*

Honorable Jerome Farris, Senior U.S. Circuit Judge for the

Ninth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-6584.

ALABAMA DISABILITIES ADVOCACY PROGRAM, the Statewide Protection

and Advocacy System Organized in Accordance with Public Laws 100-

146 and 99-139, on behalf of Persons Labeled Developmentally

Disabled or Mentally Ill, Plaintiff-Appellee,

v.

J.S. TARWATER DEVELOPMENTAL CENTER, an Alabama Institution for

People with Mental Retardation, Organized and Operated Under the

Alabama Department of Mental Health and Mental Retardation; Levi

Harris, Director of J.S. Tarwater Developmental Center; Custodian

of Records of J.S. Tarwater Developmental Center; Alabama

Department of Mental Health and Mental Retardation, an Alabama

Governmental Agency; Virginia Rogers, Commissioner of the Alabama

Department of Mental Health and Mental Retardation; Billy Ray

Stokes, Associate Commissioner for Mental Health, Retardation,

Alabama Department of Mental Health and Retardation; Custodian of

Records of the Alabama Department of Mental Health and Mental

Retardation, Defendants-Appellants.

Oct. 10, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-95-D-383-N), Myron N. Thompson, Chief

Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and FARRIS*

, Senior

Circuit Judge.

DUBINA, Circuit Judge:

The Defendants-Appellants J.S. Tarwater Developmental Center

("Tarwater"), et al. (collectively, "the Defendants") appeal the

district court's judgment in favor of the Plaintiff-Appellee

Alabama Disabilities Advocacy Program ("the Advocacy Program"),

which enjoined and restrained the Defendants from failing to

release to the Advocacy Program the medical records of two former

Tarwater residents. Our review of the record, the district court's
memorandum opinion, and the controlling statutory law persuade us

that the injunction was appropriately entered. Accordingly, we

affirm.

I. BACKGROUND

A. The Developmental Disabilities Assistance and Bill of Rights

Act.

Disturbed by the inhumane and despicable conditions discovered

at New York's Willowbrook State School for persons with

developmental disabilities, Congress enacted the Developmental

Disabilities Assistance and Bill of Rights Act ("the Act") to

protect the human and civil rights of this vulnerable population.

42 U.S.C. §§ 6000 et seq. Pursuant to the Act, a state cannot

receive federal funds for services to persons with developmental

disabilities unless it has established a protection and advocacy

("P & A") system. 42 U.S.C. § 6042(a)(1).

Indeed, the Act does not merely require that the state have an

advocacy system, but specifically declares: "In order for a State

to receive an allotment under Subchapter II of this chapter—(1) the

State must have in effect a system to protect and advocate the

rights of persons with developmental disabilities." 42 U.S.C. §

6042(a). Thus, P & As are empowered, among other things, to: (1)

investigate incidents of abuse and neglect of persons with

developmental disabilities; (2) pursue legal, administrative, and

other appropriate remedies on behalf of such persons to ensure the

enforcement of their constitutional and statutory rights; and (3)

provide information and referrals relating to programs and services

addressing the needs of these persons. 42 U.S.C. § 6042(a)(2)(A)

and (B). The Advocacy Program is the federally mandated and funded
P & A system Alabama has established pursuant to 42 U.S.C. §

6042(a)(1). Defendant Tarwater is an intermediate care facility

for habitation of mentally retarded persons.

B. The Advocacy Program's Investigation of the Deaths of G.A. and

M.V.

On February 24, 1995, the Advocacy Program received an

anonymous telephone message on its answering machine questioning

the circumstances of the deaths of two Tarwater residents known as

G.A. and M.V. The transcript of the telephone call reads as

follows:

Ugh yes I'm calling in regard to the Wyatt vs. Hanan Lawsuit.

Let me put a bug in your ear[,] this is for the lawyers

representing Wyatt. We had two deaths at Tarwater; one of

them was a gentleman named G[.]A[.] He was exposed to the

cold and died two days later of pneumonia. He was forced to

go down to programming. He was not dressed for it plus he was

very, very sick at the time he went. Now there is a video

tape that exists of his being sick but ugh it is my

understanding the ugh administration at Tarwater has

confiscated the video. If you people act very quickly you

might actually get some action taken because ugh there ugh

whatchacallit the administration at Tarwater are being very

very careful. There [sic] covering this thing up big time.

You want to act now. I suggest you check up on G[.]A[.] death

and ugh the fact that he was exposed to the cold weather, he

was taken to the hospital on Thursday with hyperthermic

conditions and died two days later. Also a week, not less

than a week later M[.]V[.] died. You need to check that one

out. That was also one of these strange situations. Anyway

Good luck.

The Advocacy Program verified the existence of G.A. and M.V. and

their residence at Tarwater. The Advocacy Program learned that

G.A. was a 36-year-old male who died from respiratory failure on

February 12, 1995, while residing at Tarwater. It also learned

that M.V. was a 35-year-old woman who died from acute cardio

respiratory failure on February 16, 1995, while residing at

Tarwater.
The Advocacy Program requested that Alabama state officials

release to it the records of G.A. and M.V. When that request was

refused, the Advocacy Program filed a complaint pursuant to the Act

to have the district court order the following Defendants to

release the records: (1) Tarwater, its director, and its custodian

of records; and (2) the Alabama Department of Mental Health and

Mental Retardation, its commissioners, its associate commissioner,

and its custodian of records.

After the Advocacy Program filed its complaint, the Department

of Mental Health and Mental Retardation gave the Advocacy Program

the telephone numbers of the former guardians of G.A. and M.V.

When the Advocacy Program called the families to report the

anonymous phone call, the families objected to the Advocacy

Program's investigation. On July 6, 1995, the district court

enjoined the Defendants from failing to release the requested

records to the Advocacy Program. The Defendants then perfected

this appeal and moved for a stay of judgment. The district court

denied the stay on August 7, 1995.

II. ISSUES

A. Whether this appeal was rendered moot because the Defendants

have already complied with the order of the district court and

have granted the Advocacy Program access to the records of

G.A. and M.V.

B. Whether the grant of an injunction was proper. This issue

requires us to resolve two subissues:

1. Whether a parent of an individual with developmental

disabilities, who has also been appointed guardian of such

person, ceases to be the legal representative of such person

within the meaning of 42 U.S.C. § 6042(a)(2)(I) after such

individual's death.

2. Whether an anonymous telephone call implying that abuse and/or

neglect may have caused death both constitutes a complaint
within the meaning of 42 U.S.C. § 6042(a)(2)(I)(ii)(III) and

establishes probable cause, either of which justifies the P &

A's access to the records of G.A. and M.V.

III. STANDARDS OF REVIEW

 The reviewing court determines questions of mootness under a

plenary standard of review. United States v. Florida Azalea

Specialists, 19 F.3d 620, 621 (11th Cir.1994).

 This court reviews the grant of an injunction for abuse of

discretion; however, if the trial court misapplies the law this

court will correct the error without deference to that court's

determination. See Wesch v. Folsom, 6 F.3d 1465, 1469 (11th

Cir.1993), cert. denied, 510 U.S. 1046, 114 S.Ct. 696, 126 L.Ed.2d

663 (1994).

IV. DISCUSSION

A. Mootness.

 During oral arguments in this case, this court sua sponte

requested that the parties file supplemental briefs responding to

a suggestion of mootness. Specifically, the court inquired of

counsel whether this appeal was rendered moot due to the fact that

the Defendants had already complied with the district court's order

to grant the Advocacy Program access to the records of G.A. and

M.V.

Much like the situation we faced in United States v. Florida

Azalea Specialists, 19 F.3d 620 (11th Cir.1994), the question of

mootness in the present case is controlled by the Supreme Court's

decision in Church of Scientology of California v. United States,

506 U.S. 9, 11-12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992). In

Church of Scientology, the district court ordered a state-court
clerk to comply with a summons issued by the Internal Revenue

Service ("IRS"). The Church filed a timely notice of appeal, but

its request for a stay of the summons enforcement order failed, and

copies of the tapes were given to the IRS while the appeal was

pending. The Ninth Circuit dismissed the appeal as moot, finding

that no controversy existed because the IRS had already obtained

the tapes. United States v. Zolin, No. CV 85-0440-HLH (CA9, Sept.

10, 1991). The Supreme Court, however, vacated and remanded,

holding that the compliance with the enforcement order did not moot

the Church's appeal. In so holding, the Court reasoned that

although it could not return the parties to the "status quo ante,"

the court could nevertheless effectuate a partial remedy by

ordering the government to destroy or return any and all copies of

the tapes still in its possession. Church of Scientology, 506 U.S.

at 12-13; 113 S.Ct. at 449-50.

 Likewise, if we should hold that the anonymous phone call is

not a "complaint" or does not constitute probable cause as required

by 42 U.S.C. § 6042(a)(2)(I)(ii)(III), or that the natural parent

of a deceased person with developmental disabilities is a legal

representative as contemplated by Congress in 42 U.S.C. §

6042(a)(2)(I)(ii)(II), then the parents of G.A. and M.V. would be

entitled to have their childrens' confidential medical records

either returned or destroyed. Similarly, the Department of Mental

Health and Mental Retardation would be entitled to have its records

either returned or destroyed. Even though this court cannot return

the parties to the "status quo ante," it can effectuate a partial
 1

Alternatively, even if the appeal would otherwise be moot,

this case is an appropriate one to decide on the merits because

the challenged action is capable of repetition, yet evading

review. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498,

515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911). Specifically, there

is a reasonable expectation that Tarwater and the Advocacy

Program will, in the future, find themselves in the same dispute

over an individual's records. Moreover, this dispute will evade

review because of the need to access records quickly in order to

investigate effectively. See Honig v. Doe, 484 U.S. 305, 317-23,

108 S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988). 

 2

While not listed as an issue on appeal, we note that §

6042(a)(2)(I)'s first requirement has been met. Death clearly is

a physical condition that renders both G.A. and M.V. unable to

authorize record access. See 42 U.S.C. § 6042(a)(2)(I)(ii)(I); 

see also Alabama Disabilities Advocacy Program v. J.S. Tarwater

Developmental Center, 894 F.Supp. 424, 428 (M.D.Ala.1995). There

is no evidence that the Act does not apply to deceased persons,

and it would be utterly absurd to read into the Act an exception

for the most serious abuses, i.e., those that result in death. 

remedy. Therefore, this appeal is not moot.1

B. The Injunction.

Resolving the issue of whether the injunction regarding the

Advocacy Program's access to records was proper involves the

interpretation of 42 U.S.C. § 6042(a)(2)(I). Pursuant to that

statute, three requirements must be met for the Advocacy Program to

gain access to records: (1) the individual must be unable to

authorize access due to a mental or physical condition; (2) the

individual must not have a legal representative, including a legal

guardian (except the state); and (3) the system must either have

received a complaint relating to the individual or have probable

cause to believe there has been abuse or neglect. 42 U.S.C. §

6042(a)(2)(I). On appeal here, the Defendants contend that the

Advocacy Program did not meet the second and third requirements of

the statute.2

 See Defendants' Br. at 1; id. at 27 ("The problem

in this case is that the statute in question does not define
"complaint' or "legal representative.' ").

It is clear that the Act provides express authority for P & As

to gain broad access to records, facilities, and residents to

ensure that the Act's mandates can be effectively pursued. See 42

U.S.C. § 6042(a)(2)(H) and (I); see also Mississippi Protection &

Advocacy System, Inc. v. Cotten, 929 F.2d 1054, 1058-59 (5th

Cir.1991) ("The state cannot satisfy the requirements of [the Act]

by establishing a protection and advocacy system which has this

authority in theory, but then taking action which prevents the

system from exercising that authority."). In adopting the

provision of the Act mandating P & A access to facility residents,

42 U.S.C. § 6042(a)(2)(H)), Congress gave substance to its intent

to "assure that the most vulnerable individuals [institutionalized

persons] who may not be able to contact the P & A system will have

access to protection and advocacy services." S.Rep. 120, 103rd

Cong., 1st Sess. 36, reprinted in 1994 U.S.Code Cong. & Admin.News

164, 199. In reauthorizing the Act in 1984, Congress stated its

intention that "all developmentally disabled persons who reside in

facilities for developmentally disabled persons [ ] be eligible for

services from the protection and advocacy system." H.Conf.Rep.

1074, 98th Cong., 2d Sess. 34 (1984), reprinted in 1984 U.S.Code

Cong. & Admin.News 4334, 4376-77. It is within this broad remedial

framework that we analyze whether the injunction was proper.

1. G.A. and M.V. Do Not Have Legal Representatives.

 The Defendants argue that the families' unwillingness to

release the records should be controlling. Pursuant to § 6042,

this contention is incorrect if G.A. and M.V. do not have a legal
representative, including a legal guardian. 42 U.S.C. §

6042(a)(2)(I). Guardianship is governed by Alabama state law,

which clearly states: "The authority and responsibility of a

guardian of an incapacitated person terminates upon the death of

the guardian or ward." Ala.Code § 26-2A-109 (1992). Moreover,

although Alabama law contains certain preferences for people who

may be appointed to administer a decedent's estate, these

preferences do not automatically confer any legal status on a

former guardian. Ala.Code §§ 43-2-42, 43-2-833 (1991 & Supp.1994).

The personal representative must be appointed by a probate judge,

Ala.Code §§ 43-2-40, 43-2-831 (1991 & Supp.1994). The Defendants

have introduced no evidence that either of the former guardians was

appointed administratrix of her child's estate. The statutory

preference in favor of a relative cannot be elevated into an

automatic grant of the powers of an administrator. Thus, neither

G.A. nor M.V. has a legal representative, including a legal

guardian, at the present time.

The Defendants urge that this construction of 42 U.S.C. § 6042

ignores the intent of Congress to enhance the role of the family in

providing care to persons with developmental disabilities. This

court recognizes the statute's emphasis on family; however, the

Advocacy Program's access to the records of G.A. and M.V. does not

weaken the role of the family, nor does it deprive the parents of

any rights they may still have after the deaths of their wards.

For example, the Advocacy Program's attempt to obtain the records

does not stop the parents from obtaining their children's medical

records if they wish, and if they are still entitled to them.
 3

Since children living in institutions necessarily live away

from their parents, the most involved and concerned parents

cannot observe the majority of events experienced by their

children in institutions. Institutionalized people with

disabilities are by-and-large under the exclusive control of

facility staff. Regular telephone calls or visits often will not

uncover abuse or neglect. The opportunity to observe possible

abuse or neglect is limited, particularly when institution staff

offer plausible explanations for injuries. If their children are

subject to passive neglect rather than active abuse, parents are

highly unlikely to know. These long-distance family ties would

operate to suggest that legal guardians have even less control

over their wards, and consequently less reason for extending that

control after the ward has died.

We have no reason to doubt that the families of G.A.

and M.V. are concerned and caring parents who did what they

believed best for their children. However, their faith in

the institution does not alter the fact that abuse or

neglect may have occurred. Congress legislated the Act to

protect disabled people who are unable to protect

themselves. 

Moreover, by federal regulation, the Advocacy Program is required

to keep all record information, including information about the

family, confidential. See 45 C.F.R. § 1386.21(b) (1994).3

2. An Anonymous Telephone Call Implying that Abuse and/or Neglect

May Have Caused Death Both Constitutes a "Complaint" and

Establishes "Probable Cause," Either of Which Justifies the P

& A's Access to the Records of G.A. and M.V.

Among the situations in which the Act authorizes a P & A to

have access to an individual's records are when the incidents are

reported to the system or when there is probable cause to believe

that neglect or abuse has occurred. 42 U.S.C. §

6042(a)(2)(I)(ii)(III). We conclude that the district court was

correct in finding that the Advocacy Program was entitled to access

to G.A. and M.V.'s records because a complaint had been received

and, alternatively, because the phone call established probable

cause.

a. The Anonymous Telephone Call Constitutes a Complaint.
 The anonymous phone caller asserted specific wrongdoing with

respect to G.A. and stated that M.V.'s death "was also one of these

strange situations." The Act imposes no special requirements on

the source of the complaint or of the person making it, and we

agree with the district court that no such requirements should be

read into the statute. Anonymous complaints are not uncommon

occurrences for P & As and for other investigatory agencies. See

Mississippi Protection & Advocacy System, Inc. v. Cotten, 929 F.2d

at 1056. Complainants, particularly staff and sometimes family

members, may prefer to remain anonymous for fear of overt or subtle

retaliation. Indeed, we find persuasive that the proposed Act

regulations, in the preamble discussion, concur that informal

complaints or those transmitted by telephone are sufficient:

ADD understands that P & As undertake investigations of

incidents of abuse and neglect based on media reports, general

investigations, inspection reports, and other credible

information regarding abuse and neglect. P & As also may use

information gained through telephone calls or informal

complaints by residents, staff, relatives, or friends. The

proposed regulations are intended to confirm the authority of

the P & As to rely on such information as grounds for

investigations of abuse or neglect either because they are

reports of incidents, or because they constitute probable

cause.

60 F.R. at 26778 (emphasis added). Accordingly, we hold that, for

purposes of the Act, the anonymous phone call in this case

constitutes a complaint.

b. The Anonymous Telephone Call Established Probable Cause.

 Alternatively, we also agree with the district court's

finding that "the anonymous phone call provides enough evidence to

support allegations of abuse and neglect and thereby establishes

probable cause." 894 F.Supp. at 429. In so doing, we note that
unlike criminal law probable cause, the consequence of a P & A's

determination of probable cause is not an indictment or an

accusation, but rather a civil investigation. Moreover, no

fundamental liberty or privacy interest is impinged when a P & A

finds probable cause to investigate an incident at a facility.

In the P & A probable cause process, the interests of three

parties are implicated—those of the facility, those of the

individual who may have been subject to abuse and his or her

family, and those of the P & A, which has an obligation and mandate

to protect from abuse the individual(s) and others who are

similarly situated. In this balance, the facility's interests

surely are less viable and of less import than those of the

individual and the P & A. The facility can claim no interest in

avoiding investigations of harm or injury to a person with a

disability. Minor inconveniences to staff or some disruption of

the facility's routine hardly rise to the level of the liberty

interest that is generally at issue in a criminal investigation.

Michigan Protection & Advocacy Service, Inc. v. Miller, 849 F.Supp.

1202, 1208-09 (W.D.Mich.1994) (defendants' objections that the P &

A access to facility for children will interfere with programming

have no merit). Indeed, one would suppose that a facility's

legitimate interests are served when abuse and neglect are

uncovered and can be corrected. Likewise, when a P & A makes a

finding of probable cause, no liberty interest of the

developmentally disabled person is threatened, as it is precisely

that individual's interest that the P & A seeks to protect. See

United States v. Allis-Chalmers, 498 F.Supp. 1027, 1031
(E.D.Wis.1980) (occupational safety agency may have access to

employees' health records since agency "is acting on behalf of the

very employees" the company claims it is seeking to protect by

alleging that access violated employees' privacy).

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED.