990); In re

Scott County Master Docket, 672 F Supp. 1152

(D. Minn. 1987); R.C v. Hornsby. No. 8&-D-1170-

N, Slip op. at 13-20 (M.D. Ala. Avril 19,

1989)4

This Court should grant certiorari on the

instant writ to clarify the proper scove of the

"reasonable efforts" mandate so that its

application by the lower courts is consistent

with the lanquage of the Act itself,

Petitioners assert that the language of the AAA

mandates that the provision be interpreted to

include individualized visitation plans which

seek to encourage and maximize contact between

parents and their children in placement.

Both the Court of Appeals and the District

4 State courts have also interpreted and

consistently enforced the AAA's requirement of

"reasonable efforts" to reunify families In

re S.A.D., 555 4.20 123, 127 28 (1989); In re

M.H.. 444 N W.2d 110, 113 (Iowa Anp. 1989); In

re Kenny F., 786 P 2d 699, 703 04 (N M Aono.

1990).

Court decisions in this case cite the Sixth

Circuit s decision in Scrivner v. Andrews. 816

F.2d 261 (6th Cir 1987) and its holding on the

visitation issue. The District Court refers to

Scrivner as the only Court to have addressed

the issue of parent child visitation and cites

it for the proposition that the AAA does not

create an enforceable right to “meaningful

visitation" (App 62a) Scrivner can be

distinguished for several reasons the most

Significant for purvoses of this Petition

being that the Sixth Circuit did not evaluate

the plaintiff's claim under the "reasonable

efforts" provision of the Act.5 Since

Scrivner has been erroneously interpreted to

preclude the enforcement of visitation

5 Scrivner will be discussed and its holding

distinguished more fully in Petitioners brief

on the merits if the instant writ is granted.

rights under "reasonable efforts", this Court

should grant the instant writ to rectify that

error.

District Court cases in the Seventh

Circuit have also addressed the visitation

issue; however, these courts did so prior to

the Seventh Circuit's enforcement of

"reasonable efforts" in Artist M. See

Aristotle, supra and B.H. v. Johnson, 715

F.Supp. 1387, 1402-03 (N.D. Ill. 1989). In

these cases, the courts refused to enforce

"reasonable efforts" and did not otherwise find

a right to visitation in the Act. Presumably,

after Artist M., and assuming that that

decision is upheld by this Court in Suter,

Supra, these courts would have to review a

visitation claim under the "reasonable efforts"

provision. The instant Petition requests that

this Court clarify the parameters of that

provision so that courts such as those in the

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Seventh Circuit can adequately enforce the

rights that it encompasses.

B. The lower Court erred in holding

that the"reasonable efforts" provision,

§671(a)(15)(B), of the AAA does not create

an enforceable right to individualized

visitation plans which seek to encourage

and maximize contact between children in

foster care placement and their parents.

Petitioners argued below that visitation

is encompassed by the reasonable efforts

requirement under the AAA, because it is the

most critical reunification effort that can be

provided by a child welfare agency.

Petitioners provided extensive support for the

Critical importance of visitation, including

Respondent CYS's own written visitation policy,

research conducted by the Child Welfare League

of America, opinions, research, and other

information provided by Petitioners' preeminent

expert witness, Dr. David Fanshel, the American

Bar Association Juvenile Justice Standards and

guidelines drafted and recommended in

cooperation with the National Council of

Juvenile and Family Court Judges. (Also see

discussion at pp. }9_3],. infra.)

If the reasonable efforts requirement of

the AAA is enforceable (the issue presently

before this Court in Suter), then it must

require child welfare agencies to make

reasonable efforts on visitation, the most

critical of reunification services. A uniform

and extremely restricted visitation policy,

such as the Respondent CYS policy at issue in

this case, makes no "effort" whatsoever and

hence cannot be said to comply with the

“reasonable efforts" mandate.

Pursuant -tc this Court's holding in

Wilder, one must look to the statutory

Structure of an act to determine congressional

intent. Wilder, supra, at 2518, citing

Pennhurst State School and Hospital v.

Halderman, 451 '.S. 1, 101 S.Ct. 1531 (1981).

Individual case-planning is the clear and

express intent of Congress as expressed

throughout the AAA in order for states to

receive federal funding.

The Act states that reasonable efforts are

to be exerted in each case to avoid the removal

of a child from his home, 42 U.S.C.

8671(a)(15)(A) or to make it possible for a

child to return home after removal, 42 U.S.C.

§671(a)(15)(B). In addition, the Act mandates

the development of a "case plan" for each

child, 42 U.S.C. 8671(a)(16). The case plan

must provide for services to facilitate the

return of the child to his home, and a

discussion of the appropriateness of the

services, 42 U.S.C. 8675(a).

Further, a "case review system" must be in

place for each child, 42 U.S.C. 8671(a) (16)

that assures placement in the least restrictive

setting available in close proximity to the

parents’ home and that addresses the best

interests and special needs of the child,

42 U.S.C. 8675(5)(A). This review system must

encompass procedural safeguards to protect the

visitation privileges of parents. §675(5)(C).

A uniform and extremely restricted

visitation policy, such as the Respondent Cys

policy at issue in this case, is completely

contrary to the above provisions and to the

overall spirit of the AAA. A "cap" on

visitation, such as the one hour bi-weekly

policy, is in specific violation of the

explicit intent of Congress as expressed in the

Act's provision for the least restrictive

homelike placement that is consistent with the

best interests of the child, as mandated by an

individualized case plan, 42 U.S.C. 8675(5)(A).

The above language dictates that the

"reasonable efforts" provision is not too vague

and amorphous to be enforced, pursuant to

Wilder, and that some effort on visitation must

be expended by the child welfare agency. As

pointed out by Judge Manion in his dissent in

Artist M., Congress specifically acknowledged

that “reasonable efforts" will vary based on

the facts of each individual case, Artist M. at

955.

For this reason, and because visitation is

the most important reunification service that

can be provided, "reasonable efforts" must

include efforts to individualize visitation

time between parents and their children. Also,

Since one hour every other week of contact

between a child and his parents is tantamount

to no eiakeetian and is manifestly

unreasonable, “reasonable efforts" must include

efforts to maximize visitation time consistent

with the goal of family reunification.

Cc. The interpretation of the “reasonable

efforts” provision, 8671(a)(15)(B), of the

AAA to include visitation rights would not

“open the flood gates" to federal court

litigation, and would not unduly interfere

in the internal operations of local child

welfare agencies.

Interpreting the AAA's "reasonable

efforts" provision as requested by Petitioners

would not "open the floodgates" to federal

court for future plaintiffs dissatisfied with

the visitation plans and/or the "reasonable

efforts" made in their individual cases.

Petitioners challenged the uniformity of the

Respondent CYS's visitation policy and the

Systematic application of a one hour biweekly

policy. Clearly, the rights Petitioners seek

to enforce under the AAA can not and will not

“open the flood gates" as long as child welfare

agencies exercise individual and reasonable

efforts in each case, as mandated by the Act.

See 42 U.S.C. 8671(a)(15)(A), 8671(a)(15)(B),

§671(a)(16), 8675(a) and §675(5)(A).

In addition, procedural hurdles such as

collateral estoppel, abstention, and mootness

would regularly bar Plaintiff's access to

federal courts in these types of cases. See

Gardner v. Parson, 874 F.2d 131, 142 (3d Cir.

1989); Fay v. South Colonial Central School

District, 802 F.2d 21, 31 (2nd Cir. 1986).

By interpreting "reasonable efforts" to

include individualized visitation plans that

seek to encourage and maximize contact, this

Court would not be allowing federal courts to

unduly interfere in the internal operations of

local child welfare agencies. Petitioners are

requesting this Court to recognize their right

to individual and liberal plans, but are not

asking the Court to fill in the detaiis of

those plans. Such an interpretation of

"reasonable efforts" is narrowly tailored to

encompass the "efforts" and individualization

language of the statute itself, and would

provide guidance to the courts below in

interpreting the statute.

CONCLUSION

For the reasons detailed above, this

Petition for Writ of Certiorari should be

granted.

Respectfully submitted,

Jon J. Auritt, Esquire

Attorney for Petitioners

the

crise eee Sac

AaFrPeBODoia

———EEEe—E———————E

Filed November 7, 1991

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 90-1788

SAMUEL WINSTON. JR.. a minor by his

parents. MARYANN and SAMUEL WINSTON,

SR.. on behalf of himself and all others

similarly situated: MARYANN WINSTON and

SAMUEL WINSTON. SR.. of behalf of themselves

and all persons similarly situated.

Appellants

CHILDREN AND YOUTH SERVICES OF

DELAWARE COUNTY: H. SCOTT CAMPBELL:

SANDRA CORNELIUS: COUNTY OF DELAWARE:

JOHN F. WHITE. JR.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 89-06162)

Argued April 11. 1991

Before: SLOVITER. Chief Judge. COWEN and

GARTH. Circuit Judges

(Filed November 7, 1991)

Wettiatie|)-(

ee eT eee

Jon J. Auritt

Patricia A. Malley (Argued)

Media, PA 19063

Attorneys for Appellants

Michael P. Dignazio (Argued)

Nelson & Dignazio

Media. PA 19063

Attorney for Appellees.

Children and Youth Services of Delaware

Counvy. H. Scott Campbell. Sandra

Cornelius. and County of Delaware

Anne Fiorenza (Argued)

Calvin R. Koons

Office of Attorney General of Pennsylvania

Harrisburg, PA 17120

Attorneys for Appellee.

John F. White. Jr.

Anne Vaughan

Margaret A. Lenzi

Delaware County legal Assistance

Chester. PA 19013

Attorneys for Amicus Curiae.

Parents Rights Organization in

Support of Appellants

Samuel B. Magdovitz

Emily Buss

Juvenile Law Center

Philadelphia. PA 19107

Attorneys for Amicus Curiae,

Juvenile Law Center

OPINION OF THE COURT

SLOVITER. Chief Judge.

Plaintiffs appeal from the judgment of the

district court entered against them in their action

challenging the visitation policy and practice of

defendant Children and Youth Services of

Delaware Countv and a_ regulation of the

Pennsvivania Department of Public Welfare as

violating the federal Adoption Assistance and Child

Welfare Act and plaintiffs’ constitutional rights to

substantive due process and free association.

Background Facts and Procedural History

Many of the relevant facts are the subject of a

Stipulation of Facts entered into by the parties and

filed with the district court. Plaintiffs are Samuel

Winston. Sr.. his wife Marvann. and Samuel Jr..

their son. Samuel Jr.. who was then three years

old. was taken into custody by the Children and

Youth Services agency of Delaware County

(“agency” or “CYS*) on June 21. 1989. because his

father was arrested on June 19 in connection with

a drug violation and his mother. who suffered

recurrent psvchiatric and substance abuse

problems. was intoxicated and was being

transported to the crisis unit of Crozer-Chester

Medical Center. At the time. the family was living

in a shelter for homeless persons.

Two days later. there was a right-to-detain

hearing before a Master of the Court of Common

Pleas of Delaware County. The Master continued

—_— eee

Se Sa ee

Samuel Jr. in the protective custody of CYS,

inasmuch as Mr. Winston remained incarcerated

and Mrs. Winston remained hospitalized. Mr.

Winston was released on June 30, 1989,

apparently on bail. On July 11, 1989, following an

adjudicatory hearing, Samuel Jr. was adjudicated

dependent and given to the care of CYS which

placed him in foster care. That order provided for

visitation by his parents. as arranged by CYS. CYS

thereafter advised Mr. and Mrs. Winston that they

would have scheduled visitation with Samuel Jr.

for one hour every two weeks at the CYS office

“during the time that the Agency determined that

supervised visitation was necessary.” App. at 84.

At the request of Mr. Winston. his visits were

extended by CYS to one-and-a-half hours in

August. In September, the court increased the

visits for Mr. Winston to two hours a week.

On August 23. 1989. the parents. dissatisfied

with the limitations on visits imposed by CYS. filed

a class action under 28 U.S.C. § 1983, alleging

that the visitation restrictions violated their federal

statutory and constitutional rights. They sought

declaratory and injunctive relief and named as

defendants CYS, Pennsylvania's Department of

Public Welfare (DPW). and individual county and

state officers.

The family continued to have severe domestic

difficulties. They were evicted from the shelter

because of Mr. Winston's confrontation with the

director: thereafter they moved in with a friend

who was subsequently evicted: Mr. Winston then

returned to the shelter. Around this time. Mrs.

Winston was hospitalized again for psychiatric

problems. Mr. Winston had weekiy visits with his

son during October, part of November, and

December. During this time. Samuel Jr. was also

taken for periodic visits with Mrs. Winston at the

hospital. Samuel Jr. was released from foster care

and was returned to the physical custody of his

father on December 19, 1989 under agency

supervision and pending periodic state court

review. Mrs. Winston was released from the

hospital in January 1990. In March of that year,

she and her husband were given legal custody of

Samuel Jr.. but physical custody of the child was

generally granted solely to the father.

In the meantime. the federal action proceeded.

Plaintiffs moved for an extension of time in which

to file for class certification so that they could

determine the size and characteristics of the class.

On November 27. 1989, the court entered an order

granting the motion and extending plaintifis’ time

for 90 days to file for class certification.

Nonetheless. the next month. before the allotted

time had expired, the court denied plaintiffs’

request for class certification.

DPW moved io dismiss the complaint as to it.

and. by stipulation of all parties. DPW was ordered

dismissed with prejudice. John F. White. Jr.. the

Secretary of Public Welfare. remained as a

defendant.

CYS filed a motion to dismiss the complaint for

mootness. The district court denied this motion

and proceeded to hold a bench trial, with hearings

in April. June. and September 1990. Following |

completion of the trial, the district court entered

judgment for the remaining defendants on all

counts. The Winstons appeal. Our review of the

court's findings of fact is under the clearly

erroneous standard. We give plenary review to its

legal conclusions.

IT.

Discussion

Preliminary Issues

Before reaching the merits of the appellants

appeal. we must consider whether there is anv

impediment to our doing so. After the briefs were

filed. this court asked the parties to (file

supplementary briefs directed to the question of

(1) whether the return of Samuel Jr. to the custody

of his parents affected in any wav the relief of

declaratory judgment or injunction sought under

Counts 1 and 2 of the complaint. respectivelv. and

(2) whether the pending and ongoing state court

proceeding in any way precludes the federal court

from exercising its jurisdiction and _ trom

entertaining the merits of this action at this time.

In connection with the latter. we asked the parties

whether the doctrine of abstention has anv

relevance in the context of this proceeding. We

consider these issues in turn.

The first issue goes to the jurisdiction of this

court. It is generally stated that if there is no

longer an actual. ongoing case or controversy we

may not exercise jurisdiction. Nebraska Press

Assn. v. Stuart. 427 U.S. 539. 546 (1976). But see

Honig v. Doe. 484 U.S. 305, 331 (1988) (Rehnquist.

C.J... concurring) (“attenuated connection” of

miootness principle to Article Ill “may be overridden

where there are strong reasons to override it.”).

Thus. we must determine whether the fact that

Samuel! Jr. is now in the custody of his parents

deprives us of our jurisdiction over this matter.

| aaa

Appellants argue that the case is not moot,

relying on the exception’ established for

controversies that are “capable of repetition, yet

evading review.” See Southern Pacific Terminal Co.

v. Interstate Commerce Commission, 219 U.S. 498

(1911). Appellants call to our attention the orders

of the Court of Common Pleas of Delaware County

that decreed that while joint legal custody of the

child should remain with Mr. and Mrs. Winston.

and physical custody should remain with Mr.

Winston under the protective supervision of CYS.

each of the parents must follow certain conditions,

including participation in evaluation and treatment

programs and regular visits with a CYS social

worker.

Appellants argue that their claim “remains live

because there is clearly a capability that Samuel

Winston, Jr. will again be placed in foster care

and his parents would again be subject to the

same illegal visitation policies.- Appellants’

Supplemental Brief at 4. In Honig, the Supreme

Court held that an action by an emotionally

handicapped student under the Education of the

Handicapped Act challenging his suspension from

-school was not moot. nctwithstanding that the

child had moved from the school district at issue.

The Court concluded that “(gliven [the student's]

continued eligibility for education services under

the EHA. the nature of his disability, and [his]

insistence that all local school districts retain

residual authority to exclude disabled children for

dangerous conduct.” there was a “reasonable

expectation’ that [the child] would once again be

subjected to [the policy and practices challenged

in the case].” 484 U.S. at 319-20 (citation omitted).

Because there was a sufficient likelihood that the

issue could recur with respect to that plaintiff. and

any resulting claim he may have for relief would

surely evade its review, the Court held the appeal

was not moot.

This court has followed the Supreme Court's

precedent in giving the “capable of repetition. vet

evading review standard a practical interpretation.

See Praxis Properties. Inc. v. Colonial Savings

Bank. No. 90-5589 (3d Cir. Oct. 1991). slip op. at

26-29: Ameron. Inc. v. United States Army Corps

of Engineers. 787 F.2d 875. 880-81 (3d Cir. 1986).

We believe that the same considerations discussed

in Honig apply here.

Given the nature of the parental conduct that

necessitated placement of Samuel Jr. in the

protective custody of CYS. there is a reasonable

possibility that Samuel Jr. and his parents will

once again be faced with the restrictions on

visitation that are the subject of this lawsuit. The

dissent argues that notwithstanding his mother's

history of continued abuse of alcohol and drugs.

the possibility that Samuel Jr. will return to

custody is speculative. While Mr. Winston's

apparent recent stability after his arrest for drug

possession is commendable. we cannot share the

dissent’s optimism that there is no reasonable

expectation that the family unit. composed as it is

of two parents who have a history of drug use.

will not experience another breakdown requiring

YS to retake temporary custody of Samuel Jr. In

fact. as appellants have noted. legal custody was

returned to the parents only subject to conditions

which. if not complied with. could subject them to

a repeat of the situation which precipated this

lawsuit.

There is also no basis for the dissent’s

suggestion that the issue of CYS's visitation policy

will not evade review because the challenge can

be raised bv other children who will be in custody

for a longer period of time than Samuel Jr. was.

The goal of Pennsylvania's Juvenile Act is to have

a short-lived period of state custody. The

requirement that there be an initial disposition

review hearing within six months after the time

the child was taken from the custody of his or her

parents, 42 Pa.C.S.A. § 6351(e).: reflects that goal.

Indeed. Samuel Jr. was in the custody of CYS for

six months.' Although some children undoubtedly

stav longer. the dissent cites to an affidavit that

merely refers to two such instances. App. at 81.

There are no statistics in this record showing the

number of children who remain in custody for a

period long enough to mount an effective legal

challenge to the visitation policy. The time relevant

to determine whether an issue may evade review

is measured by the “time period for an appellate

court . . . to complete its review.” see Praxis. slip

op. at 27. In short. there is no assurance in the

temporary custody situation that evasion of review

will not occur time and time again.

Moreover. if the district court had _ not

prematurely denied the class certification. this

court would likely face the same merits issues as

we decide here.* It is difficult to imagine why a

1. The relevant period is CYS’s custody over Samuel. Jr.. not.

as the dissent suggests. Mr. Winston's custody over Samuel.

Jr. See Dissenting typescript op. at 8. n.5.

2. Although we hold infra that there is no reason to remand

to the district court for reconsideration of the class action

motion. that would not be the case if the Winstons’ claim were

dismissed as moot. In that instance. the class action could

a eae ee

10a

class would not be certified in this situation

because the visitation policy challenged is

generaliy applicable. When there has been a class

certified. the mootness of the class representative's

claim does not affect the courts Article III

jurisdiction. See Sosna v. lowa, 419 U.S. 393.

399-403 (1975).

In conclusion. we hold that although the need

for an injunction on behaif of the Winstons is no

longer live. their request for declaratory relief

remains viable and the appeal is not moot merely

because Samuel Jr. has been returned to the

physical custody of his father.

We turn next to the question whether there is

any reason for the federal court to abstain from

deciding the issues presented. Abstention. unlike

mootness, does not present a jurisdictional issue.

A party who wishes a federal court to abstain from

deciding a live controversy in deference to a

pending state action must preserve its claim in

both the district court and the court of appeals.

CYS and the Commonwealth defendant state that

they raised abstention in the district court and

that the district court implicitly declined to abstain

when it proceeded with trial. Thus. we will assume

arguendo that there was an adequate preservation

of the issue at the trial level.

However, the defendants have not preserved that

issue for review in our court. They neither

appealed from the district court's failure to abstain

nor cross-appealed when the appellants appealed

from the adverse judgment. Indeed. hecause the

serve to preserve the class challenge to CYS's visitation policy

and the DPW regulation.

lla

court had decided the relevant issues favorably to

defendants it is perfectly understandable why they

would not have challenged the federal court's right

to maintain the action.

Whatever the reason. defendants failed to

preserve any claim for abstention. Even if a

cross-appeal was not technically necessary. as the

dissent argues, defendants did not even argue in

their brief on appeal that the district court should

have abstained. Rule 28(a) and (b) of the Federal

Rules of Appellate Procedure provide that the

parties’ briefs shall contain a statement of the

issues presented for review. Abstention was not an

issue presented by any party. This court has

repeatedly declined to address an argument that

the party has not raised in its brief as required

under Rule 28(a)(4). As we stated in Wisniewski v.

Johns-Mansville Corp., 812 F.2d 81. 88 (3d Cir.

1987), “[ajn issue that is not addressed in an

appellant's brief is deemed waived on appeal.” See

‘ Peter v. Hess Oil Virgin Islands Corp.. 910 F.2d

1179. 1181 (3d Cir. 1990). cert. denied. 111 S.Ct.

783 (1991), (collecting cases); see also Jackson v.

Univ. of Pittsburgh. 826 F.2d 230. 237 (3d Cir.

1987). cert. denied, 484 U.S. 1020 (1988).

The situation is no different when the issue

waived is abstention. Indeed, in Brown v. Hotel

Employees. 468 U.S. 491. 500 n.9 (1984), the

Supreme Court noted that because the State

Attorney General did not press the Younger

abstention claim. the Court need not address the

merits of that claim: it stated that under those

circumstances, “considerations of comity are not

implicated.”

A situation analogous to that occurring here was

presented to this court in McLaughlin v. Pernsley.

12a

876 F.2d 308 (3rd Cir. 1989). In that case. which

involved a challenge to the City’s removal on racial

grounds of a foster child from foster parents. this

court noted that although the issue of abstention

had been raised by the defendants at some point

in the district court proceeding. it was not raised

by the parties on appeal: therefore. we proceeded

to the merits. The language that we used on that

occasion is instructive:

Neither the City nor any other party has

urged in this appeal that the district court

should have abstained. e.g.. under the doctrine

of Younger v. Harris. 401 U.S. 37. 91 S.Ct. 746.

27 L.Ed.2d 669 (1971). Because abstention is

not jurisdictional but implicates the exercise of

equitable powers. see Ohio Civil Rights

Commission v. Dayton Christian Schoois. Inc..

477 U.S. 619. 626. 106 S.Ct. 2718. 2722. 91

L.Ed.2d 512 (1986). and because abstention

would raise the possibility that this five vear old

child would unnecessarily be exposed to vet

another custody transfer before custody is finally

determined. we decline to decide the abstention

issue on our own mowuon.

Id. at 314 n.5.

Our request that the parties address the issue

in supplemental briefs and the defendants’ belated

attempt to claim abstention without offering any

reason for failure to preserve the issue cannot

excuse the defendants from the effect of their

failure to preserve the issue. We see no reason to

deviate from the rule that an issue that has not

been preserved in the briefs will not be addressed.

particularly when the district court has decided

the issues on the merits after a full trial.

13a

Because the issue of abstention has been

waived. we do not respond to the dissent’s

discussion of the merits of abstaining here except

to note that it is highlv unlikely that the plaintiffs’

entire chailenge encompassed in their federal

section 1983 action would have been cognizable in

the dependency/custody proceeding that was in

progress in the Pennsvivania Court of Common

Pleas.

Actions or proceedings “{algainst the

Commonwealth government. including any officer

thereof, acting in his official capacity” are within

the exclusive jurisdiction of the Commonwealth

Court. See 42 Pa.C.S.A. §§ 76l1(a). 761(b).

Plainuffs challenge. inter alia. a regulation of the

State Department of Public Welfare. and name

John F. White. Jr.. the Secretary of that

Department. as a defendant in his official capacity.

See Balshy v. Rank, 490 A.2d 415, 417 (Pa. 1985)

(“Officer”> under 42 Pa.C.S.A. § 761 describes

“those persons who perform statewide

policvmaking functions and who are charged with

the responsibility for independent initiation of

administrative policy regarding some _ sovereign

function of state government.” (quoting Opie v.

Glascow. Inc.. 375 A.2d 396, 398 (Pa.Cmwith.

1977))). Thus. it appears that plaintiffs’ challenge

to the DPW regulation could only have been

maintained in the Commonwealth Court. Although

there is an exception to the Commonwealth Court's

exclusive jurisdiction for cases that “sound in

trespass, which includes section 1983 cases

seeking damages. that exception does not apply

when the section 1983 action is for declaratory

and injunctive relief. as in this case. See Fawber

v. Cohen. 532 A.2d 429 (Pa. 1987). Thus it is

l4a

apparent that even were we to undermine our

precedent and consider the advisability of

abstaining notwithstanding the parties’ waiver of

the issue. we could not surmount the authority

holding it inappropriate to abstain when the

applicable state procedures do not afford the

plaintiffs the opportunity to raise their ciaim in

the particular state proceeding. See. e.g.. Moore v.

Sims. 442 U.S. 415, 426 n.9 (1979).°

From a jurisprudential standpoint. there is

simply no valid reason for this court. following a

full trial on the merits in the district court. to

decline to hear the plaintiffs’ appeal which raises

federal statutory and constitutional challenges to

a policy that currently affects numerous children

Similarly situated to Samuel! Jr. and which may

affect Samuel Jr. himself in the future. We will

therefore proceed to consider the merits of

plaintiffs’ appeal.

Adoption Assistance Act

We consider first the plaintiffs’ statutory

challenge to the CYS policy and the DPW

3. Although the dissent suggests that there is no exclusivity

here because the custody action was begun bv CYS. the

Winstons’ claim challenging the regulation was against the

Department of Public Welfare and John F. White. different

state agents. The dissent offers no Pennsylvania case in which

the parents of a child taken into custody were permitted to

raise in the custody proceeding itself a section 1983 challenge

comparable to that raised here. The need tor this court to

determine what may be an undecided issue of Pennsyivania

jurisdiction is yet another reason why we should not sua

sponte exercise our equitabie power to abstain in this now

completed action.

15a

regulation before turning to plaintiffs’

consututional attack. See Ashwander v. Tennessee

Valley Authority. 297 U.S. 288, 347

(1935)(Brandeis. J.. concurring). In support of

their argument that they have a federal statutory

right to defined minimum visitation rights,

plaintiffs rely on the federal Adoption Assistance

and Child Welfare Act of 1980, 42 U.S.C.

§§ 620-28. 670-79(a) (1988) (AAA or the Act). That

statute provides the states with federal funds to

make needed improvements in their child welfare

and social services programs. enhance federal

support for needy and dependent children in foster

care. encourage the permanent adoption of

children with special needs. and reduce the time

spent in foster care by any child. In order to

reduce time spent in foster care. Congress

provided incentives to encourage either the return

of foster children to their own families or the

permanent placement of foster children in adoptive

homes. S. Rep. No. 336. 96th Cong.. 2d Sess. 1.

12, 15, reprinted in 1980 U.S. Code Cong. &

Admin. News 1450. 1461. 1465.

In the language at issue here. section 671(a) of

the Act provides that:

lilm order for a State to be eligible for payments

under this part. it shall have a plan approved by

the Secretary which -

(15) . . . provides that. in each case. reasonable

efforts will be made (A) prior to the placement of

a child in foster care, to prevent or eliminate the

need for removal of the child from his home. and

(B) to make it possible for the child to return to

his home... .

ah cae a onan eit

l6a

42 U.S.C. § 671(a){15) (emphasis added).*

It is plaintiffs’ thesis that the Act places an

affirmative obligation on agencies of participating

states to replace their current visitation policies

with a policy of individualized visitation plans

based on the particular needs and circumstances

of each family. Plaintiffs argue that we should

construe the agency’ statutory duty to make

“reasonable efforts” to return children to their

4. Subsection 67 l(a) lists several other “requisite features” of

state child welfare plans on which federal funding ts

contingent. A state’s plan must also:

(3) providej] that the plan shail be in effect in all

political subdivisions of the State . .

(9) provide] that the State agency will—

(A) report to an appropriate agency or official.

known or suspected instances of physical or

mental injury. sexual abuse or exploitation. or

negligent treatment of a child. . .

(10) . . . establish{] and maintain(] standards for

foster family homes and child care institutions which

are reasonably in accord with recommended standards

of national organizations . .

(12) provide{] for granting an opportunity for a fair

hearing before the State agency to any individual

whose claim for benefits available pursuant to this part

is denied or is not acted upon with reasonable

promptness:

(16) provide{] for the development of a case plan .

for each child receiving foster care taintenance

payments under the State plan and provides for a case

review system which meet the requirements described

in section 675(5)(B) ... .

42 U.S.C. § 671{a) (1991).

17a

parents as encompassing a minimum visitation

period of four hours per week for the family.

preferably at a location other than the agency

offices. unless otherwise inappropriate. Finally.

plaintiffs argue that because the DPW regulation

supports CYS’s uniform policy of one hour

biweekly visitation between parents and their

children. it too violates the AAA’s requirement of

“reasonable efforts” to reunify families.

As an initial matter. we must decide whether the

provision of the statute requiring states to make

“reasonable efforts” toward reunification is

enforceable in a judicial proceeding. The Supreme

Court has recently outlined the criteria for

determining whether a statute contains a privately

enforceable right. The Court held that a statute

creates a federal right if it was intended to benefit

the putative plaintiff. imposes a binding obligation

on the state or other governmental unit. and is

not “too vague and amorphous’ such that it is

beyond the competence of the judiciary to enforce.”

Wilder v. Virginia Hosp. Ass'n. 110 S.Ct. 2510.

2517 (1990) (internal quotations omitted). Once

plaintiffs identify “a substantial provision that

gives them a tangible right. privilege. or immunity,

the burden is on the defendants to demonstrate

that Congress intended to foreclose private

enforcement of a right that is otherwise evident.”

Artist M. v. Johnson, 917 F.2d 980. 986 (7th Cir.

1990). cert. granted sub nom. Suter v. Artist M..,

111 S.Ct. 2008 (1991).

The Court in Wilder found enforceable under

section 1983 the Boren amendment to the

Medicaid statute that requires reinibursement at

rates a state finds are “reasonable and adequate”

to meet the costs incurred by hospitals and other

A ONE tb BS pore 0K

18a

facilities. 110 S.Ct. at 2514. 2519. The Court

noted that the amendment used “mandatory rather

than precatory terms” in requiring states to

provide “reasonable and adequate” payment to

hospitals. Id. at 2519. The Court distinguished

between a holding that an issue is not subject to

court challenge and a holding that it is one over

which the states have discretion:

That the Amendment gives the States substantial

discretion in choosing among _ reasonable

methods of calculating rates may affect the

standard under which a court reviews whether

the rates comply with the Amendment. but it

does not render the Amendment unenforceable

by a court. While there may be a range of

reasonable rates, there certainly are some rates

outside that range that no State could ever find

reasonable and adequate under the Act.

[SJuch an inquiry is well within the competence

of the judiciary.

Id. at 2523.

The Court in Wilder concluded that Congress

intended that hospitals should be able to challenge

the state’s rates as unreasonable. Similarly, in

Wright v. Roanoke Redev. and Housing Auth., 479

U.S. 418, 429-32 (1987). the Court held that in a

section 1983 action plaintiffs can enforce a

housing statute that guarantees that a

“reasonable” allowance for utilities will be counted

in low-income tenants’ rents. In so holding, the

Court rejected the contention that the provision for

a “reasonable” allowance was tvo vague and

amorphous to confer on tenants an enforceable

right.

19a

Courts considering the ‘reasonable efforts”

provision of subsection 671(a)(15) of the AAA have

held that it creates enforceable rights. See, e.g..

Artist M., 917 F.2d 980: J.L. ex rel. Darr uv.

Massinga, 838 F.2d 118. 123 (4th Cir. 1988), cert.

denied. 488 U.S. 1018 (1989); Lynch v. Dukakis,

719 F.2d 504, 509-12 (lst Cir. 1983); Lashawn v.

Dixon, 762 F. Supp. 959 (D.D.C. 1991). The issue

was given its fullest treatment in Artist M.. where

plaintiffs alleged that the state agency's practice of

not promptly assigning caseworkers to children in

its care (and not promptly reassigning one when

a caseworker leaves the agency) violated the

“reasonable efforts” requirement of subsection

67 1(a)(15) as well as the requirement of subsection

671(a)(16) to develop “a case plan” and an

individualized case review system for each child in

foster care. The court found the “reasonable

efforts” clause enforceable. and noted that even

though the agency “has substantial discretion in

choosing the method it will use to implement the

requirements of the AAA.” courts “nevertheless

[are] capable of determining whether the state is

exerting ‘reasonable efforts’ to provide those

services.” Artist M.. 917 F.2d at 987.

We believe that analysis is apt here. First. it is

clear that subsection 671(a) is intended to benefit

families, such as the Winstons, see, id. at 986-87,

thus meeting the first prong of Wilder. Second. like

the Medicaid provision at issue in Wilder,

subsection 617(a) specifies the requirements that

states must meet in order to receive federal

funding. The statute, under the heading “Requisite

features of State plan,” provides that a state “shall

have a plan [which provides that] reasonable

efforts will be made .. . to make it possible for

rae 8 Te sR na

20a

the child to return to his home... . 42 U.S.C.

§ 671(a)(15) (emphasis added). These provisions

express more than mere “congressional preference”

in precatorv terms. but impose a “binding

obligation” on participating states in exchange for

receipt of federal funding. The second prong of the

Wilder inquiry is therefore satisfied.

Finally. we look to whether subsection

67 1(a)(15). by requiring states to make “reasonable

efforts” toward familv reunification after the state

has taken custody of a child. creates a right

sufficiently clear and specific to be enforced.

Courts have long experience with enforcing

reasonableness standards. in contexts ranging

from state tort law to the Fourth Amencment

prohibition on unreasonable searches. Indeed. the

language of subsection 671(a)(15) is similar to that

of the Medicaid provision at issue in Wilder. which

required that reimbursement rates be “reasonable

and adequate to meet the costs” incurred by health

care providers. The final Wilder consideration is

met because the right asserted by plaintiffs is not

so vague and amorphous as to be beyond the

competence of courts to enforce. We therefore

conclude that subsection 671(a)(15) creates rights

enforceable bv private plaintiffs.

It does not necessarily follow that a specified

minimal level of visitation is an essential or

enforceable component of the “reasonable efforts”

the state is required to make toward family

reunification. The district court held that because

each state is “afforded considerable flexibility in

unilaterally developing procedures compatible with

its own unique foster care circumstances.” the Act

“cannot be read to require the states to provide a

particular quantum of supervised visitation, or

2la

even any visitation at all” if it provided “other

reunification services.” App. at 14.

We need not decide today whether a state

regulation or an agency policy that did not provide

some visitation could survive a statutory challenge.

But cf. Scrivner v. Andrews, 816 F.2d 261. 264

(6th Cir. 1987)("The Act neither explicitly nor

implicitly creates a federal statutory right to

‘meaningful visitation”). There is no _ dispute

between the parties about the importance of

visitation to the goal of reuniting parents and

child. The parties agreed in their stipulation of

facts that “[rjesearch has shown conclusively that

regular visits between parents and children are the

most important factor in ensuring that children

are returned home. App. at 88. CYS’s own

internal policy states the same. adding that

visitation is “critical” and “vital” to family bonding

and maintenance. App. at 295-96.

In fact. the DPW regulation challenged by

plaintiffs provides: “The county agency shail

provide opportunity for visits between child and

parents as frequently as possible but no less

frequently that once every 2 weeks at a time and

place convenient to the parties and in a location

that will permit natural interaction ... .~ 55 Pa.

Code § 3130.68(a) (1989). The regulation does not

specify the length of the required visit. The CYS

policy to set all visits initially at one hour biweekly

is designed to meet the rnandate of that regulation.

Thus, the only challenge in this case goes to the

amount of visitation that is mecessary for the

agreed upon goal. 3

The absence of any language in subsection

67 1(a) expressly providing a right to visitation or

identifying visitation as an essential component of

Oo le Mt tn Se le ctl

22a

the “reasonable efforts . . . [toward] making] it

possible for the child to return to his home” makes

plaintifis'’ statutory argument problematic. The

only legislative history referring to visitation is in

the context of the Act's emphasis on family

reunification and the de-emphasis on

institutionalization and temporary placement.°®

There is no suggestion that the _ statute

encompasses a specified time and frequency of

visitation.

Plaintiffs argue that the one hour biweekly

visitation is “grossly inadequate.” They characterize

the expert testimony of Dr. David Fanshel as

stating “that a minimum schedule of four hours a

week should be utilized.” Appellant's Brief at 16.

Dr. Fanshel did refer to his suggested rule of four

hours or half a day of visiting as preferable to the

“minimalist approach.” App. at 156. However. the

Act has been construed as giving substantial

discretion to the states in determining appropriate

policy within the broad range of “reasonable

efforts.- See Artist M.. 917 F.2d at 987 (a state

Department of Children and Family Services “has

substantial discretion in choosing the method it

will use to implement the requirements of the

AAA’): Cf. Wilder. 110 S.Ct. at 2522 (that the

statute “gives the States substantial discretion in

choosing among reasonable methods of calculating

rates may affect the standard under which a court

5. In the floor discussion Senator Cranston stated. “These

unfortunate children have been cut off from any contact with

their families. deprived of the possibility of visitation. and

effectively denied the potential for reunification with their

families.” 125 Cong. Rec. S29.942 (daily ed. Oct. 29. 1979).

23a

reviews whether the rates comply with the

Amendment’).

The professional consensus undoubtedly is that

parental visitation should be a part of reunification

efforts to the fullest extent that the circumstances

of an individual case allow. However. as the

plaintiffs’ expert acknowledged. visitation is not

appropriate in all cases in which a child has been

taken from his or her parents. and there are some

cases for which “severely restricted” visitation Is

appropriate. App. at 133. In light of the differing

circumstances presented by each family situation.

we cannot find any basis in the statute for

equating “reasonable efforts” with a four hour

weekly visitation.® See Scrivner. 816 F.2d at 264

(rejecting statutory challenge to initial visitation of

one hour biweekly).

CYS introduced a joint affidavit by its

Administrator of Placement Services. Chief of

Professional Services. and Administrator of Legal

Services stating that they are the professionals

within the agencv who developed CYS's visitation

polices. that in doing so they relied upon their

professional experience. and that “jtjhe policies

were formulated based upon accepted professional

judgement [sic]. practice and standards

App. at 283. Significantly. the Stipulation of Facts

in this case states that “[ajt the discretion of the

social worker subsequent visits which are

supervised in the agency office are eventually

extended up to two hours biweekly in some cases.”

6. Albeit not dispositive of the “reasonable efforts” issue. a

federal-state review team conducted a trennial review in

November. 1989 and concluded that the state had complied

with all federal standards.

24a

App. at 91. Because the statute does not specify

visitation as a required component of _ the

“reasonable efforts” requirement and the agency

exercised discretion in establishing a visitation

policy comporting with professional standards. we

find no statutory authorization for the court to

“inject{] itself into the operations of the [agency].

Artist M.. 917 F.2d at 988. Accordingly. we

conclude that plaintiffs have not established that

the CYS visitation policy, and the DPW regulation

which authorized that policy. violate the Adoption

Assistance Act.

Soe

Constitutional Issues

The Winstons also challenge the CYS policy as

violative of their substantive due process and free

association rights under the First. Ninth. and

Fourteenth Amendments. The essence of their

claim is the same under all of the constitutional

provisions invoked. Plaintiffs argue that. as

parents, they have a fundamental liberty interest

in the care, custody. and management of their

children that is protected by the due process

clause of the Fourteenth Amendment. that this

fundamental interest includes a rght_ to

communicate with the child. and that this right of

association is protected as well by the First

Amendment. They contend that restrictions on this

associational right must be evaluated under

heightened scrutiny. and that CYS’s_ current

visitation policy does not withstand that scrutiny

because the agency could adopt a policy which

facilitated visits and was less restrictive.

25a

We agree with plaindffs that the parental

interest “does not evaporate simply because |the

natural parents] have not been model parents or

have lost temporary custody of their child to the

State. Even when biood rejiationships are strained.

parents retain a vital interest in preventing the

irretrievable destruction of their familv life.

Santosky v. Kramer. 455 U.S. 745. 753 (1982)

(citing cases): Staniey v. Illinois. 405 U.S. 645. 651

(1972): Prisco v. United Stares Dep't of Justice. 851

F.2d 93. 97 (3d Cir. 1988). cert. denied. 490 L.S.

1089 (1989). In this case. however. there is no

challenge to the state's assumption of custody over

Samuel Jr. Instead. we have what counsel

characterized at oral argument as a facial

challenge to the CYS policv and DPW regulation.

It does not follow that once the state has met

the requisite standard justifying its. radical

intervention in the parent-child relationship by

taking custody of the child. strict scrutiny must

be applied to every decision made while the child

remains in state custody. In this respect. we can

consider children in foster care as analogous to

the institutionalized mental patients at issue in

Youngberg v. Romeo. 457 U.S. 307 (1982). See

Taylor ex rel. Walker v. Ledbetter. 818 F.2d 791.

794-97 (llth Cir. 1987) (en banc). cert. denied.

489 U.S. 1065 (1989): Doe v. New York City Dept

of Social Services. 649 F.2d 134. 141-42 (2d Cir.

1981).

In Youngberg. the Court held that an

involuntarily committed mentally retarded plainuff

had a substantive due process right to training

and “habilitation” by the state as well as safety

and minimal restraint. However. the Court defined

the liberty interest as the right onlv to “minimally

26a

adequate or reasonable training [needed] to ensure

Safety and freedom from undue restraint.”

Youngberg. 457 U.S. at 319.

Significantly. for our Purposes. the Court did not

apply a strict scrutiny standard. which requires

the state to justifv each restraint under a least

restrictive analvsis. Instead. Youngberg stated that

the level of care that a state must provide “must

be determined by balancing [the patient's] liberty

interests against the relevant state interests.” Id.

at 321. Furthermore. the “courts must show

deference to the judgment exercised by a qualified

professional.” Id. at 322.

[Tlhe decision. if made by a professional. is

presumptively valid: liability may be imposed

only when the decision by the professional is

such a substantial departure from accepted

professional judgment. Practice. or standards as

to demonstrate that the person responsible

actually did not base the decision on such a

judgment.

Id. at 323 (footnotes omitted).

The district court applied the Youngberg

Standard in concluding that CYS's visitation policy

did not fall below minimum professional standards

and therefore did not violate plaintiffs’ rights to

due process. The Court noted that Dr. Fanshel

admitted on cross-examination that he did not

know of any jurisdiction which requires weekly

visits with children in custody.” Indeed. Dr.

7. We agree with piaintiffs that the admission of an affidavit

by the defendant CYS's emplovee Carlin Knight. CYS

administrator of legal services. which contained a summary of

the laws. regulations and policies of eleven States on foster

care visitation. was error because the affidavit was

27a

Fanshe!. who characterized CYS’s one hour

biweekly visitation schedule as “extremely meager™

and “noxious.” never stated that it was below

professional standards. much less a “substantial

departure” from them. In fact. Dr. Fanshel phrased

his recommended schedule of four hours weekly

aS an “appropriate” amount of time. not as the

minimum amount needed to meet professional

standards.

Much of Dr. Fanshel’s tesumony focused on

what would be beneficial or optimal for children

and their families. Furthermore. he admitted that

several leading authorities on foster care generally

urge “frequent” visitation but have not specified a

Standard minimum time. Similarly. the other

authorities on whom piaindffs rely in their briefs

(including CYS policy statements) generally urge

frequent visitation and may recommend more

visitation. but none specifically says that the CYS

policy is below professional standards.

We believe that it is particularly significant that

the CYS policy and the state procedural scheme

provide an opportunity to seek increased visitation.

when appropriate. The social worker may increase

visitation. as was done in this case. and the court

inadmissibie hearsay. It was a statement offered and used by

the court for the truth of the matter asserted. i.e.. for the

truth of other states’ visitation policies. and cannot fairly be

charactenzed as Knights expert “opinion” of other states

policies. There were no indicia of reliability that the people

from whom Knight gathered this information were official or

even reliabie sources. We conciude. however. that there was

sufficient evidence without the affidavit to support the district

courts conclusion that the CYS policy does not fall below

professional standards. We hold. therefore. that the admission

of the hearsay was harmless error.

28a

may increase it even further. as was also done

here. Although plaintiffs complain that this

procedure is time-consuming and there is a lag,

we cannot hold that the ability to get redress is

so cumbersome as to be effectively unavailable. We

do not suggest that plaintiffs’ imterests in

association with their son. maintained through

visitation. are not substantial. In fact. Mr. Winston

in particular has shown strong filial attachment.

However. in balancing the respective interests we

must give due consideration to the fact. stipulated

by the parties, that CYS formulated its visitation

policy based. in part. on the “lack of funds and

staff.. App. at 85. Weighing all the relevant

interests. we cannot hold that the policy is

unconstitutional.

Class Certification

Plaintiffs also appeal from the district court's

order denying their request for class certification.

Our review of a district courts decision on class

certification is for abuse of discretion. Eisenberg v.

Gagnon, 766 F.2d 770, 784-85 (3d Cir.), cert.

denied. sub nom. Pelino et al. v. Etsenberg. 474

U.S. 946 1985). In this case, however. no opinion

was issued with the order and we are thus unable

to ascertain whether the district court believed

plaintiffs were in procedural default or whether the

court ruled against the proposed class on the

merits.

Under the district court's local rules. plaintiffs

are required to seek class certification within 90

days of filing of the complaint. Rule 27 of the Local

Rules. E.D. Pa. On November 17. 1989, plaintiffs

29a

moved for a 90-day extension of time to file for

class certification because they were still in the

initial stages of discovery. On November 22. 1989,

the district court granted the motion. expressly

giving plainuffs “90 additional days from the date

of this Order .. . to file for class certification.”

App. at 56. Then. on December 14. 1989. only 22

days later and before plaintiffs filed any

documentation in support of the class, the district

court denied “Plaintiffs’ application for class

cerufication.” App. at 57. Plaintiffs claim they

never filed such an application. and the docket

sheet does not show that an application was filed.

The procedure followed by the district court is

clearly faulty. Once the court gave plaintiffs an

extension of time to file for class certification. it

was obliged to await receipt of that application

before acting on it. We assume it overlooked the

extension it had granted to plaintiffs. However. if

our decision on the merits could be different were

we dealing with a class action. we would be

required to remand so that the district court could

give due consideration to plaintiffs’ application for

class certification. That we do not do so is in the

interest of judicial expediency. because we

conclude that maintenance of a class action could

not alter the result of this case in the posture

presented to us. But see supra note 1.

Our legal analysis of the federal statute is not

dependent on the existence vel non of a class. In

light of the absence of any indication from the

statutory language or legislative history that the

requirement that agencies make “reasonable

efforts” to reunification encompasses a require-

ment of a four hour weekly visitation policy. we

have concluded that the CYS policy for an initial

30a

one hour biweekly visit does not provide such

meager visitation rights as to constitute an

inadequate “effort.” Similarly. our conclusion that

the CYS policy and the regulation do not violate a

parent's constitutional right to familial association.

whether viewed from the standpoint of the

Fourteenth Amendment or the First Amendment.

was made in light of the evidence that the CYS

policy was established as a result of the judgment

of qualified professionals, the absence of any firm

evidence that this policy falls below professional

standards. the stipulated fact that the policy was

made. in part. because of lack of funds and

personnel. and the discretion that must be

accorded to state regulations applicable to persons

in custody. It is thus clear that plaintiffs’ facial

challenge to the CYS policy and the DPW

regulation could not have been aided by the

presence of a class.

There is some ambiguity from plaintiffs’

pleadings as to whether they were making a facial

or an as-applied challenge. In response to a direct

question by the court. plaintiffs’ counsel stated

that they were mounting a facial challenge. In any

event. plaintiffs have not shown what facts they

might have adduced on behalf of a class which

would have supported an as-applied constitutional

challenge to CYS’s visitation policy. Under these

circumstances. we limit our decision to the

plaintiffs’ facial challenge to the CYS policy. as

administered as set forth in the stipulated facts.

As so construed. our decision would not be

different had a class been certified. Thus. we see

no reason to remand so that the district court can

reconsider its decision on class certification.

3la

[V.

For the reasons set forth above, we will affirm

the district court's grant of summary judgment in

favor of defendants. Each party to bear its own

costs.

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.

On December 28, 1989, almost two years ago.

the Court of Common Pleas restored Samuel Jr.

to the physical custody of his father.' Since that

date. no question concerning the CYS visitation

policy could arise, inasmuch as Samuel Jr. has

resided with his father.? State court hearings

1. 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 physica! custody. See In the Interest of:

Samuel Winston. unpublished order. J.V. # 21033 (Court of

Common Pleas of Delaware County March 12. 1991).

2. 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 -equired

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

siasaciireemsthtnien aes

BD ae an! Bi ln de:

32a

reviewing Samuel Jr.'s custody continue, however.

and are thus ongoing.” 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.

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

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.

3. 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.

33a

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 (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 (1982) (per

curiam), Hunt. charged with first degree sexual

assault, challenged the denial of his application

for bail. Hunt claimed that the 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, and Hunt could not show

a “reasonable expectation” or “demonstrated

possibility.” id. at 483, that he would again “be in

a position to demand bail before trial.” Id. at 484.

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 vet evading review. Id. at 482.

See O’Shea v. Littleton. 414 U.S. 488, 497 (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. See Supp. Brief of Appellants at

5-7.

34a

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 davs later (A944)

and that he was placed on probation.

Like the courts in Murphy and O'Shea. I am not

prepared to concede or foresee the iikelihood 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 uv.

Lyons, 461 U.S. 95. 109 (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 sare acuion again’). cert. denied.

471 U.S. 1131 (1985).

The Supreme Court's discussion in Preiser v.

Newkirk. 422 U.S. 395 (1978) of tire reasonable

expectation of a wrong being repeated in thie

context of mootness is ilstructive. Newkirk had

been incarcerated in a maximum _ security

institution unti! 1971. He was then transferred to

35a

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 Wailkill.

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 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.”

36a

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 Jusuce 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 (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 bea,

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 (1941).*

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.

4. Both Judge Sloviter and | agree that the Winstons’

injunctive claim is no longer viable in light of Samuel Jr.'s

residence with his father. (Maj. Op. at 10)

37a

Even if the assessment of Winston Sr.’s future

arrest status is considered to be flawed. and the

record is devoid of anv evidence to that effect.

nonetheless. the Winstons have not shown that

their claims will evade review. an _ essential

component of the mootness doctrine.* As_ the

Supreme Court noted in DeFunis v. Odegaard. 416

U.S. 312 (1974):

5. Judge Sloviter. writing for the majority. relies upon Praxis

Properties. Inc. v. Colonial Savings Bank, No. 90-5589 (3d Cir.

Oct. 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. 8-9).

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 USCA § 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 (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 9) has

no basis in fact or evidence. and is postulated only to support

the majoritv’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

38a

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 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. 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 reasor *» think that

another family, subject for a longe. period of time

to CYS'’s visitation policy. will not successfully

litigate a claim challenging it.”

Moreover. Samuel Jr.'s custody has been. and

is presently, the subject of constant state court

for a non-mootness determination. as the majority opinion has

apparently held. see Maj. Op. at 10. 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.

6. The likelihood of a party completing litigation on such a

claim appears especially high if viewed in lght of a partys

option to make a claim for damages.

39a

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.

Pennsvivania. 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 courts conscientious and _ continuing

supervision over Samuel Jr.'s custody, there can

be no practical possibility of anv claim made bv

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 inapplicabilitv 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

40a

instructions that it be dismissed. See United States

v. Munsingwear. Inc.. 340 U.S. 36 (1950). CY.

Clarendon v. Nu-West Industries. 936 F.2d 127 (3d

Cir. 1991) (Sloviter. C.J.).

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 mav not consider the issue of

abstention as it is not preserved for ar -al. (Maj.

Op. at 10-14).

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 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 4 110.25[1], at 273 (2d

ed. 1973).

4la

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 ~‘1e 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. § 39C4 (1976).

Here. CYS had fully prevailed in the district

court. even though its contention tha: 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 (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

Winstons 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:

42a

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 pa. ~ ularly

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 (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

11-13) 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

(1984), McLaughlin v. Pernsley, 876 F.2d 308 (3d

Cir. 1989), and Wisniewski v. Joluis-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.

43a

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. 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 (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

44a

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 (1979)

(citing Younger v. Harris. 401 U.S. 37 (1971)). A

federal court should abstain in a case where a

State proceeding involving important state interests

is ongoing. in which the federal plainti” 4 an

opportunity to raise his or her federal claims. See

Moore. 442 U.S. at 423-25. Because the Winstons

are currently subject to ongoing state proceedings’

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.

7. The custody proceedings by the Coinmonwealth against the

Winstons are clearly “ongoing” or “pending” for purposes of

the Younger doctrine because the Court of Common Pleas of

Pennsvivania 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.

45a

First. the Supreme Court has clearly established

that “[flamily relations are a traditional area of

state concern.” Moore, 442 U.S. at 435.° In Moore.

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. Following a report

from school authorities. the Texas Deparument of

Human Resources, (“Department’), took temporary

custody of the three Sims children to protect them

from physical abuse by their parents. Id. at 419.

8. See also United States v. Yazell. 382 U.S. 341. 352 (1966)

(In holding that. in the absence of specific federal legislation.

federai 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.

particulariy in the field of family and familv-property

arrangements. They should be over-ridden bv 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 (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 (1890) (district

court did not have jurisdiction over case concerning familv

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.”).

46a

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 iniunction

enjoining the Department from prosecute any

state proceeding under the challenged state

statutes until the case was resolved by the three

judge panel. Id. at 420-22. 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 “{wle 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.

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

(quoting Hoffman v. Pursue. Ltd.. 420 U.S. 592.

604 (1975)). The existence of such circumstances

determines the applicability of Younger abstention

in a federal action. Moore, 442 U.S. at 423. and

the nature of the state's interest in this case is

indistinguishable from the state’s interest in

47a

Moore, where the court upheld that interest as

paramount. Id. at 435. Pennsvivania. 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 tvpe of

State interest which calls for Younger abstention.

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. and they must sustain the

burden of showing that a state procedural law

barred them from presenting those claims. Texaco

vu. Pennzoil. 481 U.S. 1, 14 (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. Thev

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 justiciabilitv.” Moore. 442 U.S. at 425.

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. See McTeague wv. Sosnou'ski. 617 F.2d

1016. 1021 (3d Cir. 1980) (“If deference to the

state proceeding means that she will be unable to

48a

raise her concerns. abstention may be

inappropriate.”). The Winstons have not me° their

burden of establishing that state procedur . were

inadequate for the adjudication of thei: federal

Claims. in that they had no opportunity to present

those claims. See Moore. 442 U.S. at 430 n.12.

Although the Winstons in their abstention brief

have made no ciaim that they could not present

their federal contentions in the Pennsvivania Court

of Common Fleas, the majority opinion

nevertheless argues that “it is highly unlikely that

the plaintiffs’ entire challenge encompassed in

their federa] section 1983 action would have been

cognizable in the dependency/custody proceeding

that was in progress in the Pennsvivania Court of

Common Pleas.” (Maj. Op. at 13).

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...{a]gainst the

Commonwealth government. including an officer

thereof. acting in his official capacity.” Hence. the

Majority opinion conciudes 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 Winstons 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

49a

cited in the majority opinion (Mai. Op. at 13), 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, 532 A.2d 429

(Pa. 1987), cited in the majority opinion at p. 14,

which was an action brought by an individual

against the Commonwealth in the Cumberland

County Court of Common Pleas, is_ clearly

inapposite.

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. § 76l1(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 14) in ruling on the

doctrine of abstention. inasmuch as we know of

no authority which could bar abstention where all

50a

qualifications for. abstention are met including

jurisdiction in the state court where all claims ray

be litigated. particularly where § 761(b) affords

concurrent jurisdiction.

The Winstons argue. however. that abstention is

inappropriate because their case consists primarilv

of a challenge to the CYS policy, rather than a

broad challenge to a _ state statute.” 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.'°

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. While

there is not a weighty Pullman concern at issue

9. It is true that the Moore court does indicate that the

sweeping nature of a broad chailenge to a complex statutory

scheme “has traditionally militated in favor of abstention. not

against it.” Moore, 442 U.S. at 427 (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.

10. 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.

5la

here, the Winstons 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.'' 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. a“

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.'* 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. 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

11. 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.

12. 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 § | for discussion

of mootness.

52a

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.'’ Thus if the Winstons’

action is not deemed moot and their appeal

dismissed. as I believe it should be. I would

alternativelv 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 cleariv

moot. Thus. I would dismiss their appeal. See

Munsingwear, 340 U.S. 36.

Alternatively. I would vacate the judgment and

remand the case with instructions that the district

court dismiss the case 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 Winston's appeal by reason

of moomess or to direct the district court to

dismiss the action by reason of abstention. I

respectfully dissent.

13. 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.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

(A.O. U.S. Courts. G.M.C. Prinung. Phila.. Pa. 215-568-4264)

53a

SO i A RG

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 90-1788

SAMUEL WINSTON, JR., a minor by his

parents, MARYANN and SAMUEL WINSTON, SR.,

on behalf of himself and all others

similarly situated; MARYANN WINSTON and

SAMUEL WINSTON, SR., on behalf of

themselves and all persons’ similarly

situated

Appellants

Vv.

CHILDREN AND YOUTH SERVICES

OF DELAWARE COUNTY; H. SCOTT CAMPBELL;

SANDRA CORNELIUS; COUNTY OF DELAWARE;

JOHN F. WHITE, JR.

On Appeal from the United States District

Court for the Eastern District

of Pennsyivania

(D.C. Civil No. 89-06162)

Present: Sloviter, Chief Judge, Cowen

and Garth, Circuit Judges

JUDGMENT

This cause came on to be heard on

the record from the United States

District Court for the Eastern District

of Pennsylvania and was argued by counsel

April 11, 1991.

a |

54a

On consideration whereof, it is now

here ordered and adjudged by this Court

that the judgment of the said District

Court entered September 25, 1990, be, and

the same is hereby affirmed. Each party

to bear its own costs. All of the above

in accordance with the opinion of this

Court.

ATTEST:

Clerk

Dated: November 7, 199]

55a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

No. 89-6162

SAMUEL WINSTON, a minor,

by his parents, MARYANN

and SAMUEL WINSTON, SR.,

and MARYANN WINSTON and

SAMUEL WINSTON, SR.

vs.

CHILDREN AND YOUTH

SERVICES OF DELAWARE

COUNTY, H. SCOTT CAMPBELL:

SANDRA CORNELIUS, :

COUNTY OF DELAWARE, :

and JOHN F. WHITE, JR. :

MEMORANDUM

CAHN, J. September 24, 1990

The plaintiffs in this civil rights

action, a married couple and their minor

child, seek declaratory and injunctive

relief against Children and Youth

Services of Delaware County ("CYS"), the

County of Delaware ("County"), several

county officials, and the Secretary of

56a

the Department of Public Welfare for the

Commonwealth of Pennsylvania ("DPW" or

"Department"). The plaintiffs challenge

CYS's parental visitation policies for

children who have been adjudged

dependents and temporarily placed in

foster care; they also challenge the DPW

regulation pertaining to visitation. The

plaintiffs seek declaratory and

injunctive relief under the Adoption

Assistance and Child Welfare Act, 42

U.S.C. Secs. 620-29, 670-79, 42 U.S.C.

Sec. 1983, and the First, Ninth, and

Fourteenth Amendments to the

Constitutien. Complaint, Sec. 2.1

They ask that four hours per week be

established as the minimum visitation

1 The plaintiff also asks the

court to declare that the visitation

policy "violates the spirit" of DPW

regulation, 55 Pa. Code Sec. 3130.68

(1985) and the Pennsylvania Juvenile Act,

42 Pa. Cons. Stat. Ann. Sec. 6301 et seg.

(Purdon 1982).

57a

period between parents and children in

foster care when the goal is

reunification.

I. FACTS

The case was presented to this court

during hearings on April 27, 1990, June

25, 1990 and September 4, 1990, based on

a largely stipulated record. The

relevant facts are as follows.

CYS is a county children and youth

social service agency which provides

emergency and planned temporary child

placement services, adoption services,

placement prevention and family

reunification services, and other family

services. See 55 Pa. Code Secs. 3130.34,

-35 (1985). When a child has been found

to be a dependent by the court, 42 Pa.

Cons. Stat. Ann. Sec. 6341(c) (Purdon

58a

1982) , the court may transfer temporary

custody of the child to the county

agency. 42 Pa. Cons. Stat. Ann Sec.

6351(a)(2)(ii) (Purdon Supp. 1990). The

county agencies are administered in

accordance with regulations promulgated

by the DPW. 55 Pa. Code Sec. 3130.1 et

seq. (1985).? The agencies are bound to

follow the regulations published by the

Department. See, In Re Lowry, 506 Pa.

121, 127, 484 A.2d 383, 387 (1984); Janet

D. v. Carros, 240 Pa. Super. 291, 317,

362 A.2d 1060, 1073 (1976).

2 A dependent child is a child

who “is without proper parental care or

control, subsistence, education as

required by law, or other care or control

necessary for his physical, mental, or

emotional health, or morals." 42 Pa.

Cons. Stat. Ann. Sec. 6302 (Purdon 1982).

3 The regulations are published

pursuant to rulemaking authority

delegated to the Department by the

legislature. 62 Pa. Cons. Stat. Ann.

Sec. 703 (Purdon 1968).

59a

This lawsuit raises a challenge both

to CYS's visitation policy and to the DPW

regulation pertaining to visitation.

Complaint, Secs. 24, 25.4 The

regulation in question mandates that the

county agency provide parental visits for

children who have been temporarily placed

in agency custody. The regulation

provides:

The county agency

shall provide

opportunity for

visits between the

child and parents as

frequently as

possible but no less

frequently than

every 2 weeks at a

time and place

convenient to the

parties and in a

location that will

permit natural

interaction, unless

visiting is:

‘ Alternatively, the plaintiffs

ask the court to find that the regulation

is valid but that CYS's policy violates

it.

60a

(1) Clearly not in

keeping with the

placement goal -- for example,

in adoption or independent

living.

(2) Freely refused in

writing by the parents.

(3) Not in the child's

best interest and is limited or

prohibited by court order.

55 Pa. Code Sec. 3130.68(a) (1985).° As

the plaintiffs emphasize, the regulation

makes no mention of the required length

of each visit.

Often, when children are first taken

into CYS's custody, parents may visit

> Before this regulation was

enacted, the DPW published draft

regulations in July, 1979 which required

visits of one-half day every week.

Because rural counties objected, based on

travel time, and because local county

agencies wanted more discretion, the DPW

changed the regulations to require one

visit every two weeks. However, the

Department strongly recommended that the

agencies arrange for more frequent visits

for all children, even when long

distances posed serious problems.

Department of Public Welfare of the

Commonwealth of Pennsylvania, Social

Services Memorandum #16-80 at 1 (May 30,

1980).

6la

their children only under the supervision

of agency staff and only in the agency

offices. According to a stipulation

entered into by the parties,

approximately 35-40% of the children in

placement are at some time subject to a

plan of supervised visitation.

Typically, supervised visitation occurs

at the beginning of the placement.

Stipulation As To Agency Policy, par. 1.

When the visits are tc take place in the

agency office, they are initially

scheduled once every two weeks for one

hour. Id., par. 2. At the discretion of

the social worker, the biweekly visits

may be extended to two hours. Id., par.

On June 21, 1989, CYS removed three-

year-old Samuel Winston, Jr. from the

custody of his parents, Maryann Winston

and Samuel Winston, Sr., and placed him

62a

in a foster home. Mrs. Winston was

intoxicated, and she was being taken to a

hospital crisis unit. Mr. Winston had

just been imprisoned at Delaware County

Prison in connection with a minor drug

possession charge. At the time the

Winstons resided at the Wesley House, a

homeless shelter in Chester,

Pennsylvania. Stipulation of Facts, par.

Two days later, a preliminary

hearing regarding Samuel, Jr.'s custody

was held before David McNulty, a Master

of the Court of Common Pleas of Delaware

6 Mrs. Winston was

County, Pennsylvania.

still hospitalized, and Mr. Winston was

incarcerated. At this time, Judge

McNulty ordered that CYS continue to

6 Such a hearing must be held

within 72 hours after the parents lose

custody of their child. 42 Pa. Cons.

Stat. Ann. Sec. 6332 Purdon Supp. 1990.

63a

exercise protective custody over Samuel,

Jr. Id., par. 2.

On July 11, 1989 an adjudicatory

hearing was held before Master McNulty.

On July 25, 1989, pursuant to the report

of Master McNulty, Judge Robert A. Wright

issued an order decreeing that Samuel,

Jr. was a dependent, "by reason of being

without proper parental care and

control," and awarding legal and physical

custody to CYS. Judge Wright ordered Mr.

and Mrs. Winston to cooperate with CYS in

planning for the care of Samuel, Jr., and

to visit the child "regularly as arranged

by Children and Youth Services."

Plaintiffs' Trial Brief, Exhibit A.

After the July 1l, 1989 hearing, CYS

advised Mr. and Mrs. Winston that they

would be able to visit with their son for

one hour every two weeks at CYS's Chester

office for as long as_ supervised

64a

visitation was necessary. Stipulation of

Facts, par. 5. For the next several

months, these visits occurred largely as

scheduled. The visits lasted from one to

one and one-half hours. Id., pars. 6, & P

14.

Beginning on July 20, 1989, and on

numerous occasions thereafter, Mr. and

Mrs. Winston requested permission to see

their son more frequently. These

requests were denied. Iid., par. 7.

Meanwhile, the plaintiffs secured

counsel. On July 20, 1989 the

plaintiff's attorney filed a motion for

rehearing on the matter of dependency.

The case was listed for hearing on

September 26, 1989. Id., par. 8.

By an order dated October 3, 1989,

the review hearing was continued to

October 17. It was ordered that, until

the next hearing, CYS would increase Mr.

65a

Winston's visits with his son to a

minimum of two hours per week. Mrs.

Winston's visiting privileges were not

increased, because she was suffering from

psychiatric and substance abuse problems.

It was also ordered that her visits be

conducted separately from her husband's.

Id., par. 18. Mrs. Winston was

hospitalized from October 9, 1989 to

January 23, 1990. During the period

between October 9 and December 19,

caseworkers brought Samuel, Jr. to the

hospital to visit with his mother on four

occasions. id,, para. 19, 23, 22, 25:

On December 19, 1989 physical custody of

Samuel Winston, Jr. was returned to his

father, Samuel Winston, Sr. On March 27,

1990 legal and physical custody was

returned to both of the Winstons, "under

the protective supervision of Children

and Youth Services." Id., par. 26.

66a

II. DISCUSSION

A. ADOPTION ASSISTANCE AND CHILD WELFARE

ACT

The plaintiffs argue that’ the

visitation policy and regulation have

deprived them of rights secured by the

Adoption Assistance and Child Welfare Act

of 1980 ("AAA"), 42 U.S.C. Secs. 620-628,

670-679. The AAA expanded the

requirements for states participating in

the federal foster care program.

According to the legislative history, the

AAA was designed "to lessen the emphasis

on foster care placement and to encourage

greater efforts to find permanent homes

for children either by making it possible

for them to return to their own families

or by placing them in adoption homes."

S. Rep. No. 336, 96th Cong., 2d Sess.,

reprinted in 1980 U.S. Code Cong. &

Admin. News 1448, 1450.

67a

The AAA requires a participating

state to designate an authority to

establish and maintain reasonable,

nationally-recognized standards for

foster homes and child care institutions.

42 U.S.C. Sec. 671(a)(10). The state is

given the duty to report conditions of

"neglect, abuse, or exploitation" in

foster homes at the appropriate court or

law enforcement agency. 42 U.S.C. Sec.

671(a) (9). The state must establish

annual goals for limiting the number of

children remaining in foster care for

more than two years. 42 U.S.C. Sec. 671

(a) (14). Moreover, it must make

"reasonable efforts" before a child is

placed "to prevent or eliminate the need

for removal of the child from his home"

and "to make it possible for the child to

return to his home." 42 U.S.C. Sec.

671(a) (15). Finally, the state is

68a

required to create a "case plan" and

implement "a case review system" for each

child in foster care.’ 42 U.S.C. Sec.

671(a) (16).

Although the AAA is styled an

appropriations statute, the courts have

found it to be privately enforceable,

either under 42 U.S.C. Sec. 1983 or by

direct action. See, @.g. L.J. Vv.

Massinga, 838 F.2d 118, 123 (4th Cir.),

: enied, 488 U.S. 1018 (1989)

(provisions requiring maintenance of

reasonable standards, case plan and case

review system, -and reporting of neglect

enforceable); Lynch v. Dukakis, 719 F.2d

’ The case review system requires

periodic review of each child's status.

It also mandates procedural safeguards

with respect to the long-term disposition

of the child, to "parental rights

pertaining to the removal of the child

from the home of his parents, to a change

in the child's placement, and to any

determination affecting visitation

privileges of parents." 42 U.S.C. Sec.

675(5).

69a

504, 509-512 (ist Cir. 1983) (private

right of action to enforce provision

requiring case plan and case _ review

system); -H. Vv fe) , 715 F.Supp.

1387, 1402 (N.D. Ill. 1989) (same); see

also Del A. v. Edwards, 855 F.2d 1148,

1151 (5th Cir. 1988) (discussing but not

deciding the question). However, only

those provisions which clearly "spell out

a standard of conduct" may be enforced.

U.S. 1, 17 (1981), a federal funding

statute such as the AAA is

much in the nature

of a contract: in

return for federal

funds, the States

agree to comply with

federally imposed

conditions. The

legitimacy of

Congress' power to

legislate under the

spending power thus

rests on whether the

State voluntarily

and knowingly

accepts the terms of

70a

the ‘contract'...[Thus, }] Sg

Congress intends to impose a

condition on the grant of

federal moneys, it must do so

unambiguously.

Accordingly, with regard to the AAA,

courts refuse to enforce "vague" or

"amorphous" provisions, or to create

additional requirements not mentioned in

the statute but merely "consistent with

[its] purpose." Aristotle P. v. Johnson,

721 F.Supp. 1002, 1012 (N.D. Ill. 1989)

(no right to placement in the most

family-like setting, "reasonable efforts

to reunify families," or "meaningful

sibling visitation"); see also B.H., 715

F.Supp. at 1401 (no enforceable right to

placement in the most family-like setting

or reasonable efforts to help child

remain in home); but see Artist M. v.

Johnson, 726 F. Supp. 690, 695 (N.D. Ill.

1989) (implied private right of action

7la

with respect to "reasonable" preventive

and reunification services; "the use of

the word '‘reasonabie' in a_ statutory

provision does not render the requirement

too vague or ambiguous to be enforced").

The only court to have addressed the

issue of visitation rights under the AAA

has concluded that the Act does not

create an enforceable right to

"meaningful visitation" between parents

and children. See Scrivener v. Andrews,

816 F.2d 261, 264 (6th Cir. 1987).8

8 In Scrivener, the plaintiff's

eight-month-old child was removed from

her custody and placed in a foster home.

The plaintiff was permitted to visit her

child for one hour every other week. She

was not informed that she had the right

to contest the visitation’ schedule.

Later, she did contest the schedule, and

the foster care service expanded her

visitation privileges. The plaintiff

contended that "as a result of the

defendants failure to inform [her] of her

right to an administrative hearing to

contest the initial visitation schedule,

both [she) and {her daughter) were

deprived of their joint federal right to

‘meaningful visitation'" which was

72a

This court agrees.

Visitation between parent and child

is certainly not an explicit requirement

of the Act. The plaintiffs' best

argument that visitation is nonetheless

essential is the claim that it is

fundamental to the "reasonable efforts"

on the part of the state to reunify

families, arguably required by the Act

under 42 U.S.C. Sec. 671(a) (15). The

plaintiffs have presented evidence

indicating that frequent visits between

parent and child are helpful in leading

to the eventual reunification of the

family.?

secured to them by the Act. 816 F.2d at

262.

9 The plaintiffs' expert, Dr.

David Fanshell, testified to the

importance of visitation between a child

and its parents when reunification is the

goal. The defendants do not dispute the

importance of visitation, only the amount

needed to ensure a successful

reunification.

73a

A state may indeed be required to

include in its program some services

directed toward the goal of family

reunification. However, the AAA cannot

be read to require the states to provide

a particular quantum of supervised

visitation, or even any visitation at

all. The state might provide other

reunification services which it

considered more appropriate. As the

court remarked in Scrivener, with respect

to the case review provision, while a

state must comply with the "minimum

requirements" set forth in the statute,

"it is otherwise afforded considerable

flexibility in unilaterally developing

procedures compatible with its own unique

foster care circumstances." 816 F.2d at

263 (citing State of Vermont Dep't of

Vv Vv.

tes . n

74a

servs., 798 F.2d 57, 60 (2d Cir.) cart.

denied, 479 U.S. 1064 (1987)); see

Youngberg v. Romeo, 457 U.S. 307, 317

(1982) (state "has considerable

discretion in determining the nature and

scope of its responsibilities").

A state which made no effort to

return children temporarily in state

custody to their parents might be in

violation of the AAA. That is not the

case here. First, CYS regularly provides

supervised visitation services. Second,

state regulation requires the agencies to

provide "placement prevention and

reunification services" which include

counseling, parent education, and

homemaker services. 55 Pa. Code Secs.

3130.34, .35 (1988). Finally, the court

notes that physical custody of Samuel,

Jr. was returned to his father after

approximately six months. Under these

75a

circumstances, it cannot be said that

CYS's visitation policy violates the AAA.

B. SUBSTANTIVE DUE PROCESS

The plaintiffs also claim that the

visitation policy deprives them of

fundamental rights guaranteed by the

First, Fourth, Ninth, and Fourteenth

Amendments to the United States

Constitution. 2°

According to the

plaintiffs, because parents and children

possess a fundamental liberty interest in

maintaining their family relationship,

the state cannot interfere with this

right without a compelling interest.

This interest, they allege, is

10 The plaintiffs also claim that

they have a right to family integrity,

encompassed in the First Amendment's

right to freedom of association, Roberts

v. U.S. Jaycees, 468 U.S. 609 (1984);

Moore v. City of East Cleveland, 431 U.S.

494 (1977), and the zone of privacy

created by the First and Ninth

Amendments, Roe v. Wade, 410 U.S. 113

(1973); Griswold v. Connecticut, 381 U.S.

479 (1965).

iain ae

76a

impermissibly violated when a parent is

denied meaningful visitation with a child

whose custody has been committed to the

state. According to the plaintiffs,

limiting visitation below an acceptable

minimum adds to the trauma of involuntary

separation, destroys existing family

bonds, and frustrates the goal of

reuniting natural parents with their

children.

It has long been recognized that

parents have aée fundamental liberty

interest "in the care, custody, and

management of their child." Santosky v.

Kramer, 455 U.S. 745, 753 (1982); see

ssiter v. Dep't ocial Servs.,

483: Uid. 16; . 27: 22001)3 anley_v.

Illinois, 405 U.S. 645, 651 (1972). This

interest is protected by substantive due

process. See anni Vv. ome

County Children and Youth Servs., 702

77a

F.Supp. 1184, 1190 (E.D. Pa. 1988);

Rinderer v. Delaware County Children and

Youth Servs., 703 F.Supp. 358, 361 (£.D.

Pa. 1987).

The parents' liberty interest ina

relationship with their child continues

even when custody has temporarily been

granted to the state or when custody has

been granted to another parent. Thus,

for example, the parents of a child in

the temporary custody of the state may

invoke constitutional protections when

permanent loss of custody is threatened.

See Santosky, 455 U.S. at 753 (due

process requires that "permanent neglect"

be found by "clear and convincing

evidence" before parental rights may be

terminated). Further, the non-custodial

single, separated, or divorced parent has

a liberty interest in his or her right to

communicate with and visit the child.

78a

of Justice, 851 F.2d 93, 97 (3d Cir.),

cert. denied, 109 S.Ct. 2428 (1989) (non-

custodial parent has right to notice and

a hearing when child is placed in Witness

Protection Program; Ruffalo by Ruffalo v.

Civiletti, 702 F.2d 710, 715 (8th Cir.

1983) (same); Franz v. United States, 707

F.2d 582 (D.C. Cir. 1982) (same); see

also Williams _v. Carros, 576 F. Supp.

545, 547 (W.D. Pa. 1983) ("(Rjegular and

appropriate visits between [a mother] and

her children...and appropriate visits

between the children...are fundamental

liberty interests protected by the

Constitution.") (dictum).

However, this liberty interest is

not absolute. The state may intervene in

the relationship between parent and child

where intervention serves the interests

of the state or the interests of the

79a

child. Woodrum v. Woodward County, 866

F.2d 1121, 1125 (9th Cir. 1989). Nor, in

this situation, is the state's

intervention subject to the compelling

interest test. As the Supreme Court

stated in Youngberg, 457 U.S. at 322:

"Persons who have been involuntarily

committed are entitled to more

considerate treatment and conditions of

confinement than criminals... At the same

time, this standard is lower than the

‘compelling' or '‘'substantial' necessity

tests." (citations omitted).

Once it has been determined that the

state is justified in removing a child

from the home, }+

it seems unlikely that

the Due Process Clause requires the state

to make substantial efforts to reunify

id The Winstons do not challenge

the legitimacy of the Commonwealth's

initial action in taking custody of

Samuel, Jr. away from then.

80a

the family. The Due Process Clause

"generally confers no affirmative right

to governmental aid, even where such aid

may be necessary to secure life, liberty,

or property interests of which the

government itself may not deprive the

individual." DeShaney v. Winnebago County

Dep't of Social Servs., 109 S.Ct. 998,

1003 (1989); see also Younaberg, 457 U.S.

at 317 ("As a general matter, a State is

under no constitutional duty to provide

substantive services for those within its

borders"). oni cho istrict

Vv. iguez, 411 U.S. 1 (1973) (no

fundamental right to public education) ;

Vv. e, 412 F.Supp. 593, 603

(S.D.N.Y. 1976) (children in_- state

custody have no constitutional right to

adoption into a stable and -permanent

8la

family. ??

It is true that the Due Process

Clause requires the state to provide

children in foster care with their basic

needs - "minimally adequate _ food,

clothing, shelter, medical care, safety,

freedom from bodily restraint § and

reasonable training to ensure the latter

two rights." Vv. Ww j ‘+

of Social Servs., 670 F.Supp. 1145, 1172

(S.D.N.Y. 1987), appeal after remand, 709

12 The plaintiffs argue that they

are not seeking affirmative services from

the state; rather, they claim that they

are seeking only to enforce their

Fourteenth Amendment substantive due

process right and their First Amendment

right to freedom of association. I

disagree with the plaintiffs'

characterization of crs* services,

because in order for CYS to provide more

visitations between children and parents,

CYS must make _ more office space

available, provide more staff

supervision, and make more transportation

arrangements. As noted, on four separate

occasions CYS brought the Winstons' child

to see Mrs. Winston while she was

hospitalized; this was clearly = an

affirmative service.

82a

F.2d 782 (2d Cir. 1983). See DeShaney,

109 S.Ct. at 1005 (state obligated to

provide involuntarily committed mental

patients with “adequate food, shelter,

clothing, and medical care," citing

Youngberg, 457 U.S. at 314-25 (dicta));