concurring in part and dissenting in part.
I concur in the judgment affirming the orders of the district court except insofar *223as the majority affirms the district court’s decisions denying class certification and finding that Davis has no standing and that her claim is moot. In these respects, I dissent. As I understand the majority’s decision, it is based on the following logic: (1) the parental rights termination adjudication is independent of the pre-termination proceedings that Davis challenges; (2) the relief Ms. Davis seeks impinges upon the termination adjudication itself; (3) because Davis cannot collaterally attack the termination adjudication, she has no standing to challenge the pre-termination procedures; and (4) because she lacks standing, Davis cannot bring a class action. In my view, the majority glosses over a critical and determinative point: the termination adjudication was initiated by the McClintons and the McClintons were free to initiate the termination of Davis’s rights only because of the allegedly unconstitutional state procedures which allowed the McClintons to have custody in the first place. Thus, the proceedings are not independent, but interdependent.
Davis’s complaint has identified several serious problems with Pennsylvania’s private intermediary adoption procedures. Even if, as I suspect, Pennsylvania would not accord the rights of visitation or report that Davis asks for, I believe that the majority’s failure to consider the critical role of the pre-termination procedures and its additional failure to apply the recent jurisprudence concerning the scope of the fundamental rights of a parent, have led it into error on the standing question. I would hold that Ms. Davis has standing to sue even though her action was brought after the termination decree; that her case is not moot; and that her case should have proceeded as a class action, with leave to substitute a different class representative if her absence from Pennsylvania prevented her from being an adequate class representative.
This opinion will primarily address the standing, mootness, and class action determination questions. It will not address the issue of preclusion because I do not understand the majority’s decision to turn on preclusion.1 Before reaching the jurisdictional and procedural questions, however, it will be useful to identify the basis of Davis’s claims and the relief she seeks, because the standing, mootness and class action issues can be better understood against that background.
I. THE CHALLENGED PRACTICES
Davis requests injunctive and declaratory relief based on three constitutional arguments: substantive due process, procedural due process, and equal protection. Davis’s substantive due process claim is rooted in the alleged ambiguity of the consent form authorized by 23 Pa.C.S.A. § 2711 (Purdon Supp.1989). Davis maintains that by signing the form, which the state required her to sign before Ullman could legally take custody of her child, she effectively relinquished her fundamental right to her child without knowing what she was doing. The form did not make clear that it effected a relinquishment; nor did it make clear that she had the statutory right to revoke her *224consent.2 Davis argues that the form was so misleading and contradictory as to deprive her of her fundamental right to her child.
Davis’s procedural due process claim attacks the procedures that the state law allows and the family court judge utilized in denying her effective revocation. Davis asserts that she repeatedly told her attorney that she wanted to revoke her consent. She petitioned the court for custody of her child, but without any evidentiary hearing as to her fitness, the court stayed her request for a custody determination until after a parental rights termination petition, which had not even been filed yet, could be decided. Davis argues that by allowing six months to elapse before giving her any opportunity to see and provide for her child, the state failed to provide the procedure mandated for even a temporary deprivation of her parental rights. The temporary deprivation is particularly devastating in these situations, she submits, because it denies the natural parent the opportunity to bond with her child (which would increase her fitness as a parent), while allowing the prospective adoptive couple to deepen their relationship with the child (and giving them more time to build a case against the natural mother for involuntary termination of parental rights).
Davis’s equal protection claim is based on the state’s differential treatment of parents who relinquish custody of their children to the state for public adoption, and those who relinquish custody to a private intermediary. Both groups of parents sign the same consent form, and the parent’s right to revoke, pursuant to that consent form, is valid up until parental rights are finally terminated, Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981); K.N. v. Cades, 288 Pa.Super. 555, 432 A.2d 1010 (1981). According to Davis, however, the effectiveness of that revocation is completely dependent on whether one has placed the child in public or private hands.
If the child is placed with a state agency and the parent revokes consent, the child automatically returns to the parent unless the state moves to have the child adjudicated as dependent pursuant to 42 Pa.C. S.A. § 6341 (Purdon 1982). A preliminary hearing to determine custody must be held within 72 hours of the revocation. 42 Pa.C. S.A. § 6332 (Purdon 1982). During the period that the child is with the state agency, after the preliminary hearing, the parent is entitled to visitation at least every two weeks, and the agency is required to provide the parent with reunification services, which include counseling services, parent education, homemaker/caretaker services and childcare. 55 Pa.Code § 3130.35. If, despite those services, the agency still believes that termination is appropriate, and the state shows by clear and convincing evidence at a second hearing that the child is dependent, then a full dispositional hearing must be held within twenty days of the dependency finding. At that hearing, the state must prove that circumstances make a new placement (i.e., an adoption) necessary and the state must also show that previous efforts to re-unify the child with the parent have been made. 42 Pa.C.S.A. § 6341 (Purdon 1982). In total, there are three hearings.
None of these services or procedural safeguards are provided to the parent who places her child with a private intermediary, despite the fact that the law governing that parent’s right to her child, and more specifically, her right to revoke her consent, are identical to those of a parent who relinquishes custody to the state.3 Davis *225requested counseling services from the state, but was told that she could not receive them because the state did not have custody of her child. She had no right to visit Angela before the involuntary termination hearing was held. Moreover, no evidentiary hearing was held to determine whether Davis’s revocation should be ineffective or whether temporary custody should be vested in someone other than Davis.
In the public agency placement situation, the state must prove, at a preliminary hearing, that temporary relinquishment is necessary. Here, Davis was not even given the opportunity to argue that it was not. Moreover, when a public agency is involved, timing of the hearings is governed by statute; when a private intermediary is used, the potential adoptive couple (who at that point have no legal rights to the child) and the court control when the hearings will be held. Davis alleges that it is standard practice for the judge, at least in Delaware County, to delay any evidentiary custody hearing until after an involuntary termination hearing has been held, even if, as in this case, the parent petitions for custody before a termination petition has been filed.
Davis asserts that because the state’s adoption regulations infringe on the fundamental rights of natural parents, the arbitrary differences in treatment between public and private procedures violate the Equal Protection Clause. She concedes that the state’s interest in protecting children from unfit parents is compelling, but submits that the state has no interest in treating parents who use public adoption services differently than parents who use private adoption services.
In addition to the claims described above (“the structural claims”), which she asserts on behalf of herself and a class of similarly situated natural mothers, Davis asserts a claim for individual relief based on the alleged deprivation of her constitutional rights. More specifically, she asks this court to grant her visitation and report rights as a way of remedying in part the alleged constitutional deprivation, i.e., the loss of her parental right to her child.
II. STANDING
A. The Scope of the Parental Right
Any discussion of standing in this type of case must commence with an understanding of the scope of the right at stake. In Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981), the Supreme Court stated that it “is plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection,’ ” Id. at 27, 101 S.Ct. at 2159-60 (quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972)).
The right of natural parents was recently confirmed by five members of the Court in Michael H. v. Gerald D., — U.S.-, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989). Justice Stevens found that, although sufficient process had been afforded to protect a putative father’s interest, the father nonetheless had a “constitutionally protected interest in his relationship with [his child].” Id. 109 S.Ct. at 2347 (Stevens, J., concurring in the judgment). Four other justices also found such a constitutional right.4 See id. at 2349 (Brennan, J., dissenting); and id. at 2360 (White, J., dissenting). See also Santosky v. Kramer, 455 U.S. 745, *226759, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982) (After quoting from Lassiter and Stanley, the court noted that “[w]hen the State initiates a parental rights termination proceeding, it seeks not merely to infringe that fundamental liberty interest, but to end it”); Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2985, 2990, 77 L.Ed.2d 614 (1983) (“The intangible fibers that connect parent and child have infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty, and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection ... ”) Thus, there is little question that the right Davis asserts is a very important one.
Furthermore, the jurisprudence makes clear that the content of the parental right goes to the ongoing nature of the relationship between a parent and child. A deprivation of “companionship, care, custody, or management” of one’s child is not a onetime deprivation; it is an ongoing deprivation. Relationships are not static; they exist and grow (or at least change) over time. Obviously, some relationships between people can die forever, but I find it implausible that a relationship between a natural mother and the child with whom she wishes to maintain a relationship, can ever die, at least in the mother’s mind. That being the case, a state judgment prohibiting a mother from maintaining any relationship with her child constitutes an ongoing injury, for as long as the mother maintains the natural and constitutionally protected yearning for the knowledge that her child is safe, healthy, and hopefully even happy, a denial of visitation rights hurts that mother. It may be that the termination injury is constitutionally justified, but that does not mean that there is no injury.
Thus, City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), on which the defendants rely heavily, and which the majority invokes, at 222, is inapposite. In Lyons, the Supreme Court held that Mr. Lyons, suing as an individual plaintiff, had no standing to sue for injunctive relief to stop the Los Angeles police department’s practice of chokehold-ing. Lyons had no standing because “ ‘(p)ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.’ ” Id., at 102, 103 S.Ct. at 1665 (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974)). Both Lyons and O’Shea sought injunctive relief against patterns and practices of a police department. Because the plaintiffs could not show that they were likely to suffer future injury because of the allegedly unconstitutional activity,5 Id. 461 U.S. at 106, 103 S.Ct. at 1667, their injuries could not be redressed by the injunctive relief sought.6
In O’Shea, the Court went on to suggest that if “any of the named plaintiffs at the time the complaint was filed were themselves serving an allegedly illegal sentence or were on trial or awaiting trial,” O ’Shea, 414 U.S. at 496, 94 S.Ct. at 676, the standing determination would be different.7 Davis is currently suffering from the allegedly unconstitutional action; she continues *227to be deprived of any right she might have to maintain contact with Angela.
In Lyons, the court held that the plaintiffs cognizable injury-in-fact — his past exposure to a chokehold — could not be redressed by injunctive relief. What would have been redressable by injunctive relief in his case was the possibility of being subject to a chokehold in the future, but the court found that potential future injury too speculative to be cognizable for standing purposes. “Abstract injury is not enough.” Lyons, 461 U.S. at 101, 103 S.Ct. at 1665.8 Davis’s injury-in-fact is the deprivation of her parental rights. It is not “abstract,” “conjectural” or “hypothetical,” Id. 461 U.S. at 102, 103 S.Ct. at 1665, with regard to the pain this loss has already caused her or will cause her in the future. Mother-child relationships do not just go away. Injunctive relief, available from this court, can redress this injury because a declaratory judgment from this court might very well effect the likelihood that the state would be more sympathetic to her rights in the future, or would at least give her another chance to argue that it would be in Angela’s best interest to maintain some relationship with her mother. See infra Part IIC.
Furthermore, this case is different from Lyons in ways which make the Lyons bifurcation of personal (i.e. damages) and injunctive relief inapposite. The Court found that Mr. Lyons had standing to sue for damages. His success on that claim would, in effect, require the federal court to declare chokeholds unconstitutional. The relief the court was unable to give was an injunction empowering the federal court to monitor, and theoretically prevent, the Los Angeles Police Department from continuing its unconstitutional procedures. Lyons is thus also partially distinguishable as a police pattern and practice case.9 Moreover, in this case, almost all of the injunctive relief Davis asks for is declaratory in nature. To hold that she has no standing to make such a request would be irreconcilable with the conclusion, that I have reached, that her claims are, to some degree, redressable.
B. Effect of the Allegedly Unconstitutional Procedures
The majority posits that the pre-termi-nation procedure was “prior and collateral to” the termination proceedings, see at 220. I cannot agree with such a proposition because I believe the pre-termination procedure and the termination proceeding are inextricably intertwined. The second, “collateral” proceeding could not have occurred but for the prior procedure. Undoubtedly, because the McClintons had custody, they had the right to institute the involuntary termination proceeding,10 but the only reason they had custody was because of the allegedly unconstitutional pri- *228or proceedings. More particularly, in Davis’s case, she has made out a colorable claim that, but for the vague and confusing form, the state’s unfair procedures, and the state’s refusal to facilitate reunification (in the absence of agency placement), there could have been no termination of parental rights.11
The majority, believing that the proceedings were collateral, felt bound by the termination adjudication and thus thought itself incapable of granting relief “even if Davis could convince [it] that the legal principles which she advances are correct.” at 220. It is unclear to me how the majority squares its position with Michael H., the most recent Supreme Court pronouncement in this area. The majority states, ante at 220, that “the Pennsylvania termination proceedings eliminated the interest in Angela that Davis sought to secure.” Five justices of the Supreme Court have made clear, however, that before a natural parent’s right in his or her parenthood can be taken away, that parent must be afforded adequate procedure. 109 S.Ct. at 2349 (Brennan, J., dissenting).
In short, the Pennsylvania procedures cannot conclusively eliminate Davis’s interest if it is those procedures that she is challenging. Davis challenged procedures as did the parents in Santosky (whose parental rights had been “eliminated” at a hearing in which the state’s burden was less than “clear and convincing” proof of unfitness), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)), and as did Michael H., (who asserted that the California law which “eliminated” his parental rights, did not adequately afford him the opportunity to maintain a relationship with his child).12 The fact that California had not found it in the best interest of the child to afford Michael H. some visitation rights did not take away his standing to challenge those proceedings. Yet, if the majority opinion here is correct, Michael would never have had any standing to sue because the state of California had “eliminated” the interest he sought to protect. Even the plurality in Michael H., which found that the putative father of a child whose mother was married to someone else at the time of birth did not have a fundamental right to the parental relationship, did not find that Michael had no standing to sue.
In this case, the McClintons obtained custody pursuant to the Pennsylvania law which allows private intermediaries to grant custody to potential adoptive parents once a natural mother has signed the § 2711 consent forms. As I read the law, the interdependent nature of the relevant consent, custody, adoption and termination statutes prevents a categorical separation of claims challenging the pre-termination law (by virtue of which Davis gave up temporary custody of Angela) from the termination law (by virtue of which Davis lost all of her parental rights). Therefore, in my view, the termination proceeding under § 2512 cannot be considered collateral to the consent procedures, and § 2711, which preceded it.
*229Nor do I believe that my finding that the proceedings are inextricably intertwined reduces Davis’s claim to an argument that must be precluded under either issue or claim preclusion principles. In Pennsylvania, an issue is only precluded if, among other things, “the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and [] the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.” Kelley v. TYK Refractories Co., 860 F.2d 1188, 1194 (3d Cir.1988). See also Odgers v. Commonwealth Unemployment Compensation Board of Review, 514 Pa. 378, 389, 525 A.2d 359, 364 (1987); Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975). Similarly, as pointed out supra in note 1, claims are precluded under Pennsylvania law, only if there is a similarity of the thing sued on, the persons and parties to the action, and the quality or capacity of the parties suing or sued. Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988).
None of the defendants in Davis’s federal action were parties in In Re Adoption of A.N.D., the state court decision which originally terminated Davis’s rights. Under Pennsylvania law, family court proceedings are considered non-adversarial. The court makes a decision based on the fitness of the natural parent, 23 Pa.C.S.A. § 2511(a)(2) and the needs and welfare of the child, 23 Pa.C.S.A. § 2511(b). The Department of Public Welfare, defendant herein, has nothing to do with the proceeding and cannot be considered in privity with the McClintons, who are the only conceivable “parties” whose rights were determined below. Davis had no opportunity to raise her constitutional claims against the state because she was not in court against the state. The judge was only determining her fitness as a parent, not whether her rights as a parent had been unjustly abrogated. The Family Court had no jurisdiction to determine the constitutional claim, 23 Pa.C. S.A. § 2511, and the Superior Court only had authority to review, under a deferential standard, what the Orphan’s Court had adjudicated, Lookabill v. Moreland, 336 Pa.Super. 520, 485 A.2d 1204 (1984), which, to repeat, included only parental fitness, not constitutional issues. Because Davis’s claims could not have been adjudicated therein, she cannot be precluded from raising them here.
In sum, Davis is not making a collateral attack on the termination proceeding, and she is not asking this court to determine whether the termination adjudication was correct. Rather, she is asking us to determine whether Pennsylvania’s statutory scheme is sufficiently protective of her fundamental right as a parent, and she is asking us, as did the parents in Alsager v. District Court, 518 F.2d 1160 (8th Cir.1975), to invalidate a state procedure pursuant to which she lost her child.
The majority distinguishes Alsager by saying that the plaintiffs in Alsager challenged the termination proceedings directly, at 221, n. 17. Thus, the federal court finding that the proceedings were unconstitutional entitled the plaintiffs to new proceedings. If, as I believe, the distinction between the pre-termination proceedings and the termination adjudication is invalid in the context of this case, then a finding that the pre-termination proceedings are unconstitutional may impermissibly infect the later adjudication. Thus, I do not believe that Alsager is distinguishable on the standing issue.
The majority maintains that Davis concedes the collateral nature of the proceedings, at 220, note 16. With respect, the majority misreads Davis’s argument. By noting that “[t]he involuntary termination proceeding could have occurred whether or not Sara Davis had initially given her voluntary consent to a an adoption,” Reply Brief at 4, Davis merely recognizes that the McClintons had the authority to initiate the termination proceeding by virtue of their custody, no matter how obtained.
C. The Effect of Davis’s Failure To Ask for Reinstatement of her Parental Rights
The majority seems also to be saying that because Davis did not ask for reinstatement of her parental rights (Davis asked only for visitation and report rights), we are prevented from hearing the case. See ante (at 213). I disagree. When there has been a constitutional violation, a feder*230al court can adjust remedies so as to afford appropriate relief. Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). We might not feel comfortable granting the relief that Davis requests,13 but if we could afford her any relief that might redress her harm, the standing requirements are met. None of the standing cases, see, e.g., Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Office of Workers’ Comp. Programs v. Perini North River Associates, 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39, 96 S.Ct. 1917, 1924-25, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), indicates that the degree of available relief matters.
In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court held that the state had not met the constitutionally required burden of proof when terminating the Santoskys' parental rights, but the Court did not “redress” the Santoskys’ injury by giving them their parental rights back. “We, of course, express no view on the merits of petitioners’ claims. At a hearing conducted under a constitutionally proper standard, they may or may not prevail.” Id. 455 U.S. at 770 (footnote omitted), 102 S.Ct. at 1403. The Supreme Court ruled that the procedures to which the Santoskys had been subjected did not conform to constitutional norms. Thus, the Santoskys were entitled to a new hearing. Similarly in this case, we might find that Davis had not been afforded the constitutional protection to which she was entitled and that therefore she should be entitled to a new hearing.
In light of the complexities and sensitivities of family law determinations, it might be wholly inappropriate for this court to reinstate some of Davis’s parental rights, particularly given that Angela has been living, presumably happily, with the McClintons for several years now. Nonetheless, I do not find Davis’s request for relief so outlandish as to require federal courts to refuse even to hear the claim. Davis’s allegations of constitutional violations described in Part I are substantial,14 and she may be entitled to another chance to assert that it would be in Angela’s best interest to maintain some form of contact with her mother.
Such a holding would give Davis the proverbial “second bite (in state court) at the apple,” but given that she may have been lured into having to eat of the fruit in the first place, such a second bite may be entirely appropriate. As Professor Shapiro has noted: “[Fjederal courts have a heavy burden. They must be vigorous in enforcing constitutional guarantees, but they should act in a way that leaves breathing space for the state courts_ [T]he remedies of the declaratory judgment and the injunction, and the class action device need not frustrate that goal. In sensitive hands, they can be used to help strike the right balance between federal and state concerns.” Shapiro, State Courts and Federal Declaratory Judgments, 74 Nw.U.L. Rev. 759, 780 (1979).
I note that Pennsylvania has granted visitation rights to step-parents who have established a relationship with a child, see Burke v. Pope, 366 Pa.Super. 488, 531 A.2d 782 (1987), and to non-biological parents who have established a relationship with a child, see Commonwealth v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989); Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988). The majority is right in stating that these cases do not establish that a natural parent whose parental rights have been (involuntarily) terminated have visitation rights, at 219, but neither do these, or any case establish that a natural parent cannot be granted some rights.
*231The standard for whether some rights, such as visitation rights, should be granted to non-parents is what is in the best interest of the child. See Burke, 366 Pa.Super. at 493-94, 631 A.2d at 784-85; Coburn, 384 Pa.Super. at 304, 558 A.2d at 552; and Seger, 377 Pa.Super. at 399, 547 A.2d at 427. This standard is paramount: “[T]he concept of waiver is inappropriate in a child eustody/visitation case ... [because] ... [w]e cannot allow the procedural aspects of custody matters to take precedence over the welfare of the child.” See Seger, 377 Pa.Super. at 394, 547 A.2d at 425. Furthermore, as President Judge Cirillo noted in concurrence in Coburn, 558 A.2d at 554, “the knowledge of one’s biological parents and hereditary history is crucial in ordering one’s affairs and making life’s decisions.” 15 Given Pennsylvania’s concern with the welfare of the child and the arguable importance, for a child, of knowing who his or her natural parents are, the Pennsylvania court might well fashion some remedy that afforded Davis less than parental rights but more than what she has now, i.e., no rights at all.
Ms. Davis is not a terribly sympathetic plaintiff. However, poor, pregnant women, without financial or emotional support from family or friends, rarely have lives that anyone would care to emulate. That does not mean that these women can be summarily dismissed as bad people or bad parents. As the Supreme Court wrote in Santos ky:
[T]he fundamental liberty interest of natural parents in the care, custody and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child.... If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs.
455 U.S. at 753, 102 S.Ct. at 1394-95. I note in this regard that Davis’s papers suggest that she has stabilized her life and put her days of irresponsibility and drug dependency behind her. She offered to introduce evidence that there are putative class members who, without any realistic knowledge of what they were doing, and often because of extreme economic hardship and concern for their children, temporarily surrendered custody of their children.16
In sum, I believe that the jurisprudence establishes that a natural mother has a fundamental right to a relationship with her child, and that a deprivation of that right must be categorized as an ongoing injury. I further believe that the termination proceeding cannot be viewed as independent and collateral to the procedures which necessarily preceded it. Accordingly, I believe that Davis’s challenge to the procedures constitutes a claim that we must entertain, despite the state court’s prior termination of her parental rights. Her standing does not depend on her likelihood of success, but depends on whether a judgment from this court might be able to afford her any form of relief.
III. MOOTNESS
The majority dismisses the mootness question because, consistent with its logic, Davis never had standing. If she never had standing, the majority reasons, the claim could not have become moot, at 221-22. However, for the reasons I have set forth at length, I believe that Davis had standing. I also conclude that, given the *232nature of her injury, the case cannot be moot.
The majority makes much of the fact that although Davis had come to realize that she had been deceived by the Pennsylvania consent form, she did not file her federal claim until after the family court’s decree of involuntary relinquishment. I do not think that point dispositive. Even if Davis had filed her federal claim before the final termination hearing, it is highly unlikely that she would have been heard by the federal courts until after the termination proceedings. Federal courts do not always move with the greatest dispatch and, once they were ready for the termination hearing, the McClintons had an interest in expediting the termination hearing. Furthermore, if the federal court heard Davis’s case prior to the termination hearing, it might well have found her injury too speculative because she had not yet been denied her child. See Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 220-21, 94 S.Ct. 2925, 2982, 41 L.Ed.2d 706 (1974) (“Concrete injury ... is that indispensable element of a dispute which serves in part to cast it in a form traditionally capable of judicial resolution .... [Cjoncrete injury removes from the realm of speculation whether there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.”). Davis was thus caught in a vise. Before the termination hearing her injury was arguably too speculative to constitute constitutional injury, and after that hearing, according to the majority, her injury was too final.
In sum, I find that this case is not moot. First, Davis has alleged an ongoing injury, and if this court's judgment can alleviate that injury, her claim cannot be moot. Second, because of the critical timing difficulties just described, I would conclude, if it were necessary, that this claim falls into the well-established “capable of repetition, yet evading review” mootness doctrine. See Roe v. Wade, 410 U.S. 118, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973); Murphy v. Hunt 455 U.S. 478, 482, 102 S.Ct. 1181, 1183-84, 71 L.Ed.2d 353 (1982). Finally, I note that Davis’s ability to meet the additional Murphy criteria, i.e. that there be a “reasonable expectation that the same complaining party would be subjected to the same action again,” 455 U.S. at 482, 102 S.Ct. at 1184, is also unproblematic despite the fact that she now lives out of state, because the ongoing nature of the injury, as analyzed above, means that the relevant unconstitutional “action” is ongoing. Moreover, I do not find it unlikely in this mobile society, that someone who has lived most of her life in Pennsylvania, and whose family is still here, will return to Pennsylvania after a sojourn in Nevada.
IV. CLASS ACTION DETERMINATION
The majority also affirms the district court’s denial of class certification on grounds involving Davis’s lack of standing. Because Davis did not have individual standing when the case was brought, according to the majority, she could not be considered an adequate class representative. Given my view that Davis does have standing as an individual, I would reverse on the class issues. Our review of class certification determinations is usually limited to whether the district court abused its discretion in denying the motion, see Bogus v. American Speech & Hearing Assoc., 582 F.2d 277, 289 (3d Cir.1978), but if the issues involved are primarily ones of law, our review is plenary, see Bailey v. Sullivan, 885 F.2d 52, 54 (3d Cir.1989).
It is unclear what, exactly, the district court relied on when denying certification of the class. The court appears to have been concerned that all of the class members had different factual stories and therefore did not meet the commonality and typicality requirements of Fed.R.Civ.P. 23(a)(2) or (3) Appendix at 37, 51.17 However, the factual differences in the stories of the putative class members are not relevant to their primary legal claim, which is that the consent form they signed and the procedures to which they were subjected, were constitutionally deficient. The defendant’s response to the class claim would be unitary as well, i.e., the form is clear enough and the procedures pass constitu*233tional muster.18 Since countywide class, numerosity would not appear to be a problem.19 Davis asserted a
Because Davis has no conflict with other class members, adequacy of representation primarily turns on the ability of counsel to carry on the case. See Hohmann v. Packard Instrument Company Inc., 399 F.2d 711, 714 (7th Cir.1968); Symposium on Class Action, The Class Representative: The Problem of the Absent Plaintiffs, 68 Nw. U.L.Rev. 1133, 1136 (1974); see generally, H. Newberg, On Class Actions § 3.24 (2d ed. 1985 & Supp.1989). I have no doubt that plaintiffs able and highly experienced counsel would readily meet the standard for “vigorous, conscientious and undivided” representation. Hohmann, 399 F.2d at 714. Even if the district court had concluded that Davis’s out-of-state status did not render her an adequate representative, many courts have held that plaintiffs residence outside of the forum state does not render her an inadequate class representative. See generally H. Newberg, On Class Actions § 3.39, and cases cited therein. However, even if deference to the district court would require us to resolve this issue against Davis, because I believe that she has asserted a colorable claim, and because I believe the other requirements of Rule 23(a) are met, I think the court should have afforded plaintiff an opportunity to provide a substitute, which is the common practice. Id.
Finally, the defendant has acted or refused to act on grounds generally applicable to the class as a whole. See Fed.R. Civ.P. 23(b)(2). Thus, given that the only reason the district court cited for denying class certification, i.e., different factual stories, is irrelevant, I believe that the class should have been certified. A finding of class certification would have been particularly important in this case, of course, because if a class had been certified, mootness and standing concerns would not foreclose adjudication. See United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980).
For the foregoing reasons, I respectfully dissent.
SUR PETITION FOR REHEARING
Before HIGGINBOTHAM, Chief Judge, and SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, and NYGAARD, Circuit JudgesThe petition for rehearing filed by appellant in the above captioned matter having been submitted to the judges who participated in the decision of this court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Chief Judge Higginbotham and Judge Becker would grant rehearing by the court in banc for the reasons set forth in Judge Becker’s dissent.
. In Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Supreme Court held that a federal court must give the same preclusive effect to a prior state action as would a state court. In Pennsylvania, in order for claim preclusion to apply "[t]he two actions must share an identity of the (1) thing sued on; (2) cause of action; (3) persons and parties to the action; and (4) quality or capacity of the parties suing or sued.” Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.1988) (citing Dusquesne Slag Products Co. v. Lench, 490 Pa. 102, 105, 415 A.2d 53, 56 (1980)). Applying this test, I do not see how Davis’s constitutional claim before this court could be precluded by the termination proceedings. First and foremost, the parties are different. In this action, Davis is suing, among others, the state and attorney Ullman. Davis was not suing anyone in the termination proceeding. Indeed, neither she nor the McLintons were named as parties; the proceedings were entitled In Re Adoption of A.N.D., 360 Pa.Super. 157, 520 A.2d 31 (1986) alloc. denied, 516 Pa. 638, 533 A.2d 710 (1987). Moreover, the issue adjudicated in In Re Adoption of A.N.D. was Davis’s competence as a parent, not the constitutionality of Pennsylvania’s private adoption procedures, which, according to the allegations of Davis’s complaint, include a pattern and practice of unconstitutional activity by the family court judge who terminated her rights.
. A right to revoke consent may imply both that one has relinquished rights and that the right to revoke consent is established by some legal authority. Davis argues that any such implications must be laid out with specificity given the importance of the constitutional right at issue. Arguably, this is a procedural rather than a substantive due process claim, but for the purposes of this opinion, I will accept Davis’ characterization.
. House Bill 2133 (1989 Session), recently introduced by State Representative Lois Sherman Hagarty of Montgomery County, would equalize some facets of the private intermediary and public agency routes to adoption. In § 2530, the bill provides that a preplacement investigation and report, which must include an extensive evaluation of the prospective adoptive parent or parents, must be filed in every case. § 2530(b)(2). Proposed § 2505 requires that all *225natural parents signing the relinquishment consent form be advised of counseling services available and proposed § 2531 requires that an additional report be filed detailing whether the parents whose rights are to be terminated have received counseling and the dates on which counseling was received.
. It should be noted that none of the justices suggested that a natural mother, whose biological relationship to the child is absolutely undisputed, did not have a fundamental right to her child. Four justices found that a putative father did not have a fundamental right to a relationship with his alleged child, born to a woman who was married to another man at the time of the child’s birth. Michael H., 109 S.Ct. at 2333-47 (Opinions of Justices Scalia and O’Connor).
. As several commentators have pointed out, the overlap between standing and mootness is substantial. See Fallon, Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U.L.Rev. 1 (1984); P. Bator, D. Meltzer, P. Mishkin, & D. Shipiro, Hart and Wechsler’s The Federal Courts and The Federal System 266-269 (3d ed. 1988); L. Tribe American Constitutional Law 83 (2d ed. 1988). I address the mootness question below.
. I note that the relief sought in this case does not require the kind of judicial interference with law enforcement structure that seemed to give the Supreme Court pause in both Lyons and O’Shea. See Hart & Wechsler at 267-68 (3d ed.1988); Tribe at 121-24 (2d ed.1988).
.The Court noted that if either of these possibilities were the case, there would be exhaustion or abstention problems, but the important point for our analysis is that, despite other potential jurisdictional problems, the plaintiffs would have standing if they were still suffering from the allegedly unconstitutional practices. I note that neither exhaustion nor abstention is at issue here. The state proceedings had been finally adjudicated when the district court denied Davis standing.
. Footnote 8 in Lyons, 461 U.S. at 107, 103 S.Ct. at 1659, suggests that emotional consequences are relevant to damages, not injunctive relief. Thus, the plaintiffs allegation that, because of his prior encounter with the police he lived in fear of the police, was insufficient to establish standing. One could classify Davis’s injuries as "emotional” and thereby dismiss her action completely, but if any parent ever suffers an injury because of the termination of parental rights, that injury is emotional, not physical. The emotional nature of the injury does not make it any less "real." See supra at 215-16. Furthermore, because Lyons’ injury was physical, the permance of that injury is irrelevant because physical injuries, in tort law, are generally considered to be confined to the date of occurrence for purposes of available remedy.
. Davis does ask for a cease and desist order enjoining Judge Catania from his allegedly unconstitutional pattern and practices, including always denying natural mothers visitation with their children (once the mothers have revoked consent) and failing to hold temporary hearings before holding parental rights termination hearings. This request for injunctive relief, clearly intended to aid class members who might sign the form in the future, might attempt to redress an injury — i.e. the likelihood that Judge Catania would treat all class members like this in the future — that, under Lyons we would be compelled to find too speculative.
.23 Pa.C.S.A. § 2512(a) (Purdon 1980) provides: “A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by ... (3) [t]he individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt_”
23 Pa.C.S.A. § 2531(a) (Purdon 1980) provides: “Every person now having or hereafter receiving or retaining custody or physical care of any child for the purpose or with the intention of adopting a child under the age of 18 years shall report to the court in which the petition for adoption will be filed.”
. I admit that the exact relationship between § 2711 and § 2512 is not clear. Strictly reading the law, it is possible that Pennsylvania would allow the McClintons to initiate a termination proceeding, by virtue of their "custody,” even if they had abducted the child in violation of state and federal law, and without a § 2711 form ever having been filed. In theory, the termination proceeding only looks at the natural mother's fitness as a parent, so that even blatantly illegal conduct by the potential adoptive parents could not be considered. Thus, § 2512 proceedings could operate completely independently from a § 2711 consent. However, I refuse to believe that Pennsylvania would allow such a bizarre result. In this case, the only way that the McClintons had legal custody of Angela was pursuant to the § 2711 form that the natural parent signed. Thus, I believe the proceedings cannot be considered collateral.
. Justice Stevens concurred in the judgment in Michael H. because he felt that California had sufficiently protected Michael’s interest by providing him the opportunity to have a court determine whether it was in the child's best interest tomaintain a relationship. 109 S.Ct. at 2347. Justice Brennan, joined by Justices Blackmun and Marshall, criticized Justice Stevens’s position as somewhat unrealistic because the record demonstrated that once a putative father has been denied parental rights, the California courts never determined that it was in the child's best interest to maintain a relationship, Id. at 2356. What is important, for our purposes, however, is not how the California law worked as applied, but that no justice questioned Michael’s ability to challenge the California law.
. I believe that any such relief would have to be granted by the state court.
. I find particular force in her equal protection attack on the differences between agency and private intermediary adoptions. The right allegedly infringed on in state proceedings is probably fundamental, see supra typescript at 216-17, and hence the procedures would be subject to strict scrutiny.
. I note that proposed House Bill No. 2133, see supra n. 3, reflects that concern, by providing for a central registry at which someone whose parental rights are being terminated can place personal information on file with the Department of Health, so as to facilitate future contact between the adopted child and the natural parent. Proposed § 2511(c).
. I am sympathetic to the desire of the McLin-tons to put the matter behind them once and for all. It seems to me, however, that adopting parents must live with the fact that the child is adopted, and that the child may someday wish to reestablish contact with his or her natural mother. Furthermore, I note that the McLin-tons might have violated Pennsylvania law when they negotiated Angela’s move to their home in New Jersey. “No person shall take any child, send or cause him to be taken or sent to another state for the purpose of placement or of procuring his adoption without providing information to the department about the child and his placement.” 62 P.S.A. § 750 (1967).
. Fed.R.Civ.P. 23(a) states:
One or more members of a class may sue or be sued as representative parties on behalf of *233all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
. As this court has noted before, the typicality requirement overlaps, significantly, with the commonality and adequacy requirements. See Eisenberg v. Gagnon, 766 F.2d 770, 786 (1985).
. The latest census data reveals that Delaware County has 555,007 residents, Pennsylvania Manual, Volume 109, Dec. 1989. Although plaintiff did not give a specific estimate of the class size (possibly because of the district court’s focus on the lack of commonality), I believe that such an estimate would be readily ascertainable and suspect that it would satisfy the numerosity requirement. The number of females on Medicaid in Delaware County is 20,-440. Pennsylvania Dept, of Public Welfare, Client Information Systems, Cash/Medical Statistical Analysis (Oct. 8, 1987). Although we have no way of knowing how many of these women may have put children up for adoption using private intermediaries, a conservative estimate suggests that the number would exceed 40, which is generally considered ample for a presumption of numerosity. See, H. Newberg, On Class Actions § 3.05 (2d ed. 1985 & Supp.1989). The difficulty of finding these women, who are often isolated, afraid and embarrassed about their predicaments, also weighs heavily in favor of a numerosity finding.