specially concurring:
I concur in the Court’s per curiam affirmance and in Judge Tjoflat’s special concurrence. With regard to the latter, I append these observations. In her brief to this Court on the original en banc submission, Davis characterized her action below, and the trial court’s judgment, as follows:
“Neither her complaint nor her motion for summary judgment sought to enjoin any pending state proceeding. Rather she sought relief from a past dependency adjudication and prospective relief to assure the appointment of counsel in future dependency proceedings. The amended final judgment below does not enjoin any pending dependency proceedings; it vacates a past adjudication and directs the appointment of counsel in future adjudicatory proceedings.” (Emphasis added.)
Obviously, the words “a past dependency adjudication” and “a past adjudication,” refer to, and only to, the adjudication respecting the Davis child.1
A fair reading of Davis’ complaint compels the conclusion that the habeas corpus was the only count under which relief was sought as to past dependency adjudication, and that the only such past adjudication in issue was that respecting the Davis child.2 Likewise, it is clear that the relief which the district court ultimately granted to Davis individually was based entirely on her habeas count.3
*524Accordingly, it is proper to regard count two, the class action count and the sole count which is before us, as pertaining only to future dependency proceedings, which is the way Davis characterizes it and the relief granted pursuant to it. This is particularly appropriate because with regard to concluded proceedings res judicata would bar relief (except pursuant to habeas corpus, were it otherwise available), see Kremer v. Chemical Construction Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980), and with regard to pending proceedings relief would be barred by abstention. Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979).
I agree with Judge Tjoflat, for the reasons so well set forth in his concurring opinion, that Davis was not a proper class representative and that as to past adjudications the judges were not proper defendants. I am also of the opinion that a “class” of parents who might while indigent at some later time be the subject of future dependency proceedings brought in Dade County, and for whom the courts would not appoint counsel though counsel were to be needed, desired, and otherwise unavailable, is simply too indefinite to present a case or controversy appropriate for the exercise of federal judicial power under Article III. Such a class is not sufficiently definable, for purposes of the characteristics that are relevant to distinguishing it from the population generally, by reference to existing facts. It thus differs not only from classes defined by immutable characteristics, such as race or sex, but also from those defined by current conditions, such as those who at the time of suit in fact reside in a state and then desire to procure a divorce in its courts but have not lived there long enough to fulfill a one-year residency requirement. See Sonsa v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Unlike those instances, here one cannot at the time of suit confidently identify even some presently existing individuals who are members of such a “class.” 4 See e.g., Thomas v. Clarke, 54 F.R.D. 245, 249 (D.Minn.1971) (three-judge court); Cunningham v. Ellington, 323 F.Supp. 1072, 1074 (W.D.Tenn.1971) (three-judge court); Rappaport v. Katz, 62 F.R.D. 512, 514 (S.D.N.Y.1974); Lamb v. Hamblin, 57 F.R.D. 58, 60 (D.Minn.1972).
Accordingly, I join in Judge Tjoflat’s special concurrence, and would additionally reach the same result because there is, in my view, no proper class in respect to count two. I also join in the per curiam affirmance, particularly in light of the considerations expressed in the footnote to that opinion.
. Essentially the same position is taken by Davis in her brief to this Court following remand from the Supreme Court, viz:
“Neither her complaint nor her motion for summary judgment sought to intrude into any pending dependency adjudicatory proceeding. Rather, she sought relief from the past adjudication based upon her right to counsel. The amended final judgment does not enjoin any pending dependency proceeding.” (Emphasis added.)
. The introductory portion of the complaint accurately characterizes it as follows:
“Petitioner brings this action in two counts, Count I being a petition for Writ of Habeas Corpus seeking the release of a minor child from the custody of a social welfare agency of the State of Florida. The child’s natural mother is seeiting to invalidate a state court judgment adjudicating her child dependent because, though she was indigent, she was not provided counsel to represent her in the dependency action wherein she was deprived of the custody of her child. The mother contends that it is a violation of her constitutional right to due process of law and equal protection under the law for the state to interfere with her fundamental right to the care, control, and custody of her natural child, without affording her counsel, if she is indigent, to represent her in such proceedings. Count II of this complaint is a class action brought against the Juvenile Court Judges of Dade County, Florida to declare unconstitutional the practice and policy in the Juvenile Court of conducting dependency proceedings against indigent parents without providing them counsel at the state’s expense. Petitioner on behalf of herself and all others similarly situated further seeks to enjoin said practice and policy.” (Emphasis added.)
. This is clear from the district court’s opinion. See Davis v. Page, 442 F.Supp. 258, 259 n. 1 and accompanying text (S.D.Fla.1977):
“In a separate count, Plaintiff seeks a writ of habeas corpus to secure the release of her child from the continuing supervision by the Florida Department of Health and Rehabilitative Services under the continuing jurisdiction of the Dade County Circuit Court.1
“1 Plaintiff originally sought restoration of custody. However, during the course of *524these proceedings, custody was restored to her subject to supervision by the state and the continuing jurisdiction of the Circuit Court. The plaintiff’s child is still ‘in custody’. See Jones v. Cunningham, 371 U.S. 236 [83 S.Ct. 373, 9 L.Ed.2d 285] (1963). See also Carafas v. LaVallee, 391 U.S. 234 [88 S.Ct. 1556, 20 L.Ed.2d 554] (1968); Hensley v. Municipal Court, 411 U.S. 345 [93 S.Ct. 1571, 36 L.Ed.2d 294] (1973).”
. Even if the “class” included those who had been subjects of dependency proceedings, respecting such class members the judges were not proper defendants, as Judge Tjoflat’s concurring opinion points out. Moreover, if the “prospective” class forms an inappropriate basis for exercise of case or controversy federal judicial power under Article III, this result should not be changed by expansion of the class definition to include those who under settled judicial doctrines of res judicata and abstention are not entitled to relief. Particularly is this so where, as here, the class relief sought and granted was entirely prospective and for the benefit of the future “class.”