On Appeal from the United States District Court for the Eastern District of Pennsylvania; Pa. Civil Action No. 86-0536.
Becker, Greenberg, and Nygaard, Circuit Judges.
This matter is before the court on appeal by Sara Lynn Davis from an order of June 8, 1989, entered June 9, 1989, finally dismissing this action and denying her motion to reconsider an oral determination of February 8, 1988, denying class action certification and dismissing this case and denying her motion to reconsider an order of February 5, 1988, granting one defendant a partial dismissal and another summary judgment.*fn1 The case involves proceedings under the Pennsylvania Adoption Act, 23 Pa.Cons.Stat.Ann. § 2101 et seq. (Purdon 1989), and, in particular, claims asserted by Davis that parents placing their children through private intermediaries are denied due process and equal protection of the law. We will affirm. For convenience, we will cite to the Adoption Act using the sections as set forth in the Pennsylvania Consolidated Statutes.*fn2
We are constrained to describe at length the protracted procedural and factual history of this case which has involved numerous proceedings in both the Pennsylvania state courts and the district court. The matter may be said to have originated when Davis, who was not then married, gave birth to a child, Angela, on December 18, 1984. Davis was then 21 years old, was unemployed and had limited financial resources.*fn3 Thus, though she would have preferred to keep Angela, while still hospitalized following Angela's birth, Davis signed a consent form authorizing her placement in a private adoption. However, she promptly changed her mind and accordingly revoked the consent form and took Angela home from the hospital when Angela was discharged.
Thereafter Davis and Angela resided with the family of Davis's then boyfriend, who was not Angela's father. However, some months after Angela's birth, Davis gave Angela's father custody of her for a short time. In the summer of 1985 Davis was in difficult circumstances as she was compelled to move from her boyfriend's parents' home and needed a new place to live. Furthermore, she could not obtain employment yielding an income adequate for her needs, as she only had a tenth grade education. Accordingly, she concluded that her only recourse was to place Angela for adoption.
Consequently, Davis contacted Roger Ullman, an attorney in Delaware County, Pennsylvania, who acted as an intermediary in adoption proceedings, and asked him to arrange for Angela's adoption. On July 12, 1985, Davis signed a form consenting to Angela's adoption, prepared by Ullman in accordance with Adoption Act § 2711(d)(1), and thus including the language required by that section. The form provided that Davis did "hereby consent to the adoption of said minor child," "fully understands that by these proceedings she surrenders forever all her rights as a parent of said minor child to the end that said minor child may be adopted by said undisclosed adopting parents," "waives and releases any and all rights relating to the care, custody, and welfare of said minor child," and "permanently [gives] up all rights to this child." It further set forth that Davis "may not revoke this consent after a Court has entered a Decree confirming this consent or otherwise terminating my/our parental rights to this child. Even if a Decree has not been entered terminating my/our parental rights I/we may not revoke this consent after a Decree of Adoption of this child is entered." On the day that the form was signed, July 12, 1985, Davis gave custody of Angela to Ullman and Davis has never since seen her.
At the same time that Davis was giving up Angela for adoption, Kevin and Carole McClinton, a married couple from New Jersey, were seeking to adopt a child. Through advice from a relative, they were advised that an attorney working with a public agency, Delaware County Children and Youth Services, had a baby available for adoption. This attorney was Ullman and the McClintons got in touch with him, made arrangements to take custody of Angela and, on July 13, 1985, picked her up and took her to their New Jersey home. At that time, they paid $2,500 into escrow to Ullman to cover fees. They also signed a form required by Adoption Act § 2531(b)(5) which provided that they understood that the natural parent could "revoke the consent to the adoption of this child until a court has entered a decree terminating the parental rights, and, unless a decree terminating parental rights has been entered, the natural parent may revoke the consent until a court enters the final adoption."*fn4
Davis changed her mind about the adoption almost at once and, on July 16, 1985, she advised Ullman that she wanted to revoke her consent and have Angela returned. Angela, however, was not returned and therefore on August 27, 1985, Davis wrote a letter to Ullman and to Judge Francis J. Catania of the Court of Common Pleas of Delaware County, Orphan's Court Division, revoking the consent to adoption executed on July 12, 1985.*fn5 Nevertheless Angela was still not returned to Davis. Rather, Ullman, acting as an intermediary under the Adoption Act, that is, a person acting between the parent and proposed adoptive parents in arranging an adoption placement, see Adoption Act § 2102, filed a report of intermediary, see Adoption Act § 2533, and a report of the intention to adopt on behalf of the McClintons on September 10, 1985, see Adoption Act § 2531, seeking to confirm Davis's consent to the adoption.
A hearing was held on September 23, 1985, in Judge Catania's chambers. It appears that no evidence was taken at that time and that the only persons present were the judge, Ullman, Davis and Davis's attorney, Suzanne Noble, a legal services attorney. Judge Catania determined that Davis had timely and validly revoked the consent but he ruled that the McClintons could keep Angela, Delaware County Children and Youth Services should do a home study on Davis, and the Child Guidance Mental Health and Mental Retardation Clinic of Delaware County should make an examination of Davis.
On the same day, Davis, apparently represented by Noble, initiated a separate proceeding in the Delaware County courts, seeking custody of Angela. Those proceedings were, however, stayed on October 30, 1985, by an order of Judge Catania "pending resolution of the adoption case."*fn6
On November 7, 1985, the McClintons filed a petition to terminate Davis's parental rights under Adoption Act § 2512, and this petition was served on Davis on November 13, 1985. A hearing originally scheduled on the McClintons' petition for December 2, 1985, was, over Davis's objection, postponed until January 7, 1986, when Davis, represented by an attorney, appeared to contest the matter. A plenary hearing was held with testimony taken over the course of several days. On January 28, 1986, the court entered a decree "that the prayer of the [McClintons] be granted and that the parental rights of [Davis] to [Angela], are hereby relinquished, extinguished and terminated and custody of [Angela] is awarded to [the McClintons]."
Judge Catania filed a comprehensive opinion explaining his decision.*fn7 While it is not necessary to set forth all the facts, they should be highlighted. The evidence showed that Davis had lived with Angela's father before her birth and that the main problem between them stemmed from her use of drugs. Ultimately the relationship ruptured and they were separated when Angela was born. They did, however, have some contact after the birth and at Davis's insistence the father signed papers giving up his parental rights. During the fall of 1985, Davis held several jobs but, according to her employers, she lost them because of her absences from work and shortages from cash registers attributed to her. Testimony of Paul Snyder, her boyfriend's faher, in whose home she had been living, showed that in the six months that she lived there with Angela after Angela's birth, Davis did not show affection towards her. Judge Catania accepted Snyder's testimony that he never saw Davis kiss Angela and that whenever anyone else was available to take care of Angela, Davis was anxious to let that person do it.
The judge noted that Davis had previously been married and that her first husband testified that they had lived together in Canada, separated in December 1983, and that she had not been back to see her two children of that marriage since then. This first husband described Davis's lack of child rearing skills in considerable detail and pointed out that on one occasion, shortly before they married, she attempted to commit suicide. His testimony regarding her neglect of the children was corroborated by several neighbors.*fn8
The judge noted that a court appointed psychiatrist, Dr. James H. Ewing, examined Davis and indicated that she had a dependent personality disorder and possibly a passive/aggressive personality disorder. Ewing did indicate, however, that she was of at least average intelligence and was motivated toward treatment and might do well with it. The judge then indicated that Ewing said he had questions about Davis completing a course of treatment and that Angela should not at that time be returned to Davis. The judge had previously appointed Richard James, an attorney, as guardian ad litem for Angela. After what Judge Catania said were "extensive interviews and investigation" James found that Davis had "no housing, no plan, no day care" and he requested termination of her parental rights.
The judge concluded that Davis showed a repeated and continued incapacity, abuse, neglect or refusal to care properly for Angela, had caused her to be without essential parental care, control or subsistence and that the cause of these conditions could not or would not be changed. Thus, there were grounds for termination under Adoption Act § 2511. He found that Ullman had acted totally properly and had fully advised Davis of the consequences of her actions. The judge pointed out that Davis had no plan to care for Angela. He also concluded that the decision to give up the child was "conscious" and that the causes of her incapacity, neglect and refusal to care for the child "will not be remedied."
Davis appealed to the Superior Court where a three judge panel, one judge concurring in result, affirmed in a comprehensive opinion by Judge Beck on December 3, 1986.*fn9 See In re Adoption of A.N.D., 360 Pa. Super. 157, 520 A.2d 31 (1986). Judge Beck reviewed the testimony and pointed out that Dr. Robert Keller, a psychologist testifying for Davis, confirmed that she had a "personality disorder with passive aggressive features affecting appellant's current ability to parent" but that if she stayed in therapy "there was a fairly good chance that some of her substantial problems could be resolved." The Superior Court concluded that Judge Catania did not abuse his discretion in terminating Davis's parental rights under Adoption Act §§ 2511(a)(2) and (b), a conclusion it reached after a careful review of the facts and an equally full review of the applicable Pennsylvania statutes and case law. The Supreme Court of Pennsylvania denied allocatur on October 28, 1987. See 104 A.2d 710, 713 (1987).
Davis had not waited passively for the Superior Court decision. Rather, immediately upon the entry of Judge Catania's order of January 28, 1986, she brought this action under 42 U.S.C. § 1983 now on appeal before us. On January 28, 1986, she filed a motion for leave to proceed in forma pauperis and, upon the granting of that motion, she filed her complaint in the district court on January 30, 1986. The gravamen of her twice amended complaint, brought on behalf of herself and as a class action on behalf of all persons similarly situated, is described by Davis in her brief on this appeal as follows:
This action seeks injunctive relief and a declaratory judgment that the Pennsylvania Adoption Act is unconstitutional because it mandates the use of a vague, misleading and contradictory 'consent' form pursuant to which natural parents give up their children for adoption through private intermediaries. Among other things, the consent form deceptively characterizes their rights when they consent to an adoption, and misleads them as to the consequences attendant upon their timely and legal revocation of such consent. The action also seeks to have declared unconstitutional (a) the failure of Pennsylvania law to provide for prompt and expeditious due process to natural parents after they timely revoke their consent to adoption, and (b) those procedures of Pennsylvania law which impermissibly distinguish between two classes of natural parents who timely revoke their consent to adoption -- those who place their children for adoption with the state (who are given mandatory evidentiary hearings and extensive parenting services) and those who do so privately (who receive neither a hearing nor parenting services), in violation of the equal protection clause of the United States Constitution.
Though Davis originally sought Angela's custody, she no longer does and she asserts that she does not wish to have set aside either the order of termination of her parental rights entered by Judge Catania, or a subsequent adoption of Angela by the McClintons.*fn10 Nor is Davis asking for damages. Rather, Davis now seeks visitation rights with Angela and an order that the McClintons be required to supply her with periodic reports regarding Angela.
Davis originally named as defendants Richard Thornburgh, Governor of Pennsylvania, Leroy Zimmerman, Attorney General of Pennsylvania, and Walter Cohen, Secretary of the Pennsylvania Department of Public Welfare, all in their official capacities, Ullman, and the McClintons. On July 28, 1986, she filed a motion for class certification. The class which Davis has sought to represent is the parents who have executed or will execute a consent form under Adoption Act § 2711, and those who have timely revoked or will timely revoke their consent to private adoptions pursuant to Adoption Act § 2711 but are nevertheless denied the return of their children, who have not been the subject of a final adoption decree.*fn11
On October 10, 1986, the action was dismissed as to Thornburgh and Zimmerman and, as Davis has not appealed from those dismissals, we make no further reference to those two defendants. The district court at that time also dismissed the matter as to the McClintons, holding that they were not state actors subject to 42 U.S.C. § 1983 but Davis has appealed from that disposition.*fn12 Accordingly, the order of October 10, 1986, left only Cohen and Ullman as defendants, though it granted Davis leave to file an amended complaint, which she did on November 10, 1986, adding Judge Catania as a defendant. On November 19, 1986, the district court denied the July 28, 1986, motion for class certification with leave granted Davis to file a new motion. Judge Catania then filed a motion to dismiss which was denied on April 16, 1987. On February 9, 1987, Davis filed a second motion for class action certification but it was denied without prejudice on May 8, 1987.
On July 20, 1987, Davis filed a second amended complaint and she subsequently sought a class action certification for the third time. Judge Catania then moved to dismiss the second amended complaint and Ullman moved for summary judgment. On February 5, 1988, the district court filed a memorandum opinion on those motions. It dismissed the matter as to Ullman under Fed R.Civ.P. 12 (b)(6), as it concluded that he had acted as a private attorney and not as a state actor in the termination and custody proceedings and thus was not a viable defendant under 42 U.S.C. § 1983. See Tower v. Glover, 467 U.S. 914, 104 S. Ct. 2820, 81 L. Ed. 2d 758 (1984); Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981). However, the court denied Judge Catania's motion because prospective injunctive relief was sought against him on the theory that he had promulgated unconstitutional procedures in termination cases and thus was not entitled to judicial immunity. See Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984)*fn13
Accordingly, when the case was reached for trial on February 8, 1988, the only defendants were Judge Catania and Cohen. At that time there was colloquy between the court and the attorneys, all parties being represented by counsel. The court pointed out that it would not relitigate matters resolved in the state proceedings and that the state court findings would be adopted. The court was advised that Davis then lived in Las Vegas, Nevada, and that she did not seek custody of Angela but wanted visitation with her and wished for annual reports from the McClintons regardin her. Furthermore, Davis indicated that "she would like to be able to have the opportunity to have a relationship with her daughter when her daughter is older, should her daughter wish to have one. She is also seeking declaratory relief."
There was then discussion regarding whether Davis's application for visitation could be filed in the state courts. The court pointed out that circumstances had changed from those extant when Davis originally sought custody. Davis indicated that if the court found that she did not have standing "there could never be a review by the federal courts of the due process of whether or not this consent form meets due process requirements." Ultimately, the court indicated that "as far as the consent form is concerned here, it is moot here because the Superior Court found that something was revoked." Thus, "the revocation was ineffective because [the Pennsylvania courts] involuntarily terminated her parental rights. So the consent had nothing to do with it." Davis objected that she was "asking [the court] to rule on the constitutionality of this form and this procedure that started her down that terrible road."
The court then indicated that Davis did not have standing but Davis responded that the case was the kind "where the usual doctrine of mootness is not considered" because it "is capable of repetition" but "can never be reviewed unless you make an exception to the mootness." The court reiterated that the case was moot, that it was a question of "fundamental standing," that Davis was not an adequate class representative and did not even live in Pennsylvania. Thus, it denied Davis's motion for class certification.
Thereafter, Judge Catania argued that the issues raised in the district court case should have been raised in the state proceedings and that, in effect, the district court case was a collateral attack on the state case. Davis denied that allegation, urging that the only issue in the Superior Court was whether Judge Catania acted properly in terminating Davis's parental rights, a matter Davis did not think was "linked" to the issues raised in the district court. The court then said that Davis did not have standing, the case was moot, and Davis had not been denied equal protection. Davis then said she wanted to make an offer of proof and the court suggested she do that in writing in the form of a motion for reconsideration.*fn14
Thereafter, Davis did file a motion for reconsideration, which the court denied in the memorandum and order of June 8, 1989, from which she appeals. In that memorandum the court indicated that to have standing a plaintiff must have suffered "an actual injury which this court can redress," citing Director, Office of Workers' Compensation Programs v. Perini North River Associates, 459 U.S. 297, 305, 103 S. Ct. 634, 641, 74 L. Ed. 2d 465 (1983). It then said that Judge Catania's findings regarding Davis's "ability to handle parenting apply here and cannot be disturbed." It pointed out that the Superior Court had affirmed Judge Catania's order and the Supreme Court of Pennsylvania had denied allocatur. The court considered that it could not grant the relief that Davis sought and thus she did not have standing. The court also held that the matter was moot as to Davis as the situation was not likely to be repeated as to her and, indeed, because the case was fact specific, would not be likely to be repeated as to other persons either. The court also held that Davis had not been denied equal protection of the law, notwithstanding her claim, as characterized by the court, "that those parents who place their child ...