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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 956

## Text

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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

LE

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

a

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:

ho

ee

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

9

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.

10

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

1]

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.

12

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.

ko

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

Be

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

16

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

:
%
3
¥
;

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,

19

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

20

OP Le ee

3
j
A
j
)
:
1
4
2
;
:

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

21

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).

yi

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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.

ro
‘~

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

26

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

27

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).

30

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.

31

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

32

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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

33

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

35

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

36

7
3
3

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,

oe

Jon J. Auritt, Esquire
Attorney for Petitioners

the

crise eee Sac

AaFrPeBODoia

———EEEe—E———————E

la

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
v.

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

2a

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

3a

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.

I.
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

4a

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

5a

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.

6a

IT.
Discussion
A.
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

7a

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

8a

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.

~~

9a

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.

B.
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.

D.
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.

I

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.

A.

To overcome mooting of an action, where a
plaintiff seeks equitable relief for a past harm, the
plaintiff must establish that the challenged harm
was too short in duration to be litigated to

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

rr

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

B.

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.).

IT
A.

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

It is clear to me that the district court should
have abstained and remitted the proceeding to the
State court for its determination. The majority
opinion holds that because no cross-appeal was
filed by CYS, we 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

B.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0457%3A1. Public record. Not legal advice.