On Appeal from the United States District Court for the Eastern District of Pennsylvania; D.C. Civil No. 89-06162.
Sloviter, Chief Judge, Cowen and Garth, Circuit Judges. Garth, Circuit Judge, dissents.
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 County and a regulation of the Pennsylvania Department of Public Welfare as violating the federal Adoption Assistance and Child Welfare Act and plaintiffs' constitutional rights to substantive due process and free association.
Background Facts and Procedural History
Many of the relevant facts are the subject of a Stipulation of Facts entered into by the parties and filed with the district court. Plaintiffs are Samuel Winston, Sr., his wife Maryann, 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 psychiatric 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 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 42 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 weekly visits with his son during October, part of November, and December. During this time, Samuel Jr. was also taken for periodic visits with Mrs. Winston at the hospital. Samuel Jr. was released from foster care and was returned to the physical custody of his father on December 19, 1989 under agency supervision and pending periodic state court review. Mrs. Winston was released from the hospital in January 1990. In March of that year, she and her husband were given legal custody of Samuel Jr., but physical custody of the child was generally granted solely to the father.
In the meantime, the federal action proceeded. Plaintiffs moved for an extension of time in which to file for class certification so that they could determine the size and characteristics of the class. On November 27, 1989, the court entered an order granting the motion and extending plaintiffs' 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 to 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.
Before reaching the merits of the appellants' appeal, we must consider whether there is any 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 way the relief of declaratory judgment or injunction sought under Counts 1 and 2 of the complaint, respectively, and (2) whether the pending and ongoing state court proceeding in any way precludes the federal court from exercising its jurisdiction and from entertaining the merits of this action at this time. In connection with the latter, we asked the parties whether the doctrine of abstention has any 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, 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). But see Honig v. Doe, 484 U.S. 305, 331, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1988) (Rehnquist, C.J., concurring) ("attenuated connection" of mootness principle to Article III "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.
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, 55 L. Ed. 310, 31 S. Ct. 279 (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, notwithstanding that the child had moved from the school district at issue. The Court concluded that "given [the student's] continued eligibility for education services under the EHA, the nature of his disability, and [his] insistence that all local school districts retain residual authority to exclude disabled children for dangerous conduct," there was a "'reasonable expectation' that [the child] would once again be subjected to [the policy and practices challenged in the case]." 484 U.S. at 319-20 (citation omitted). Because there was a sufficient likelihood that the issue could recur with respect to that plaintiff, and any resulting claim he may have for relief would surely evade its review, the Court held the appeal was not moot.
This Court has followed the Supreme Court's precedent in giving the "capable of repetition, yet evading review" standard a practical interpretation. See Praxis Properties, Inc. v. Colonial Savings Bank, 947 F.2d 49 (3d Cir. 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 CYS to retake temporary custody of Samuel Jr. In fact, as appellants have noted, legal custody was returned to the parents only subject to conditions which, if not complied with, could subject them to a repeat of the situation which precipated this lawsuit.
There is also no basis for the dissent's suggestion that the issue of CYS's visitation policy will not evade review because the challenge can be raised by 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.*fn1 Although some children undoubtedly stay 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.*fn2 It is difficult to imagine why a class would not be certified in this situation because the visitation policy challenged is generally applicable. When there has been a class certified, the mootness of the class representative's claim does not affect the court's Article III jurisdiction. See Sosna v. Iowa, 419 U.S. 393, 399-403, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975).
In conclusion, we hold that although the need for an injunction on behalf 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, because the 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-Manville Corp., 812 F.2d 81, 88 (3d Cir. 1987), "an 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, 903 F.2d 935, 112 L. Ed. 2d 846, 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, 98 L. Ed. 2d 680, 108 S. Ct. 732 (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, 82 L. Ed. 2d 373, 104 S. Ct. 3179 (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, 876 F.2d 308 (3rd Cir. 1989). In that case, which involved a challenge to the City's removal on racial ground 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 Schools, 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 year old child would unnecessarily be exposed to yet another custody transfer before custody is finally determined, we decline to decide the abstention issue on our own motion.
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.
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 highly unlikely that the plaintiffs' entire challenge encompassed in their federal section 1983 action would have been cognizable in the dependency/custody proceeding that was in progress in the Pennsylvania Court of Common Pleas.
Actions or proceedings "against 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. §§ 761(a), 761(b). Plaintiffs 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, 507 Pa. 384, 490 A.2d 415, 417 (1985) ("Officer" under 42 Pa.C.S.A. § 761 describes "'those persons who perform statewide policymaking 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., 30 Pa. Commw. 555, 375 A.2d 396, 398 (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, 516 Pa. 352, 532 A.2d 429 (1987). Thus it is 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 claim in the particular state proceeding. See, e.g., Moore v. Sims, 442 U.S. 415, 425-26 n.9, 60 L. Ed. 2d 994, 99 S. Ct. 2371 (1979).*fn3
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.
We consider first the plaintiffs' statutory challenge to the CYS policy and the DPW regulation before turning to plaintiffs' constitutional attack. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 80 L. Ed. 688, 56 S. Ct. 466 (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:
in order for a State to be eligible for payments under this part, it shall have a plan approved ...