                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-12-1997

Ernst v. Child & Youth Ser
Precedential or Non-Precedential:

Docket 93-1929,93-1930,94-1273




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                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


               N0S. 93-1929, 93-1930 and 94-1273


                          SYLVIA ERNST
                    Appellant in No. 93-1929

                               v.

          CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SCHRAVAZANDE; ARDEN OLSON; WAYNE STEVENSON; RITA BORZILLO;
       THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA

 *Sylvia Ernst, Administrator of the Estate of Susanne Ernst,
                       for Susanne Ernst
         *(Amended as per the Court's 5/31/96 Order)



                          SYLVIA ERNST

                               v.

          CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SCHRAVAZANDE; ARDEN OLSON, WAYNE STEVENSON; RITA BORZILLO;
       THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA;

  *Sylvia Ernst, Administrator of the Estate of Susanne Ernst
                       for Susanne Ernst

                        Rita K. Borzillo,
                    Appellant in No. 93-1930

          *(Amended as per the Court's 5/31/96 Order)


                          SYLVIA ERNST

                               v.

           CHILD AND YOUTH SERVICES OF CHESTER COUNTY;
CAROL SHRAVAZANDE; ARDEN OLSON, WAYNE STEVENSON; RITA BORZILLO;
       THE JUDICIARY OF THE COMMONWEALTH OF PENNSYLVANIA;

  *Sylvia Ernst, Administrator ofthe Estate of Susanne Ernst
                       for Susanne Ernst

                     Rita K. Borzillo, Esq.
                           Appellant
          *(Amended as per the Court's 5/31/96 Order)



     On Appeal From the United States District Court
        For the Eastern District of Pennsylvania
           (D.C. Civil Action No. 91-cv-03735)


                     Argued June 12, 1996

BEFORE:    STAPLETON, GREENBERG, and ALDISERT, Circuit Judges

                (Opinion Filed March 12, 1997)



                        Edward A. Hartnett (Argued)
                        Seton Hall University School of Law
                        One Newark Center
                        Newark, NJ 07102
                         Attorney for Sylvia Ernst
                         Appellant in No. 93-1929

                        Robert B. Gidding (Argued)
                        44 Union Avenue
                        Bala Cynwyd, PA 19004
                         Attorney for Sylvia Ernst
                         Cross Appellee in Nos. 93-1930
                         and 94-1273

                        Thomas L. Whiteman (Argued)
                        Office of County Solicitor
                        2 North High Street
                        Courthouse, Suite 7
                        West Chester, PA 19380
                         Attorney for Carol Schravazande
                         Appellee\Cross Appellant

                        Joseph P. Green, Jr. (Argued)
                        Duffy & Green
                        10 North Church Street, Suite 307
                        West Chester, PA 19280
                         Attorney for Rita Borzillo
                         Appellee\Cross Appellant

                        David M. Donaldson (Argued)
                        Supreme Court of Pennsylvania
                        Administrative Office of PA Courts
                        1515 Market Street, Suite 1414


                              2
                          Philadelphia, PA 19102
                           Attorney for Judiciary of the
                           Commonwealth of Pennsylvania
                           Appellee\Cross Appellant

                          Thomas W. Corbett, Jr.
                          Attorney General
                          Gregory R. Neuhauser (Argued)
                          Senior Deputy Attorney General
                          Calvin R. Koons
                          Senior Deputy Attorney General
                          John G. Knorr, III
                          Chief Deputy Attorney General
                          Office of Attorney General of PA
                          15th Floor, Strawberry Square
                          Harrisburg, PA 17120
                           Attorneys for Commonwealth of
                           Pennsylvania, Amicus Curiae\Appellee\
                           Cross Appellant



                       OPINION OF THE COURT




STAPLETON, Circuit Judge:


          A grandmother alleges in this civil rights action that

she was deprived of the custody of her granddaughter for five

years in violation of rights secured by the Constitution.   The

defendants are Chester County Children & Youth Services (“CYS”),

individual CYS caseworkers, and an attorney retained by CYS to

represent it in the judicial proceedings that transferred custody

to the state.   We are called upon to decide whether and to what

extent child welfare workers and attorneys who represent child

welfare agencies are entitled to absolute immunity for actions

taken in connection with dependency proceedings in state court.

This is an issue of first impression in this circuit.   Like the


                                3
other courts of appeals that have addressed the issue, we hold

that child welfare workers and attorneys who prosecute dependency

proceedings on behalf of the state are entitled to absolute

immunity from suit for all of their actions in preparing for and

prosecuting such dependency proceedings.



                            I.   Facts1

           Sylvia Ernst (“Ernst”) was the sole guardian of her

minor granddaughter Susanne from infancy until the child was nine

years old.2   At about that time, during the 1987-88 school year,

a number of people in the Downingtown, Pennsylvania area where

Ernst and Susanne lived became concerned about Susanne's well-

being.   A mover who had moved Ernst and Susanne into an apartment

in Downingtown contacted police and expressed concern that there

was something wrong in the relationship between Ernst and

Susanne.   He reported that Susanne looked unwell and appeared too

young to be Ernst's daughter.

           The Downingtown police conducted an investigation and
learned that the Family Court of Nassau County, New York, had

issued warrants for the arrest of Ernst and her daughter for

child neglect and that a petition for custody of Susanne had been

filed in 1981 but never served on Ernst.   Nassau County officials

informed the Downingtown police that the warrants had been

1. We accept the extensive findings of fact made by the district
court after a trial on the merits.

2. Susanne's father is believed to be deceased, and her mother
has had only occasional telephone contact with Susanne and Ernst
since Susanne was two years old.
                                 4
vacated and the petition for custody of Susanne had been

withdrawn.   The police informed a CYS employee of its

investigation and of the status of the warrants, but the CYS

personnel responsible for the decision to seek custody of Susanne

were apparently unaware at the time of their decision that the

Nassau County warrants had been withdrawn.

           School officials at several schools Susanne attended

became concerned about Susanne's frequent tardiness, poor

attendance, and inability to separate from Ernst at the start of

the school day.   The days would often begin with a scene outside

Susanne's classroom during which Susanne would cry and scream and

refuse to let go of her grandmother.   On May 3, 1988, after

another morning tantrum, officials at the East Ward School in

Downingtown contacted CYS and requested immediate intervention.

CYS believed Susanne’s attachment to Ernst was sufficiently

extreme to be unhealthy and filed a petition that same day

seeking an adjudication of dependency3 and emergency custody of

Susanne.   After an immediate detention hearing, Judge Stively of

the Chester County Court of Common Pleas found that a prima facie


3. A child is "dependent" under Pennsylvania law if he or she is
"without proper parental care or control, subsistence, education
as required by law, or other care or control necessary for his
physical, mental, or emotional health, or morals." 42 Pa. C.S.A.
§ 6302.
          The dependency petition filed for Susanne contained a
number of false allegations regarding her attendance records and
the Nassau County warrants and custody petition. However, the
Court of Common Pleas later ruled that the errors were harmless
because they did not form the basis of its subsequent
adjudication of dependency.




                                5
case of dependency had been presented, and ordered Susanne placed

in a psychiatric institution for a complete evaluation.

           At a subsequent hearing on May 18, 1988, the parties

stipulated to an adjudication of dependency, which resulted in

temporary legal custody remaining with CYS.   The stipulation

provided that CYS’s goal was the reunification of the family and

that Ernst could receive counseling and treatment at the

institution at which Susanne was being treated.

           CYS retained custody of Susanne for the next five

years.   During that time, Ernst and CYS waged an intense legal

battle over Susanne’s dependency status and custody.    They also

developed an extremely contentious relationship.    CYS caseworkers

found Ernst to be uncooperative, antagonizing, and unwilling to

acknowledge her parenting problems.   They also complained that

she frequently made negative comments about CYS and Susanne’s

foster families during visits with Susanne.   As CYS caseworkers

became increasingly frustrated with Ernst, they sought and

obtained restrictions on her visits with Susanne.    Ultimately,

with the approval of the Chester County Court of Common Pleas and

the Superior Court of Pennsylvania, they changed CYS’s goal for

Susanne from family reunification to long-term foster placement.

 Meanwhile, Susanne occupied eight different placements at

various foster homes and institutions.   Ultimately, her emotional

and intellectual development deteriorated significantly.

           Finally, in April 1993, a new judge assigned to review

Susanne's placement recognized that "[t]he adversarial air of the



                                6
proceeding [concerning Susanne's dependency] ... at times ...

captured the focus of many of those involved in this case instead

of focusing on Susanne."   Juvenile No. 83 CS 88, Order of April

26, 1993, Op. at 2.   Concluding that "[w]e have come to the point

where state intervention in Susanne's life is now doing more harm

than good," the court ordered that physical custody of Susanne be

returned to Ernst, with legal custody remaining with CYS.     Ernst

was granted legal custody on November 17, 1993.

          During the pendency of the state court proceedings,

Ernst filed this action in federal court under 42 U.S.C. § 1983

against CYS, various CYS caseworkers who were involved in

Susanne’s case (the “CYS defendants”), three officials from the

Downingtown Area School District, and Rita Borzillo, a private

attorney who represented CYS throughout Susanne’s dependency

proceedings.   Ernst’s complaint alleged (1) violation of

procedural and substantive due process by all defendants for

their improper "seizure" of Susanne; (2) violation of substantive

due process by CYS, the CYS defendants, and Borzillo for the

imposition of restrictions on visitation and for the

recommendation of long-term placement instead of reunification;

(3) violations of procedural due process in the course and

conduct of state court proceedings; and (4) violation of the

First Amendment by the Pennsylvania statute that presumptively

closes juvenile dependency proceedings to the public.   The

district court joined the Judiciary of the Commonwealth of

Pennsylvania to defend the First Amendment claim.



                                7
            The district court granted summary judgment to the

Downingtown School officials on statute of limitations grounds,

and to all defendants on all claims alleging procedural due

process violations before May 24, 1991 on the ground that those

claims had been fully and fairly litigated in state court.       The

court granted partial summary judgment to the CYS defendants and

Borzillo, ruling that they were entitled to absolute immunity

"insofar as they acted in their prosecutorial capacity of filing

petitions and making recommendations to the court."    The court

held that the CYS defendants were not entitled to absolute

immunity, however, for actions taken in their capacities as

social workers formulating recommendations to be made to the

court.   The court further held that Borzillo was not entitled to

absolute immunity for actions taken in an "extra-prosecutorial"

capacity.

            A bench trial ensued on the claims that survived

summary judgment.    After the trial, the court granted judgment to

CYS, the CYS defendants, and the Judiciary of Pennsylvania.

Although the court criticized the CYS defendants for flawed

social work practice and inability "to submerge their personal

views in dealing with a difficult woman" and focus on Susanne's

welfare, Ernst v. Chester County Children & Youth Servs., No.
CIV. A. 91-3735, 1993 WL 343375, at *23 (E.D. Pa. Sept. 3, 1993),

it ultimately concluded that the CYS defendants' actions "were

not so devoid of professional judgment or so clearly outrageous

as to impose liability for constitutional violations.”   Id.      The



                                 8
court held that CYS was not liable for any violations by the CYS

defendants or Borzillo because Ernst had not shown that the

actions were done by an official with policy-making authority or

pursuant to a "policy" or "custom" of CYS.   Finally, the district

court held that Ernst lacked standing to bring her First

Amendment challenge to Pennsylvania's juvenile court closure

provision because she could not raise the right of the “third-

party” public and press to access to the courts.

          On the other hand, the court granted judgment in favor

of Ernst against Borzillo.   The court held that Borzillo, who was

a state actor for purposes of § 1983 while she represented CYS,

violated Ernst's substantive due process rights when she sought

appellate review of an order granting Ernst an unsupervised visit

with Susanne.   The court found that Borzillo challenged the order

primarily out of "animosity and anger at Ernst's small victory"

in securing permission for an unsupervised visit.   Id. at *25.

Nevertheless, the court found that the harm suffered by Ernst as

a result of Borzillo’s actions was de minimis, consisting only of

the difference between the value of the unsupervised visit

ordered and the supervised visit Ernst actually had with Susanne,

and awarded only nominal damages and attorneys’ fees.

          Ernst timely appealed the district court's judgments

against her on the substantive due process and First Amendment

claims, and Borzillo cross-appealed.   We will affirm the

judgments against Ernst in favor of the CYS defendants, albeit on

the alternative ground that the CYS defendants are absolutely



                                9
immune for all of their actions in preparing for and prosecuting

Susanne’s dependency proceedings.     We will also affirm the

judgments in favor of CYS and the Judiciary of Pennsylvania.

However, we will reverse the judgment against Borzillo on the

ground that she is entitled to absolute immunity for the actions

for which she was held liable by the district court.



                         II.   Jurisdiction

           Because the federal courts are courts of limited

jurisdiction, we must first satisfy ourselves that we have

jurisdiction over this appeal and cross-appeal.



                    A.   Rooker-Feldman Doctrine

           The CYS defendants contend that the district court

lacked jurisdiction to entertain Ernst’s suit under the Rooker-

Feldman doctrine, which prohibits federal courts from exercising

"subject matter jurisdiction to review final adjudications of a

state's highest court or to evaluate constitutional claims that

are 'inextricably intertwined with the state court's [decision]

in a judicial proceeding.'"    FOCUS v. Allegheny County Court of
Common Pleas, 75 F.3d 834, 840 (quoting Blake v. Papadakos, 953

F.2d 68, 71 (3d Cir. 1992) (alteration in original); District of

Columbia Ct. of Appeals v. Feldman, 460 U.S. 462, 483 n.16

(1983)).   According to the CYS defendants, the Rooker-Feldman

doctrine precluded the district court from hearing Ernst’s § 1983

claims because to decide those claims required the court to



                                 10
determine whether the state courts correctly adjudicated Susanne

a dependent.    We disagree, and find Rooker-Feldman inapplicable

here.

            The Rooker-Feldman doctrine is based on the statutory

provision that grants the Supreme Court jurisdiction to review

the decisions of the highest state courts for compliance with the

Constitution.    See 28 U.S.C. § 1257.   Because this jurisdiction

is reserved exclusively to the Supreme Court, it is improper for

federal district courts to exercise jurisdiction over a case that

is the functional equivalent of an appeal from a state court

judgment.   See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16

(1923).   As this court recently explained:

When a plaintiff seeks to litigate a claim in a federal
          court, the existence of a state court
          judgment in another case bars the federal
          proceeding under Rooker-Feldman only when
          entertaining the federal court claim would be
          the equivalent of an appellate review of that
          order. For that reason, Rooker-Feldman
          applies only when in order to grant the
          federal plaintiff the relief sought, the
          federal court must determine that the state
          court judgment was erroneously entered or
          must take action that would render that
          judgment ineffectual.


FOCUS, 75 F.3d at 840 (citations omitted).     Those circumstances

are not present here.

            Although Ernst’s Third Amended Complaint sought her

appointment as Susanne’s legal guardian, which was the relief

that she had been unable to obtain in the state courts, that

portion of the complaint was mooted when the state court returned




                                 11
Susanne to Ernst’s custody.   Thus, the district court was left to

decide only Ernst’s § 1983 claims for damages, which were

grounded primarily in her allegations that the defendants

violated her right to substantive due process when they

formulated and made recommendations to the state court regarding

Susanne’s dependency.   The Rooker-Feldman doctrine did not

preclude the district court from deciding those claims because a

ruling that the defendants violated Ernst’s right to substantive

due process by making recommendations to the state court out of

malice or personal bias would not have required the court to find

that the state court judgments made on the basis of those

recommendations were erroneous.

           Moreover, it is clear that deciding the substantive due

process claims did not involve federal court review of a state

court decision because Ernst’s substantive due process claims

were never decided by the state court.   Although Ernst mentioned

her concerns about bias on the part of the CYS defendants during

the dependency proceedings, she did not articulate those concerns

in constitutional due process terms.   Neither did--or could--the

state court base any decision regarding Susanne’s dependency on a

determination that Ernst’s claims of bias or improper motive were

invalid.   Cf. Valenti v. Mitchell, 962 F.2d 288, 296 (3d Cir.

1992) (holding that a party cannot escape Rooker-Feldman by

raising a new constitutional theory in federal court unless the

party lacked a realistic opportunity to fully and fairly litigate

the constitutional claim in the state court proceeding);



                                  12
Centifanti v. Nix, 865 F.2d 1422, 1433 (3d Cir. 1989).   A

dependency adjudication involves a determination that a child is

without proper parental care or control, 42 Pa. C.S.A. § 6302; In

the Interest of J.M., 652 A.2d 877, 880 (Pa. Super. 1995), and

subsequent decisions regarding custody and placement are made on

the basis of the best interests of the child.   42 Pa. C.S.A.

§ 6351; In the Interest of Laura Sweeney, 574 A.2d 690, 691 (Pa.

Super. 1990).   Neither an adjudication of dependency nor a

determination of the appropriate disposition of a dependent child

is based on the intentions or states of mind of the party seeking

 the dependency adjudication.   Therefore, a finding that the CYS

defendants violated Ernst’s right to substantive due process

would not have involved the invalidation of any conclusion or

judgment reached by the state court.4   Accordingly, the Rooker-

Feldman doctrine did not preclude the court from exercising

jurisdiction over Ernst’s substantive due process claims against

the CYS defendants.   We have jurisdiction over the appeal

therefrom pursuant to 28 U.S.C. § 1291.

4. For this reason, the CYS defendants’ contention that Ernst’s
§ 1983 claims are barred by the doctrine of collateral estoppel
also fails. Because the state court never made any decision
regarding whether the defendants, in formulating recommendations
to the state court regarding Susanne’s dependency status,
violated Ernst’s substantive due process rights, the district
court here was not precluded by the doctrine of collateral
estoppel from entertaining Ernst’s substantive due process
claims. See O’Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062,
1065-66 (3d Cir. 1991) (“Under Pennsylvania law, ... a prior
determination of a legal issue is conclusive in a subsequent
action between the parties on the same or a different claim when
(1) the issue was actually litigated; (2) the issue was
determined by a valid and final judgment; and (3) the
determination was essential to the judgment.”).



                                13
                        B.   Cross-Appeal

          Ernst argues that this court lacks jurisdiction to

entertain Borzillo’s cross-appeal because Borzillo did not file a

timely notice of appeal from the district court’s immediately

appealable interlocutory denial of her motion for summary

judgment on the grounds of absolute immunity.5   Instead, she

waited and appealed from the final judgment against her. We

reject Ernst’s argument because we hold that an interlocutory

appeal from a denial of summary judgment on immunity grounds,

although permitted, is not obligatory.

          This court has not yet addressed the specific issue of

whether a party that fails to file an appeal within 30 days after

entry of an immediately appealable interlocutory order denying

summary judgment on immunity grounds forfeits the right to

challenge that denial on appeal from the final judgment.

However, we have adopted the general rule that “[i]f matters are

adjudged by an interlocutory decree that is subject to immediate

appeal, and no appeal is taken, they are not foreclosed, but are

subject to review on appeal from the final judgment,” 9 Moore’s

Federal Practice § 110.18, at 194 (1996); id. at 195 n.2 (citing

cases); see also 15A Wright & Miller, Federal Practice &

5. An order denying summary judgment on immunity grounds is
immediately appealable because an immediate appeal is necessary
to adequately protect the government official’s interest in
avoiding the time and expense of litigation. See Mitchell v.
Forsyth, 472 U.S. 511. 525 (1985); Giuffre v. Bissell, 31 F.3d
1241, 1245 (3d Cir. 1994).




                                14
Procedure § 3911, at 359 & n.78 (citing cases), in another

context.   Victor Talking Mach. Co. v. George, 105 F.2d 697, 699

(3d Cir. 1939) (holding that interlocutory appeal from

interlocutory injunction is permissive rather than mandatory, and

injunction thus may be challenged on appeal from either the

interlocutory order or the final judgment).     The Seventh Circuit

has described the rationale for the general rule:
Although a party has a right to take an immediate
          appeal, there is no obligation to do so....
          A rule that required people to appeal from
          potentially “final” decisions not embodied in
          separate documents [within the meaning of
          Fed. R. Civ. P. 58] would lead to a blizzard
          of protective appeals as litigants tried to
          ensure their rights to review; many times the
          rule would lead to pointless forfeitures as
          litigants overlooked the possibility that a
          particular order might be characterized as a
          “final decision.”


Exchange Nat’l Bank of Chicago v. Daniels, 763 F.2d 286, 290 (7th

Cir. 1985) (emphasis in original).     Moreover, “[m]aking

interlocutory appeals ... mandatory would turn the policy against

piecemeal appeals on its head.”    Hunter v. Department of Air

Force Agency, 846 F.2d 1314, 1316 (11th Cir. 1988) (quoting In re
Chicken Antitrust Litigation, 669 F.2d 228, 236 (5th Cir. 1982)).

           We can see no meaningful distinction between

interlocutory orders denying summary judgment on immunity grounds

and other appealable interlocutory orders.     Accordingly, we think

it appropriate to extend the general rule to interlocutory orders

denying summary judgment on immunity ground.    See McIntosh v.

Wienberger, 810 F.2d 1411, 1431 n.7 (8th Cir. 1987) (applying




                                  15
general rule to orders denying summary judgment on immunity

grounds because the interest in protecting public officials from

monetary liability for official acts survives even after a trial

has been held).     Therefore, Borzillo did not forfeit her right to

appeal the district court’s denial of her motion for summary

judgment on immunity grounds by waiting to file a notice of

appeal until after entry of a final judgment against her.    We

thus have jurisdiction to consider the immunity issue raised in

her cross-appeal.




                                  16
                          III.   Ernst’s Appeal

                 A.   CYS Defendants’ Absolute Immunity

            Ernst challenges the district court’s grant of partial

summary judgment to the CYS defendants based on absolute immunity

“insofar as they acted in their prosecutorial capacity of filing

petitions and making recommendations to the court.”       Order of

Jan. 27, 1993.    She contends that the CYS defendants cannot claim

entitlement to immunity from suit under § 1983 because child

welfare workers employed by the state did not exist, and thus

enjoyed no immunity from suit at common law, in 1871 when § 1983

was enacted.   Although we recognize that state-employed social

workers enjoyed no common law immunity from suit in 1871, we

nonetheless hold that the CYS defendants are entitled to absolute

immunity for their actions in petitioning and in formulating and

making recommendations to the state court because those actions

are analogous to functions performed by state prosecutors, who

were immune from suit at common law.

            Section 1983 provides that “[e]very person who, under

color of any statute, ordinance, regulation, custom, or usage, of

any State ... subjects ... any citizen of the United States ...

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws shall be liable to the party

injured.”   42 U.S.C. § 1983 (emphasis added).    Despite its broad

language, the Supreme Court has consistently held that this

provision did not abolish long-standing common law immunities

from civil suits.     See Burns v. Reed, 500 U.S. 478, 484 (1991)



                                    17
(citing Pierson v. Ray, 386 U.S. 547, 554 (1967)); Imbler v.

Pachtman, 424 U.S. 409, 418 (1976).    Instead, courts must

determine whether a particular governmental official is entitled

to immunity according to the following analysis:
[The] initial inquiry is whether [the] official
          claiming immunity under § 1983 can point to a
          common-law counterpart to the privilege he
          asserts. If “an official was accorded
          immunity from tort actions at common law when
          the Civil Rights Act was enacted in 1871, the
          Court next considers whether
§ 1983's history or purposes nonetheless counsel
          against recognizing the same immunity in §
          1983 actions.”


Malley v. Briggs, 475 U.S. 335, 340 (1986) (quoting Tower v.

Glover, 467 U.S. 914, 920 (1984)).    Courts “look to the common

law and other history for guidance because [their] role is ‘not

to make a freewheeling policy choice,’ but rather to discern

Congress’ likely intent in enacting § 1983.”    Burns, 500 U.S. at

493 (quoting Malley, 475 U.S. at 342).

          The fact that a particular public official did not

enjoy absolute immunity at common law is not, however,

determinative of the absolute immunity issue.    Where the official

claiming immunity occupies a governmental position that did not

exist at common law, he may still be entitled to immunity if he

performs official functions that are analogous to functions

performed by those who were immune at common law.    See Butz v.
Economou, 438 U.S. 478 (1978) (holding that officials who perform

quasi-judicial and quasi-prosecutorial functions in

administrative agency adjudications are entitled to the same




                               18
immunities afforded to judges and prosecutors at common law); see

also Forrester v. White, 484 U.S. 219, 224 (1988) (“Running

through our cases, with fair consistency, is a ‘functional’

approach to immunity questions other than those that have been

decided by express constitutional or statutory enactment.     Under

that approach, we examine the nature of the functions with which

a particular official or class of officials has been lawfully

entrusted, and we seek to evaluate the effect that exposure to

particular forms of liability would likely have on the

appropriate exercise of those functions.”).   It is therefore

necessary for us to review the functions performed by officials

to whom absolute immunity has been accorded in order to determine

if child welfare workers perform analogous functions.

          Under its historical and functional approach, the

Supreme Court has held that certain officials “functioning as

integral parts of the judicial process” are absolutely immune

from civil suits under § 1983.   McArdle v. Tronetti, 961 F.2d

1083, 1084 (3d Cir. 1992).   For example, the Court has declared

that judges, Pierson v. Ray, 386 U.S. 547 (1967), prosecutors,

Imbler v. Pachtman, 424 U.S. 409 (1976), and witnesses, Briscoe
v. LaHue, 460 U.S. 325 (1983), are entitled to absolute immunity

when they perform judicial or quasi-judicial acts that are

integral parts of the judicial process.

          In Imbler v. Pachtman, the Court held that prosecutors

were absolutely immune at common law from civil liability for

malicious prosecution and that public policy considerations



                                 19
countenanced a similar absolute immunity from suits under § 1983.

 424 U.S. at 424.    The relevant public policy considerations were

numerous.   First, a prosecutor’s exercise of his independent

judgment would likely be compromised if he were threatened with

suits for damages for his actions in initiating and prosecuting

criminal cases in court.   Id. at 424-25.   Such suits “could be

expected with some frequency, for a defendant often will

transform his resentment at being prosecuted into the ascription

of improper and malicious actions to the State’s advocate.”     Id.

at 425.   Second, the prosecutor’s energy would be diverted from

his official duties if he were forced to defend himself against

§ 1983 actions.   Id.   Third, defending against § 1983 actions

likely would be particularly difficult for a prosecutor:
[T]he honest prosecutor would face greater difficulty
          in meeting the standards of qualified
          immunity than other executive or
          administrative officials. Frequently acting
          under serious constraints of time and even
          information, a prosecutor inevitably makes
          many decisions that could engender colorable
          claims of constitutional deprivation.
          Defending these decisions, often years after
          they were made, could impose unique and
          intolerable burdens upon a prosecutor
          responsible annually for hundreds of
          indictments and trials.


Id. at 425-26.    Fourth, failure to afford absolute immunity to

prosecutors might undermine the functioning of the criminal

justice system because it might lead prosecutors concerned about

personal liability not to tender evidence that, while relevant,

might conceivably turn out to be fabricated by the witness.     Id.

at 426.   Fifth, failure to afford absolute immunity might weaken



                                 20
the fairness of the criminal justice system by clouding

postconviction review with “the subconscious knowledge that a

post-trial decision in favor of the accused might result in the

prosecutor’s being called upon to respond in damages for his

error or mistaken judgment.”    Id. at 427.    Finally, the court

noted that absolute immunity for prosecutors would not leave the

public without any means to punish or deter unconstitutional

conduct because the availability of both judicial review and

professional disciplinary procedures would protect the public and

punish the errant prosecutor.   Id. at 429.     Thus, the Court

concluded that “in initiating a prosecution and in presenting the

State’s case, the prosecutor is immune from a civil suit for

damages under § 1983.”   Id. at 431.

          In Burns v. Reed, 500 U.S. 478 (1991), and Buckley v.

Fitzsimmons, 509 U.S. 259 (1993), the Court clarified the scope

of a prosecutor’s absolute immunity from suit under § 1983.       In

Burns, the Court held that a prosecutor was absolutely immune

from liability for his presentation of evidence in a probable

cause hearing but was not absolutely immune for the provision of

legal advice to police officers investigating a case.

Emphasizing its “functional approach” to immunity under § 1983,

the Court reiterated that absolute immunity extends only to

prosecutorial activities that are “intimately associated with the

judicial phase of the criminal process.”      Burns, 500 U.S. at 493
(quoting Imbler, 424 U.S. at 430).     Such activities include both

the initiation and prosecution of the State’s case and certain



                                 21
“actions preliminary to the initiation of a prosecution” but

nonetheless integral to the judicial prosecution of the case.

Id. at 491 (quoting Imbler, 424 U.S. at 431 n.33).

          In Buckley v. Fitzsimmons, the Court again declared

that “the Imbler approach focuses on the conduct for which

immunity is claimed,” 509 U.S. at 271-72 (emphasis added), and

the “functional tie” between that conduct and the judicial

process in a criminal case.   Id. at 277-78.   It distinguished

between a prosecutor’s functioning as an “advocate” in judicial

proceedings on behalf of the State, which is entitled to

immunity, and as an investigator searching for clues that might

lead to an arrest, which is not entitled to absolute immunity.

          Applying the principles set forth in Butz, Imbler, and

their progeny to the instant case, we hold that the CYS

defendants are entitled to absolute immunity for their actions

on behalf of the state in preparing for, initiating, and

prosecuting dependency proceedings.   Their immunity is broad

enough to include the formulation and presentation of

recommendations to the court in the course of such proceedings.

We reach this conclusion because (1) the functions performed by

the CYS defendants in dependency proceedings are closely

analogous to the functions performed by prosecutors in criminal

proceedings; (2) the public policy considerations that

countenance immunity for prosecutors are applicable to child

welfare workers performing these functions; and (3) dependency

proceedings incorporate important safeguards that protect



                                22
citizens from unconstitutional actions by child welfare workers.

 With this holding, we join the courts of appeals of the Fourth,

Sixth, Seventh, Eighth, and Ninth Circuits.   See, e.g.,

Millspaugh v. County Dep’t of Pub. Welfare of Wabash County, 937

F.2d 1172, 1176 (7th Cir. 1991); Vosburg v. Department of Soc.

Servs., 884 F.2d 133, 135 (4th Cir. 1989); Salyer v. Patrick, 874

F.2d 374, 378 (6th Cir. 1989); Meyers v. Contra Costa County

Dep’t of Soc. Servs., 812 F.2d 1154, 1156 (9th Cir. 1987).6

          The functions performed by child welfare workers like

the CYS defendants in dependency proceedings are closely



6. Justices Thomas and Scalia recently criticized the appellate
court cases that have held that social workers are entitled to
absolute immunity for quasi-prosecutorial acts on the ground that

[a]n official seeking ... immunity ... must at the
          outset show that a “counterpart to the
          privilege he asserts” was recognized at
          common law in 1871.... The courts that have
          accorded absolute immunity to social workers
          appear to have overlooked the necessary
          historical inquiry; none has seriously
          considered whether social workers enjoyed
          absolute immunity for their official duties
          in 1871. If they did not, absolute immunity
          is unavailable to social workers under
§ 1983. This all assumes, of course, that “social
          workers” (at least as we now understand the
          term) even existed in 1871. If that
          assumption is false, the argument for
          granting absolute immunity becomes (at least)
          more difficult to maintain.

Hoffman v. Harris, 114 S. Ct. 1631 (1994) (Thomas, J., dissenting
from denial of certiorari) (citations omitted). However, there
has been no indication that the other justices on the Court
perceive the appropriate historical inquiry in the same way as do
Justices Thomas and Scalia. Indeed, it seems to us inconsistent
with the Court’s holding in Butz to do so.




                               23
analogous to those performed by prosecutors.    As the Ninth

Circuit has explained,
[a]lthough child services workers do not initiate
          criminal proceedings, their responsibility
          for bringing dependency proceedings, and
          their responsibility to exercise independent
          judgment in determining when to bring such
          proceedings, is not very different from the
          responsibility of a criminal prosecutor. The
          social worker must make a quick decision
          based on perhaps incomplete information as to
          whether to commence investigations and
          initiate proceedings against parents who may
          have abused their children.


Meyers, 812 F.2d at 1157.

           In addition, child welfare workers involved in the

prosecution of dependency proceedings clearly serve “as advocate

for the State,” Imbler, 424 U.S. at 430-31 n.33, in a capacity

that is “intimately associated with the judicial phase of      the

[child protection] process.”    Id. at 430.   A CYS court liaison

officer and a case work supervisor     testified that CYS

caseworkers, after consultation with their supervisors and other

professionals such as psychologists and school officials,

determine what recommendations are made to the court in

dependency proceedings.     Even when they work with an attorney who

represents CYS in the dependency proceeding, the attorney plays

no role in formulating the recommendations made to the court; she

merely "expresses [CYS’s] recommendations on [its] behalf."      App.

at 518a.   Because CYS caseworkers are directly responsible for

the recommendations made to the court in dependency proceedings,

their actions in determining those recommendations and




                                  24
communicating them to the court are "intimately associated" with

the judicial process in much the same way as are a prosecutor’s

actions in representing the state in criminal prosecutions.

          Moreover, we conclude that the public policy

considerations supporting absolute immunity for prosecutors are

equally applicable to child welfare workers acting in a quasi-

prosecutorial capacity in dependency proceedings.   Like a

prosecutor, a child welfare worker must exercise independent

judgment in deciding whether or not to bring a child dependency

proceeding, and such judgment would likely be compromised if the

worker faced the threat of personal liability for every mistake

in judgment.   Certainly, we want our child welfare workers to

exercise care in deciding to interfere in parent-child

relationships.   But we do not want them to be so overly cautious,

out of fear of personal liability, that they fail to intervene in

situations in which children are in danger.   See Millspaugh, 937

F.2d at 1176-77; cf. DeShaney v. Winnebago County Dep’t of Soc.

Servs., 489 U.S. 189, 191-93 (1989).

          In the absence of absolute immunity, we would expect

suits in retaliation for the initiation of dependency proceedings

to occur with even greater frequency than suits against

prosecutors.   Parents involved in seemingly unjustified

dependency proceedings are likely to be even more resentful of

state interference in the usually sacrosanct parent-child

relationship than are defendants of criminal prosecution.     See
Vosburg, 884 F.2d at 137.   In turn, the likely frequency of such



                                25
suits would result in a significant diversion of the energies of

child welfare workers away from their official duties to the

defense of § 1983 litigation.    Further, defending against § 1983

actions would likely be as difficult for child welfare workers as

it would be for prosecutors because child welfare workers, like

prosecutors, must make quick decisions on the basis of limited

information.   “Defending these decisions, often years after they

are made, could impose unique and intolerable burdens on [child

welfare workers] responsible annually for hundreds of [dependency

and child abuse cases].”   Imbler, 424 U.S. at 425-26.

           Finally, as with prosecutors, there are alternative

mechanisms other than the threat of § 1983 liability that protect

the public against unconstitutional conduct by child welfare

workers.   First, the judicial process itself provides significant

protection.    See Millspaugh, 937 F.2d at 1177.   Child welfare

workers must seek an adjudication of dependency from a neutral

judge whose decisions are guided by the “best interests of the

child” and subject to appellate review.    Second, although child

welfare workers are not subject to the comprehensive system of

professional responsibility applicable to prosecutors, they are

under the supervision of the agency that employs them.     The

agency has an incentive to ensure that its employees do not

violate constitutional rights because it is not immune from suit

for abuses committed by employees with policy-making authority or

acting pursuant to agency policy or custom.




                                 26
          Reviewing Ernst’s Third Amended Complaint, it is clear

that all of the claims against the CYS defendants concern actions

taken by the defendants in connection with the formulation and

presentation of recommendations to the state court regarding

Susanne’s dependency status and disposition.   Because all of

these actions are analogous to a prosecutor’s preparation for and

initiation and presentation of a criminal prosecution, we hold

that the CYS defendants are entitled to absolute immunity for the

conduct that Ernst challenges here.7

          We cannot agree with the district court’s conclusion

that the CYS defendants’ actions in preparing and formulating

recommendations to the state court were not within the scope of

their absolute immunity.   The Supreme Court has explicitly

rejected the idea that absolute prosecutorial immunity “extends

only to the act of initiation itself and to conduct occurring in

7. We emphasize that our holding concerns only actions taken by
child welfare workers in the context of dependency proceedings.
Like our sister courts in the Fifth, Sixth, Seventh, and Tenth
Circuits, we would be unwilling to accord absolute immunity to
“investigative or administrative” actions taken by child welfare
workers outside the context of a judicial proceeding. See Snell
v. Tunnell, 920 F.2d 673 (10th Cir. 1990) (holding that pre-
adjudicatory investigative activities by child welfare workers
are entitled only to qualified immunity); Achterhof v. Selvaggio,
886 F.2d 826 (6th Cir. 1989) (holding that opening and
investigating child abuse case and placing parent’s name on
central registry of abusers are investigative and administrative
activities entitled only to qualified immunity); Austin v. Borel,
830 F.2d 1356 (5th Cir. 1987) (holding that filing of complaint
that allowed child services to obtain custody but did not
initiate adjudicative proceeding was analogous to police
officer’s complaint filed to obtain arrest warrant and was
therefore entitled only to qualified immunity) (citing Malley v.
Briggs, 475 U.S. 335 (1986)); Millspaugh v. County Dep’t of Pub.
Welfare of Wabash County, 937 F.2d 1172 (7th Cir. 1991) (same).




                                27
the courtroom.”   Buckley, 509 U.S. at 272.   Moreover, the Court

has expressly embraced the idea that immunity must be afforded to

the evaluation of available data to determine whether and in what

manner to seek judicial action:
We expressly stated [in Imbler] that "the duties of the
          prosecutor in his role as advocate for the
          State involve actions preliminary to the
          initiation of a prosecution and actions apart
          from the courtroom," and are nonetheless
          entitled to absolute immunity.... We have
          not retreated ... from the principle that
          acts undertaken by a prosecutor in preparing
          for the initiation of judicial proceedings or
          for trial, and which occur in the course of
          his role as an advocate for the State, are
          entitled to the protections of absolute
          immunity. Those acts must include the
          professional evaluation of the evidence
          assembled by the police and appropriate
          preparation for its presentation at trial or
          before a grand jury after a decision to seek
          an indictment has been made.


Id. at 272-73.

           Ernst here challenges the CYS defendants’ formulation

of professional judgments that served as the basis for a series

of recommendations they made to the Pennsylvania Court of Common

Pleas.   To grant them absolute immunity for the recommendations

they made to the court but deny them such immunity for the

observations and judgments that were the necessary predicate for

those recommendations would eviscerate the immunity they did

receive and undermine the purposes sought to be advanced by the

grant of absolute immunity.   We therefore conclude that, like a

prosecutor’s evaluation of evidence in preparation for indictment

or trial, the CYS defendants’ gathering and evaluation of




                                28
information and professional opinions regarding the relationship

between Ernst and Susanne in preparation for the dependency

proceedings must be protected.   Accordingly, we will affirm the

grant of judgment for the CYS defendants’ for their actions in

formulating recommendations concerning Susanne’s dependency

proceedings on the ground of absolute immunity rather than the

substantive due process analysis relied on by the district court.



                      B.   Liability of CYS

          The district court granted judgment in favor of CYS

because it found that Ernst had failed to prove at trial that CYS

had a policy or custom of allowing its employees to violate

substantive due process or of inadequate training, supervision,

or discipline of its employees in that regard.   See Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978) (holding that

municipality cannot be held liable for constitutional violations

committed by employees unless such violations occurred pursuant

to a policy or custom promulgated by the municipality).   Ernst

does not argue on appeal that this finding was clearly erroneous.

 Instead, she contends that the district court erred when it

failed to consider evidence that CYS was liable under § 1983 on

the theory that substantive due process violations were committed

by an official with policy-making authority.   We find that the

district court did not err in refusing to consider the proffered

“evidence.”




                                 29
          During the bench trial, Ernst attempted to prove that

CYS had a policy or custom of violating the substantive due

process rights of the families with which it was involved by

calling several witnesses to testify about their dissatisfaction

with CYS’s handling of their cases.    After the record had been

closed and the parties had offered closing argument, Ernst’s

counsel, perhaps realizing that the testimony then in evidence

would not suffice to prove a “policy or custom” of

unconstitutional conduct by CYS, urged the court to also consider

the possibility that CYS was liable under § 1983 for substantive

due process violations committed by a CYS official with policy-

making authority.   See Pembaur v. City of Cincinnati, 475 U.S.

469, 480-81 (1986) (holding that municipality may be liable under

§ 1983 for constitutional deprivation that occurs because of a

single action taken by an official with final decision-making

authority to take such action).    As proof of such

unconstitutional conduct by a CYS policy-maker, Ernst’s counsel

directed the court to an affidavit by Wayne Stevenson, the

director of CYS, that had been submitted with CYS’s motion for

summary judgment.   According to the affidavit, Stevenson was

familiar with and had approved of the handling of the Ernst case.

 However, Stevenson had not been called to testify during the

trial nor had the affidavit been offered into evidence.

Accordingly, the district court ruled that it would not consider

the contents of the affidavit in determining whether CYS was

liable under § 1983.



                                  30
           Ernst argues on appeal that the district court erred in

failing to take judicial notice of the affidavit as a judicial

record in the case.   See Fed. R. Evid. 201 (court shall, at any

stage of a proceeding, take judicial notice, upon request by a

party, of a fact not subject to reasonable dispute because it is

generally known or is “capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned”); Randy’s Studebaker Sales, Inc. v.

Nissan Motor Corp., 533 F.2d 510, 521 (10th Cir. 1976) (“the

court may take judicial notice of its own records, especially in

the same case”); McCormick on Evidence § 330, at 396 (4th ed.

1992).   Ernst acknowledges that the doctrine of judicial notice

only permits the court to take notice of the fact of the

submission of the affidavit. Nonetheless, she argues that the

contents of the affidavit are themselves admissible for their

truth under Fed. R. Evid. 801(d)(2), which provides that a

statement made by and offered against a party is not hearsay.

           We find no reversible error.   The fact that the

statements contained in the Stevenson affidavit may not be

hearsay says nothing about whether the court erred in refusing to

consider the substance of the statements when the contents of the

affidavit were never offered into evidence during the trial.

While the district court undoubtedly had the authority to reopen

the record, it is apparent that it did not abuse its discretion

in declining to do so.   We hold, therefore, that the district

court did not err in refusing to consider the Stevenson affidavit



                                31
as evidence of CYS’s liability under § 1983, and we will affirm

the grant of judgment for CYS.


              C.   The First Amendment Challenge to

                   Juvenile Court Closure Provision

          Pennsylvania’s Juvenile Act provides in relevant part:
Except in hearings to declare a person in contempt of
          court and in [delinquency] hearings as
          specified in subsection (e), the general
          public shall be excluded from hearings under
          this chapter. Only the parties, their
          counsel, witnesses, the victim and counsel
          for the victim, other persons accompanying a
          party or a victim for his or her assistance,
          and any other person as the court finds have
          [sic] a proper interest in the proceedings or
          in the work of the court shall be admitted by
          the court....


42 Pa. C.S.A. § 6336(d).   The Official Comment to the section

states that “[t]he section as drawn permits the court in its

discretion to admit news reporters.   This is frequently done with

the understanding that the identity of the cases observed will

not be published, a procedure generally satisfactory to the news

media.”

          Ernst argued before the district court that this

closure provision violated the First Amendment right of access to

judicial proceedings enjoyed by the public and press.   The

district court declined to address Ernst’s First Amendment claim

because it found that Ernst lacked standing to raise the

constitutional rights of the public and press.   On appeal, Ernst

argues that the district court erred in refusing to permit her to




                                 32
raise the right of access of the public because she is a member

of the public entitled to raise the right on her own behalf.

           Although we agree that Ernst shares the public’s right

of access to the courts, we nonetheless hold that the district

court was correct in concluding that Ernst lacked standing to

bring her First Amendment claim.      We reach this conclusion

because even though Ernst, along with the rest of the public,

possesses a general right of access to the courts, she has not

alleged or shown that she suffered the injury-in-fact necessary

to create a justiciable “case or controversy” under Article III

of the Constitution.

           The doctrine of standing is "an essential and

unchanging part of the case-or-controversy requirement of Article

III" of the Constitution.   Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992).    To satisfy the standing requirement, a

plaintiff must demonstrate (1) an "injury in fact" which is both

"concrete and particularized" and "actual or imminent"; (2) a

causal connection between the injury and the challenged conduct;

and (3) a likelihood that the injury will be redressed by a

favorable decision.    Id. at 560-61.   The “injury in fact”

component requires that the plaintiff “allege a distinct and

palpable injury to himself.”    Warth v. Seldin, 422 U.S. 490, 501

(1975).   The injury must “affect the plaintiff in a personal and

individual way.”   Lujan, 504 U.S. at 560 n.1.

           A generalized injury shared by the plaintiff with the

public at large is insufficient to create a concrete “case or



                                 33
controversy” over which a federal court may exercise its

jurisdiction.    Schlesinger v. Reservists Committee to Stop the

War, 418 U.S. 208, 219-20 (1974).     As the Court explained in

Schlesinger,
[S]tanding to sue may not be predicated upon an
          interest of the kind ... which is held in
          common by all members of the public, because
          of the necessarily abstract nature of the
          injury all citizens share. Concrete injury,
          whether actual or threatened, is that
          indispensable element of a dispute which
          serves in part to cast it in a form
          traditionally capable of judicial resolution.
           It adds the essential dimension of
          specificity to the dispute by requiring that
          the complaining party have suffered a
          particular injury caused by the action
          challenged as unlawful. This personal stake
          is what the Court has consistently held
          enables a complainant authoritatively to
          present to a court a complete perspective
          upon the adverse consequences flowing from
          the specific set of facts undergirding the
          grievance.... Only concrete injury presents
          the factual context within which a court,
          aided by parties who argue within the
          context, is capable of making decisions....
          [T]he requirement of concrete injury further
          serves the function of insuring that
          [constitutional] adjudication does not take
          place unnecessarily.


Id. at 220-21.

          Here, Ernst failed to allege the kind of concrete and

particularized injury necessary to establish standing to assert a

First Amendment challenge to Pennsylvania’s juvenile court

closure provision.    She has not alleged that she has ever been

excluded under the closure provision from a proceeding to which

she sought access.    The only First Amendment allegation in her

Third Amended Complaint asserts that “Sylvia Ernst’s first



                                 34
amendment rights are being violated by not opening up the record

of this case; courts are closed to press.”   Compl. ¶ 64.   During

argument before the district court on the First Amendment issue,

Ernst’s counsel agreed with the court that Ernst was “not

complaining about her exclusion from a particular hearing but ...

about the unconstitutionality of the statute because all the

proceedings are closed to the press and public.”   App. at 872a

(emphasis added).

          Because Ernst has alleged only a generalized harm to

the public at large from the closure provision, we hold that she

lacks standing to assert a First Amendment challenge to the

provision.




                               35
                    IV.   Borzillo’s Cross-Appeal

            Ernst’s only success at trial was against CYS attorney

Borzillo, against whom she was awarded nominal damages and

attorneys’ fees.    The district court found that Borzillo violated

Ernst’s right to substantive due process when she filed a

petition for rehearing en banc with the President Judge of the

Chester County Court of Common Pleas and obtained a stay of a

court order granting Ernst an unsupervised visit with Susanne.

Borzillo cross-appeals the district court’s grant of judgment

against her, arguing, inter alia, that she is entitled to

absolute immunity for her activity in connection with the

petition.

            In its pre-trial grant of partial summary judgment for

the defendants, the district court held that Borzillo was

entitled to absolute quasi-prosecutorial immunity for her actions

in representing CYS in connection with Susanne’s dependency

proceedings.8   However, the court held that Borzillo was not


8. Although Borzillo does not exercise independent judgment in
determining what specific recommendations are made to the court
regarding the appropriate disposition of a dependent child, see
supra, p. 22, she exercises independent judgment in offering
legal advice to CYS on such issues as, for example, whether there
is sufficient evidence to pursue a dependency adjudication.
Moreover, in representing CYS before the court, Borzillo clearly
acts as an advocate on behalf of the state in a role that is
"intimately associated" with the judicial process. Thus, her
duties, like those of the CYS defendants, are closely analogous
to those of a prosecutor advocating on behalf of the state in a
criminal prosecution. Accordingly, for reasons similar to those
set forth in Part III-A, we agree with the district court that
Borzillo is entitled to absolute immunity for her representation
of CYS.




                                  36
immune for actions she took on CYS’s behalf after Judge Melody of

the Chester County Court of Common Pleas removed her from

Susanne’s case.

           Borzillo’s removal from Susanne’s case arose from an

exchange she had with the court during a November 20, 1991

hearing before Judge Melody, who was then newly assigned to the

case.   During the hearing, but outside the presence of CYS or its

attorney, Judge Melody spoke with Susanne about her desire to

have an unmonitored weekend home visit with her grandmother.

Upon learning that the court was considering granting a home

visit, Borzillo returned to the courtroom to "object

strenuously."   In the apparent belief that Judge Melody was on

the verge of granting the home visit, Borzillo commented, "Your

Honor, I find it interesting that you are making a decision

without reading the file of this case."    App. at 2075a-76a.   The

following exchange ensued:
          THE COURT: I didn’t make any decision. I'm
          disturbed with you, Ms. Borzillo. You are
          saying that I'm making decisions and I
          haven't made any decision. I am talking to
          people and I resent the fact that you are
          saying that I am making decisions. I haven't
          made any decision yet, --

           MS. BORZILLO:   I am sorry, Your Honor.

                               * * *
           THE COURT: Ms. Borzillo, I observed the way
           you acted. You did not act as a professional
           attorney. You came in with an obvious bent
           and chip on your shoulder with your face . .
           . red as a beet, red as a tomato, mad,
           distraught, upset. You did not act as a
           responsible attorney, in my humble opinion.
           I do not think that you can possibly be
           objective with regard to this case and the



                                 37
attorney involved for CYS has to be objective
and because you cannot be objective and
because of what you demonstrated to me, you
cannot help us with regard to this case, and
by that I mean, you cannot help the Court and
I don't believe that you can help in the best
interest of this child. So in the best
interest of this child, you are going to be
removed from this case and someone else is
going to have to become involved in the case.
In the meantime, all matters are continued
until that is done.
                    * * *
MR. WILSON [Susanne’s court-appointed
attorney]: Your Honor, may I ask that she
remain in the case.

THE COURT: We will not have a meeting at this
time until CYS is represented. So, we will
have CYS represented by someone and then I
would be happy to have a meeting with you and
other counsel.

MR. WILSON: I would ask that you reconsider
Ms. Borzillo’s removal from the case.

THE COURT: I am not going to reconsider it.
It was so obvious in the way that she stormed
into this room, that she cannot be objective.
 I have been a lawyer since 1960, I have been
a Judge since May of 1981, I know people, I
know lawyers, and it’s obvious to me that the
way that she stormed in here with her face as
red as a beet or red as a tomato, that she
cannot be objective with regard to this case
and she cannot, in my humble opinion, to aid
me as a Judge and in my humble opinion, she
cannot be objective, which would be in the
best interest of the child and that’s why in
my opinion she should no longer remain in the
case. Because of the way that she acted,
it’s too obvious to me that new blood, by way
of a new attorney for CYS, has to be infused
in this case.

MR WILSON: Your Honor will not reconsider?

THE COURT: I will not reconsider. It’s too
obvious to me that she is too personally
involved in this case to the extent -- well,
you saw the way she acted and I don’t have to




                     38
          say anymore, so that will take care of things
          for today.


Transcript of November 21, 1991 Hearing, at 34-37, App. at 2076a-

78a & Supp. App. at 1.

          Judge Melody did not immediately issue an order

implementing his declared intention to remove Borzillo and to

require CYS to retain new counsel.   Moreover, contrary to his

statement that all matters would be continued until a new

attorney was appointed by CYS, Judge Melody issued an order on

December 13, 1991 granting Ernst a one hour unsupervised visit

with Susanne.   Upon receiving a copy of the order from Ernst's

attorney on December 18, 1991, CYS asked Borzillo to look into

the matter and try to prevent the unsupervised visit from taking

place.

          Borzillo contacted Judge Melody's chambers at 11:05

A.M. to challenge the issuance of the order and was informed that

the judge would not be available to entertain a motion for

reconsideration until December 23rd.   Judge Melody did, however,

send Borzillo a letter, dated December 18, 1991, threatening

contempt proceedings if CYS did not comply with the visitation

order, and further stating, “As of this moment, you are not

counsel for Children & Youth Services in this case.   However, you

may be reinstated in the future for Children & Youth Services in

this case.”   In his letter, Judge Melody acknowledged that he had

"handed down the order sua sponte without input from Children &

Youth Services or anyone else because [he] believed it was in the




                                39
best interest of the child to do so."     The letter indicated that

a copy had been dispatched to President Judge Lawrence Wood of

the Chester County Court of Common Pleas.

          Continuing her efforts to prevent the unmonitored visit

from taking place, Borzillo, on December 18, 1991, filed with

President Judge Wood a motion for argument en banc and a motion

to stay Judge Melody's visitation order.     Judge Wood granted a

stay at 9:21 A.M. the next day, and Ernst’s visit with Susanne

that afternoon was supervised.   Shortly thereafter, Judge Melody

withdrew from the case, it was reassigned, and the new judge

allowed Borzillo to continue representing CYS.

          The district court held that Borzillo was not entitled

to immunity for actions taken during the time that she was

“removed” from the case because those actions were “in breach of

a court order” and as such were “not within the prosecutorial

function.”   Ernst v. Children & Youth Servs. of Chester County,

No. CIV. A. 91-3735, 1993 WL 343375, at *24 (E.D. Pa. Sept. 3,

1993) (citing Chrissy F. by Medley v. Mississippi Dep’t of Pub.

Welfare, 925 F.2d 844 (5th Cir. 1991)).    On the merits, the court

found that Borzillo’s efforts to prevent Ernst from enjoying a

single unsupervised visit with Susanne were “motivated by

animosity and anger at Ernst’s small victory” and “exceeded the

bounds of zealous advocacy.”   Id. at *25.    Because we conclude

that Borzillo was not acting completely outside her authority as

CYS’s attorney, we reject the district court’s conclusion and




                                 40
hold that Borzillo is entitled to absolute immunity for her

actions taken on CYS’s behalf on December 18-19, 1991.

          As we explained in Part III-A, a prosecutor or other

official performing a quasi-prosecutorial function for the state

is entitled to absolute immunity for official actions taken on

behalf of the State that are integrally related to the judicial

process. If absolute immunity is to serve its purpose, the line

between official conduct, as to which there is immunity, and

extra-official conduct, as to which there is not, must be drawn

without reference to the official’s subjective state of mind.     It

must also be drawn in a manner that leaves officials room for

good faith mistakes about the extent of their authority.    Thus,

if the circumstances in a particular case were such that a

reasonable prosecutor in the defendant’s position could have had

a good faith belief that he was authorized by his office to act

as he did, immunity will be recognized.   In such a case, an

allegation that the official acted in bad faith, knowing his

conduct to be unauthorized, will not strip the official of

absolute immunity.   Similarly, absolute immunity will be

available, in such a case, even if the authority in fact was

lacking under the law.   Stated conversely, immunity will be

denied only for those acts which a reasonable prosecutor would

recognize as being "clearly outside his jurisdiction" to

represent the state before the court.   Bauers v. Heisel, 361 F.2d
581, 591 (3d Cir. 1966).




                                41
          Bauers illustrates the governing principles.    It was a

civil rights action in which the defendant prosecutor had

instituted and prosecuted a criminal proceeding against the

plaintiff in a New Jersey court of general jurisdiction.       A

higher New Jersey court subsequently held that because the

defendant had been under 18 years of age at the time of the

alleged offense, jurisdiction was lodged exclusively in the

Juvenile Court.   Accordingly, the indictment, sentence and

ensuing incarceration were found to be illegal.   The plaintiff

alleged that the defendant knew that plaintiff had not reached

the age of 18 at the time of the alleged crimes and, accordingly,

that the prosecution would deny plaintiff due process of law.      We

accepted both this allegation and the legal proposition that the

prosecution had been beyond the defendant’s authority.    We

nevertheless held that the defendant was entitled to absolute

immunity based on the following rationale:
          We have already indicated that the primary
          responsibility of a prosecutor is to
          vindicate the wrongs which have been
          committed against society. This is precisely
          what appellee was doing when the denial of
          appellant’s liberty occurred. The mere fact
          that the New Jersey Legislature had excised
          from his responsibility the prosecution of
          individuals who were under the age of
          eighteen when they committed acts which would
          otherwise be punishable offenses does not
          indicate that he was acting clearly outside
          his jurisdiction.



Bauers, 361 F.2d at 591; see also Snell v. Tunnell, 920 F.2d 673,

694 (10th Cir. 1990) ("[w]hile a prosecutor might lose absolute




                                42
immunity when he acts with a complete and clear absence of

authority, such a condition does not occur when a prosecutor has

an arguable basis of authority").

           With this background, we turn to the facts of this

case.   Borzillo was an attorney in private practice who was

engaged by CYS from time to time to represent it in dependency

proceedings.   By December 18, 1991, her representation of CYS in

Susanne’s dependency matters was entering its 43rd month.    During

that representation, there had been countless appearances before

the court and, by December 18, 1991, the relevant factual

background of the matter could fairly be characterized as

extensive.

           As we have noted, the act which the district court

found to be beyond the scope of Borzillo’s absolute immunity was

the filing in court on December 18th of a petition seeking review

of an order entered without notice to her client.   The petition

was filed at her client’s request and did nothing more than

present to the court the views and position of her client with

respect to that order.   Thus, like the challenged conduct of the

prosecutor in Bauer, the conduct Ernst challenged here was

precisely the kind of activity in which one occupying Borzillo’s

office would be expected to engage.

           It is true that Ernst alleged, and the court found,

that Borzillo and her client filed this petition because of

hostility to Ernst rather than for the purpose of serving the

best interest of Susanne.   As we have explained, however, the



                                43
subjective motivation behind the challenged action cannot deprive

Borzillo of immunity if a reasonable person in her position could

have believed she was acting within the scope of her authority.

          The district court also concluded that the filing of

the petition was "in breach of a court order."    Ernst, 1993 WL

343375, at *24.   While we agree that the existence of a court

order directing that the challenged act not be done is highly

relevant to, and will ordinarily be determinative of, whether a

prosecuting attorney has acted in a "clear absence of authority,"

there were extenuating circumstances here.

          At the November 20, 1991, hearing before the court,

Judge Melody, after an emotionally charged exchange, concluded

that Borzillo could not be "objective" about the case.   The judge

then announced that Borzillo would be removed and that someone

else would have to become involved in the case.    He assured the

parties that "in the meantime, all matters [would be] continued

until that was done."   No order followed directing CYS to secure

new counsel.   Given the nature, length and frequency of the

proceedings in this matter, a change of counsel was not something

that CYS could easily accomplish.    In light of this fact and the

emotional character of the November 20th hearing, we believe CYS

cannot be faulted for waiting to see if an order requiring a

change of counsel would actually ensue.

          From CYS’s perspective, matters remained in a holding

pattern until the morning of December 18th when it received from

Ernst’s counsel a copy of an order directing that an unsupervised



                                44
visit take place the next day.   This order came as a complete

surprise since CYS had received no notice that an application for

this relief had been filed.   It believed that such a visit was

not in Susanne’s interest and asked Borzillo to see what could be

done.   Borzillo first tried to convey her client’s view to Judge

Melody.   When advised that Judge Melody was unavailable, Borzillo

filed the challenged petition for rehearing en banc and a stay.

           The "order" removing Borzillo to which the district

court referred in its ruling may have been in the letter

apparently written by Judge Melody during the afternoon of

December 18th in which he informed Borzillo that she was removed

from the case "as of this moment."    The district court made no

express finding, however, that this letter was received by

Borzillo prior to the filing of the challenged petition, and we

have found no record evidence that would support such a finding.

 Nonetheless, even if we were to assume that Judge Melody’s

letter was hand-delivered to Borzillo prior to the filing of the

petition, we could not say that the petition she filed was

clearly in excess of her authority.

           Borzillo’s client had had no previous opportunity to

express its views on Ernst’s application.    Nor had it previously

had the opportunity to challenge Judge Melody’s December 18th

letter order removing its counsel from the case, presumably for

lack of objectivity.   There was clearly no time to secure

substitute counsel; the order that CYS wished to challenge would




                                 45
become moot before new counsel could review the matter and file a

petition.

            Judge Melody’s December 18th letter order "removing"

Borzillo was not entered for the benefit or protection of an

opposing party.    Nor was it entered as a sanction for conduct the

judge had found to be disruptive of the judicial process.

Rather, it was entered presumably because the judge believed

Borzillo would not, at least for the moment, be able to assist

him in determining what was in Susanne’s best interest.

            In this context, we believe a reasonable attorney in

Borzillo’s position could have concluded that she owed a duty to

her client to seek judicial review at its behest and that

petitioning for that review before the court en banc was not what

Judge Melody intended to preclude by writing his December 18th

letter.   It necessarily follows that Borzillo did not act in a

clear absence of authority.9


9. In the course of reaching its contrary conclusion, the
district court suggested that Borzillo improperly failed to
disclose to Judge Wood the fact that Judge Melody had removed her
from the case. The basis for this suggestion is not clear to us,
but, in any event, it does not alter our conclusion that Borzillo
did not act in clear absence of authority. If Borzillo did not
receive Judge Melody’s December 18th letter before she filed her
petition on that day, we believe the "removal" situation was
sufficiently ambiguous that a disclosure on the subject was not
required. Even if Borzillo received Judge Melody’s letter before
her filing with Judge Wood, we believe, as we have explained,
that a reasonable attorney in Borzillo’s position reasonably
could have believed that seeking review before another judge was
not something Judge Melody intended to preclude. Moreover, if
Borzillo received Judge Melody’s letter before filing, she would
have known from the face of the letter that a copy had been
dispatched to Judge Wood.




                                 46
          Because we hold that Borzillo is entitled to absolute

immunity for all of her quasi-prosecutorial activities while

representing CYS in connection with Susanne’s dependency

proceedings, we will reverse the district court’s grant of

judgment against her and remand for entry of judgment in her

favor.



                                 V.

          The district court found it "disappointing that [the

CYS] professionals were unable to submerge their personal views

in dealing with a difficult woman or to give her sufficient

credit for fighting placements out of genuine concern for

[Susanne’s] welfare."   Ernst, 1993 WL 343375, at *23.        There is

ample evidence in the record to support this view, as well as the

view that their inability to do so had unfortunate consequences

for Susanne and her grandmother.      Nevertheless, we must

acknowledge, as did the district court, the interest of the state

in ensuring the independent and effective operation of the agency

charged with protecting the state’s children.      That overriding

interest precludes this court from affording Ernst compensation

for whatever injuries she may have suffered at the hands of CYS.

 We will affirm the district court’s grant of judgment in favor

of CYS and the CYS defendants.   We will reverse the grant of

judgment in favor of Ernst against Borzillo and remand for entry

of judgment in favor of Borzillo.




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