whom GOD-BOLD, Chief Judge, TUTTLE, RUBIN, KRAVITCH, FRANK M. JOHNSON, JR., POLITZ, TATE, THOMAS A. CLARK and WILLIAMS, Circuit Judges, join, dissenting:
I respectfully dissent from the majority’s reversal of the district court’s judgment and remand for entry of judgment for defendants.1
*525In our previous en banc opinion in this case, Davis v. Page, 640 F.2d 599, 601, 602 (5th Cir.1981) (en banc) we held that jurisdiction as to Davis’ claim against the judges of the Florida state courts was properly founded on both federal habeas corpus, 28 U.S.C. § 2254, and 42 U.S.C. § 1983. The Supreme Court vacated and remanded to us for consideration in the light of Lehman v. Lycoming County Children’s Services Agency, 458 U.S. 502, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). In Lehman, the Court held that federal habeas corpus jurisdiction under section 2254 could not be invoked to challenge the constitutionality of a state statute under which a state had obtained custody of children and had terminated involuntarily the parental rights of the natural parent. If we narrowly read the Supreme Court’s charge to us in this case, we now would be constrained to find that our original holding remains valid and intact under the alternative jurisdictional base of section 1983.
We would be remiss in our responsibilities, however, if we did not also recognize that in the interim between our first en banc opinion and the Supreme Court remand the Supreme Court also decided Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). The Lassiter opinion, holding that counsel is not constitutionally required in North Carolina termination of parental rights proceedings, bears heavily on the substantive issue in this case. The Lassiter opinion, in effect, forces us to reconsider our substantive as well as our jurisdictional holding on this remand.2
*526In Lassiter the Supreme Court applied a balancing test, based upon the three pronged test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), to determine whether counsel is constitutionally required in civil proceedings impinging upon parental rights.
The case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, propounds three elements to be evaluated in deciding what due process requires, viz., the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions. We must balance these elements against each other, and then set their net weight in the scales against the presumption that there is a right to appointed counsel only where the indigent, if he is unsuccessful, may lose his personal freedom.
Lassiter v. Department of Social Services, 452 U.S. at 28, 101 S.Ct. at 2160. We now apply the Lassiter test to Florida dependency proceedings.
The Florida statutory scheme involved in this case is virtually identical to that which governs state proceedings to intervene in the parent-child relationship in most other states. In Florida, as is typical of other states, these proceedings are divided into two stages.
The first or adjudicatory stage, that described by the Supreme Court in the postLassiter case of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), is a formal trial. The issue at trial is the fitness of the parent, and therefore the parent’s right to custody. Once adjudicated, this decision has full res judicata effect. Rules of evidence apply, witnesses are examined and cross-examined, the state is represented by legal counsel, and, by statute in most states, the parent has a right to appointed counsel. Plaintiffs in this case contend that Florida parents also have a right to counsel in these adjudicatory proceedings under the due process clause of the United States Constitution.
The second stage of these proceedings is the dispositional stage. It is generally informal in nature, like an administrative hearing. Although a parent may come to these proceedings at a disadvantage because of a prior adjudication of unfitness, no question of parental fitness or of a constitutional right to custody is involved. Rather, the main issue is what placement will be in the best interests of the child. It is this second, dispositional stage of the proceeding at which the Lassiter Court determined that counsel is not constitutionally required.
The difference between the adjudicatory and dispositional stages of these proceedings is critical to the constitutional issue in this case.
*527 The Private Interest
Parents have a fundamental constitutional right to “bring up children,” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1922), to retain custody of their children, and to raise them as they see fit. The Supreme Court has stated “It is cardinal with us that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder,” Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The constitutional rights of a parent are not limited to physical custody of a child. They include the right to “direct his destiny” and “the liberty ... to direct [his] upbringing and education.” Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). They include the right to make decisions about his care and education, whether or not these deviate from the cultural norm. See, e.g., Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters. As the Supreme Court recently emphasized in the post-Lassiter case of Santosky v. Kramer, 455 U.S. at 753, 102 S.Ct. at 1394:
[F]reedom of personal choice in matters of family life is a fundamental liberty .... Natural parents have a fundamental liberty interest ... in the care, custody, and management of their child,
(emphasis added). In addition, “The law’s concept of the family [has] ... historically ... recognized that natural bonds of affection lead parents to act in the best interests of their children.” Parham v. J.R., 442 U.S. at 602, 99 S.Ct. at 2504.
As a consequence of the dependency adjudication in the State of Florida, the parents’ right to custody, the right to freely decide how the child will be raised, and the legal assumption that such decisions will be in the child’s best interest, are destroyed. When a child is adjudicated dependent in the State of Florida, the fundamental familial bond is severed, the child becomes a ward of the courts, and the rights of the parent are permanently “forfeited” to the courts of Florida. Pendarvis v. State, 104 So.2d 651, 652 (Fla.1958) (Pendarvis I). Once the court obtains jurisdiction of a dependent child, the jurisdiction continues unabated, unless relinquished by court order, until the child reaches eighteen years of age. Fla.Stat.Ann. § 39.40 (West 1983). The court may remove the child from the parental home and place him in the care of those whom it finds more suitable. Id. at § 39.41 (West 1983). In Pendarvis I, 104 So.2d at 652, the Florida Supreme Court emphatically described the death blow dealt to parental rights by an adjudication of dependency:
Once a child has been lawfully declared to be a dependent or delinquent child, it becomes a ward of the state and a broad discretion is vested in the juvenile court to do those things which appear to be in the best interest of the child.
As a matter of course such adjudication frequently results, as it did here, in the immediate physical removal of a child from his parents’ custody. The courts exercise this discretion, however, even when a dependent child is allowed to remain in the parental home. In such circumstances the child is virtually paroled to the parent under the court’s “protective supervision.” Fla.Stat.Ann. § 39.41(l)(a). Until the child reaches legal majority he or she may live with the parent only at the discretion and sufferance of the Florida courts, and only under the conditions they prescribe. Id. At any time, by petition of any interested person, and without the need for further adjudicatory proceedings, or any evaluation of parental fitness, the child may be removed from the parent’s home, if the court determines, after an informal hearing, that such is in the child’s best interest. Id. at § 39.41(l)(e). The parent’s custody of the child may be questioned and interrupted at any time by administrative type hearings. Although the parent may participate in those hearings to retain custody, the parent will be forced to prove by a preponderance of the evidence that continued custody is in the child’s best interest. Id. at §§ 39.408(2) *528and 39.41. Even in circumstances where active court supervision is at a minimum the spectre of judicial interference places a lasting chill on the exercise of fundamental parental rights.
Despite its recognition of the “commanding” interests of parents, the majority concludes, on the basis of Lassiter, that these interests are insufficient to overcome the presumption against a right to counsel. The parental interest involved in dependency proceedings, however, is different from and greater than that involved in the termination proceedings at issue in Lassiter. First, unlike termination proceedings, which place the final formal attestation on long severed domestic and emotional bonds, dependency proceedings are an initial state interference into an intact familial unit. The strength of parental rights is at its pinnacle when parent and child dwell together in an intact domestic unit. As the Supreme Court observed in Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972), the “integrity of the family unit” has found protection in the due process clause of the fourteenth amendment, Meyer v. Nebraska, 262 U.S. at 399, 43 S.Ct. at 626, the equal protection clause of the fourteenth amendment, Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942), and the ninth amendment, Griswold v. Connecticut, 381 U.S. 479, 496, 85 S.Ct. 1678, 1688,14 L.Ed.2d 510 (1965) (Goldberg, J., concurring). The intact family unit is accorded the additional protection of the right to privacy which derives from the first, third, fourth, fifth and ninth amendments. See Griswold v. Connecticut, 381 U.S. at 484 — 85, 85 S.Ct. at 1681-82. The Supreme Court has recognized the difference between the rights of parents who reside with their children and those who do not. Compare Stanley v. Illinois (holding that unwed widowed fathers who live with their children have a due process right to a hearing before the children may be removed from their custody) with Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (holding that unwed fathers who do not reside with their children have no constitutional right to withhold consent to their adoption by resident stepfathers). Once children are removed from the natal home, the rights of natural parents compete with those of parent surrogates. Smith v. Organization of Foster Families, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977).
Second, in contrast to the termination proceeding, the dependency proceeding is the critical stage in the adjudication of parental rights because it is the only point at which the issue of parental fitness is litigated and is dispositive. As the Florida Supreme Court stated in Pendarvis I:
Evidence that may be totally inadequate to deprive a parent of the custody of his child in the first instance may be altogether adequate to support the court’s refusal to restore custody to the parent once the child has become a ward of the state.
104 So.2d at 652.
A preeminent principle which emerges from our review of the right to counsel cases decided by the Supreme Court is that, when fundamental liberty interests are involved, counsel is generally mandatory at the “adjudicatory” stage and discretionary at the “dispositional” stage. For example, in In re Gault, 387 U.S. 1, 31 n. 48, 87 S.Ct. 1428, 1445 n. 48, 18 L.Ed.2d 527 (1967), extending the right to counsel to juvenile delinquency proceedings, the Court stated “[Wjhat we hold in this opinion with regard to procedural requirements at the adjudicatory stage has no necessary applicability to other steps of the juvenile process.”
The basis for the distinction is illuminated by comparison of the Court’s opinions in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). In Mempa the Court found a per se right to counsel at combined probation revocation and sentencing proceedings. The Court explained:
Townsend [v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690], Moore, and Hamilton [v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114] ... clear*529ly stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected .... Even more important in a case such as this is the fact that certain legal rights may be lost if not exercised at this stage.
Id, 389 U.S. at 134-35, 88 S.Ct. at 256-57. By contrast, in Gagnon the Court found that the right to counsel must be determined on a case-by-case basis at proceedings for purposes of probation revocation only. The Court found that such proceedings were “not a part of a criminal prosecution,” 411 U.S. at 781, 93 S.Ct. at 1759. Bather, they were informal dispositional proceedings through which a placement was made on the basis of rights and interests previously adjudicated. The fact that Mempa and Gagnon are criminal proceedings while termination and dependency proceedings are civil is not controlling because the right to counsel derives from the due process clause as well as the sixth amendment. In re Gault, 387 U.S. at 20, 87 S.Ct. at 1439.
In Lassiter, the Supreme Court extended the reasoning of Gagnon to a civil context, holding that the right to counsel at termination proceedings must be decided on a case-by-case basis. Like the probation revocation proceedings in Gagnon, the North Carolina termination proceedings in Lassiter are essentially dispositional. In many states such proceedings are actually called “dispositional” proceedings. Permanent custody of the child is awarded in the manner determined to be in the child’s best interest. As the Florida Supreme Court described the comparable proceeding in Pendarvis II, 115 So.2d 81, 82 (Fla. 1st DCA 1959):
[T]he factors to be considered by the Juvenile Judge necessarily include: the age of the child, the periods of time he has spent with his natural parents, at institutions, and with foster parents, the effect of removing him from his foster home, and the affection, economic and psychological well-being, and cultural advantages which he can reasonably anticipate from his foster parents.
No fundamental liberty interest of the parent is adjudicated at termination proceedings because the fundamental right to the care and custody of one’s children has already been adjudicated and lost at the earlier proceeding where the parent has been adjudged unfit.
Just as Lassiter is analogous to Gagnon, Davis is analogous to Mempa and to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The dependency proceeding is the critical stage at which the substantive issue of fitness, upon which the parental right to custody depends, is adjudicated. Once severed or stigmatized, the presumption can never be regained — despite a subsequent showing that the parent is fit.
The Government Interest
As the Supreme Court recognized in Santosky v. Kramer, 455 U.S. at 766, 102 S.Ct. at 1401:
Two state interests are at stake in parental rights ... proceedings — a parens patriae interest in preserving and promoting the welfare of the child and a fiscal and administrative interest in reducing the cost and burden of such proceedings.
The interest of the state as parens patriae is identical to the interest of the child. Children have a fundamental need for stable environments and human relationships. “To safeguard the right of parents to raise their children as they see fit, free of government intrusion, except in cases of neglect and abandonment, is to safeguard each child’s need for continuity.” Gold-stein, J., A. Freud and A. Solnit, Beyond the Best Interests of the Child 7 (1979). “So long as a child is a member of a functioning family, his paramount interest lies in the preservation of his family.” Goldstein, J., A. Freud and A. Solnit, Before the Best Interests of the Child 5 (1973). Therefore, the interest of the state as parens patriae at a termination proceeding where the state seeks to permanently separate a child from a parent already formally adjudicated unfit *530is opposite to its interest at a dependency proceeding where a valid determination of parent fitness is crucial to deciding what is in the child’s, and thus the state’s, best interest. “[T]he State registers no gain towards its declared goals when it separates children from the custody of fit parents. Indeed, if [the parent is fit] the State spites its own articulated goals when it needlessly separates [the child] from his family.” Stanley v. Illinois, 405 U.S. at 652-53, 92 S.Ct. at 1213. The difference between the parens patriae interest at dependency proceedings and at termination proceedings was clearly stated by the Supreme Court in Santosky:
[W]hile there is still reason to believe that positive, nurturing parent-child relationships exist, the parens patriae interest favors preservation, not severance, of natural familial bonds....
The State’s interest in finding the child an alternative permanent home arises only “when it is clear that the natural parent cannot or will not provide a normal family home for the child.” At the factfinding, the goal is served by procedures that promote an accurate determination of whether the natural parents can and will provide a normal home.
455 U.S. 766-67, 102 S.Ct. at 1401, quoting N.Y.McKinney’s Social Service Law § 384-b.l.(a)(iv) (emphasis added).
Against the strong interest of the state as parens patriae in providing counsel at dependency proceedings must be balanced the state’s relatively weaker fiscal and administrative interest in inexpensive, expeditious proceedings.
The Risk of Erroneous Results
As the Lassiter Court employed the Mathews v. Eldridge calculus, the unlikelihood that the procedures used in North Carolina termination proceedings would lead to erroneous decisions weighed particularly heavily in the decision against a per se right to counsel. The Court emphasized that: (1) the termination proceedings are informal and do not employ the rules of evidence; (2) the state is frequently unrepresented by counsel; (3) no difficult or troublesome points of substantive or procedural law are involved; and (4) the termination proceeding is the final step in a series including dependency and neglect proceedings at which the mother has the right to appointed counsel under state law. Lassiter v. Department of Social Services, 452 U.S. at 29-31, 101 S.Ct. at 2160-2161.
The factors evaluated by the Lassiter Court were derived from those used to determine the right to counsel in criminal proceedings. Thus, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), Mempa v. Rhay and Gideon v. Wainwright the Court held that criminal defendants had a right to counsel because substantive rights were adjudicated in a formal adversarial context. By contrast, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Court held that the right to counsel in parole revocation hearings should be determined on a case-by-case basis because there is no de novo determination of rights and the proceedings are informal and nonadversarial.
It is clear, when these factors are applied to Florida dependency proceedings, that the risk of erroneous results is comparable to that in the Gideon-Argersinger line of cases and dispositively different from that of Gagnon and Lassiter. Under Florida law, an adjudicatory proceeding in which the state seeks prolonged or indefinite custody is a formal accusatory proceeding in which the state must prove that a parent has abandoned, abused or neglected a child. The state is always represented by counsel, Fla.Stat.Ann. § 39.404(3) (West 1983). Formal rules of evidence are employed. Id. at § 39.408(l)(b). By a recent Florida Supreme Court ruling, 418 So.2d 1004 (Fla. 1982), Rule 8.300 of the Florida Rules of Juvenile Procedure has been amended to require the appointment of a guardian ad litem to represent the child in all abuse and neglect proceedings. Thus, every interest but the parent’s is now represented by counsel. The issue of fitness is a subtle and difficult question of law. A fitness determination involves not only sensitive factual *531determinations but legal judgments on the meaning of psychological, sociological and medical conclusions drawn from these facts. The issues which may be adjudicated are speculative and far reaching. See In re J.L.P., 416 So.2d 1250 (Fla. 4th DCA 1982) (holding that an adjudication of dependency can rest solely upon evidence that a parent is likely to abuse or neglect a child, even though the parent has never done so).
The unfairness which besets an unrepresented mother in dependency proceedings was well summarized in our initial panel opinion in this case:
The dependency proceeding is complex in terms of the procedural, evidentiary and substantive law applicable to the hearing. In addition to this confusing legal framework, the parent is confronted with “the full panoply of the traditional weapons of the state.” The state is represented by the state attorney; it has access to public records concerning the family and to the services of social workers, psychiatrists and psychologists. Those representing the state have experience in legal proceedings and the ability to examine witnesses, present evidence, and argue skillfully that the child should be adjudicated dependent. Unrepresented parents, in contrast, will normally not cross-examine witnesses, submit evidence, call witnesses, or present a defense. They do not understand the rules of procedure or substantive law .... [T]hey may not even understand the legal significance and effect of the proceedings.
Davis v. Page, 618 F.2d 374, 380-81 (5th Cir.1980). Because parents subject to dependency proceedings “are often poor, uneducated, or members of minority groups, such proceedings are often vulnerable to judgments based on cultural or class bias.” Santosky v. Kramer, 455 U.S. at 763, 102 S.Ct. at 1399 (citation omitted). Accord Smith v. Organization of Foster Families, 431 U.S. at 833-35, 97 S.Ct. at 2103-04.
The dangers of erroneous results are not merely hypothetical. Unrepresented parents lose custody of their children significantly more often than parents represented by counsel. See Schecter, Lowell, F., The Pitfalls of Timidity: The Ramifications of Lassiter v. Department of Social Services, 8 No.Ky.L.Rev. 435 (1981); Note, Representation in Child-Neglect Cases: Are Parents Neglected? 4 Col.J. of L. and Soc.Prob. 230 (1968).
The consequences of erroneous determinations are illustrated by the facts of this case.
At no time did Hilary Davis show a hint of unfitness or inadequacy as a mother. Rather, she suffered an adjudication of dependency because of rational and sensible efforts she made to protect and raise her son.
On January 30, 1976, Hilary Davis’ husband beat fourteen month old Carl Thor until he broke the baby’s arm. Ms. Davis immediately took her son to the hospital where she spent the night with him. Determined to leave her husband because of his violence towards Carl, Ms. Davis turned to the state for help. Because she was indigent and separated from her husband Ms. Davis would have qualified for financial assistance and medical care under the AFDC program.
Instead, the state responded on February 4, 1976 by initiating a dependency proceeding to remove Carl from his mother’s custody. At an initial hearing later that same day, the state court entered an order releasing Carl from the hospital into state custody pending a formal adjudicatory hearing on March 4, 1976. Hilary Davis attended the hearing without counsel. The judge did not offer to appoint counsel for her, but suggested she obtain counsel for the adjudicatory hearing.
Hilary Davis was poor and thus unable to retain private counsel. Recognizing her need for legal assistance, she tried repeatedly to secure the services of an attorney employed by Legal Services of Greater Miami, Inc. She was unable to get a lawyer and had to appear at the dependency proceeding without counsel. The miscarriage of justice which ensued is well described in the district court opinion.
*532Without benefit of counsel, Hilary Davis was little more than a spectator in the adjudicatory proceeding. She was ignorant of the law of evidence, and of the substantive law governing dependency proceedings. She sat silently through most of the hearing, and fearful of antagonizing the social workers, reluctantly consented to what she believed would be the placement of her child with the state for a few weeks.
... Carl Thor Davis was adjudicated dependent, committed to temporary custody of the Department of Health and Rehabilitative Services pursuant to Fla. StatSec. 39.10(4) and Sec. 39.11(l)(c). At the conclusion of the hearing, the Court told Hilary Davis to contact a lawyer. She was not advised of her right under Fla.Stat. Sec. 39.14(1) to appeal from the adjudication of dependency.
442 F.Supp. at 260-61. Hilary Davis lost custody of Carl not because she was an unfit parent but because she was poor and innocent of the subtleties of legal proceedings.
Florida asserts that it considers providing counsel to indigents such as Davis on a case-by-case basis. See In re D.B., 385 So.2d 83, 90-91 (Fla.1980). But counsel is routinely denied to thousands of indigent parents involved in dependency proceedings. Defendants admitted in the original pleadings in this case that it was the policy and practice of Dade County circuit judges to conduct dependency proceedings without appointing counsel for indigent parents.
Resolution of this factual conflict is unnecessary in my view because of the constitutional deficiency of the claimed case-by-case consideration, as is so poignantly demonstrated by this case.
To me, the fundamental parental interest involved, the strong interest of the state as parens patriae compared to its relatively weak fiscal and administrative interest, and the great risk of erroneous results, would seem to mandate under the test applied in Lassiter a per se right to counsel in Florida dependency proceedings. That the majority reaches a different result may be due to the extremely broad language of Justice Blackmun’s Lassiter dissent. The characterizations of the North Carolina termination proceedings in the majority and dissenting opinions are hard to reconcile. While the majority opinion stresses the informality of the proceedings the dissent describes them as resembling “in many respects a criminal prosecution,” Lassiter v. Department of Social Services, 452 U.S. at 43, 101 S.Ct. at 2168, “distinctly formal and adversarial,” id., having “virtually all the attributes of a formal trial,” id. at 45, 101 S.Ct. at 2169, and “clearly adversarial and punitive,” id. at 49, 101 S.Ct. at 2171. While the majority opinion notes the absence of “specially troublesome points of law, either procedural or substantive,” id. at 32, 101 S.Ct. at 2162, the dissent describes these same proceedings as “quintessentially legal,” id. at 44, 101 S.Ct. at 2168, and posing legal issues that “are neither simple nor easily defined” with standards that are “imprecise and open to the subjective values of the judge.” Id. at 45, 101 S.Ct. at 2169. While the majority emphasizes that the state is often unrepresented by counsel, id. at 29, 101 S.Ct. at 2160, the dissent states that “The State has legal representation through the county attorney .... And, of course, the State’s counsel himself is an expert in the legal standards and techniques employed at the termination proceeding.” Id. at 43, 101 S.Ct. at 2168.
These descriptions are disturbingly incongruent. But the law to which they relate is clearer. In civil proceedings infringing severely upon fundamental parental rights, the degree to which the formal adversarial nature of the proceeding increases the risk of erroneous results is determinative of the right to counsel issue. We should not decide this case by comparing Florida dependency proceedings with the functionally dissimilar North Carolina termination proceedings. Rather, we should apply the Lassiter rationale to the Florida proceedings before us and determine whether, in the absence of counsel, they create a constitutionally significant risk of erroneous results.
*533In Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), decided subsequent to Lassiter, the Supreme Court reviewed the factfinding stage of New York state permanent neglect proceedings which are identical to Florida dependency proceedings in the following aspects. The state is directly pitted against the parent, marshalling an array of public resources to prove that the parents are unfit to raise their own children. The proceeding bears many of the indicia of a criminal trial, is conducted pursuant to the formal rules of evidence, and involves the examination and cross-examination of witnesses. The Court concluded, as I conclude now, that “At such a proceeding numerous factors combine to magnify the risk of erroneous factfinding.” Id. at 762, id. at 1399.
Right to counsel was not considered in Santosky because parents have a statutory right to counsel under New York law. Similarly, in North Carolina parents have a statutory right to counsel at the critical fitness determination proceedings which precede the termination proceedings at issue in Lassiter. Lassiter v. Department of Social Services, 452 U.S. at 43 n. 10, 101 S.Ct. at 2168 n. 10. It is error to unduly consider the details of Florida dependency procedures at the sacrifice of their substance. In a long line of decisions the Supreme Court has enunciated a critical distinction. Due process requires the appointment of counsel in proceedings entailing substantive adjudications of fundamental liberty interests. See Argersinger v. Hamlin; Gideon v. Wainwright. But proceedings which merely involve placement on the basis of previous substantive adjudications require counsel only where, under the specific facts of the ease, lack of counsel would be fundamentally unfair. See Gagnon v. Scarpelli. While the Lassiter proceedings belong in the latter category, the proceedings at issue here belong in the former. The majority’s conclusion that Lassiter controls is incorrect because dependency and termination proceedings are different in kind as well as in degree.
Upon reconsideration I would reinstate the prior en banc judgment.
. In the body of my dissent I undertake to address the merits of the question before us. I should point out, however, that the conclusion of the majority that there is an absence of the commonality requirement of Fed.R.Civ.P. 23(a)(2) is based upon faulty logic. First, Davis had an individual claim. The record does not *525support the parsing of the pleadings in the rigid manner the majority opinion adopts. Count II of the complaint adopts all of the allegations of Count I. The complaint also contains a prayer for general relief without reference to any count. It was under the general prayer that the dependency adjudication was declared null and void. Second, when the class was certified by the district court, the common question presented was whether appointment of counsel to indigent parents in Florida dependency proceedings was required by the due process clause of the fourteenth amendment. As a result of the Lassiter decision, the issue has been narrowed and focused, so that, as the majority opinion recognizes, the common class question before us is, in effect, whether, under the balancing test established in Lassiter, appointment of counsel is constitutionally required under the due process class. Lassiter has sharpened the focus of the issue. But it has by no means nullified it.
. In his special concurrence, Judge Tjoflat reasons that Davis’ claim against the judges never presented a live case or controversy because the dependency proceedings were concluded prior to the initiation of this action. This view was rejected by a majority of this court during conference.
It is true that while the case was pending in district court, the Florida state court returned Carl Thor to his mother’s physical custody, granting Ms. Davis relief in her claim against the DHRS. But this only partially ameliorated the injury for which she sought relief. Under the state court order, Carl Thor remained subject to the state judge’s judgment and retention of jurisdiction (in effect legal custody). Legal custody was transferred back to Ms. Davis from the Florida courts only through the declaratory judgment of the district court. The state court judges were clearly proper defendants to this action, because it was the court alone, not the DHRS, which had legal custody. Davis thus had a live claim against the judges at the time of her action in district court. This case is, therefore, obviously different from O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Slavin v. Curry, 574 F.2d 1256, modified, 583 F.2d 779 (5th Cir. 1978), and the other cases relied on by Judge Tjoflat, in which the alleged injury was past and the possibility of future injury purely speculative.
Despite Judge Tjoflat’s contrary view, the Sosna requirements have been fully complied with in this case. In Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975), the Supreme Court considered a situation identical to this one in its essential elements. A Fed.R.Civ.P. 23(b)(2) class action was brought, requesting declaratory and injunctive relief prohibiting judges of the state courts of Iowa from acting pursuant to an allegedly unconstitutional state statute. By the time of appellate review, the individual claim of the named plaintiff had become moot. The Court held that:
There must not only be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class action is certified by the District Court pursuant to Rule 23, but there must be a live controversy at the time this Court reviews the case .... The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.
*526Id. at 402, 95 S.Ct. at 559 (emphasis added). Accord Franks v. Bowman Transp. Co., 424 U.S. 747, 752-57, 96 S.Ct. 1251, 1258-60, 47 L.Ed.2d 444 (1976). In a class action dismissal is appropriate only where, as in O’Shea v. Littleton, the controversy is moot as to all class members.
In this case the complaint was filed on June 22, 1976 and the class was certified on December 22, 1976, prior to both the order of the Florida circuit court returning Carl to the physical care of his mother under the continuing jurisdiction of the Florida circuit courts on January 28, 1977, and the judgment of the federal district court, declaring the adjudication of dependency to be null and void, on January 25, 1978. The controversy remains live as to thousands of other members of the class who are routinely denied counsel.
The Supreme Court has interpreted Sosna as establishing a substantive principle for determining case and controversy requirements in Rule 23(b)(2) class actions, not merely a formalistic chronological requirement. “Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before [the court], an adversary relationship [exists] sufficient to fulfill” the purposes of the personal stake prong of the Article III case and controversy requirement. Franks v. Bowman Transp. Co., 424 U.S. at 755-56, 96 S.Ct. at 1259-60. “[T]he purpose of the ‘personal stake’ requirement is to assure that the case is in a form capable of judicial resolution. The imperatives are ... sharply presented issues in a concrete factual setting and self-interested parties vigorously advocating opposing positions.” United States Parole Comm’n v. Geraghty, 445 U.S. 388, 403, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). In the case before us, the fundamental Article III factors are amply met.