Davis v. Thornburgh

903 F.2d 212, 1990 WL 61532

• Court: Court of Appeals for the Third Circuit
• Decided: May 15, 1990
• Docket: No. 89-1559
• Status: Published

Opinions

OPINION OF THE COURT

GREENBERG, Circuit Judge.

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.¹ 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.²

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.³ 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 give[s] 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.”⁴

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, 1985.⁵ 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 McClin-tons 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.”⁶

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.⁷ 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 father, 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.⁸

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, 1986.⁹ 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 allo-catur on October 28, 1987. See 516 Pa. 638, 642, 533 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.¹⁰ 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.¹¹

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.¹² 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 Cata-nia 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).¹³

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 regarding 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 capáble 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.¹⁴

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 through an agency are entitled to services which are not provided to parents placing their children through intermediaries.” This decision on the merits was based on the court’s analysis of Pennsylvania procedures. The order of June 8, 1989, denying reconsideration was then filed and this appeal followed.

On this appeal, Davis contends that she has stated a claim under 42 U.S.C. § 1983 for violation of her constitutional rights and that the district court improperly dismissed her complaint without considering her due process challenges to the Adoption Act. She further asserts that the court should have considered her contention that the consent form mandated by Adoption Act § 2711 by which she surrendered Angela was invalid and should also have considered the argument that the absence of a provision in the Adoption Act mandating the holding of a prompt evidentiary hearing before she was deprived of her child rendered the Act unconstitutional. She further contends that she has stated an equal protection claim because of the differing treatment the Adoption Act provides to parents who place their children for adoption with state agencies as compared to those placed through private intermediaries. In this respect, she asserts that in cases of revocation of consent to adopt in state agency cases, but not private intermediary cases, if the child is not immediately returned, there must be a hearing regarding parental fitness and parenting services must be provided.

She also claims that she has standing to sue, the case is not moot, and Ullman is a proper defendant under 42 U.S.C. § 1983, as he has performed a state function, the placement of children for adoption. She maintains that the McClintons also are proper defendants as they acted under col- or of state law, in that Pennsylvania has delegated to them the duty to place children in suitable adoptive homes by giving them standing to initiate proceedings terminating parental rights. Finally, Davis contends that the court erred in refusing to certify the matter as a class action.

We conclude that while the proceedings have been complex and protracted, and the legal issues tendered on the appeal quite far reaching, the appropriate resolution of this appeal is manifest. The complaint as amended seeks to protect two interests, those personal to Davis and those of the putative class. The personal interests of Davis may be divided into two parts, first, those directly concerning Angela, and second, Davis’s general claim for relief based on allegations that, regardless of what rights she may have to Angela, she is personally entitled to litigate the issues presented.

We deal first with Davis’s claims regarding Angela. In the Common Pleas Court the McClintons filed a petition under Adoption Act § 2512(a)(3) and obtained a valid and enforceable order of January 28, 1986, in a proceeding contested between themselves and Davis, which was affirmed on appeal. In view of that order Davis has no parental rights to Angela, as the order provided unambiguously that Davis’s rights were “relinquished, extinguished and terminated.” Furthermore, under Adoption Act § 2521(a) “all rights” of Davis to Angela have been terminated.¹⁵ While Davis has cited cases for the proposition she posits that “Pennsylvania law allows visitation and similar remedies to non-parents of the child,” none deal with a situation in which a parent’s rights have been terminated and thus none leads us to question the clear import of the order of January 28,1986, or the Adoption Act. See Commonwealth v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988); Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987). Rather, the cases, insofar as significant here, simply stand for the unremarkable proposition that some rights akin to those of a parent may be asserted by a person who is not a child’s biological parent.

The fact is that Davis is well aware that she has no parental rights to Angela, as her brief in support of her motion for reconsideration in the district court indicated that she could not seek an order for visitation of Angela in the state courts, as “an order terminating parental rights is not modifiable by the state courts. It permanently terminated all rights to the child, including any right to visitation.” She then quoted In re Adoption of Michael J. C., 326 Pa.Super. 143, 152-54, 473 A.2d 1021, 1026 (1984), rev’d on other grounds, 506 Pa. 517, 486 A.2d 371 (1984), as follows: “[germination of parental rights does more than disrupt the parent-child relationship; it totally destroys it. ‘The termination of parental rights ... means that the child is dead so far as that parent is concerned.’ ”

The McClintons had standing to bring the termination petition under Adoption Act § 2512(a)(3) which authorizes a termination petition to be brought by any person having custody of a child under 18 years of age, provided that the petitioner has filed a report of intention to adopt under Adoption Act § 2531. Thus, the proceedings leading to the surrender of Angela’s custody to the McClintons and Davis’s inability to regain her custody were in a legal sense immaterial to the procedure in the termination case. Furthermore, the substantive issues in the termination case were unrelated to the manner by which Davis surrendered custody of Angela. Considering these circumstances, we are unable to perceive how an adjudication of invalidity of the proceedings prior and collateral to the involuntary termination proceedings could undermine the termination order under Pennsylvania law.¹⁶ We therefore are satisfied that even if Davis could convince us that the legal principles which she advances are correct, this would not lead to a reinstatement of her parental rights to Angela.

We indicated in Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988), that a “federal court applying preclusion principles is bound by the Full Faith and Credit statute, 28 U.S.C. § 1738, and must give a prior state judgment the same effect as would the adjudicating state” and “[t]he same results follow in section 1983 suits brought in federal courts.” Here the Pennsylvania termination proceedings eliminated the interest in Angela that Davis sought to secure and, as the federal courts must give full effect to those proceedings, Davis could obtain no parental rights to Angela in the district court.

It follows from the foregoing analysis that Davis has never had standing in this case to the extent that she has sought particularized relief with respect to Angela. See Allen v. Wright, 468 U.S. 737, 750-52, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). Once the termination order was entered, Davis could no longer demonstrate that she had suffered an injury “likely to be redressed by a favorable decision.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). In short, she had nothing to gain with respect to Angela by establishing that the procedures she challenges were invalid. As the Court of Appeals for the Seventh Circuit indicated in Matter of Special March 1981 Grand Jury, 753 F.2d 575, 577 (7th Cir.1985), “[i]t is not enough, to give you standing, that you have been hurt by someone; you must have something tangible to gain from your suit — some alleviation of or compensation for, the hurt. Otherwise the suit is as much an academic exercise as if it were brought to prevent a nonexistent harm.”

In point of fact, notwithstanding Davis’s claim to the contrary, she has been seeking in the federal courts to undo the termination order of the Common Pleas Court, because she has been seeking restoration of her parental rights, at least in part, terminated in the Common Pleas Court. See Anderson v. Colorado, 793 F.2d 262, 264 (10th Cir.1986). Therefore, if she obtains the relief she seeks, the order of January 28, 1986, “will, regardless of the form of any new order, be effectively altered and revised.” American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1170 (3d Cir.1989). This is necessarily so because, as she is well aware, she has had no rights to Angela since January 28,1986. But she simply does not have standing to seek such relief, as the order of January 28, 1986, has not been directly challenged, is conclusive as to her, will remain valid regardless of the result of this action, and cannot be modified by indirection.¹⁷

Our result that Davis does not have individual standing with respect to Angela is buttressed by the decision of the Supreme Court in Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), which, though not directly applicable here, is nonetheless instructive. There, the Supreme Court considered whether a district court had jurisdiction under 28 U.S.C. § 2254(a) to consider a collateral challenge to a proceeding in the Pennsylvania state courts terminating parental rights. In particular, the parent attempted to invoke federal habeas corpus jurisdiction “to challenge the constitutionality of a state statute under which a State has obtained custody of children and has terminated involuntarily the parental rights of their natural parent.” 458 U.S. at 507,102 S.Ct. at 3235. The Court held that the habeas corpus jurisdiction could not be invoked.

In its opinion, the Court indicated that “federal courts consistently have shown special solicitude for state interests ‘in the field of family and family-property arrangements,’ ” “[federalism concerns and the exceptional need for finality in child-custody disputes argue strongly against the grant of” the petition, and “[t]he State’s interest in finality is unusually strong in child-custody disputes.” 458 U.S. at 512, 513, 102 S.Ct. at 3237, 3238. Surely the same considerations are present here and weigh strongly against affording Davis standing to seek parental rights, including visitation and reporting rights, with respect to Angela. How can we conclude otherwise in the face of a valid order which has terminated Davis’s rights? See also Lewis v. Continental Bank Corp., — U.S. -, 110 S.Ct. 1249, 1253-55, 108 L.Ed.2d 400 (1990).

Davis has urged, however, that even if she cannot obtain particularized relief as to Angela, the case is capable of repetition but evasive of review, so that her individual case should be heard though it might otherwise be moot. We observe, however, that this is not a case in which her claim is barred as moot. Rather, as we have indicated, Davis has never had standing. In any event, a court may apply the rule permitting it to hear an otherwise moot case capable of repetition but evasive of review “only in exceptional situations, and generally only where the named plaintiff can make a reasonable showing that he will again be subjected to the alleged illegality.” City of Los Angeles v. Lyons, 461 U.S. 95, 109, 103 S.Ct. 1660, 1669, 75 L.Ed.2d 675 (1983). See Lewis v. Continental Bank Corp., 110 S.Ct. at 1255. From the outset of this action any suggestion that Davis would again be in the circumstances involved in this case would have been a total speculation. We also note that Davis indicates in her brief that she is now married and lives with her husband and her two children in Nevada, making the likelihood that she will be subject again to proceedings similar to those challenged here far fetched.¹⁸

The final issue before us is whether the district court correctly refused to certify the matter as a class action. We hold that it did not err in that ruling. Inasmuch as Davis did not have individual standing when the action was brought, she cannot be regarded as a member of the class she sought to represent. See Sosna v. Iowa, 419 U.S. 393, 402-03, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). In Tucker v. Phyfer, 819 F.2d 1030, 1033 (11th Cir.1987), the court explained:

It is well settled that at the time a plaintiff brings suit he must have standing to prosecute his claim; he must have a ‘personal stake’ in the outcome of the litigation. The mootness doctrine requires that the plaintiffs controversy remain live throughout the litigation; once the controversy ceases to exist, the court must dismiss the cause for want of jurisdiction. In a class action, the claim of the named plaintiff, who seeks to represent the class, must be live both at the time he brings suit and when the district court determines whether to certify the putative class. If the plaintiff's claim is not live, the court lacks a justiciable controversy and must dismiss the claim as moot. (Omitting citations.)

Here we are not concerned with events after the filing of the district court complaint rendering the case moot, as Davis lacked standing at the outset.¹⁹

The order of June 8, 1989, will be affirmed.

1 . The notice of appeal recites that the motion for reconsideration asked for reconsideration of both the February 5, 1988, order and the February 8, 1988, oral determination, also referred to in the notice as an order. In fact, the motion for reconsideration seems only to have asked the court to reconsider its order of February 8, 1988. Nevertheless, we are treating this appeal as implicating the February 5, 1988, order as well as Davis has clearly demonstrated her intent to appeal from that order.

2 . All parties agree that our standard of review is plenary on all issues, except that the McClintons assert that the denial of class certification is reviewed on an abuse of discretion standard, citing Bogus v. American Speech & Hearing Ass’n, 582 F.2d 277, 289 (3d Cir.1978). We have concluded that this appeal on all issues is determined by the application of legal precepts and thus we are exercising plenary review. United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 906, 971, 106 S.Ct. 275, 336, 88 L.Ed.2d 236, 321 (1985). While there is some dispute of facts, we believe that the facts that we set forth are in accordance with Davis’s view of them. Of course, we do not suggest that Davis agrees with the findings of fact in the state proceedings, though there can be no dispute that they were made.

3 .Apparently, she could not look to her own family for aid, an inference we draw from the circumstance that she had spent several years in foster homes under the custody of Children and Youth Services of Delaware County.

4 . We are not concerned with the interests of Angela's father, as he has consented to the termination of his parental rights and has not revoked that consent or sought to participate in these proceedings. Thus, an order terminating his parental rights stands unchallenged.

5 . The letter in the appendix is addressed only to Ullman. We, however, accept Davis's representation that it was sent to the judge as well.

6 . The judge orally stayed the proceedings on September 23, 1985.

7 . The opinion was filed on June 6, 1986, apparently in accordance with Pa.R.App.P. 1925(a), after Davis appealed to the Superior Court. According to the opinion of the district court in this case of February 5, 1988, Davis filed exceptions to the order of January 28, 1986, but they were denied on March 24, 1986 by Judge Cata-nia.

8 .The Canadian testimony was taken by deposition in Canada but made part of the record in Delaware County.

9 . This opinion was described by the district court when this case was reached for trial on February 8, 1988, as being "in excruciating detail,” a characterization which was intended to be highly complimentary.

10 . Angela’s name was changed in the adoption proceedings. We will, however, as a matter of convenience continue to refer to her as Angela. We have permitted the record to be supplemented to reflect the adoption which was entered June 9, 1989, in the Court of Common Pleas of Delaware County, one day after the district court denied the motion for reconsideration.

11 . This was the definition given by Davis on her third motion for class certification.

12 . We find it unnecessary to discuss that disposition, as Davis can obtain no relief against the McClintons.

13 .Theresa Yochum Morris is listed in the caption as a party. She had been a plaintiff in Davis's amended complaint but on October 27, 1987, by stipulation the case was dismissed as to her and thus we make no further reference to her.

14 . Because the court anticipated that a motion for reconsideration would be filed, no order of dismissal was then entered.

15 . We realize that Judge Catania, Cohen, and Ullman were not parties to the Common Pleas Court proceedings but that does not matter as Davis is nevertheless bound by the result. See Shuder v. McDonald's Corp., 859 F.2d 266, 273-74 (3d Cir.1988). Furthermore, the McClintons were parties to that proceeding and Davis cannot obtain relief with respect to Angela without affecting their rights.

16 . In her reply brief Davis clearly buttresses this conclusion, as she acknowledges the independence of the termination proceeding under Adoption Act § 2512 from the execution of the consent under Adoption Act § 2711 by her statement that "[t]he involuntary termination proceeding could have occurred whether or not Sara Davis had initially given her voluntary consent to an adoption." Indeed, Davis admits that her "parental rights may have been involuntarily and validly terminated under the standard required by Pennsylvania Law" but argues that if her constitutional rights had not been "blatantly violated by the events leading up to the termination, the outcome of the proceeding might have been different or the proceeding might not have occurred at all.” Of course, we are aware of the Supreme Court’s decision in Michael H. v. Gerald D., — U.S.-, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989), relied upon in the dissent, but we do not see the significance of the holding here. The dissent indicates that the "right of natural parents was recently confirmed by five members of the [Supreme] Court" in that case. But that proposition was never in doubt here. Indeed, in Cohen's brief he indicates that "[i]t is certainly true that parents have a constitutionally protected interest in their chil-dren_” Undoubtedly Davis originally had all the rights of a parent to Angela but she lost them when the unassailable termination order was entered.

17 . Davis cites Alsager v. District Court, 518 F.2d 1160 (8th Cir.1975), in support of her contention that she has standing, but the case is distinguishable. There, the Court of Appeals held that natural parents could bring a declaratory judgment action in the district court under 42 U.S.C. § 1983, seeking a declaration that their constitutional rights had been violated by a state court proceeding which resulted in the termination of their parental relationship with five of their children. They challenged the Iowa statute which provided the conditions under which a parent-child relationship could be terminated. Thus, they made a direct attack on the termination proceedings, as they urged that the standards pursuant to which their rights were terminated were invalid. On remand the termination proceedings were declared to be unconstitutional and were invalidated. Alsager v. District Court, 406 F.Supp. 10, 13, 26 (D.Iowa 1975), aff'd. per curiam, 545 F.2d 1137 (8th Cir.1976). Here, there is no challenge to the validity of the involuntary termination proceeding as such. Indeed, Davis treats that proceeding as valid. Therefore, the termination order would, unlike that in Abager, have retained its validity even if Davis had been successful on her legal claims in the district court. Thus, though she is effectively seeking to modify that order, it bars this action, as her complaint is directed to matters legally independent of the proceedings by which her parental rights were terminated and the order may not simultaneously be treated as valid and yet be modified. In the circumstances, we have no reason to discuss the Abager procedure which permitted the withholding of claims from a forum in which it may well have been possible to assert them, thus splintering the litigation.

18 . We realize that Davis feels that the issues raised in this case are of great importance and should be considered on the merits. That contention, however, gives us no basis to bypass standing requirements. Cf. Murray v. Silberstein, 882 F.2d 61, 67 (3d Cir.1989) (a moot case may not be heard simply because of the significance of the issues raised in it.)

19 . In reaching our result, we have not overlooked the possibilities that, even after the entry of the order of termination of Davis’s rights on January 28, 1986, the order could have been vacated by the Court of Common Pleas in response to exceptions filed by Davis or reversed on appeal. First of all in this regard we point out that even though the appellees relied on the state proceedings in their briefs as barring this action, in her reply brief Davis did not suggest that the order of January 28, 1986, should not be regarded as final. Nor did she make any such contention in her original brief. Furthermore, insofar as we can ascertain, Davis never contended in the district court that the outcome of this case was in any way dependent on the circumstances that she had filed exceptions to the order of January 28, 1986, and appealed from the order. In any event, we conclude that these possibilities were inherently too speculative a base on which to predicate a finding that Davis had standing following the entry of an order of termination of her parental rights after a trial. Thus, we decline to discuss the significance of the filing of exceptions to the order of January 28, 1986, and the preclusive effect under Pennsylvania law of an order, otherwise final, to which exceptions have been filed or from which an appeal has been taken. We also point out that the exceptions were overruled before Davis made her initial motion for class action certification, so that even if she could somehow be regarded as having standing prior to that time, the case then became moot as to her personally and she could no longer represent the class. Therefore, even without a standing analysis, we would have reached exactly the same result we have.