WINSTON v. CHILDREN AND YOUTH SERVICES

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 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.

I. [3] 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.

II. [11] Discussion A. [12] Preliminary Issues 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, 96 S.Ct. 2791, 2796-97, 49 L.Ed.2d 683 (1976). But see Honig v. Doe, 484 U.S. 305, 331, 108 S.Ct. 592, 608, 98 L.Ed.2d 686 (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, 31 S.Ct. 279, 55 L.Ed. 310 (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 "[g]iven [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, 108 S.Ct. at 602-03 (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, 61-62 (3d Cir. 1991); 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 precipitated 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. 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, at 61. In short, there is no assurance in the temporary custody situation that evasion of review will not occur time and time again.

The relevant period is CYS's custody over Samuel, Jr., not, as the dissent suggests, Mr. Winston's custody over Samuel, Jr. See Dissenting op. at 1395, n. 5.

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 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, 95 S.Ct. 553, 557-559, 42 L.Ed.2d 532 (1975).

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 serve to preserve the class challenge to CYS's visitation policy and the DPW regulation.

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-Mansville Corp., 812 F.2d 81, 88 (3d Cir. 1987), "[a]n 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, ___ U.S. ___, 111 S.Ct. 783, 112 L.Ed.2d 846 (1991), (collecting cases); see also Jackson v. Univ. of Pittsburgh, 826 F.2d 230, 237 (3d Cir. 1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (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, 104 S.Ct. 3179, 3184-85 n. 9, 82 L.Ed.2d 373 (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 (3d 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 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.

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.

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 "[a]gainst 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. Cmwlth. 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 proceedings. See, e.g., Moore v. Sims, 442 U.S. 415, 425-26 n. 9, 99 S.Ct. 2371, 2378 n. 9, 60 L.Ed.2d 994 (1979).

Although the dissent suggests that there is no exclusivity here because the custody action was begun by 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 for this court to determine what may be an undecided issue of Pennsylvania jurisdiction is yet another reason why we should not sua sponte exercise our equitable power to abstain in this now completed action.

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. [32] Adoption Assistance Act

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, 56 S.Ct. 466, 483, 80 L.Ed. 688 (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 1448, 1450, 1461, 1465.

In the language at issue here, section 671(a) of the Act provides that:

[i]n 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. . . .

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

Subsection 671(a) lists several other "requisite features" of state child welfare plans on which federal funding is contingent. A state's plan must also:

(3) provide[ ] that the plan shall 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 maintenance 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).

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's statutory duty to make "reasonable efforts" to return children to their 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, ___ U.S. ___, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (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., ___ U.S. ___, 111 S.Ct. 2008, 114 L.Ed.2d 97 (1991).

The Court in Wilder found enforceable under section 1983 the Boren amendment to the Medicaid statute that requires reimbursement at rates a state finds are "reasonable and adequate" to meet the costs incurred by hospitals and other facilities. 110 S.Ct. at 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. 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. . . . [S]uch 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, 107 S.Ct. 766, 773-75, 93 L.Ed.2d 781 (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 too vague and amorphous to confer on tenants an enforceable right.

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 v. Massinga, 838 F.2d 118, 123 (4th Cir. 1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989); Lynch v. Dukakis, 719 F.2d 504, 509-12 (1st 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 671(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 671(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 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 precatory 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 671(a)(15), by requiring states to make "reasonable efforts" toward family 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 Amendment 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 by 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 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 "[r]esearch 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 shall provide opportunity for visits between child and parents as frequently as possible but no less frequently than 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 mandate of that regulation. Thus, the only challenge in this case goes to the amount of visitation that is necessary for the agreed upon goal.

The absence of any language in subsection 671(a) expressly providing a right to visitation or identifying visitation as an essential component of the "reasonable efforts . . . [toward] mak[ing] it possible for the child to return to his home" makes plaintiffs' 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.

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).

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." Appellants' 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 2523 (that the statute "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").

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).

Albeit not dispositive of the "reasonable efforts" issue, a federal-state review team conducted a triennial review in November, 1989, and concluded that the state had complied with all federal standards.

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 agency who developed CYS's visitation policies, that in doing so they relied upon their professional experience, and that "[t]he 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 "[a]t 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." 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.

C. [51] 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 right 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.

We agree with plaintiffs 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 blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599 (1982) (citing cases); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Prisco v. United States Dep't of Justice, 851 F.2d 93, 97 (3d Cir. 1988), cert. denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 985 (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 policy 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, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). See Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-97 (11th Cir. 1987) (en banc), cert. denied, 489 U.S. 1065, 109 S.Ct. 1337, 103 L.Ed.2d 808 (1989); Doe v. New York City Dep't of Social Services, 649 F.2d 134, 141-42 (2d Cir. 1981).

In Youngberg, the Court held that an involuntarily committed mentally retarded plaintiff 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 only to "minimally adequate or reasonable training [needed] to ensure safety and freedom from undue restraint." Youngberg, 457 U.S. at 319, 102 S.Ct. at 2460.

Significantly, for our purposes, the Court did not apply a strict scrutiny standard, which requires the state to justify each restraint under a least restrictive analysis. 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, 102 S.Ct. at 2461. Furthermore, the "courts must show deference to the judgment exercised by a qualified professional." Id. at 322, 102 S.Ct. at 2461.

[T]he 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, 102 S.Ct. at 2462 (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. Fanshel, 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.

We agree with plaintiffs that the admission of an affidavit by the defendant CYS's employee 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 inadmissible 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 characterized as Knight's 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 reliable sources. We conclude, however, that there was sufficient evidence without the affidavit to support the district court's conclusion that the CYS policy does not fall below professional standards. We hold, therefore, that the admission of the hearsay was harmless error.

Much of Dr. Fanshel's testimony 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 plaintiffs 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 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' interests 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. [61] Class Certification

Plaintiffs also appeal from the district court's order denying their request for class certification. Our review of a district court's 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 v. Eisenberg, 474 U.S. 946, 106 S.Ct. 342, 88 L.Ed.2d 290 (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 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 plaintiffs "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 certification." 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 2.

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" toward reunification encompasses a requirement of a four hour weekly visitation policy, we have concluded that the CYS policy for an initial 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.

IV.

For the reasons set forth above, we will affirm the district court's judgment in favor of defendants. Each party to bear its own costs.