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P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

No. 03-3018

RACHEL MARR AN; CLAUDIA LIBRETT,

Ap pellan ts

v.

MICHAE L MARRAN; MONTGOMERY COUNTY OFFICE OF CHI LDREN AND YO UTH; MON TGOM ERY CO UNTY , PA

On Appeal from the United St ates

District Cou rt for the Easte rn D istrict of P enns ylvania (D.C. Civi l No. 03-cv- 01709) Distri ct Judge: Hon. Michael M. Bayl son

Argued April 13, 2004

BEFO RE: REN DELL , COWE N and LA Y* , Circuit

Judges

(Fil ed July15, 2004)

*Honorable Donald P. Lay , Senior United States Circui t Judge for the Eighth Cir cuit, sitting by designation. R. Nicholas Gimbel, Esq. (Argued) McC arter & English 1735 Market Stree t, Sui te 700 Philadelphia, PA 19103

Co unse l for A ppella nts

Gavin P. Lentz, Esq. Stephen E. Skovr on, Esq. ( Argued) Bo chetto & L entz 1524 Locust Street Philadelphia, PA 19102
Counsel for Appell ee Michael Marran

Walter F. Kawalec, II I, Esq. (Argued) Marshall, Dennehey, Warner, Coleman & G ogg in 200 Lake D rive East Wo odland F alls Corpora te Park Suite 300 Cherry Hill, NJ 08002

Cou nsel for A ppellees M ontgom ery County Offic e of Childr en and Youth; and C ounty of M ontgom ery

OPINI ON OF THE COURT

CO W EN , Circuit

Judge

. Clau dia Librett (“Li brett ”) and Mich ael Marran ( “Marran”) were i nvolved in a protr acted cus tody disput e o ver the ir daugh ter, Ra chel . Afte r the state proceedi ngs had ended, Librett and Rachel broughtthis acti on, based on t he al legat ions of chil d abuse that had been made durin g t he custody proceedings.

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They appeal the order of the District Cou rt dismis sing their compl aint under Roo kerFeld man , Younger absten tion, an d R ule 12(b)(6) of th e Fe deral R ules o f Civ il Procedure. We will af firm th e dism issal, alth oug h on somewhat differ ent grounds than th ose g iven b y the Dis trict Co urt.

I.
Libre tt and Marran cohabit ed for a ti me in New York, but were never married. On M ay 21 , 1 999 , w hile the y were still livi ng togeth er, Lib rett g a ve birth to Rac hel, the co uple’s only child . Sho rtly after Rach el’s bir th, M arran a nd L ibrett

were involved i n a n a ltercati on that bec ame phy si ca l. As a res ult of t hat alte rcati on, M arran p led gu ilty to a state crimin a l charge of har assment i n the

sec ond degree, and the parties separated. By consentas appr oved by the fa mily

cou rt in New York, Librett was grant ed sole physi cal and legal c ustod y of Ra chel, and Marran was allowed s upervis ed visi tati on with the ch ild. Libr ett was also grantedperm ission to mo ve w ith Ra chel to Pen nsylv ania

. Af te r Li brett an d R ache l mov ed to Pennsyl vania, Marran sought t o mo dify his visi tatio ns by filing a motion in the Cou rt of Common Pleas of

M on tg om er y C ou nt y. Hearings in the matter began i n October 2000 and conti nued thr oug h May 24, 2002. Duri n g this time, Marran was permitted

seven un supe rvised vis its, wh ic h culminated in an overni ght vis it from D ecem ber 11 to December 12, 2001. Some ti me after

May 2002, Libr ett be gan to suspect

that M arran h ad se xually abused Rac hel. Librett fil ed severalcomplaint s of abuse with the M ontg ome ry County Offic e of Children a nd Y outh (“O CY ”). She also file d petiti on s to modify and suspend Ma rran’s visit a tions . In r esponse, the Cou rt of Com m on Pleas sus pended Ma rra n ’s vi si ta ti on rig ht s, andOCY conducted an investigati on into t he allegati ons. OCY u lt imatel y determined tha t the allegations of sex ual abuse w ere unfounded. Relyi ng on these fi ndings, the Cou rt of C omm on Pleas r einst ated Ma rran’s visi tati on righ ts. On January 9, 2003, the Court of

Common Pleas issued a custodyorder i n which it f o und that there

was noth ing to s ubsta ntiate L ib r ett 's alle gations th at M arran h ad se xually abused Rachel, andfound that Librett was intent on excludi ng Ma rran from Rach el’s life

. The c ourt then awarded j oint l egal custodyto M arran and Librett, primary physi cal c ust ody t o Librett, a nd parti al physi cal custodyto Marran

. Libre tt appealedthe orders li fting susp ensi on of Ma rran’s visi tati on right s, deny ing a subsequent

eme rgen cy petitio n based on the s am e e ve nt s, a nd aw ar di ng cu sto dy. The Pennsyl vania Superi or Court affirmed the orde rs, includ ing tho se de alin g wi th the abuse al le ga ti ons . A n ap peal t o the Pen nsylvan ia Supreme Court is now pending. 1

1 Since the custodyorder was i ssued, Librett has continuall y fai led to produce Rachel for vi sit ation wit h Marran, argu ing tha t she sh ould not h ave to because of the all egati ons of sexual abuse. She has not all eged any

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R atherthan w ait for th e Pen nsylvan ia cou rts to rule on th e app eal, Libre tt file d this acti on in the Dis tri ct Cou rt for the Easte rn District of P e nnsyl vania. Librett sought damages from Ma rran on he r own and R achel’s behalf, as well as an injunct ion prohi biti ng Marran fr om ab usi ng Ra c hel. The

com pla int alle ged clai ms for assaul t and ba tte ry, breach of fi duciary duty , breac h of im pl ied contrac t, i ntenti onal inf lict ion of emotionaldistress, and loss o f earnings during minorit

y. In add itio n, Libr ett and Ra c hel brou ght a c laim u nder the C ivil Righ ts Ac t, 42 U.S .C. § 1983, al leging t hat the Montgomery Countydefendants had vi olate d Libre tt’s and Rac hel’ s consti tuti onal right s by fail ing to pro perly inves tigate the allegati ons of abuse

. The complaint

sought monetar

y damages and a declar ationthat OC Y’s findings regardi ng the abus e all ega tions were null and void, and could not be reli ed upon for any purpose. Both Marran and the M ontgom ery Co unty defen dants filed m otions to dismiss, arg uin g, inter alia , that the Distri ct Court l acked juri sdiction over t he cl ai ms under the Rook er -Fe ld ma n d octri ne, that t

he District Court

shou l d ab stain from exerci sing i ts j urisdi ction ,

and that t he complaint

had fail ed to st ate a claim upon wh ich relief could be grante d. On June 12 , 2003, the D istrict Court dismis sed the complai nt, hol ding that it lacked ju ri sdi ct io n ov eral l o f the c la ims under the Rooker-Feldm a n doctri ne. A lte rn ati ve ly, the D istrict Co urt held th a t Younger abstention w as pro p er . F in all y, the District Cou rt held that the c omplaint ha d fai led to s tate a clai m against t he Mo ntgom ery Coun t y defen dants . This appeal fol lowed.
II.
As a preli minarymatter , the Mon tgomery County defendants have file d

a motion t o dismis s thi s appea l. Th ey argue that

Librett is a fugitive from j usti ce and should not

be en ti tled to u se this Cou rt’s resourc es to p r omo te he r o wn ends, whe n s he is unw i ll ing to fol low the Pen nsylvan ia court’s custodyorders. Although it is troublin g that L ibrett w ould bla tantly ignore ano ther court’s orders wh ile se e ki ng rel ie f b ef or e thi s Co ur t, we
are not co n vince d that d ismissa l is warranted, and will de ny the motion.
The Supreme Cou rt has recogni zed th at co urts have the power to dismiss a fugiti ve ’s c rimi nal a ppe al. See Mo linaro

v. New Jersey , 396 U.S

. 365, 366 (1970) (a fugitive’s esc ape “dise ntitles t he defendantto cal l upon the resources of the Cou rt for d eterm in atio n of his claim s”). The Supr eme C ourt later held, how ever, that a clai mant’s fai lure to appea r in a
cr im inal case does not permit a

dist rict court to grant

summary j udgment to the additi onal ins tances of

abuse other

than th e o ne s d ee med unf

oun de d by

OCY, and has produced no fur ther evi dence of abus e. Th e Co urt of C om mo n Ple as he ld Li br ett i n c ontemp t f

orvi ol atin g t wo separate orders in the c ustodycase and fined Libr ett $500 f

or each dayshe fail ed to p rod uce Ra che l for visita tion

.

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governmentin a rela te d civil forfeiture

case. De gan v . Un ited Sta tes , 517 U.S. 820, 829 (199 6). In ad dition, it ha s held that an appell ate court does not have the power to dis miss an appealwhen a convict ed felon w ho fled after convic tion but before sentenc ing was recaptured before the app e al. Ortega-Rodri guez v. United St ates , 507 U .S. 234, 246 (1993). The Supreme Court rea s on ed tha t, althoughthe fu gitiv e’s flight acted as an affront to the d istric t co ur t’s au th or ity, p ermitt ing “an appell ate court to s ancti on by dismis sal anyconduct that exhi bited disre spectfo r a ny a spect of t he judic ial sy st em, even where such conduc t has no connecti on to the c ourse of the ap pellate pro cee din gs,” wo uld sw eep to b roa dly. Id. The Court did, however, rec ognize that dismis sal would be appropri ate i f t he fugitive’s stat

us in some way prejudi ced the government’s stat

us as a l iti gant, but found that t

he Court of

A ppeals for

the Elev enth Circuit

had no t a rti culat ed such prejud ice in dism issin g th e ca se.
In the st a te court proceedings, Libre tt has fail ed to produce Rachel forthe visi tati ons required by t he custod y order. As a resul t, Li brett

has been held in contempt by th e Court of Common Pleas of Mo ntgom ery C ou nt y. Criminalcharges have also been file d aga inst her in Mo ntgom ery Cou nty for interfe ring w ith child cust od y and conc ealment of t he wh ereab outs of a c hild, in conn ection with he r refusalto produce Rachelunder th e custodyord er. Alt

hough the fi nding of contemptand the criminal cha rges are very troubl ing and relat e in pa rt to the e vents un derly ing this case, t hey have no direc t effecton th e pro cessin g of this app eal. Even assuming that Libr ett i s a fugitive from j us tice, the M ontg om ery Cou nty defendants have notsh own that he r status

as a fug it iv e w ould prejud ice the m in th is appe al. We also observe t hat the affront

was to th e dign ity of the P enns ylvania courts, not to th is Co urt. D ismissin g this appeal under the f

ugiti ve disentitl ement do ctri ne would expand that doctri ne even beyondthe scope reject ed by th e Su pr eme Cou rt in Ort ega -Ro dr iguez . Moreover, the factthat L ibrett is no t a cting solel y i n her

own capacity, but is also re presenting Ra chel’s interest s, complicates th e prospect of dismis sal on t

his ba sis, as it

wo uld not b e fair to penali ze Rachel based

on her mother ’s fug itive statu s. W e w ill deny the Mo ntgom ery County defendants’

mo tion to d ismiss th e app eal.

III.
A.
Th e Distri ct Court he ld that i t lacked j urisdi ction unde r the Roo kerFeldman doctrine. We exercise pl enary review over the de cisi on to grant the motion to dis miss for l ack of subje ct matter juri sdiction

. FOCU S v. Alleghe ny Co unty Court of C ommo n Pleas , 75 F.3d 834 , 839 -40 (3d Cir . 199 6).
The Rooker-Feldman doctri ne bars lower fede ral cou rts f rom exerci sing juri sdiction over a case that i s the functi onal equi vale ntof a n ap pea l f ro m a state court j udgment

. Rooker v. Fidelity Tru st Co. , 263 U.S. 4 13 (1923) ; District of Columbia Court of Appeals v. Feldman , 460

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U.S. 462 (1983). A cas e is th e functi onal equiv alent o f an a ppea l f ro m a state court j udgment in two instances : (1) when the cl aim was ac tual ly litigate d before the st ate cou rt ; or ( 2) when the claim is i nextri cablyinter twined with t

he state adju dica tion

. ITT Corporati on v. Intel net Internationa l Corporation , 366 F.3d 205, 210 (3d Cir. 200 4) . A s we
recen tly noted , alm ost an y claim tha t is actua lly litigate d will al so meet the i nex tricably inter twi ned test. Id. Unless the fede ral claim s are id entica l to the sta te court c laims, determi ning whether t he cl ai ms have been actually litigate d is more diffic ult than det ermining whe the r the cl ai ms are inextricably intert wi ned w ith the state jud gm ent. Id. at 21 1 n.8

. Thus , we will be gin by determining whether the current clai ms are inext

ricabl y i ntertwined with the c ustodydetermi nation.
A c laim is inextricabl y i ntertwined wi th the st ate court adjudi cati on when “federalreli ef

can only be predic ated upon

a conviction that

the st ate court was

wr ong .” Park vie w A ss oc. v. Cityof Lebanon , 225 F .3d 321, 32 5 (3d C ir. 20 00). “ Rooker-Feldman applie s on l y when in order t o grantthe feder al plainti ff the reli ef sought, the feder al court must determi ne that t

he sta te court

judgment

was er r oneouslyentere d, or must take acti on that would rend er the state judgmentineffect

ual. ” FOCUS , 75 F.3d at 840.
To det ermine whether a parti cular cla im for federa l rel ief i s inext ricab l y inter twine d w ith a prior state court decisi on, this Court looks at “the questi ons of state law that the state co urt w a s required t o rea ch in o rder to rend er its dec ision .” Desi’s P izza v. Cityof Wilkes-B arre , 321 F.3d 411 , 421 (3d Cir. 20 03). Pennsyl vania l aw requires that

cour ts consider

“the pre ference of t

he ch ild

as well as a ny other fa ctor which legitima tely impa cts the c hild's ph ysical, in tell ectualand emotionalwell-bei ng” i n determi ning cu sto dy. 23 Pa. Co ns. S tat. § 5303(a ). Ongoing sexu al abu se, as w ell as continue d ass o ciation with a p ast abuser,

wo uld unquesti ona bl y impact a child’s well-b eing. In ad dition, th e state c ourt is required to con sider “ each paren t and a dult hou seho ld member’s present and past violent or abusi ve conduct” i n determi ning

cu sto dy. Id. at § 5303(c). I n other words, the Co urt o f Co mm on P leas ha d to consider and adjudi cate the all egati on s o f sexual abuse in reachi ng its determi nation that Marran was entitled to j oint l egal custodyand p arti al p hysi cal custody of Ra che l.
Libre tt ar gue s that

the Court of Common Pleas r ef

use d to adjudi cate t

he issue of whetherRac hel ha d bee n sex ually abused, because the judge i n the cust ody matter deferred to t he findings of the investigati on condu cted by OC Y, ra th er than conduct a se parate hearing on t he matter. In the cus tody order, however, the judge explic itl y di scountedthe opini ons of Libre tt ’s experts regardi ng the al leged abuse, determi ned that

repo rts of Ra chel’s behaviora l problems after the o vernight visit were a resul t of

Lib rett’s reac tion to the visi t rat

her than to any abus e, and discounted the ide a tha t an incide nt of

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abuse took plac e during s upervi se d visit. In making thesedetermi nations , the judge consi dered the reports of a neutral third party , t he the rapist ch osen by Libre tt to supervise the visits be tween Marran and Rac hel. In those reports, the therapist noted tha t Rac hel res pon ded w ell to Marran and gave no indi cati on that anyt hing was wrong. The judge further found t hat, although Marran may have mad e mis take s as a new fath er, t h e program of supervi sed visi tati on and therap y had m ade h im a bett er father, and

a stro n g bond existed between him and Rac hel. In ad dition, th e judg e refe rred to the findings of

OCY that t

he all egati ons of abuse were unfounded, and noted tha t no
new all ega tions of abuse had been made. The fa ct th at no a ddi ti ona l h ea ri ngs we r e hel d doe s not mean that the i ssue was not adjudic ated. Ind eed , und er Pe nnsylva nia law the jud ge w as req uired to adjud icate the issue of whether the abuse had

occ urred, because he was required t o
cons id er a pare nt’s ab usive cond uct in making the custody dete rmin ation

. See 23 Pa. Cons. Stat . § 5303(a) . Whether t he judge erred i n not hol din g a heari ng,
ac c epting other evi dence, or allowing additi onal te sti mony aft er May 2002 is an issue that must

be decided by t he Penns ylv ania cour ts throu gh th e app eals process. The claim s in this c ase fa ll into three categ ories: ( 1) Lib re tt ’s cl ai ms
a g ainstMarr an; (2 ) Ra che l’ s c la ims against Marran; and (3) the claims against the Mon tgomery County defendants. Librett’s clai ms against

Marran presen tthe mo st st raight forward appli cati on o f Rooker-Feldman

. Librett seeks dam a ges for bre ach of f idu ciary d uty, b reach of im pl ied contrac t, i ntenti onal inf lict ion of emotionaldistress, and “loss of earnings during min o rity. ” All of the se claims are based on the alleged abuse o f Rac hel. In order for L ibrett to succeed on these claims, the District Cou rt wou ld hav e to find that t

he Court of

Common Pleas erred in decid ing t hat the allegations of abuse

were unfou nded. A s such, the claim s are inextric ably inter

twined with the state court adjudic ation and t he D istrict Court

was correc t in find ing it lacked juri sdiction over these claims.
Libre tt also ar gu e s tha t Rooker-Feldman doe s not bar th e cl ai ms against Marran, becaus e she and Ra chel

are seek ing an injunc tion ag ainst f ur ther abuse and damages fo r past abuse , n ot modification of the cus tody order. Eve n assuming t hat it is tru e that no modification o f th e cus tody ord er w ould

occur because of

an injunction o r an aw ard of dama ges, gra nti ng an injunc tion or award of damages agains t Ma rran w ould require this Court to find t hat the Court of Common Pleas er

red i n finding t

hat the abuse allega tio ns were unfounded

. R ooker-Fel dman bars a ll of L ibrett ’ s clai ms against

Marran.
Rachel ’ s clai ms against Marran present a sli ghtly

more complicated issue. G en er all y, Rooke r -Feldman does not bar cl ai ms by per sons who were not parti es to the und erlying sta te actio n. Valenti v. M itchell , 962 F .2d 288, 29 7-98 (3d Cir. 199 2). As we have noted, “[t]hi s li miti ng

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princi ple of the Rooker-Feldman doctri ne ‘has a close a ffini ty to th e principles embodied in the le gal co ncep ts of cla i m and issue preclusi on.’” Exxon M obil Corp. v. Saudi Ba sic I ndustry Corp. , 364 F.3d 102, 105 (3d Cir . 2004) ( quoting Va lenti , 962 F.3d at297). For example, a s with claim precl usion and i ssue prec lusi on, Roo ker-F el dman bars actions brought by parti es in pri vity

with the parti es in t

he state actio n. Id.
Pr i vity “is me rely a wo rd use d to say that the rel ations hip between one who is a party

on the rec ord an d anoth er is close enou gh to includ e that o ther w ithin the res j udicat a.” EEOC v. Unite d States Steel Corp. , 921 F.2d48 9, 493 (3d Cir. 1990) ( quo ting Bruszewski v. United States , 181 F.2d 419, 423 (3d Cir.)). “One relation ship long held to fall within t he

co nc ept of privi ty is that bet ween a
non party and party

who acts as the nonpa rty’s rep resent ative .” Id. Even if a child is not

a party to a custody act

ion her federalclaim s will b e barre d if the child is in pri vity with the named parti es (her parents).
Rachel was not a named party in the und erlyin g c ustodyproceedi ng. The Pen nsylvan ia Supreme Court has n ever ruledth at

a c hi ldis a p arty

to he r o wn custodyhearing, and it i s unclear whether

a child who is the subj ect of a cus tody hearing is i n priv ity to he r pa ren ts. A recent Sup erior C ourt d ecisi on has held, how ever, that t

hree boy s cou ld n ot in tervene in their own custodyacti on i n orderto asse rt the ir ow n in teres ts. Frank

v. Frank , 833 A .2d 1 94, 197 (P a. Super. Ct. 2003). I n Frank , the Superior C ourt reasoned that “there is no n eed f or a ch ild to intervene in hi s or her own cust ody proceedi ng” beca use th e child ’s interes ts

are the subject

of the hearing, and all owing such an inte rventi on wo uld be “ineffec tual as being redundant. ” Id. It then hel d that the boys’ cl ai ms were barred by collateral estop pel, as theyhad alre ady bee n addresse d and deci ded in the c ustody hea ring

. Id.
Other states have similarly he ld that there is no need to make childre n par ties to the custodylitigati on, ei ther t hrough interventionor ot her me ans

. See , e.g. , Au clair v. A uclair , 730 A.2d 1260, 1270 (Md. Ap p. 199 9); Miller v. Miller , 677 A.2d 64 , 66

- 67 ( Me . 1 996 ); Hartley v. Hartley , 8 86 P.2d 665, 673- 74 (Colo. 1994); Leigh v. Aiken , 311 So. 2d 444 (Ala. 197 5). In so me o f thos e case s, th e court reli ed o n the avai labil ity of a guardian ad lit

em to repre s ent the children’s inter ests. See e.g. , Au clair , 730 A.2d at 127 0; Miller , 677 A.2d at 66-67; Hartley , 886 P.2 d at 673-74. In other
cases, no guardian ad lit em was involved,

an d o nly the pare nts were parties to the acti on. Leigh , 311 So.2d at 446-48 (court did no t err

in not appoi nting guardian ad lit em , whe n n one was request ed and the nature of custody proceedings is a lr eady pro tectiv e of the c hild ’s int eres ts).
In a ll of the cases , the co urts recogniz ed that the chil d’s best interests

were the guidi ng f or ce in the custody determi nationand reasonedthose interests

were alrea dy adequately repres ented, whether by an appoi nted guardian ad lit em

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or by the parent s and court . Courts have gene rally recogniz ed that a ch ild ’s interests in a custody di spu t e are repres ented by the parent s, even when the child makes no mo tion to in terv ene

. See ge ne ra lly, Sm ith v. Organization of Fost er Fam ili es for Eq uality and Refo rm , 4 3 1 U.S. 816, 842 n. 44 (1 977 ) (in litiga tion , a child’s rights are gener ally repres ented by

a parent or

guardian, because the ch il d he rs elf lacks t he capacit

y t o repres ent her

own interests); In re TamaraR. , 764 A.2d 844 , 8 49 (Md . App. 2000) (“Unless a guardian ad litem is appoi nt ed, the ch ild re n's in ter ests are pres umed to be represented b y their respective parents.”).
In Frank , theSuperior

Court did not expla in whe ther the boys’ c laim s were estoppe d because they were dee med parti es to the a ct ion or becau se they were in privity to one or both of their parents, who were parti es to t he acti on. The pre cise distincti on is unneces saryto our analysi s, however, as Rook e r-Fel dman bars both the pa rties to the state acti on and persons in pri vity

with thos e par ties from reli tigat ing i n fe deral c ourt t he issue s decided in a s tate c our t. We theref ore h old that Rooke r -Feldman bars a mino r child from relitigating in federalcourt t he issue s concerni ng the child that we re adjudic ated in a sta te cu stod y dete rmin ation

. Rach el’s cl ai ms ag ain st Marran ar e barred, for the

sa me reasons that Librett ’s claims against M arra n ar e ba rred

. The cl ai ms again st the M ontgom ery Co unty defend ants are ev en mor e invo lv ed

. Librett all eges that the Mo ntgom ery County def endants vi olate d her cons ti tutiona l rights to th e
co mpanionship, care, custody , an d management of Rachel b y failing to conductan adeq uate investigati on into t he al legations of sexual abuse. She also alle ges that t

his fai lure to investiga te th e alle gations adeq uately cau sed e mo tio n al distress to both Li brett and Rache l. She seeks damages unde r § 1983, as well as a declar ationthat t

he investigati on was inade quate and a dec lara tion t hat the findings “are n ull and void and may not be reli ed upon f or any purp ose.” (App. at 19)

. The Distri ct Court reasoned that the Mo ntgom ery County def e nd ants w ere in p riv ity with Marran, and as such, the

c la ims against

them were barr ed b y Rooker-Feldman

. Alth oug h it i s no t entirely clear

how the District

Court found

a privity relat

ionshi p between Marran and the Mon tgomery County defendants, pr ivity is not re quired . As w e rece ntly

no t ed, “we have never deemed Roo kerFe l dman inappli cable bas ed on the nonparti cipation in st ate court of a pa rt y assertin g t he juri sdictional bar.” ITT Corporati on , 366 F.3 d a t 216 n.19. Ins tead, the question m ust be w hether t h e issues underly ing t he clai ms against the Mo ntgom ery Cou nty defendan ts were actua lly liti gat ed in o r are ine xtricab ly i n ter twined with the c ustod y determi nation.
We have he ld that Rooker- Fe ld ma n depriveda district

court of j urisdi ction

over an attorney’s c halle nge to the decisi on of the Pennsy l van iaSupreme Cou rt disb arrin g hi m. St er n v. Ni x , 840

### 9

F.2d 208 (3d Cir . 198 8). T he a ttorney in St e rn framed the cl aim as a const itutional chall enge to cert ain rul es governi ng attorney di scipl ine, and s oug ht a n injunction barri ng the Pennsy lvani a Supreme Court from di sbarrin g him self and ot he r si m ila rly s ituated attorne ys if those ru le s we re a ppl ied. Id. at 21 2. We recogniz ed that, at fi rst gl ance , t he challe nge appeared t o be a general consti tuti onal chall enge to the rules an d not barred b y Ro oker-Fel dman , but then went on to reas on that t he nature of t h e injunct ion sou gh t indicated that “Stern’s complaint

is simp ly a sk illful attem pt to mask the tr

ue purpose of the action, whic h essential ly is t o revers e the j udicia l decisi on of the Suprem e Court of Pennsyl va nia, in con travent ion o f Rooker-Feldman .” Id.
In a lat er case, we h eld tha t a simil ar chall enge to the P enns ylvania rules g o verning attorney di scipl ine was not barredby Rooker-Feldman

. Cen ti fanti v. Nix , 865 F .2d 1422 (3d Cir. 198 9). Cen tifanti alle ged that

certai n ru les were unconsti tuti onal on t heir fac e, a nd sought

an injunc tio n barri ng the pros pecti ve applic ationof th ose rule s. I d. a t 1426. The di stri ct court , ci ting Stern , dis missed Cen tif ani’s com plaint unde r Rooker-Feldman

. Id. We rever sed , how ever, stating th at t h e prospective natu re of the inj unction meant that i t was not ba rre d b y Rooker -Fel dman

. Id. at 1429-3 0. We also found that the feder al claim wa s not inext

ricabl y i ntertwined with the state cla im, because a feder al

co urt c ould find th at the rules we re unconsti tuti onal without at tacki ng the judgmentof the state cour t that C entifa nti had vio lated tho se ru les. Id. at 1430.
The dec lara to ryju dgme n t that Libre tt seeks agai ns t the Mo ntgom ery Co unty defe ndan ts is akin to t he injunc tion soughtin Stern . She seeks a ruling that t he findin gs are null and void and may not be reli ed upon for any pur pose . This relief is barredunder Roo ke r-Fel dman , beca use it is an indirect attack on the c ust ody determi nation a lready

adjudic ated in state

cour t. The Co urt o f Co mmon Pleas deferredto OC Y’s findings that the abuse alle gations were unfounded, andbase d its custodydetermi nation on t ho se findings. A de cla ration by this Court that t hose findings may no t be relied on n ecess arily i mplies a findi ng that t he Cou rt o f Common Pl eas was in err or. Thi s is t he ty pe of indirect appealof a st ate court dete rminati o n is prohi bited b y Rooker-Feldman

. De spit e t he fact t

hat Libr ett and Rachel atte mpted to seek rel ief prohibited by Roo ker- F eldman , the § 1 983 claim itself is no t b ar re d b y Rooker-Feldman

. In Ernst v. Chil d & Y outh Servi ces of ChesterCo unty , which also involvedchild

cu st ody matter s, a cus todialgrandmother alle ged tha t Child and Youth Services (“CYS”) had improperl y formulated and made recomm endations to the state court in a dependency proceedi ng regardi ng her grandd aughter. Erns t v. Ch ild and Yo uth Services of C hester Co unty , 108 F.3d 486 (3d C ir. 1996 ). We held th at [t]he Rooker-Feldman doctrin e did

### 10

not preclude the dist

rict court fr om de ci ding those cl aims, be cause a rul ing that t

he defendants violated Erns t' s r ights to subst antive due proces s by mak i n g recommendations to the state court out of malice or

personalbias

wo uld not have re quiredthe court to find th at the sta te c ourt judg men ts made on the ba s is of th ose recommend ations wer e
erroneous.

Id. at 491 -92. L ik ew is e, in th is ca se, a finding that t

he Montgomer y Co unty defe ndan ts violated Libre tt’s or Rach el’s substant ive d ue proce ss rights i n investigati ng the al legations of ab use would not requi re a finding that the C ourt

o f Common Pleas erred i n rely ing on the report st emm ing from the i nvesti gation. This is not

to saythat s uch a determinati on
wo uld not have an effe ct on the cu stod y determi nation. Ar me d with such a judg men t, Libre tt may be in a po sition to seek reconsi derati on of the custody order. Nevertheless, Rooker-Feldman is n o t impli cated, and the District Cou rt erred in di smi ssing this clai m for lack o f juri sdiction. 2 B.
The Distric t Cou rt we nt on to find that ab stention wa s prop er w ith resp ect to the § 1983 c l aims under t he principles enunciat ed in Yo ung er v. H arris , 401 U. S. 37 (1971). We exercise pl enaryreview

over the qu estion o f w hethe r the ele men ts required for abs tenti on e xist. FOCUS , 75 F.3d at 83 4. I f all of the elem ents are prese nt, we revi e w the D istrict Court’s

2 The M ontg om ery Cou nty defe ndan ts also argue tha t the § 1983 claims are barred, because Rooker-Feldman bars consti tuti onal cl aims that could have been but w ere no t raised d uring the state

cour t proce eding s. This is not ex actly the case . We have held that Rooker-Feldman barred t he plai ntiff

s from rais ing a Fir st Amendment challe nge in fede ral cou rt, even thou gh it had never act

ually been li tigated at the state cou rt lev el. Va lenti , 962 F.2d at 296. In Va lenti , the plaint iffs had chall enged an elec tion l aw on equal protect ion grounds, but did not rais e a Firs t Am end me nt ch allen ge. Id. We held th at the c laim w as ba rred, be caus e it could have been raised in the sta te matter. We later explained, ho wev er, that s uch clai ms were barred onl y i f they

we re inex tricably intertw ined in the state

cou rt pro cee din gs. Parkview Assoc. , 225 F.3d at 326- 29. Thus, a consti tuti onal claim is only bar red if f inding merit in the cl aim would requi re a fi nding that the state cou rt w as w ron g. Id. at 326 . In this
case, a finding t hat the underly ing investigati on conducted byOCY was consti tuti onally

insuffi cient

would not indica te that the state co urt w rong ly relied upon OC Y’s reco mm endations. It would merelymean that OCY did not properl y perform its job. As suc h, the chall enge is not

inextricabl y i ntertwined wit h th e cu stod y proc eed ing s.

### 11

decisi on to abst ain for abuse of discr etion. Younger establish ed th at federal

cour ts shou ld abstain from enjoin ing state

c riminal prosecu tions , because o f princi ples of comityand fede ra lism, unless certain extraordinarycircumst an c es ex ist. Younger , 401 U.S at 49- 54. This hol ding has b een e xpan ded o ver tim e to ap ply to noncrimina l judicia l p r oceedings t hat implic ate important stat e interest s

. Middlesex Co unty Eth ic s C omm. v. Garden State Bar

A ss 'n , 457 U.S. 423, 432 (19 82). “A fede ral cou rt will o nl y
cons id er Younger abstention when the request ed equita ble reli ef wo uld co nstitute federa l interference i n state judic ial or quasi- judici al proceedi ngs.” Ma rk s v. Stinson , 19 F .3d 8 73, 883 (3d Cir. 1994) (emp hasis added). The pr oponent of abstention must show that “(1) there a r e ongoing state proceedi ngs that are judi cial in nature ; (2) the s ta te proceedi ngs implic ate important

state inte rest s; and ( 3) the state proceedi ngs afford a n adeq uate

o ppo rtunity to ra is e fe der al cl ai ms

. ” Sch all v. Joy ce , 885 F.2d101, 106 (3d Cir. 1989).
Th e Supreme Court has neve r explic itly decid ed whethe r Younger abstention cove rs acti ons for damages as

we ll as eq uitable reli e f. See Deakins v. Monaghan , 484 U.S . 193, 2 02 (1 988 ); see also Quackenbush v. Alls tate Ins. Co. , 517 U.S. 706, 719 (1996) . In Deak ins , the Cou rt reserved the que sti on of w hether a federalcourt coul d d ec line to exercis e juri sdiction over a cl aim for damages under the prin ciple s in Younger , but approved of this Circ uit’ s rule requiring cour ts to sta y, rather than dis miss, acti ons for dam ages that w ere no t cogn izable in ongoing state proc e edin gs. Deakins , 484 U.S. at 202. In Quackenb ush , the Supreme Cour t held that, i n cases r emoved from state court, remand under abstention princi ples was p roper onl y whe n discretionary reli ef, such a s an inj unction

o r declar atoryjudgment, was sough t

. Quackenb ush , 517 U.S. at 730. These

cases se em t o indicate that abstention under Younger princi pl es is not proper wh en da mag es are s oug ht.
Even if Younger abstention is properin suits f or da mag es, it was not appr opriate for the Distric t Cou rt to abstain from the § 19 83 cla ims in this case. Wh ile it is tr u e that

litigati on regardi ng custod y is s till ongo ing in th e state c ourt, there are no ongoing s tate proceedi ngs
re garding th e a de qua cy of OCY’ s investigati on. Wh en there are no pending st ate pro cee din gs, Younger absten tion is inap pro pria te. FOCUS , 75 F.3d at 843. 3

3 Libre tt argue s that Ankenbrandt v. Richards , 504 U .S. 689, 705 (1992), preclude s a federalcourt fr om ever declining jurisdiction u nder Younger princi ples when the c ase invol ves domestic relations, unless t he plai ntiff directly asks for adivorce, custody , or alim ony d ecre e. T his is sim ply no t true

. In Ankenbrandt , a mother sued a father on behalf of t

heir chi ldren, seeking dam age s fo r ab use

. Id. at 691. The dist rict court found t

hat it lacked juri sdiction over t

he acti on because of the “d om estic rela tions” e xcep tion to

### 12 C. Although the Dist

rict Court erred in dismis sing the § 1983 c la ims u nder both Rooker-Feldman and Younger abstention, dismis sal was still proper u nd er Ru le 12(b)(6)

. A mo tion to dismiss f or failure to state a c la im m ay be gr anted onl y i f, accepti ng all we ll-plead ed alle gation s in the complaint

as true and v iewin g them in the light most favorabl e to the plaint iff, the plain tiff is still n ot en titled to re lief. Bd. of Tru st ees of Te ams t ers Local 863 Pension Fund v. Foodtown, Inc. , 296 F.3d 164, 168 (3d C ir. 200 3). To mak e out a pr imafacie case under § 1983, the plaint iff must demonstrate that a person, acti ng under col or of law, de prived hi m of a fede r al righ t. Berg v. Countyof All egh eny , 219 F .3d 261, 26 8 (3d C ir. 20 00). “Secti on 1983 is not a source of substant ive r i ghts and does not provi de redress for common law tort s–the pl ainti ff must alleg e a v iolat ion of a fed eral r igh t.” Id.
“Local governing bodies . . . maybe sued directly under § 1983 for mon eta ry, de cla ra to ry, or inj unctive reli ef where .

. . the acti on that i s all eged to b e unconsti tuti onal implements or executes a policy statem ent, ordinance , regulat ion, or decisi on offic ia lly adopted a n d promulgate d by that body 's of fic ers.” M onell v. Dept . of

Soc. Serv. , 436 U. S. 658, 690 (1978). In a ddi tion, local gov ernm ents can be sued fo r “con stitutio nal depr ivatio ns visite d pursuant to government al ‘cust om.’” Id. at 690-91. Local gov ernm ents ar e not lia ble “unless acti on pursuant to offi cial po l icy of some na tu re caused aconsti tuti onal tort.” Id. at 691. In oth er w ords, a coun ty (orits agencies) ma y not be sued u nder a respondeat

superior the or y. The refo re, a pr ima facie case agai nst a c ount y must involve an alle gation of a polic y or

custom that direc t ed or caused t

he consti tuti onal deprivat ion.
Libre tt alle ges that

OCY ’s fai lur e div ersity ju risdi ction

. Id. In the alterna tive, the d istrict cou rt foun d that it would abstai n from exerci sing juri sdiction under t

he principles of Younger

. Id. The Supreme Court confi rmed that a “ dom estic rela tions” e xcep tion to divers ity jurisdiction did ex ist, but tha t it was only applic able i n a narrow set of circu ms tanc es n ot p rese nt in that c ase

. Id. at 703. The Court then examined the alternative holding under Younger and fou nd th at abste ntion w as inap prop riate in that c ase, be caus e the f ather’s rights had alread y been severed and there w ere
no o ngo ing pro cee din gs in state cou rt. Id. at 70 5. Ankenbrandt does not st and for the prop osition that Younger abstention is never appropriate in cases involvi ng domestic relations. It hel d that Younger absten tion is ina ppro priate in dom estic relations cases w hen there a re
no o ngo ing pro cee din gs. Id. at 705. In this case, t

he District Court

reli ed on Rooker-Feldman in findi ng that i t lac ked jurisdiction over L ibrett’s and Ra chel’s claims. The “domestic relati ons” excepti on to diver sity j urisdi ction was not relie d on

.

### 13

“to consult

even one of the men tal he alth prof ession als to w hom Rac hel M ar ran descri bed the sexualabuse s he had experie nced at the h and s of her fath er . . . denied M s. Libre tt h er cons titutionally prot ec ted right s in the companionshi p, care, custody , and ma nagement of her daughter Rach el” and ca used sev ere emotionaldist

ress to both Rache l a nd Librett

. (App. at 46. ) Assuming, arguendo , that Li brett

properl y al leged a

cons tit utionalviolat

ion, Li brett

did not alle ge th at

a p ol ic y orcu st om o f OCY o r Mo n tgomery County l ed to the violat ion. This is an essential part of a § 198 3 claim against a c ou nt y. Without an al legation of

a policy or cust om, Librett has not stated a pr ima facie case, and the Dist rict Cou r t proper ly dismis sed the cl aim without per mittin g di sco ver y.

IV.
The claims againstMarran and the atte mpt to seek dec lara tory judgment that OC Y’s findings are nulland void and may not be reli ed upon for anypurpos e are an atte mpt by Librett and Rachel to relitigate

an issue alrea d y decide d by th e Mo ntgom ery County Court of Common Pleas. T he D istrict Co urt pro perly dismis sed them un der R ooker-Fel dman

. In additi on, the remaining claims against the Mo ntgom ery Cou nty defendan ts were prop erly dismis sed for fai lure to state a cl ai m, and L ibrett ha s con cede d that sh e is

unabl e t o pr ope rl y st at e a c la im. 4 Th e Distri ct Court’ s order of June 12, 2003, dis missi ng the complai nt willbe affirmed.

4 Librett asse rts t

hat, in the § 1983 claim, she w ould claim th at Mo ntgom ery County l acked a poli cy r equiri ng reasonabl e investigati ons, or that i t had such a poli cy, but that

the poli cy was breached in this case. Even if she w ere allow ed to a men d her com plaint to includ e suc h alleg ations, s he w ould still fail to properly state a clai m against t he Mo ntgom ery County defen dants und er § 1983.