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WILLIAMS v. CARROS

December 20, 1983

MARILYN WILLIAMS, on her own behalf, and on behalf of her minor children, DONNA WILLIAMS and EDWARD WILLIAMS, Plaintiffs,
v.
THOMAS N. CARROS, Director, Allegheny County Children and Youth Services, CYRIL H. WECHT, TOM FOERSTER, WILLIAM B. HUNT, Commissioners of Allegheny County, CAROLYN DONAHUE, Senior Supervisor in Charge of Foster Care, MONICA ALLEN, Supervisor, JUDY BRANT, Caseworker, JANICE KOWALESKI, Caseworker, WALTER S. COHEN, Secretary, Pennsylvania Department of Public Welfare, MARGARET JEAN SOSNOWSKI, Deputy Secretary, Office of Children, Youth and Families, DPW, Defendants



The opinion of the court was delivered by: ZIEGLER

 Ziegler, District Judge

 I. History of Case

 This is a civil action based on 42 U.S.C. § 1983 which was filed in this court after many years of related litigation in state court. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1343. Pending before the court are the motions of defendants to dismiss for want of subject matter jurisdiction. We hold that, while subject matter jurisdiction is extant, abstention is required because (a) the underlying dispute has been litigated in state court for over 6 years; (b) numerous hearings have been held and further proceedings are scheduled; (c) many of the issues presented here have been addressed by the state court, and (d) plaintiff can and should raise the unresolved questions in the state court litigation so that resolution may be had within the context of ongoing custody proceedings.

 Plaintiff, Marilyn Williams, age 23, is the mother of Donna, age 7; Edward, age 6; and Damon, age 3. In April 1977, plaintiff requested that Children and Youth Services of Allegheny County (CYS) provide temporary foster care for Donna. After a short time, the child was returned to her mother but plaintiff continued to encounter difficulties in the home. On March 30, 1978, plaintiff again requested that CYS provide assistance. The agency filed a dependency petition with the Juvenile Court of Allegheny County, Pennsylvania, and that court on May 23, 1978, ordered CYS to assume custody and place the children in temporary foster care.

 Donna and Edward were placed in separate foster homes and the state court retained jurisdiction. The court ordered, for example, that CYS increase the visitations between the mother and children, with reunification as the goal, and further ordered on December 12, 1979 that Edward be reintroduced to plaintiff's custody within six weeks.

 Thereafter plaintiff was the victim of an assault and the Juvenile Court ordered that Donna and Edward remain in their respective foster homes pending further review. The Superior Court of Pennsylvania reversed the order of January 30, 1980 and held that the trial court had placed undue emphasis on the assault as it related to plaintiff's fitness as a custodian. In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132, 1136 (1981). The case was remanded to the lower court to receive additional evidence and resolve with "dispatch" plaintiff's petition for return of her children. Id. at 1138.

 Following the order of January 30, 1980, and prior to the judgment of the Superior Court on February 13, 1981, plaintiff visited her children twice each month for one hour at the office of CYS. The visits were suspended however from August to October 1980 when plaintiff removed the children to her home in Washington County in violation of order of the trial court. Visitation resumed in October and continued until November 1982 on the same basis.

 On November 19, 1982, the Juvenile Court suspended all visitation between plaintiff and Donna for three months based on the recommendation of a psychologist retained by CYS. The expert found that visitation was inimical to the best interests of the child because Donna had bonded to the foster parents and the visits were upsetting and counterproductive. A similar order was entered with respect to Edward on December 3, 1982.

 Plaintiff appealed the order of the trial court relating to Donna, alleging procedural and substantive infirmities. No appeal was taken as to Edward. Plaintiff then discontinued the appeal before the Superior Court because she was dissatisfied with the lack of a briefing schedule. Brief at 36, n. 2. We note, however, that plaintiff's appeal from the trial court's finding of dependency is pending before the Superior Court and the parties have advised this court that additional proceedings are scheduled before the trial court. In the meantime, however, plaintiff has not visited with her children for over one year. *fn1"

 Marilyn Williams instituted the instant action seeking the following relief: (a) an injunction requiring that defendants institute immediate visitation between plaintiff and her children in a proper setting; (b) an injunction that defendants develop a plan to maximize visitation opportunities; (c) an injunction requiring defendants to develop a family assessment plan including rehabilitation services; (d) a judgment declaring that defendants restricted plaintiff's visitation and reunification rights in violation of the Constitution as well as federal and state laws; (e) a judgment declaring that defendants failed to provide adequate assessment of her needs and appropriate services; and (f) money damages. *fn2"

 Finally, throughout these proceedings, and in state court, Donna and Edward have been represented by a child advocate who has opposed the relief sought by plaintiff, including removal from their present placement in foster homes.

 II. Discussion

 McTeague v. Sosnowski, 617 F.2d 1016 (3d Cir. 1980) counsels that a district court should proceed cautiously when the question of abstention arises in the context of a claim that governmental authorities have violated the constitutional and statutory rights of children and families. Id. at 1017. As a result, this court granted plaintiff's motion for expedited discovery, required document production and conducted a hearing of plaintiff's claim for preliminary injunctive relief. We are satisfied that the record is adequate ...


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