Petition for Writ of Certiorari — Jim Justice, Governor of West Virginia, et al., Petitioners v. Jonathan R., Minor, By Next Friend Sarah Dixon, et al.

Supreme Court briefSep 12, 2022

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APPENDIX

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APPENDIX A

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

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No. 21-1868

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JONATHAN R., minor, by Next Friend, Sarah Dixon;

ANASTASIA M., minor, by Next Friend, Cheryl Ord;

SERENA S., minor, by Next Friend, Sarah Dixon; THEO

S., minor, by Next Friend, L. Scott Briscoe; GARRETT

M., minor, by Next Friend, L. Scott Briscoe;

GRETCHEN C., minor, by Next Friend, Cathy L.

Greiner; DENNIS R., minor, by Next Friend, Debbie

Stone; CHRIS K., CALVIN K., and CAROLINA K.,

minors, by Next Friend, Katherine Huffman; KARTER

W., minor, by Next Friend, L. Scott Briscoe; ACE L.,

minor, by Next Friend, Isabelle Santillion; and

individually and on behalf of all others similarly situated,

Plaintiffs - Appellants,

JIM JUSTICE, in his official capacity as the Governor of

West Virginia; BILL CROUCH, in his official capacity as

the Cabinet Secretary of the West Virginia Department of

Health and Human Resources; JEREMIAH SAMPLES,

in his official capacity as the Deputy Secretary of the

Department of Health and Human Resources; LINDA

WATTS, in her official capacity as the Commissioner of

the Bureau for Children and Families; WEST VIRGINIA

DEPARTMENT OF HEALTH AND HUMAN

RESOURCES,

Defendants - Appellees.

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WASHINGTON LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS AND URBAN AFFAIRS; NATIONAL

ASSOCIATION OF COUNSEL FOR CHILDREN;

CHILDREN’S ADVOCACY INSTITUTE; ADVOKIDS;

YOUTH LAW CENTER; NATIONAL CENTER FOR

YOUTH LAW; MOUNTAIN STATE JUSTICE;

NATIONAL CENTER ON ADOPTION AND

PERMANENCY; CHILD AND DISABILITY NONGOVERNMENTAL ORGANIZATIONS,

Amici Supporting Appellants.

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Appeal from the United States District Court for the

Southern District of West Virginia, at Huntington.

Thomas E Johnston, Chief District Judge. (3:19-cv-00710)

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Argued: March 9, 2022

Decided: July 20, 2022

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Before HARRIS and RUSHING, Circuit Judges, and

FLOYD, Senior Circuit Judge.

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Affirmed in part, reversed in part, and remanded by

published opinion. Senior Judge Floyd wrote the opinion,

in which Judge Harris joined. Judge Rushing wrote a

separate opinion dissenting in part and concurring in the

judgment.

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ARGUED: Marcia Robinson Lowry, A BETTER

CHILDHOOD, New York, New York, for Appellants.

Philip Peisch, BROWN & PEISCH PLLC, Washington,

D.C., for Appellees. ON BRIEF: Richard W. Walters, J.

Alexander Meade, SHAFFER & SHAFFER, PLLC,

Charleston, West Virginia, for Appellants. Steven R.

Compton, OFFICE OF THE ATTORNEY GENERAL

OF WEST VIRGINIA, Charleston, West Virginia;

Caroline M. Brown, Julia M. Siegenberg, Kendra Doty,

BROWN & PEISCH PLLC, Washington, D.C., for

Appellees. Tobias S. Loss-Eaton, Mark P. Guerrera,

SIDLEY AUSTIN LLP, Washington, D.C., for Amici

Washington Lawyers’ Committee for Civil Rights and

Urban Affairs, National Association of Counsel for

Children, Children’s Advocacy Institute, Advokids, Youth

Law Center, National Center for Youth Law, Mountain

State Justice, and the National Center for Adoption and

Permanency. Jonathan M. Smith, Kaitlin Banner, Marja

Plater, WASHINGTON LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS AND URBAN AFFAIRS,

Washington, D.C., for Amicus Washington Lawyers’

Committee for Civil Rights and Urban Affairs. Amy C.

Harfield, Children’s Advocacy Institute, UNIVERSITY

OF SAN DIEGO SCHOOL OF LAW, San Diego,

California, for Amicus Children’s Advocacy Institute.

Lydia C. Milnes, MOUNTAIN STATE JUSTICE, INC.,

Morgantown, West Virginia, for Amicus Mountain State

Justice. J. Michael Showalter, James D. Cromley,

SCHIFF HARDIN LLP, Chicago, Illinois, for Amici

Child and Disability Non-Governmental Organizations.

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FLOYD, Senior Circuit Judge:

This case brought on behalf of thousands of West

Virginia’s foster children challenges the State’s

administration of child welfare services. Plaintiffs

describe an ineptly structured program, beleaguered city

employees trying their best to provide necessities while

plagued with unmanageable caseloads, staff shortages,

and budgetary constraints, and the resultant tragedies for

West Virginia’s children relegated to entire childhoods in

foster-care drift. But this appeal is not about any of that.

Invoking Younger v. Harris, 401 U.S. 37 (1971), the court

below abstained from hearing the case in deference to

parallel state-court proceedings. Because West Virginia

courts retain jurisdiction over foster children until they

leave state custody, the court reasoned, any federal

intervention into that process would undermine our

fundamental notions of comity and federalism and reflect

negatively upon the state court’s ability to enforce

constitutional principles.

We reverse. In this case, principles of federalism not

only do not preclude federal intervention, they compel it.

Plaintiffs bring federal claims, and federal courts “are

obliged to decide” them in all but “exceptional”

circumstances. Sprint Commc’ns, Inc. v. Jacobs, 571 U.S.

69, 72, 73 (2013) (citation omitted). And this case presents

none of those circumstances.

But our decision is based on more than mere syllogism.

Younger’s narrow scope safeguards Plaintiffs’ rights,

bestowed on them by Congress in the Judiciary Act of

March 3, 1875, to present their claims to a federal tribunal.

28 U.S.C. § 1331. Plaintiffs allege that a federal class

action is the most—if not the only—effective way to

achieve the kind of systemic relief they seek. And history

builds out those allegations. For years, West Virginia’s

response to any foster-care orders entered as part of the

individual state hearings seems to have been to shuffle its

money and staff around until the orders run out,

entrenching rather than excising structural failures. See

In re Carlita B., 408 S.E.2d 365, 375 (W. Va. 1991)

(lamenting, as far back as 1991, the foster children “left to

languish in a limbo-like state during a time most crucial to

their human development”); State v. Michael M., 504

S.E.2d 177, 186 (W. Va. 1998) (reiterating the court’s

“frustration over any unwarranted delays caused by the”

State (emphasis omitted)); In re Brandon H.S., 629

S.E.2d 783, 786, 789–90 (W. Va. 2006) (still deploring the

State’s inability to “solv[e] the staffing crisis”). Forcing

Plaintiffs to once more litigate their claims piecemeal

would get federalism exactly backwards.

West Virginia entrusts to its Department of Health and

Human Resources (DHHR or the Department) the care

of all children in the custody of the State. W. Va. Code

Ann. § 49-4-113(a)–(b). Roughly 90% of those children

come to the Department by way of traditional abuse-andneglect proceedings following parental maltreatment. J.A.

210–11, 13. But 10% are adjudicated into its custody

through juvenile delinquency and statusoffense hearings,

the state courts possessing authority to place children in

the Department’s care when they require a middle ground

between

in-home

supervision

and

full-fledged

imprisonment. See W. Va. Code Ann. §§ 49-4-706(a)(3), 494-708(a)(4).

But regardless of how a child becomes a ward of the

Department, the State bears the same responsibility to

“determine the safety of the child, the continuing

necessity for and appropriateness of the placement, the

extent of compliance with the case plan, and the extent of

progress which has been made toward alleviating or

mitigating the causes necessitating placement in foster

care.” Id. § 49-4-110(a); see also id. §§ 49-4-406(a), (b),

(d)(2)(4), 49-4-712(a), 49-4-714(f). That is, as far as the

State is concerned, all children within the Department’s

guardianship are “foster children” and the Department

must mete out appropriate care to them all. See Resp. Br.

4 & n.1 (citing DHHR, Foster Care Policy (Aug. 2021),

https://dhhr.wv.gov/bcf/policy/Documents/Foster%20Car

e%20Policy%20 August%202021%20%281%29.pdf).

But the buck does not stop with the Department; state

circuit courts conduct “quarterly status reviews” to

ensure the Department places children “in the least

restrictive setting available” and generally acts in their

“best interests.” W. Va. Code Ann. §§ 49-4- 110(a), 49-4404(a), 49-4-604(a)(2), 49-4-714(b). Broadly speaking, the

courts “examine the proposed case plan,” “determine if

the department has made reasonable efforts to finalize the

permanency plan,” approve out-of-state placements, and

review “[t]he appropriateness of the current educational

setting” and any “[s]ervices required to meet the child’s

needs.” Id. §§ 49-4-108, 49-4-408(b), 49-4-608(b), (d)–(e).

To sum up, the Department maintains responsibility

for planning and delivering the care, the circuit courts for

supervising it.

However effective this arrangement appears on paper,

Plaintiffs assert the Department has made a mockery of it

in practice. Rather than take children away from abuse

and neglect, Plaintiffs charge, the Department only

compounds it. It houses children in inadequate and

outright dangerous environments, deprives them of badly-

needed social and mental-health services, and, when all

else fails—which it often does in West Virginia—simply

institutionalizes the children for years, segregating them

from the outside world at the time socialization matters

most.

Take just two of the named Plaintiffs. Jonathan, fifteen

at the time of filing, had suffered repeated physical,

sexual, and emotional abuse at the hands of his biological

parents. When he became suicidal and aggressive, they

voluntarily gave him up for adoption. And though the

Department was aware of the circumstances, it did

nothing to vet their decision—or the adoptive parents who

soon committed Jonathan to a psychiatric hospital. When

Jonathan returned from the hospital, so did the abuse,

prompting several calls from mandatory school reporters.

Still, the Department did not intervene. Only when

Jonathan was locked away in the psychiatric hospital for

the second time—now, on his adoptive parents’

accusations that he had sexual contact with another

child—did the Department step in. But it made no effort

to place Jonathan in a foster home, simply parking him at

an out-of-state facility in Georgia. After Georgia came

Nashville and its mandatory treatment for adjudicated

juvenile sex offenders, never mind that no one had

investigated the adoptive parents’ claims or that the State

had never even charged Jonathan with a crime. And after

three years, the Department sloughed him off to yet

another facility, for a total of seven years behind closed

and locked institutional doors. Finally, the Department

delivered Jonathan to his biological grandmother. But it

offered no social or financial services or any other

meaningful support that would aid in her care for the posttraumatic-stress,

attention-deficit,

and

reactiveattachment disorders Jonathan had developed along the

way. See J.A. 90–93.

Anastasia, eleven when Plaintiffs filed the complaint,

first entered foster care at four years of age. The

Department placed her in a foster home with five other

children but removed her shortly after upon allegations of

abuse. Anastasia spent the next six months shuttled

between seven different placements, only to be returned

to her original foster mother—who promptly deposited

her in a psychiatric hospital. After some months,

Anastasia returned to her foster home, but at age ten was

caught shoplifting with her foster sister. The Department

immediately took custody of both girls, placed Anastasia

in a succession of emergency shelters, and, when

Anastasia sprayed Lysol on a staff member, handed her

over to the police to be charged with assault. The result:

three months at a juvenile detention center that Anastasia

spent sleeping on a bare mattress on a cement floor among

adolescents aged fifteen and older. Abruptly, the charges

were then dropped, and Anastasia was shipped off to an

out-of-state facility for children with psychiatric issues.

She resides there still, even as the facility has made

several less-than laudable appearances in the news,

including when its admissions coordinator was charged

with sexual assault of a suicidal, fourteen-year-old patient.

Anastasia suffers from several psychological disorders.

See id. at 93–95.

These stories are shocking and yet, according to

Plaintiffs, shockingly common among West Virginia’s

foster children. The Department, of course, does not bear

responsibility for it all. Plaintiffs observe West Virginia is

the fourth poorest state in the Nation. Id. at 78. In 2017,

its rate of child deaths related to abuse and neglect was

more than double the national average. Id. at 77. And since

2017, the State has had the highest rate of foster-care

entries for youths between fourteen and seventeen years

of age (1.4% as compared to the 0.3% national average).

Id. at 78. But the crux of Plaintiffs’ complaint is that the

Department has failed to do anything meaningful to stave

off this crisis. For years, it has been leaving almost a

quarter of its positions unstaffed, has failed to recruit

anywhere near enough foster-care families, and has not

bothered to educate the families it had, turning instead to

institutionalization to manage the case load. Id. at 77–79

(reporting that 71% of youth between ages twelve and

seventeen have been institutionalized, with 327 children

sent out of state). And while these problems undeniably

trickle down to each child’s individual case, Plaintiffs insist

they can only be remedied through systematic, structural

change. Plaintiffs accordingly bring this class action,

seeking to represent the nearly 7,000 foster children in the

Department’s care.

For their one General Class, Plaintiffs seek, among

others: increases in staffing so that caseloads do not

exceed fifteen children per case worker, development of

detailed plans for recruiting foster homes, and prompt

submissions of individualized case plans to the

appropriate state court. See id. at 174–77. Plaintiffs also

propose three subclasses, to reflect foster populations

they believe require more nuanced reform: a Kinship

Subclass for children placed with relatives who lack

resources and general know-how of raising children with

developmental difficulties, an ADA Subclass for children

with physical and mental disabilities, and an Aging-Out

Subclass for children approaching adulthood and in need

of special transition planning. Id. at 177–78. Plaintiffs also

request a neutral monitor to oversee the Department’s

compliance with district-court orders. Id. at 179.

To be clear, Plaintiffs do not challenge any state

statutes or any state-court judgments. They object only to

Department practices that have allegedly resulted in

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severe delays, inadequate care, and outright abuse on

grounds that they violate the Due Process Clause, the

First Amendment “right to familial association,” the

Adoption Assistance and Child Welfare Act, 42 U.S.C.

§ 670 et seq., the Americans with Disabilities Act, 42

U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. §§

705(20), 794. J.A. 165–74.

Plaintiffs filed their complaint on September 30, 2019,

and West Virginia moved to dismiss on November 26 of

that same year. The State urged two procedural grounds:

lack of subject-matter jurisdiction under RookerFeldman1 and Younger abstention, both on the theory

that Plaintiffs impermissibly “seek federal review and

ongoing oversight over” West Virginia’s courts’ quarterly

foster-care hearings. Jonathan R. v. Justice, No. 3:19-CV00710, 2021 WL 3195020, at *5 (S.D. W. Va. July 28, 2021);

J.A. 256. West Virginia also argued that, substantively, all

five of Plaintiffs’ counts failed to state a claim. Jonathan

R., 2021 WL 3195020, at *5. Soon after West Virginia filed

its motion, COVID-19 arrived in the United States. By the

time the district court picked the motion back up in July

2021, six of the named Plaintiffs had left foster care, and

West Virginia had filed additional motions to dismiss their

claims as moot.

The district court sided with West Virginia. Starting

with mootness, the court found “no dispute that these six

Plaintiffs are no longer in the [Department’s] custody”

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), prohibit

federal district courts from sitting in actual or constructive appeal of

state-court judgments. See infra Part IV.

11a

and so concluded they “lack a legally cognizable interest

in the outcome of this case.” Id. at *5– 6 (cleaned up)

(quoting Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.

2007)). Plaintiffs asked the court to consider the capableof-repetition-yet-evading-review exception, but on court’s

view, the marginal probability that the six Plaintiffs would

reenter foster care was not enough to qualify the claims as

such. Id. at *6–7. The court also rejected the special classaction exception whereby eventual class certification may

“relate back” to the filing of the complaint. Id. at *8. That

exception concerns only “inherently transitory” claims,

the court reasoned, but “Plaintiffs have failed to show that

these children have been moved so quickly in and out of

[Department] custody that their claims are effectively

unreviewable.” Id. (quoting Genesis Healthcare Corp. v.

Symczyk, 569 U.S. 66, 75 (2013)). The court thus dismissed

the six Plaintiffs’ claims as moot.

Because six other Plaintiffs remained, the court then

turned to West Virginia’s Younger contentions. It found

this case to resemble Moore v. Sims, 442 U.S. 415 (1979),

where the Supreme Court abstained from resolving a

foster-care dispute over parental rights. See id. at *9. Like

Moore, this case concerns “state civil proceedings that are

akin to criminal prosecutions,” the court explained. Id.

(quoting Sprint, 571 U.S. at 78). And beyond the mere

similarity in form, the district court found traditional

justifications for abstention—risk of interfering with

state-court decisions, substantial state interest, and

adequate opportunity to present those same challenges in

the state proceedings, see Middlesex Cnty. Ethics

Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 431

(1982)—compelled it to follow Moore’s course. The court

thus granted West Virginia’s motion to dismiss, without

reaching the State’s arguments about Rooker-Feldman or

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failure to state a claim and without ruling on class

certification.

Plaintiffs now appeal both rulings; the State defends

the district court’s judgment and once more presses

Rooker-Feldman in alternative. We think Plaintiffs have

the better of the argument on all three grounds. We

reverse and remand so that the district court can consider

West Virginia’s substantive arguments for dismissal and,

if appropriate, Plaintiffs’ motion for class certification.

II.

Like the district court, we begin with mootness. The

parties relegate this issue to the backburner, believing the

case can go on so long as some named Plaintiffs continue

to have a personal stake in the dispute. But since the

district court’s ruling, two more named Plaintiffs have

aged out of foster care. And without them, no Plaintiff can

represent either the Kinship or the Aging Out Subclass.

So if we affirm the district court’s reasoning, Rule 23(a)

will preclude certification of those Subclasses. See E. Tex.

Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403

(1977) (explaining that a named plaintiff must belong to

the class); Fed. R. Civ. P. 23(c)(5) (explaining that the

subclasses “are each treated as a class” and must meet the

same certification requirements). True, the Plaintiffs’

dismissal would not necessarily end the suit—their

counsel could supplement the complaint—but it would

needlessly slow the resolution of their essential and

urgent claims, perhaps several times over. So we think it

more prudent to resolve mootness up front. Because “the

relevant jurisdictional facts are not in dispute,” we

consider the issue de novo. Porter v. Clarke, 852 F.3d 358,

363 (4th Cir. 2017).

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Mootness doctrine is grounded in Article III’s “caseor-controversy limitation on federal judicial authority,”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),

Inc., 528 U.S. 167, 180 (2000), which requires a cognizable

interest in the outcome of the action to bring suit. But its

demands extend past the filing of the complaint, insisting

on “an actual controversy . . . at all stages of review.”

Arizonans for Official English v. Arizona, 520 U.S. 43, 67

(1997) (quoting Preiser v. Newkirk, 422 U.S. 395, 401

(1975)). Still, the doctrine is “flexible,” recognizing several

settled exceptions. U.S. Parole Comm’n v. Geraghty, 445

U.S. 388, 400 (1980). Plaintiffs invoke two of them: the

general “capable of repetition yet evading review” and the

class-action specific “relation back.”

Plaintiffs cannot succeed on the first, for it applies only

when “there is a reasonable expectation that the same

complaining party will be subject to the same action

again.” Spencer v. Kemna, 523 U.S. 1, 17 (1998) (cleaned

up) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 481

(1990)). Plaintiffs posit there is about a 7.5% chance one of

the adopted children will return to state custody. Reply

Br. 25 n.10. But even if accurate, 7.5% simply does not

convey a sense of “reasonable expectation.” Spencer, 523

U.S. at 17. Not to mention that the now-adult Plaintiffs can

never reenter foster care again. The district court

appropriately declined to apply this first exception.

It was wrong, however, to reject the second. Where a

named plaintiff’s individual claim becomes moot before

the district court has an opportunity to certify the class,

the certification may “relate back” to the filing of the

complaint if other class members “will continue to be

subject to the challenged conduct and the claims raised

are . . . inherently transitory.” Genesis, 569 U.S. at 76

(cleaned up) (citation omitted).

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The State objects Plaintiffs’ claims are not so

transitory: Plaintiffs themselves complain that children

languish in foster care for years. But that misapprehends

the exception. As the Court explained in Gerstein v. Pugh,

what matters most is that the lifespan of state

guardianship “cannot be ascertained at the outset,” that

“[i]t is by no means certain that any given individual,

named as plaintiff, would be in . . . custody long enough for

a district judge to certify the class.” 420 U.S. 103, 110 n.11

(1975). Circuit courts, too, find “the essence of the

exception” in the “uncertainty about whether a claim will

remain alive.” Olson v. Brown, 594 F.3d 577, 582 (7th Cir.

2010) (finding Indiana prisoners eligible for conditional

release fairly within the exception); see also Unan v.

Lyon, 853 F.3d 279, 287 (6th Cir. 2017) (Medicaid

recipients); Thorpe v. D.C., 916 F. Supp. 2d 65, 67 (D.D.C.

2013) (nursing-home residents). And courts find the

exception particularly fitting when defendants create “a

significant possibility that any single named plaintiff

would be [dismissed] prior to certification.” Olson, 594

F.3d at 582 (quoting Zurak v. Regan, 550 F.2d 86, 92 (2d

Cir. 1977)); see also Unan, 853 U.S. at 287. As well as when

the court may “safely assume that [counsel] has other

clients with a continuing live interest in the case.”

Gerstein, 420 U.S. at 110 n.11.

All of these principles apply with full force here.

Foster-care placements are exceedingly unpredictable.

Even if some children will spend a long-enough period in

the system, requiring Plaintiffs to predict which child will

asks too much. And as in Gerstein, “the constant existence

of a class of persons suffering the deprivation is certain”

on the facts alleged. Id. Finally, as with the prisoners in

Olson, “[t]he duration of” Plaintiffs’ claims remains

largely “at the discretion of the” State. 594 F.3d at 583.

Just like Indiana was able to move its prisoners to a

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different facility, West Virginia can push through

adoption and family reunification. But unlike prison

transfers (presumably to better-equipped facilities),

unsuitable adoptions or premature reunification with

parents unprepared to take on the responsibility can

devastate entire childhoods. We decline to create such

perverse incentives for the States.

The State leans heavily on 31 Foster Children v. Bush,

329 F.3d 1255 (11th Cir. 2003), and J.B. ex rel. Hart v.

Valdez, 186 F.3d 1280 (10th Cir. 1999), as holding similar

foster-care claims moot. But 31 Foster Children never

considered relation back. 329 F.3d at 1263. And J.B.

declined to certify the class. 186 F.3d at 1290. Nor does

this case involve a dilatory plaintiff, which might dictate a

different outcome. E.g., Espenscheid v. DirectSat USA,

LLC, 688 F.3d 872, 874 (7th Cir. 2012). We find nothing

abnormal in waiting several months to move for class

certification—especially in light of the pandemic. Cf.

Rensel v. Centra Tech, Inc., 2 F.4th 1359, 1366 n.3 (11th

Cir. 2021) (noting that “between 2000 and 2018, the

median time from the filing of the initial complaint to the

class certification decision” in certain complex class

actions spanned “two-and-a-half years”); Thomas E.

Willging et al., An Empirical Analysis of Rule 23 to

Address the Rulemaking Challenges, 71 N.Y.U. L. Rev.

74, 103 (1996) (reporting that in 75% of class actions

surveyed, “the time from the filing of the complaint to the

filing of a motion to certify ranged from more than 6.5 to

more than 16.3 months”).

We hold Plaintiffs’ claims fit comfortably within

Gerstein’s inherently transitory exception. If, on remand,

the district court decides to certify the class, the

certification will “relate back to the filing of the

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complaint,” preserving Plaintiffs’ class claims. Genesis,

569 U.S. at 76 (cleaned up) (citation omitted).2

III.

The parties’ main disagreement centers on abstention.

Younger, the pathmaking case here, required federal

courts to stay their hand when criminal prosecution was

pending in state court. 401 U.S. at 41. In keeping with “the

basic doctrine of equity jurisprudence,” Younger reasoned

Our dissenting colleague suggests we have improperly employed

the “inherently transitory” exception because it applies only where

“no plaintiff possesse[s] a personal stake in the suit long enough for

litigation to run its course.” See infra p. 44 (emphasis added) (quoting

Genesis, 569 U.S. at 76). While that is certainly one circumstance

where the exception applies, it is not the only one. As we explain,

Gerstein allowed relation back where it was “by no means certain that

any given individual, named as plaintiff,” would suffer a deprivation

“long enough for a district judge to certify the class.” 420 U.S. at 110

n.11. Genesis, for its part, reaffirms Gerstein and itself notes the

exception may be appropriate where a deprivation “likely would end

prior to the resolution” of plaintiffs’ claims, so long as “it is ‘certain

that other persons similarly situated’ will continue to be subject to the

challenged conduct.” 569 U.S. at 76 (emphasis added) (quoting County

of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)). True, Genesis

rejected the exception in the end, but it did so only because

“respondent’s complaint” in that case “requested statutory damages”

and not “injunctive relief”—a claim that “cannot evade review.” Id. at

77. We accordingly read Genesis to continue to apply Gerstein’s

“inherently transitory” exception as it has always been understood,

allowing relation back whenever the “nature of the challenged

conduct” creates a significant probability that “a named plaintiff’s

individual claim [will] become[ ] moot before the district court has an

opportunity to rule on the certification motion,” Genesis, 569 U.S. at

75–76—even where it “cannot be ascertained at the outset” which

individual plaintiff would need to drop out, Gerstein, 420 U.S. at 110

n.11. The mere fact that some named plaintiffs remain three years into

this litigation, then, does not defeat the exception.

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federal injunctions improper “when the moving party has

an adequate remedy at law and will not suffer irreparable

injury.” Id. at 43–44. But “an even more vital

consideration” prompting abstention was “the notion of

‘comity,’ that is, a proper respect for state functions” and

a corresponding recognition that our Nation “will fare

best if the States and their institutions are left free to

perform their separate functions in their separate ways.”

Id. at 44. In the years following Younger, the Court has

extended the doctrine to certain civil proceedings where

federal interference is “likely to be every bit as great as”

in criminal ones. Huffman v. Pursue, Ltd., 420 U.S. 592,

604 (1975). At the same time, the Court stayed resolute

that “[a]bstention is not in order simply because a pending

state-court proceeding involves the same subject matter.”

Sprint, 571 U.S. at 72. “Congress, and not the Judiciary,

defines the scope of federal jurisdiction within the

constitutionally permissible bounds.” New Orleans Pub.

Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359

(1989) (NOPSI). And federal courts have “no more right

to decline the exercise of jurisdiction which is given, than

to usurp that which is not given.” Cohens v. Virginia, 19

U.S. 264, 404 (1821).

West Virginia and the district court both view this case

as falling on the abstention side of the scale because state

circuit courts “retain[ ] exclusive jurisdiction over the

setting in which the child is placed and over any

subsequent requests for modification to that placement”

through the individual periodic hearings. Resp. Br. 25

(cleaned up) (citations omitted). Any federal relief, they

alert, would interfere with those hearings and, worse,

would demand near-constant supervision of state courts.

18a

Reviewing de novo, see VonRosenberg v. Lawrence,

781 F.3d 731, 734 (4th Cir. 2015), we cannot agree.3

Whether we look to their form or their function, the

quarterly state-court hearings are simply not “of the sort

entitled to Younger treatment.” Sprint, 571 U.S. at 79

(cleaned up) (citation omitted). They do not fit any

historical precedent applying the doctrine. And abstaining

here would forward none of the comity interests our

federalist system holds dear. But more than that, we see

no reason to dismiss the case en masse before the district

court has even had the opportunity to sketch out potential

contours of relief. If Plaintiffs succeed on the merits, the

court can draw careful lines so as not to interfere with

individual state-court decisions. But for now, we reverse.

In Younger’s formative years, the Court entertained a

variety of arguments about when federal courts should

abstain, probing the bounds of the doctrine and the

wisdom of discarding the jurisdiction Congress

prescribed. It considered the type of state proceeding and

the magnitude of state interest and sifted through

functional arguments like whether plaintiffs had a genuine

Both parties suggest we review the district court’s decision for

abuse of discretion. But Plaintiffs do not challenge the court’s exercise

of discretion, they argue this case does not “satisf[y] the basic

requirements of abstention.” E.g., VonRosenberg, 781 F.3d at 734.

That is to say, Plaintiffs question whether the district court had

authority to abstain—a legal inquiry courts always conduct “de novo.”

Cedar Shake & Shingle Bureau v. City of Los Angeles, 997 F.2d 620,

622 (9th Cir. 1993); see also Rio Grande Cmty. Health Ctr., Inc. v.

Rullan, 397 F.3d 56, 68 (1st Cir. 2005) (explaining that the court’s

“review of whether [Younger conditions] have been met is de novo”);

see generally Sprint, 571 U.S. 584 (applying Younger without

deference to the courts below).

19a

opportunity to raise the same claims before the state

court—all with an eye toward understanding precisely

when a federal disposition would “unduly interfere with

the legitimate activities of the States.” Younger, 401 U.S.

at 44.

Cases like Huffman, Juidice, and Middlesex,

exemplify this early era. In Huffman, the Court debated

whether to extend Younger past the criminal context to

civil matters “in aid of and closely related to criminal

statutes” such as a civil enforcement proceeding to abate

the showing of obscene movies. 420 U.S. at 604. The

Court’s majority found abstention appropriate because

federal injunctions in such quasi-criminal cases would

disrupt “the very interests which underlie [state] criminal

laws.” Id. at 605. Building on those deliberations, Juidice

v. Vail then applied Younger’s principles to federal

challenges of state contempt orders because the contempt

process is how the State “vindicates the regular operation

of its judicial system”—another critical state interest. 430

U.S. 327, 335– 36 (1977). In Middlesex, too, the Court

found the State retained an “extremely important interest

in maintaining and assuring the professional conduct of

the attorneys it licenses” and, perhaps even more

importantly, that the federal plaintiff could easily have

“raise[d] his federal constitutional challenge” “in the state

disciplinary proceedings” but chose not to. 457 U.S. at

434–35. Fundamental “principles of comity and

federalism” thus called out for abstention. Id. at 436; see

also Moore, 442 U.S. at 423; Trainor v. Hernandez, 431

U.S. 434, 444 (1977); Pennzoil Co. v. Texaco, Inc., 481 U.S.

1, 10–16 (1987) (all working through similar

considerations).

But by 2013, the lay of the land had been established.

Having surveyed dozens of cases, the Court could now

20a

map out Younger’s heartland: “criminal prosecutions,”

“civil enforcement proceedings,” and “civil proceedings

involving certain orders uniquely in furtherance of the

state courts’ ability to perform their judicial functions.”

Sprint, 571 U.S. at 78 (cleaned up) (citations omitted).

Unanimously, the Court held those three categories

“define Younger’s scope,” for capping abstention to those

“exceptional circumstances” appropriately harmonized

the comity interest Younger originally espoused with the

federal courts’ “obligation” to adjudicate federal

questions. Id. at 77–78 (citation omitted).4

Sprint thus recast the earlier cases. Rather than

establish anew in each case whether federal proceedings

threaten important state interests or may interfere with

state proceedings or whether litigants could have easily

raised their federal claims in those state proceedings—the

so-called Middlesex factors—Sprint directs courts to a

rule of thumb: if the case falls into one of the three settled

categories, courts should go on to determine if federal

involvement will in fact put comity at risk, but if the case

does not, courts need go no further, they can properly

entertain their federal-question jurisdiction without

worrying about stepping on state toes. See id. at 81

(describing the early Younger jurisprudence as providing

“additional factors” courts consider); Oglala Sioux Tribe

v. Fleming, 904 F.3d 603, 610 (8th Cir. 2018) (announcing,

after Sprint, that Younger “counsels federal-court

abstention when there is a pending state proceeding of a

certain type” and assessing whether “South Dakota’s

Sprint itself concerned a lawsuit over a local telecommunications

carrier’s authority to charge for calls made via the Internet under the

1996 Telecommunications Act. See 571 U.S. at 73–74. Holding up the

suit against the categories it had just identified, the Court found it did

not fit them and reversed the lower courts’ decision to abstain. Id. at

79–81.

21a

temporary custody proceedings are civil enforcement

proceedings to which Younger principles apply” (citation

omitted)).

Applying this heuristic here, we conclude the quarterly

state hearings do not require the district court to stand

aside. West Virginia concedes the hearings are not

criminal trials, but argues they are close enough so that

we can shelve them alongside other civil enforcement

proceedings. Sprint has characterized civil enforcement

proceedings as cases “brought by the State in its

sovereign capacity” following an “investigation” and upon

“the filing of a formal complaint or charges.” 571 U.S. at

79–80 (citations omitted). And West Virginia suggests that

describes this case because children do not enter foster

care unless courts find their parents abusive or neglectful

or find the children themselves delinquent— either way, a

process that requires investigation and a formal complaint

by the State. As proof, the State points to Moore, which

declined to hear a constitutional challenge to several

Texas Family Code provisions undergirding the state

court’s decision to strip parents of custody. See 442 U.S. at

418–19.

We easily reject this comparison as to the children who

have suffered abuse and neglect. Moore concerned the

other side of the foster-care process: parental rights. No

surprise, then, that the Court equated the initial childremoval proceeding with the publicnuisance adjudication

in Huffman. Id. at 423; see also Sprint, 571 U.S. at 79

(explaining that “decisions applying Younger to instances

of civil enforcement have generally concerned state

proceedings” “initiated to sanction the federal plaintiff,

i.e., the party challenging the state action, for some

wrongful act”). By contrast, the ongoing individual

hearings here serve to protect the children who would be

22a

plaintiffs in federal court. That is why they proceed in a

“conciliatory” manner, engaging, in addition to State

representatives, “parents, relatives, foster parents,

shelter care facility personnel and others.” Tinsley v.

McKay, 156 F. Supp. 3d 1024, 1034 (D. Ariz. 2015)

(discussing analogous foster-care hearings); see W. Va.

Code Ann. § 49-4-110 (mandating participation of “the

multidisciplinary treatment team”). It would turn decades

of Supreme-Court jurisprudence—and logic—on its head

to put these foster children in the shoes of the abusive

parents in Moore, 442 U.S. at 423, the obscene-theater

director in Huffman, 420 U.S. at 604–05, or the assetconcealing fraudsters in Trainor, 431 U.S. at 444.

We also have our doubts that Moore applies to claims

involving the roughly 10% of children who arrive to state

custody through the delinquency and status-offender

proceedings, but both parties acknowledge the issue is not

properly before us: The district court declined to resolve

it because it lacked “[s]ufficient information” to determine

if any named Plaintiffs were in those 10%, which is to say,

the court could not determine if this constitutes a live issue

in the case. Jonathan R., 2021 WL 3195020, at *10 n.5. We

leave that factfinding to the district court on remand.5 We

note, however, that West Virginia treats all foster children

the same, whether they end up in foster care “as a result

of a juvenile proceeding or as a result of a child abuse and

neglect proceeding.” W. Va. Code Ann. § 49-4-110; see also

id. § 49-4-103 (no child may “be deemed a criminal by

reason of the adjudication [under this chapter], nor may

All the more so because this question closely intertwines with

class certification and may resolve itself if the district court concludes

no named Plaintiff can adequately represent children who enter the

system as part of delinquency proceedings and Plaintiffs choose to go

ahead with the Class as is rather than amend their complaint.

23a

the adjudication be deemed a conviction”). So the

operative “pending” state court proceedings likely do not

encompass the initial (settled) orders adjudicating

children into state custody. See Tinsley, 156 F. Supp. 3d

at 1033–34. And in any event, the exercise of federal

jurisdiction here would not threaten any of our comity

obligations. See infra Part III.B.

West Virginia alternatively proffers the third category,

which Sprint defined as orders “uniquely in furtherance

of the state courts’ ability to perform their judicial

functions.” 571 U.S. at 78 (citation omitted). But it still

misses the mark. As discussed, the Court first introduced

this category in Juidice, declining to review a state

contempt order so as not to intervene with a process that

“lies at the core of the administration of a State’s judicial

system” and ensures the courts’ “orders and judgments

are not rendered nugatory.” 430 U.S. at 335, 336 n.12.

Neither Sprint nor Juidice defined this category further,

and the Court has invoked it just one other time, in

Pennzoil, 481 U.S. at 12–14, to reject a federal challenge

to the constitutionality of Texas’s appeal-bond provisions.

Pennzoil, the Court explained, was like Juidice in that it

“involve[d] challenges to the processes by which the State

compels compliance with the judgments of its courts.” Id.

at 13–14. And enjoining that process would not only

“interfere with the execution of state judgments, but . . .

do so on grounds that challenge the very process by which

those judgments were obtained.” Id. at 14.

The foster-care periodic hearings, of course, are

nothing of the sort. The state court’s usual rulings during

these hearings involve approving foster-care plans,

ordering payments for medical or mental-health services,

affirming out-of-state transfers, and generally ensuring

the children’s placements continue to be in their best

24a

interest. See W. Va. Code Ann. §§ 49-4-108, 49-4-110, 494-404. Nothing about that implicates “the administration”

of West Virginia’s judiciary. Juidice, 430 U.S. at 335. To

be sure, West Virginia’s courts have the authority to hold

the Department in contempt when it fails to abide those

rulings. But this lawsuit does not challenge that

authority—it does not challenge any state-court order at

all. It asks instead to enjoin the Department’s actions.6

And settled jurisprudence teaches Younger does not

“require[ ] abstention in deference to a state judicial

proceeding reviewing legislative or executive action.”

NOPSI, 491 U.S. at 368; accord Rio Grande Cmty. Health

Ctr., Inc. v. Rullan, 397 F.3d 56, 70 (1st Cir. 2005) (holding

abstention improper where the state and federal lawsuits

challenged “the Secretary of Health’s failure to implement

a [payment system], as federal law requires”).

Determined, West Virginia insists the “90-day status

hearings further ‘the state courts’ ability to perform their

judicial function’ of overseeing compliance with their

initial orders in the abuse-and-neglect case”—that is, the

Plaintiffs’ proposed relief includes requests to “[r]equire DHHR

[to] ensure” that children are “placed in the least-restrictive, mostfamily like settings possible” or that children belonging to the ADA

Subclass “receive foster care services in the most integrated setting

appropriate to the child’s needs.” J.A. 177–78. We take Plaintiffs at

their word, as requesting the district court to direct such relief at the

Department only. The Department, for example, may need to

increase the number of less-restrictive placements available or train

existing caregivers to provide care for children with disabilities, as the

district court sees fit. But such relief would not impact the

determinations of state circuit courts with respect to any particular

children, except to the extent that the state court may have more

family-like placements to choose from if the Department changes its

policies. See W. Va. Code Ann. § 49-4-404 (“the court shall review the

proposed service plan to determine if implementation of the plan is in

the child’s best interests” (emphasis added)).

25a

original dispositions regarding children’s placements.

Resp. Br. 33–34. Note the general tenor of this argument.

West Virginia points to no specific pending contempt

orders this suit would undermine; it argues only that

federal jurisdiction here would undermine the state

courts’ “ability” to issue them. But if that sufficed to cram

state-court proceedings into Younger’s third category, we

would be hard pressed to find an order that would not do.

Certainly, the same rationale would apply to any partial

summary judgment. Or even a mine-run discovery

dispute. A party resisting federal litigation would always

be able to claim that future state orders might be

necessary to “oversee[ ] compliance” with initial ones and

that any parallel federal litigation might inhibit state

authority to do so. Fortunately, we do not run our judicial

system on maybes and what-ifs. We presume court orders

will be obeyed. And only in the rare cases they are not—

where a State’s power to ensure “compliance with the

judgments of its courts,” Pennzoil, 481 U.S. at 13–14, or

“vindicate[ ] the regular operation of its judicial system,”

Juidice, 430 U.S. at 335, is in jeopardy—do we abstain.

That explains why, in Younger’s entire history, the Court

has invoked this category just twice.

At day’s end, siding with West Virginia, at least when

it comes to the 90% of children who enter foster care

through the abuse-and-neglect process, would mean

expanding the bounds of either the civil-enforcement or

the judicial-process categories— exactly what Sprint said

we may not do. The district court was wrong to abstain.

West Virginia falls back on five out-of-circuit cases that

have abstained from foster-care challenges, urging us to

26a

avoid a split. But those concerns are misplaced. Oglala,

904 F.3d at 606, fit neatly into the quasi-criminal category:

It was brought by parents whose children were taken into

state custody and challenged in federal court the very

decision to take them away. Quite reasonably, the Eighth

Circuit saw “no meaningful distinction between the

custody proceedings in Moore” and the case before it. Id.

at 610. And the other cases, 31 Foster Child., 329 F.3d at

1274–82, J.B., 186 F.3d at 1291–92, Joseph A. ex rel.

Corrine Wolfe v. Ingram, 275 F.3d 1253, 1268–69 (10th

Cir. 2002), and Ashley W. v. Holcomb, 34 F.4th 588, 591–

94 (7th Cir. 2022), relied on the Middlesex factors alone,

without determining whether the state periodic hearings

were the type of proceedings Younger has traditionally

applied to.7

After Sprint, we believe it is enough that the quarterly

foster-care hearings lie outside the three “exceptional

categories” the Court identified—Younger abstention is

“the exception, not the rule.” 571 U.S. at 79, 82 (quoting

Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).

But we would decline to abstain just the same even if we

looked beyond that categorical analysis. Federal orders

31 Foster Child., J.B., and Joseph A. were all decided before

Sprint, understandably delving straight into the Middlesex factors.

Ashley, decided this very term, summarily concluded Moore applies

to all “state-initiated child-welfare litigation.” 34 F.4th at 591– 92

(citing Brunken v. Lance, 807 F.2d 1325 (7th Cir. 1986); Milchtein v.

Chisholm, 880 F.3d 895 (7th Cir. 2018)). We are not persuaded, for the

reasons already discussed, and the Seventh Circuit evinces no

authority for such a sweeping proposition. Quite the contrary, both

cases Ashley cites follow directly from Moore, with parents seeking to

overturn a State’s adverse custody determination in federal court. See

Brunken, 807 F.2d at 1330 (stressing “the context of the instant

case—a hearing to determine the custody of a child”); Milchtein, 880

F.3d at 899 (abstaining from “the sort of arguments the Milchteins

seek to present”).

27a

going to the Department simply do not interfere with how

the courts conduct individual periodic hearings

(Middlesex factor I). And on the flip side, the individual

periodic hearings do not afford an adequate opportunity

for Plaintiffs to press their systemic claims (factor III). So

abstention is not warranted even assuming West Virginia

has a particular state interest in the administration of its

foster system (factor II)—an assumption that may not be

altogether warranted in light of the substantial federal

foster-care funds West Virginia accepts.

Younger’s main concern has always been whether

federal jurisdiction will “unduly interfere” with pending

state proceedings. Younger, 401 U.S. at 44. Most plaintiffs

run afoul of Younger by asking federal courts to void the

basis for an unfavorable state decision—usually, a statute

that allowed the suit against them in the state court.

Huffman provides a prototypical example. Recall that the

case concerned a state judgment closing an adult theater

for playing obscene movies in violation of an Ohio nuisance

statute. 420 U.S. at 596–98. “Rather than appealing that

judgment within the Ohio court system,” the theater

owner filed suit in the district court alleging the nuisance

statute “constitute[d] an overly broad prior restraint on

First Amendment rights.” Id. at 598–99. The district court

agreed, permanently enjoining a “portion of the state

court’s judgment.” Id. at 599. Plaintiffs took a similar tack

in Trainor, where a state court allowed the Illinois

Department of Public Aid to freeze their assets upon

allegations of fraudulent concealment. 431 U.S. at 435–36.

They “never filed an answer either to the [writ of]

attachment or to the underlying complaint,” instead

asking a district court to declare unconstitutional the

28a

statute supplying the basis for the writ. Id. at 437. The

district court “ordered the clerk of the court and the

Sheriff” to return the property. Id. at 439; see also Moore,

442 U.S. at 422– 23 (faulting the district court for granting

“a temporary restraining order addressed to the

Montgomery County Juvenile Court” as well as “a

preliminary injunction enjoining the Department and

other defendants from filing or prosecuting any state

suit”).

It is easy to see how federal adjudication in such cases

directly interferes with the pending state proceeding. In

the best case, the State confronts “a choice of engaging in

duplicative litigation, thereby risking a temporary federal

injunction, or of interrupting its enforcement proceedings

pending decision of the federal court at some unknown

time in the future.” Trainor, 431 U.S. at 445. In the worst,

federal courts abruptly and “permanently” end

“legitimate activities of the States.” Huffman, 420 U.S. at

599, 601 (citation omitted).

West Virginia’s foster-care proceedings differ in both

form and function. Plaintiffs do not suggest they were

harmed in any way by the state-court hearings. They

acknowledge the state courts are doing everything in their

power to create a safe foster-care environment and

instead find fault in the Department’s failure to give the

courts enough to work with: enough in-state institutional

placements, enough foster homes, enough case workers to

file the plans on time. None of this is to ignore the role

West Virginia’s courts play in the administration of foster

care—the State has set up a “coordinated” child welfare

system for a reason, see W. Va. Code Ann. § 49-1-401(a)(1).

But it is to recognize the Department and the courts

“both” have their own statutory obligations in

administering care. State ex rel. S.C. v. Chafin, 444 S.E.2d

29a

62, 70 (W. Va. 1994). While the courts must approve the

case plan, the Department must “develop” it. W. Va. Code

Ann. § 49-4-408(a). While the courts must finally accept

medical and social services, the Department must

“establish” them. Id. §§ 49-2-101; 49-4-408(с). While the

courts must confirm placements, the Department must

“visit,” “inspect,” and “certif[y]” each foster home and

actually “place[ ]” children for adoption. Id. §§ 49-2-106;

49-2-107, 49-4-608(b). And so on.

Unlike the plaintiffs in Huffman, or Trainor, or Moore,

then, Plaintiffs here do not seek to pause—much less to

end—any state proceedings. They ask the district court to

bring the inner workings of the executive branch in

compliance with federal law. So the state quarterly

hearings will proceed as they always have, albeit with

more placement and services options if Plaintiffs succeed.

Nor will this lawsuit “stop the state court from proceeding

independently against” the Department if it, too, finds the

Department’s practices deficient. Rio Grande, 397 F.3d at

71. It is true, of course, that the district court might find a

violation where the state court would not. But “[n]ormal

res judicata effects of federal actions” do not “trigger

Younger.” Id. (discussing NOPSI, 491 U.S. at 373).

Otherwise, the Younger doctrine would overrun the usual

rule that “the pendency of an action in a state court is no

bar to proceedings concerning the same matter in the

Federal court having jurisdiction.” Sprint, 571 U.S. at 73

(cleaned up) (quoting Colo. River Water Conservation

Dist. v. United States, 424 U.S. 800, 817 (1976)). But

nothing here risks the kind of interference Younger seeks

to forestall: an interruption, an injunction, an end to the

pending state proceedings.

Even so, West Virginia protests, the federal relief

Plaintiffs seek—particularly the appointment of the

30a

monitor—will occasion “an ongoing federal audit of” the

state periodic hearings, à la O’Shea v. Littleton, 414 U.S.

488 (1974). See Resp. Br. 49. But O’Shea does not resemble

this case in any way that matters. There, plaintiffs

complained that various judicial and prosecutorial officials

colluded to curtail their civil rights, and the only two

defendants before the Supreme Court were a magistrate

and a county circuit judge. 414 U.S. at 500. So right from

the start we observe that any relief in O’Shea would

necessarily run against the courts. But even setting that

difference aside, what troubled the Court most in O’Shea

was “how compliance might be enforced if the

beneficiaries of the injunction were to charge that it had

been disobeyed.” Id. at 501. Plaintiffs complained that

officials set bond in criminal cases without regard to the

facts of individual cases and as punishment and that state

courts imposed higher sentences on African American

citizens. Id. at 492. And the only way the Court believed it

could change those practices was by “controlling or

preventing the occurrence of specific events that might

take place in the course of future state criminal trials”—

which would require both an “interruption of state

proceedings” and “an ongoing federal audit of” them. Id.

at 500. None of that is true here. The district court can

offer meaningful relief solely by monitoring executive

action.

This case instead resembles Gerstein, which

challenged Florida’s practice of detaining defendants

before trial on a prosecutor’s information alone, without

judicial determination of probable cause. 420 U.S. at 105–

06. As the Court explained, any injunction in that case

would not be “addressed to a state proceeding and

therefore would not interfere with the criminal

prosecutions themselves.” Moore 442 U.S. at 431

(discussing Gerstein, 420 U.S. at 108 n.9). And so it is here.

31a

But above all, halting the litigation on this record would

be premature. Should the district court determine that

certain specific relief would overstep Younger’s bounds, it

can always reject it to secure our comity interests. See

O’Shea, 414 U.S. at 510 (Douglas, J., dissenting)

(proposing courts “cross the bridge of remedies only when

the precise contours of the problem have been established

after a trial”); Ashley, 34 F.4th at 592 (instructing lower

courts to “figure out which, if any, of [plaintiffs’ fostercare] requests should be submitted to the [state] court

under Younger and which remain for federal

adjudication”); Joseph A., 275 F.3d at 1274 (declining to

categorically abstain and remanding “so that the district

court may determine whether any of the [consent

decree’s] provisions may be enforced in light of Younger”).

West Virginia’s approach, by contrast, would deny all

foster children all resort to federal courts. Unlike criminal

defendants, whose claims are litigated and done with, and

who can then ask for postconviction review in federal

courts, see Huffman, 420 U.S. at 606–07, foster children

are always within the jurisdiction of state courts—until

they are not, because they have left foster care and their

cases have become moot. We cannot endorse such a

limitless theory of abstention. See Sprint, 571 U.S. at 72

(warning that federal courts may not abstain merely

“because a pending state-court proceeding involves the

same subject matter”).

Another practical question courts often ask is whether

plaintiffs’ federal claims “could have been raised in the

pending state proceedings,” for denying state courts an

opportunity to adjudicate federal questions is simply

another way of questioning the courts’ competency to

32a

resolve them. Moore, 442 U.S. at 425, 430. West Virginia

takes that question literally, requiring abstention anytime

“state procedures” allow plaintiffs to bring the claim and

allow state courts to enter appropriate relief. Resp. Br. 42.

And because “West Virginia’s circuit courts have general

jurisdiction” as well as “authority to issue injunctive

relief,” the State concludes Plaintiffs had an “adequate

opportunity” to raise their federal claims before state

courts. Id. (quoting Jonathan R., 2021 WL 3195020, at

*13).

We think that reads Moore right out of its context. As

explained, the federal plaintiffs there wished a singular

outcome: to avert an unfavorable custody ruling in the

Texas courts. And yet, instead of answering Texas’s

charge in the state court, they filed their own suit in

federal court, asking to halt the state proceedings as

violative of the Constitution. 442 U.S. at 422. So when the

Supreme Court observed the plaintiffs faced “no

procedural barriers” in raising their constitutional

arguments in the pending state proceedings, it was

speaking of arguments that naturally presented

themselves in the course of that litigation. Id. at 430. The

state court easily could have decided the statute’s validity

first and, if the statute passed muster, gone on to apply it

in the plaintiffs’ case—all in the same proceeding. Id. at

431. What is more, no injunction was “necessary to obtain

the release of the children, for they had already been

placed in the custody of their parents,” meaning the Texas

court had adequate time to mull over the constitutional

issues. Id.

But here, the individual periodic hearings zero in on the

immediate circumstances in front of the court: is the foster

home safe? Have the medical expenses been paid? Is the

child being taught the skills that will enable her to

33a

successfully enter adulthood? All of these the state courts

must resolve “promptly,” acting within the existing

parameters of the foster-care system. Carlita B., 408

S.E.2d at 374. After all, when no foster placements are

available, the courts must approve a residential facility;

they cannot pause to ponder the constitutionality of their

absence. By definition, then, Plaintiffs would have to raise

their constitutional and statutory claims outside the

“normal course of the pending judicial proceeding,” much

like the pretrial detainees in Gerstein, where the Court

declined to abstain. See Moore, 442 U.S. at 431

(distinguishing Gerstein, 420 U.S. at 108 n.9); accord

Huffman, 420 U.S. at 602–03 (“the relevant principles of

equity, comity, and federalism have little force in the

absence of a pending state proceeding” (cleaned up)

(citation omitted)).8

The same can be said about Pennzoil, the case the district court

invoked for the proposition that “a federal court should assume that

state procedures will afford an adequate remedy” “when a litigant has

not attempted to present his federal claims in related state-court

proceedings.” Jonathan R., 2021 WL 3195020, at *13 (quoting

Pennzoil, 481 U.S. at 15). Pennzoil was simply responding to the facts

before it. The plaintiff there “argue[d]” that “no Texas court could

have heard [its] constitutional claims within the limited time

available” for it to post the bond pending appeal. 481 U.S. at 15. But

the state court plainly “could suspend the bond requirement,”

allowing the plaintiff to challenge the bond’s constitutionality. Id. at

16 n.15 (citing Tex. R. Civ. P. 364). In light of that statutory authority,

the Court reasoned, the plaintiff would have to have demonstrated it

attempted to “secure the relief sought” in the Texas courts and was

denied. Id. at 14. Because the plaintiff had not, he could not prove

state-court inadequacy. Id. at 16 (concluding the plaintiff’s submission

“that the Texas courts were incapable of hearing its constitutional

claims [was] plainly insufficient”). But nothing in Pennzoil precludes

plaintiffs from demonstrating a state forum’s inadequacy in other

ways, as Plaintiffs have done here.

34a

West Virginia argues for a more expansive

interpretation of “pending” state-court proceedings.

Though each individual hearing focuses on the minutia of

the moment, the State reasons, the hearings are

continuing and repeating. That iterative nature makes it

so the state courts can enact large systemic changes in

between the individual hearings and then react to them in

later ones. That may be true, but even a broad take on

“pending” can only carry West Virginia so far. Even

Moore cautioned that abstention may not be appropriate

where confining plaintiffs to state courts would in practice

“den[y them] an opportunity to be heard that was theirs

in theory.” 442 U.S. at 431.

Forcing Plaintiffs to litigate their claims in the state

foster-care proceedings would amount to just such an

empty promise, for at least four reasons. But before we go

through those reasons, we must be clear on one thing:

Plaintiffs assert wide-reaching, intertwined, and

“systemic” failures that cannot be remedied through

piecemeal orders. See J.A. 79–81, 165. Reforming foster

care case-by-case would be like patching up holes in a

sinking ship by tearing off the floorboards. So when we

assess the adequacy of the state proceedings, we must

measure them against those plausible allegations. See Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (the

complaint need only “raise a right to relief above the

speculative level”); Sofer v. State of N.C. Hertford Police

Dep’t, 935 F.2d 1287, at *2 (4th Cir. 1991) (the “basis for

Younger abstention” must be “clear from the face of the

complaint”) (unpublished table decision).

Having set that ground rule, the first-order problem

presents itself: an individual foster child is unlikely to have

standing to ask for systemic changes not tied directly to

her own maltreatment. See, e.g., Brandon H.S., 629 S.E.2d

35a

at 788 (wrestling with the Department’s argument that

“extensive staffing directives [were] unrelated to” the case

immediately before the court).

And on the flip side of standing, there is mootness. As

we saw in this very case, West Virginia stands ready and

waiting to request dismissal of any plaintiff who leaves

foster care. But how is systemic reform to be achieved

under such circumstances? Without a class action to fall

back on, individual cases will be mooted out long before a

state court issues any orders, let alone before the

Department institutes appropriate changes to comply

with them. West Virginia suggests litigation could still

proceed if the court wishes to hold the Department in

contempt. But that says nothing about the opportunity

“plaintiffs” have (or do not) to raise their claims. Moore,

442 U.S. at 430 (emphasis added).

And if individual foster children can somehow master

these standing and mootness hurdles, it is far from clear

they could mount sufficient evidence to secure systemic

relief. The periodic hearings proceed under seal, see W.

Va. R. of Proc. for Child Abuse and Neglect Proc. 6(a), and

acting alone, a foster child can hardly appreciate the

universe of interrelated deficiencies that may plague the

system. Suing as a class, however, Plaintiffs can share

their insider knowledge and identify the most productive

structural changes to pursue.

Beyond these procedural difficulties lie the more

mundane, monetary concerns. Shoring up sufficient

evidence to demonstrate the need for systemic relief

requires a lot of capital—capital most foster children

neither have nor can hope to amass through litigation that

seeks only declaratory and injunctive relief. As the Court

has many times expressed, where such “individual suits”

are not “economically feasible,” “aggrieved persons may

36a

be without any effective redress unless they may employ

the class-action device” to “allocate[e the] costs among all

members of the class.” See Deposit Guar. Nat’l Bank v.

Roper, 445 U.S. 326, 338 n.9, 339 (1980).

All of this means that Plaintiffs’ only real choice is

between a federal and a state class (or some other

collective) action, not between a federal class action and

the individual periodic hearings. But the Younger doctrine

aspires to minimize interference with pending state

proceedings, not to select the most appropriate forum for

plaintiffs’ claims. Plaintiffs’ right “to choose a Federal

court where there is a choice cannot be properly denied.”

Willcox v. Consol. Gas Co., 212 U.S. 19, 40 (1909) (citations

omitted); accord LaShawn A. by Moore v. Kelly, 990 F.2d

1319, 1322–23 (D.C. Cir. 1993) (questioning “the need or

wisdom of extending Younger to all constitutional claims

that might be adjudicated in state as well as federal

courts” (citation omitted)). And indeed, the choice of

federal tribunal is not irrational here—the federal

government arguably has just as much at stake as West

Virginia, having invested significant federal sums into the

State’s foster-care system. See 42 U.S.C. §§ 671, 672

(setting out detailed eligibility criteria states must abide

to receive federal funds, like personnel standards and time

frames for case-plan submissions); M.D. v. Perry, 799 F.

Supp. 2d 712, 725 (S.D. Tex. 2011) (reasoning that a State’s

“voluntary submission to such federal oversight greatly

lessens the force of any complaints regarding

unwarranted federal intrusion on state sovereignty”).9

And because Plaintiffs challenge only executive action, their suit

also does not undercut the State’s authority to interpret its own laws.

See Moore, 442 U.S. at 429–30 (citing “the needless obstruction to the

domestic policy of the states by forestalling state action in construing

and applying its own statutes” as a leading reason for abstention

37a

Our conclusions about interference and adequacy rest

on more than theory and supposition; the cases West

Virginia itself relies on bear them out. At the outset, we

note West Virginia can only muster seven state decisions

from 1991 to the present that have purportedly ordered

the Department to change its ways. That sparsity alone

signals the difficulty of bringing structural challenges

during the periodic individual hearings—and a

concomitant lack of interference with state proceedings

when federal courts take up the task. But a closer look at

each of those cases reveals that none, in fact, comes close

to offering the kind of systemic relief Plaintiffs ask for

here.

Three of West Virginia’s cases do not contemplate

revision of any Department policies or practices at all,

adjudicating only the case-specific arguments the parties

brought before the court. See State ex rel. Aaron M. v. W.

Va. Dep’t of Health & Hum. Res., 571 S.E.2d 142, 144 (W.

Va. 2001) (directing the Department to pay for a particular

child’s mental-health treatment); In re Jonathan G., 482

S.E.2d 893, 908 (W. Va. 1996) (replacing the

Department—in just the one case—with an outside entity

because the Department refused to obey the “court’s

repeated directive to develop and follow a case plan for the

purpose of reunifying” the family), modified on other

grounds by State ex rel. C.H. v. Faircloth, 815 S.E.2d 540

(W. Va. 2018); State v. Michael M., 504 S.E.2d 177, 185 (W.

Va. 1998) (finding “an adoptive home,” rather than foster

care, to constitute “the preferred permanent out-of-home

(citation omitted)); Pennzoil, 481 U.S. at 11 (same); Trainor, 431 U.S.

at 445 (same).

38a

placement”). If anything, these cases only highlight the

state courts’ reluctance to order deep structural changes

within the Department. Jonathan G. gave the court a

perfect opening to hold the Department in contempt and

order reform, yet it did not follow through; it simply

replaced the Department with an outside organization.

And Michael M., though it determined the children’s

“best interests” required adoption, stopped short of

actually ordering the Department to do anything to

ensure that outcome. See 504 S.E.2d at 186 (directing the

Department only to “include within its report to this Court

a report on the status of all children legally free for

adoption”).

As for Carlita B., the only systemic problem the court

addressed in that case was the “long procedural delays” in

the state courts themselves. 408 S.E.2d at 375.

Correspondingly, the court limited its relief to instructing

“the Administrative Director of this Court . . . to work with

the clerks of the circuit court to develop systems to

monitor the status and progress of child neglect and abuse

cases in the courts.” Id. at 376. At no point did Carlita B.

contemplate Department changes, not even after

observing that the plaintiff-caseworker relationship

deteriorated to the point of physical confrontation and

that the State failed to meet its “obligation to consider

changing assigned workers.” Id. at 379. Instead,

“recogniz[ing] that the steady erosion of child protective

services resources has created an enormous unmet need,”

the court expressed its “hope the Legislature and [the

Department] will address this crisis.” Id. at 379–80.

That leaves Brandon H.S. and S.C., the only two cases

that took a stab at correcting the executive’s

shortcomings. Brandon H.S. ordered the Department to

fill its staffing vacancies. 629 S.E.2d at 786–87. And S.C.

39a

directed it to develop uniform procedures for preparing

case plans and reporting those plans to the circuit courts.

444 S.E.2d at 74. But even these cases do not support West

Virginia in the way it claims, for they both limit relief to

the circumstances immediately before the court. Brandon

H.S. justified its staffing orders on grounds that “the

unfilled positions played a part in the delayed assignment

of Brandon’s case to a Child Protective Services worker.”

629 S.E.2d at 789 (emphasis added). And S.C. directed a

committee to “develop a uniform reporting format” “[a]s

a result of the circumstances of S.C.’s case.” 444 S.E.2d at

74 (emphasis added). That the courts saw the need to so

limit the remedies only underscores the standing

difficulties discussed above. More important still, neither

plaintiff asked for Department reform; it was the court

that deemed it necessary after observing the problem

repeat itself over several cases—which validates our

concerns (again discussed above) over how individual

child plaintiffs are to collect sufficient evidence to justify

wide-ranging relief.10

In short, though West Virginia correctly observes that

state circuit courts have the authority to order injunctive

relief against the Department, not one case it cites has

acted upon that authority to order the kind of systemic

changes Plaintiffs seek here.

Unsurprisingly, against that backdrop, “the

overwhelming majority of cases have rejected Younger

abstention in similar lawsuits challenging foster care

West Virginia offers one other, sealed case, In re E.B., Aug 28 and

Sept. 4, 2019 Show Cause Hearing Order, No. CC-02-2019-JA-53 (W.

Va. Cir. Ct., Berkeley Cnty. Sept. 6, 2019), but it fails to persuade us

still. Like Brandon H.S. and S.C., the court in E.B. offered narrow

injunctive relieve tied to the factual circumstances of the individual

case.

40a

systems, both at the circuit and district court level.”

Perry, 799 F. Supp. 2d at 723 (collecting cases); see, e.g.,

Kelly, 990 F.2d at 1320–21; L.H. v. Jamieson, 643 F.2d

1351, 1352 (9th Cir. 1981); Tinsley, 156 F. Supp. 3d at 1041;

Dwayne B. v. Granholm, No. 06-13548, 2007 WL 1140920,

at *5–7 (E.D. Mich. Apr. 17, 2007); Kenny A. ex rel. Winn

v. Perdue, 218 F.R.D. 277, 286 (N.D. Ga. 2003); People

United for Child., Inc. v. City of New York, 108 F. Supp.

2d 275, 291 (S.D.N.Y. 2000); Charlie H. v. Whitman, 83 F.

Supp. 2d 476, 514 (D.N.J. 2000); Marisol A. by Forbes v.

Giuliani, 929 F. Supp. 662, 688–89 (S.D.N.Y. 1996).

The animating principles behind all of these cases are

rather straightforward: individual periodic hearings

cannot provide “an appropriate forum for [a] multi-faceted

class-action challenge” because they are “intended merely

to reassess periodically the disposition of the child.” Kelly,

990 F.2d at 1323. And federal reform of systemic

deficiencies in the executive branch simply does not

asperse the “competency” of state courts to conduct

periodic individual foster-care hearings or to

independently correct any structural problems state

courts themselves identify. L.H., 643 F.2d at 1354. And if

any particular request of Plaintiffs’ threatens to do so, the

district court can always decline to order it. Joseph A., 275

F.3d at 1274. Because all of these principles find sure

footing in our facts, as well, we reverse.11

As discussed, we leave it to the district court to decide the claims

of children who enter the foster system as part of the delinquency and

status-offence proceedings. But even if their claims can be made to fit

one of the Sprint categories, West Virginia will still need to persuade

the district court that federal relief would effect a greater intrusion

on those children’s periodic hearings and that those children have a

better opportunity to present systemic grievances during their

individual hearings.

41a

IV.

All that remains is West Virginia’s argument under the

Rooker-Feldman doctrine, which strips federal courts of

subject-matter jurisdiction when “state-court losers

complain[ ] of injuries caused by state-court judgments”

in district courts. Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 284 (2005). Because the district

court believed it must abstain under Younger, it never

reached Rooker-Feldman, and the “general rule” would

dictate we “not consider an issue not passed upon below.”

Singleton v. Wulff, 428 U.S. 106, 120 (1976). But even the

most generous analysis of the State’s contentions cannot

be squared with this Court or the Supreme Court’s

precedent, an analysis we would in any event conduct de

novo, see Hulsey v. Cisa, 947 F.3d 246, 249 (4th Cir. 2020).

So to avoid further procedural delays, and to settle any

lingering questions over what kind of claims pose a

Rooker-Feldman issue, we think it desirable to resolve

this issue today.

West Virginia posits Plaintiffs’ claims here are

“ ’inextricably intertwined’ with an existing state court

decision” and that Rooker-Feldman bars federal

jurisdiction in such circumstances “as long as the claim

could have been brought in the state court action.” Resp.

Br. 51 (first citing D.C. Court of Appeals v. Feldman, 460

U.S. 462, 482–84 n.16 (1983); then citing Guess v. Bd. of

Med. Exam’rs of N.C., 967 F.2d 998, 1002–03 (4th Cir.

1992)). The rub for West Virginia is that Exxon, decided

in 2005, “significantly altered this circuit’s interpretation

of the Rooker-Feldman doctrine.” Davani v. Va. Dep’t of

Transp., 434 F.3d 712, 713 (4th Cir. 2006). We no longer

ask whether a federal plaintiff “is attempting to litigate

claims he either litigated or could have litigated before the

state court.” Id. at 718. And we take “Feldman’s

42a

‘inextricably intertwined’ language” to “merely state[ ] a

conclusion,” “not create an additional legal test.” Id. at

719. That is, “if the state-court loser seeks redress in the

federal district court for the injury caused by the statecourt decision, his federal claim is, by definition,

‘inextricably intertwined’ with the state-court decision.”

Id. But where the federal complaint presents an

“independent claim,” even “one that denies a legal

conclusion that a state court has reached in a case to which

he was a party, then there is jurisdiction and state law

determines whether the defendant prevails under

principles of preclusion.” Exxon, 544 U.S. at 293 (cleaned

up) (citation omitted). This axiom, which our Court has

reiterated many times over since Exxon, entirely

forecloses West Virginia’s legal theory. See Thana v. Bd.

of License Comm’rs for Charles Cnty., 827 F.3d 314, 319–

22 (4th Cir. 2016) (observing that “since Exxon, we have

never, in a published opinion, held that a district court

lacked subject matter jurisdiction under the RookerFeldman doctrine,” an observation that remains true

today).

Indeed, we have contemplated that Exxon goes even

further, “restrict[ing] the doctrine to cases whose

procedural postures mirrored those in the Rooker and

Feldman cases themselves,” where “the losing party in

state court filed suit in federal court after the state

proceedings ended . . . seeking review and rejection of that

judgment.” Id. at 320 (quoting Exxon, 544 U.S. at 291).

Plaintiffs’ complaint plainly does not fit that mold. “First

and foremost,” Plaintiffs do not complain “of an injury

caused by a state-court judgment” but by the Department.

Hulsey, 947 F.3d at 250; see supra p. 22 n.5. But “state

administrative and executive actions are not covered by

the doctrine,” Thana, 827 F.3d at 320—even where “

‘ratified, acquiesced in, or left unpunished by’ a state-court

43a

decision,” Hulsey, 947 F.3d at 250 (quoting Hoblock v.

Albany Cnty. Bd. of Elections, 422 F.3d 77, 88 (2d Cir.

2005)). Nor is this “a case in which ‘the process for

appealing a state court judgment to the Supreme Court . .

. has been sidetracked by an action filed in district court

specifically to review that state court judgment.’ ” Id. at

251 (quoting Thana, 827 F.3d at 320). Finally, Plaintiffs’

suit does not “invite district court review and rejection of

a state-court judgment.” Id. (cleaned up) (quoting Exxon,

544 U.S. at 284). As already articulated in the Younger

context above, even if Plaintiffs succeed in reforming

Department practices, they would at most affect future

state-court decisions. But see Manning v. Caldwell for

Roanoke, 930 F.3d 264, 270 n.4 (4th Cir. 2019) (RookerFeldman had no force where “Plaintiffs d[id] not

challenge their specific interdiction orders” but “only the

Virginia scheme’s application to them in the future”);

Jones v. McBride, No. 21-6218, 2022 WL 670873, at *1 (4th

Cir. Mar. 7, 2022) (“the Rooker-Feldman doctrine applies

to state court decisions, not ongoing state court

proceedings” (footnote omitted) (citing Hulsey, 947 F.3d

at 250)).

Tellingly, West Virginia does not engage with any of

that binding precedent, aside from a superficial citation to

Hulsey. But as Exxon reminds us, the Rooker-Feldman

doctrine “merely recognizes that 28 U.S.C. § 1331 is a

grant of original jurisdiction” that “does not authorize

district courts to exercise appellate jurisdiction over statecourt judgments.” 544 U.S. at 292 (quoting Verizon Md.

Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 644 n.3

(2002)). And federal courts should not employ it to

“supersed[e] the ordinary application of preclusion law.”

Id. at 283. Nor, for that matter, should litigants be

permitted to turn it into a backdoor to comity and

abstention principles. West Virginia in essence argues

44a

Plaintiffs should have brought their constitutional

objections before the state court. But we have already

considered and rejected these same contentions under

Younger. And we staunchly decline to (re)consider them

here, dressed in Rooker-Feldman clothing.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED IN PART,

REVERSED IN PART,

AND REMANDED.

45a

RUSHING, Circuit Judge, dissenting in part, and

concurring in the judgment:

I agree with the majority’s conclusion in Part III–A

that, because this case does not “fall[] into one of the three

settled categories” specified in Sprint Communications,

Inc. v. Jacobs, 571 U.S. 69 (2013), “[t]he district court was

wrong to abstain.” Supra, at 19, 24. In Sprint, the

Supreme Court clarified that Younger abstention extends

to “three exceptional categories” of cases, “but no

further.” 571 U.S. at 79, 82. Those categories are: (1)

“ongoing state criminal prosecutions,” (2) “certain civil

enforcement proceedings,” and (3) “pending civil

proceedings involving certain orders uniquely in

furtherance of the state courts’ ability to perform their

judicial functions.” Id. at 78 (internal quotation marks and

ellipsis omitted). If a parallel state proceeding belongs to

one of these categories, the court should go on to consider

the so-called Middlesex factors in evaluating whether to

abstain. See id. at 81. But if—as here—the state

proceeding “does not fall within any of the three

exceptional categories” described in Sprint, it “therefore

does not trigger Younger abstention.” Id. at 79.

Having determined that the state proceedings here do

not belong to any of Sprint’s three categories, we “need go

no further,” as the majority aptly puts it. Supra, at 19. Yet

the majority does go further—fifteen pages further. See

supra, at 25–39. Across this span, the majority theorizes

how it would resolve this case “even if” Sprint were not

the law. Supra, at 25. I do not join this extended dictum.

Nor do I think it “prudent” to resolve mootness at this

juncture. Supra, at 11. “The parties,” as the majority

points out, “relegate[d] this issue to the backburner.”

Supra, at 11. Indeed, at oral argument, Plaintiffs stated

that, if this Court reversed on Younger grounds, they

46a

were “not sure” the mootness issue mattered because they

can supplement their complaint on remand. Oral Arg. at

14:31–15:03. The majority finds the parties’ proposed

resolution inefficient. I would follow the parties’ lead.

Indeed, because Plaintiffs can supplement the complaint

on remand to avoid mootness, any discussion of exceptions

to the mootness doctrine is unnecessary.

Nevertheless, considering the issue, the majority is

right that the “capable of repetition yet evading review”

exception is inapplicable because Plaintiffs have not

shown “‘a reasonable expectation’” that they will be

“‘subject to the same action again.’” Supra, at 12 (quoting

Spencer v. Kemna, 523 U.S. 1, 17 (1998)). It errs, however,

in determining that the “relation back” exception applies

because Plaintiffs’ claims are “inherently transitory.”

Supra, at 12–13 (internal quotation marks omitted).

The Supreme Court has clarified that the “‘inherently

transitory’ rationale was developed to address

circumstances in which the challenged conduct was

effectively unreviewable, because no plaintiff possessed a

personal stake in the suit long enough for litigation to run

its course.” Genesis Healthcare Corp. v. Symcyzk, 569

U.S. 66, 76 (2013). Indeed, the doctrine is available only

when the claims raised are “‘so inherently transitory that

the trial court will not have even enough time to rule on a

motion for class certification before the proposed

representative’s individual interest expires.’” Id. (quoting

Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991)).

Given that these proceedings have been pending for

nearly three years and multiple Plaintiffs remain, I cannot

say that no plaintiff will possess a personal stake in the

litigation long enough for the district court to rule on class

certification. And the complaint’s allegations regarding

the length of time Plaintiffs have resided in the foster

47a

system undermine any suggestion that the challenged

conduct is fleeting. Consequently, this case falls outside

the bounds of the “relation back” exception to mootness. I

respectfully dissent from the majority’s opinion

concluding otherwise.

48a

___________________

APPENDIX B

___________________

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

[Filed July 28, 2021]

___________________

No. 3:19-cv-00710

___________________

JONATHAN R., et al.,

Plaintiffs,

JIM JUSTICE, et al.,

Defendants.

___________________

MEMORANDUM OPINION AND ORDER

Before THOMAS E. JOHNSTON, Chief District Judge.

Pending before the Court is Defendants Jim Justice,

Bill Crouch, Jeremiah Samples, Linda Watts, and the

West Virginia Department of Health and Human

Resources’ (collectively “Defendants”) Motion to Dismiss,

(ECF No. 17); Defendants’ Motion to Dismiss the Claims

of Named Plaintiffs Chris K., Calvin K., and Carolina K.,

(ECF No. 55); Defendants’ Motion to Dismiss the Claims

of Named Plaintiff Garrett M., (ECF No. 88); Defendants’

Motion to Clarify Plaintiffs’ Proposed Class Definition and

to Dismiss Named Plaintiff Gretchen C., (ECF No. 107);

and Defendants’ Motion to Dismiss the Claims of Named

49a

Plaintiff Serena S., (ECF No. 167.) Also pending is

Plaintiffs Jonathan R., Anastasia M., Serena S., Theo S.,

Garrett M., Gretchen C., Dennis R., Chris K., Calvin K.,

Carolina K., Karter W., and Ace L.’s (collectively

“Plaintiffs”) Motion for Class Certification and

Appointment of Class Counsel, (ECF No. 130); Plaintiffs’

Motion for Extension of Time to Reply, (ECF No. 153);

Defendants’ Motion to Stay Discovery, (ECF No. 156);

Defendants’ Unopposed Motion to Exceed Page Limit,

(ECF No. 159); Defendants’ Motion for Leave to File

Under Seal, (ECF No. 161); Defendants’ Motion to

Exclude Plaintiffs’ Expert Testimony, (ECF No. 163);

Plaintiffs’ Unopposed Motion for Extension of Page Limit,

(ECF No. 166); Plaintiffs’ Motion to Exclude Defendants’

Expert Testimony, (ECF No. 180); and Defendants’

Motion for Leave to File Sur–Reply, (ECF No. 182). For

the reasons discussed more fully below, the Court

GRANTS Defendants’ Motions to Dismiss, (ECF Nos. 17,

55, 88, 107, 167).

BACKGROUND

Plaintiffs filed this proposed class action on behalf of all

children who are currently in or will be placed in the

custody of West Virginia’s foster care system. (ECF No. 1

at 6, ¶ 10.) The proposed class consists of one General

Class and three subclasses. The proposed Kinship

Subclass consists of children who are or will be placed in

kinship placements.1 (Id. at 10–11, ¶ 30(a)(i).) The

West Virginia law defines “kinship placement” as “the placement

of the child with a relative of the child, as defined herein, or a

placement of a child with a fictive kin, as defined herein.” W. Va. Code

§ 49–1–206. Further, “relative of the child” is defined as “an adult of

at least 21 years of age who is related to the child, by blood or

marriage, within at least three degrees” and “fictive kin” is defined as

“an adult of at least 21 years of age, who is not a relative of the child,

as defined herein, but who has an established, substantial relationship

50a

proposed ADA Subclass consists of children who have or

will have physical, intellectual, cognitive, or mental health

disabilities, and the proposed Aging Out Subclass consists

of children aged 14 years and older who are eligible for

transition planning but have not been provided the

necessary case management and services. (Id. at 11, ¶

(30(a)(ii–iii).)

The twelve named Plaintiffs are children in the custody

of West Virginia’s Department of Health and Human

Resources (“DHHR”). (Id. at 2, ¶ 1.) Plaintiffs allege that

West Virginia’s foster care system has operated in a state

of crisis for years and that the DHHR and the Bureau for

Children and Families (“BCF”) have failed to protect the

children in their care. (Id. ¶ 1.) Defendants, all sued in

their official capacities, are Governor Jim Justice, Cabinet

Secretary of the West Virginia DHHR Bill Crouch,

Deputy Secretary of the DHHR Jeremiah Samples,

Commissioner of the BCF Linda Watts, and the West

Virginia DHHR. Plaintiffs allege Defendants are aware of

the following systematic deficiencies within West

Virginia’s foster care system: a lack of foster care

placements; an overwhelmed system that leads to

inadequate, temporary, and overcrowded foster home

placements; an overreliance on institutional care for

children; a failure to ensure placement stability; a failure

to track foster children; a failure to employ and retain a

sufficient number of case workers; a failure to provide and

develop services; a failure to engage in permanency

planning; and a failure to properly plan for the children’s

future. (Id. at 4–6, ¶ 9.) Plaintiffs allege Defendants have

failed to address these issues, which has caused further

harm to the children in their care. (Id. at 4, ¶ 9.)

with the child, including but not limited to, teachers, coaches,

ministers, and parents, or family members of the child’s friends.” Id.

51a

Plaintiffs seek both declaratory and injunctive relief

against Defendants for these alleged systematic

deficiencies. Plaintiffs seek injunctive relief which would

require Defendants to implement the following reforms:

a. With regard to all children in the General Class:

i. Require DHHR to contract with an appropriate

outside entity to complete a needs assessment of

the state’s provision of foster care placement and

services no later than six months after judgement,

to determine the full range and number of

appropriate foster care placements and services

for all children needing foster care placement,

including the development of a plan, with

timetables, within which such placements and

services shall be secured, and ensure that DHHR

shall comply with those timetables;

ii. Require that DHHR ensure that all children

who enter foster care placement receive within 30

days of entering care a complete and thorough

evaluation of the child’s needs, performed by a

qualified individual, including whether the child

has any physical and/or mental disabilities

sufficient to be categorized as a child with

disabilities under the ADA and that the child be

re-evaluated as the child’s needs and the

information available to DHHR change;

iii. Require that DHHR ensure that all children

who enter foster care placement receive within 60

days of entering care an adequate and

individualized written case plan for treatment,

services, and supports to address the child’s

identified needs; describe a plan for reunification

with the child’s parents, for adoption, or for

52a

another

permanent,

family-like

setting;

describing any interim placements appropriate

for the child while the child moves towards a

permanent home-like setting; and describing the

steps needed to keep the child safe during the

child’s time in DHHR’s custody.

iv. Require that DHHR ensure that all children

whose case plan identifies a need for services

and/or treatment timely receive those services

and/or treatment;

v. Require that DHHR shall ensure that all

children who are placed in foster care are placed

in a safe home or facility and are adequately

monitored in accordance with federal standards;

vi. Require that DHHR shall hire, employ, and

retain an adequate number of qualified and

appropriately trained caseworkers, and ensure

that caseloads do not exceed 15 children perworker for children in placement, with caseloads

adjusted for caseworkers who carry mixed

caseloads including children not in foster care

custody; and

vii. Require DHHR to develop an adequate

statewide plan, to be approved by the Monitor

referred to below, for recruiting and retaining

foster and adoptive homes, including recruitment

goals and timetables for achieving those goals,

with which DHHR shall comply.

b. For all children in the Kinship Subclass:

i. Require DHHR to develop an adequate

statewide kinship placement plan, to be approved

by the Monitor referred to below, for assessing,

overseeing, and monitoring kinship homes,

53a

including training requirements and regular

caseworker contact, and timetables for achieving

those goals, with which DHHR shall comply;

ii. Require that DHHR shall ensure caseworkers

conduct background and safety assessments of

kinship placements as required by reasonable

professional standards;

iii. Require that DHHR shall ensure that kinship

placements receive foster parent training as

required by reasonable professional standards;

iv. Require that DHHR shall ensure that all

children in kinship placements shall receive foster

care services to meet the child’s needs, including,

in as many instances as is required by reasonable

professional standards, supportive services; and

v. Require that DHHR shall ensure all children

who are placed in kinship placement receive

permanency planning as required by reasonable

professional standards.

c. For all children in the ADA Subclass:

i. Require that DHHR shall ensure that all

children with physical, mental, intellectual, or

cognitive disabilities shall receive foster care

services in the most integrated setting

appropriate to the child’s needs, including, in as

many instances as is required by reasonable

professional standards, family foster homes with

supportive services;

ii. Require that DHHR ensure that an adequate

array of community based therapeutic services

are available to children with disabilities; and

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iii. Require that DHHR ensure that it develop an

adequate array of community-based therapeutic

foster homes and therapeutic placements to meet

the needs of children with disabilities.

d. For all children in the Aging Out Subclass:

i. Require that DHHR, when a child turns 14

years old while in its custody and is not

imminently likely to be reunified with family,

adopted, or otherwise placed in a permanent

family-like setting, shall engage in transition

planning to meet the health care, educational,

employment, housing, and other social needs of

the children in transitioning to adulthood;

ii. Require that DHHR shall ensure youth be

placed in the least restrictive, most-family like

setting possible with appropriate, necessary and

individualized services; and

iii. Prohibit DHHR from refusing to place a young

person in a foster care placement because the

child is 14 or older.

(Id. at 100–105, ¶ 405.) Plaintiffs also ask this Court to

appoint a neutral monitor to oversee implementation of

and compliance with these reforms. (Id. ¶ 406.)

A. Individual Allegations

Named Plaintiffs Chris K., Calvin K., and Carolina K.

are siblings under the age of six. (ECF No. 56 at 2.) When

the Complaint was filed, the siblings were living with

foster parents who were in the process of adopting them.

(Id.) On December 10, 2019, during the pendency of this

case, Chris, Calvin, and Carolina were adopted. (Id.)

Plaintiffs do not dispute that this fact. (ECF No. 61 at 3.)

As a result of their adoption, these children are no longer

55a

in the custody of the DHHR and are instead in the legal

custody of their adoptive parents. (ECF No. 56 at 2.)

Additionally, named Plaintiff Serena S., a twelve-yearold girl with Down Syndrome and a congenital heart

defect, was placed with a family that notified the DHHR

during the pendency of this case that they wanted to adopt

her. (ECF No. 172 at 3.) On September 3, 2020, Serena S.

was adopted and is also no longer in the custody of the

DHHR. (ECF No. 168 at 1.) This adoption also occurred

during the pendency of this case, and Plaintiffs, again, do

not dispute this fact. (ECF No. 173 at 2.)

Next, Defendants allege that named Plaintiffs Garrett

M. and Gretchen C. are also no longer in the custody of the

DHHR. Both Garrett and Gretchen were involved in

juvenile delinquency proceedings, and the circumstances

surrounding their involvement with the DHHR is slightly

different than the other Plaintiffs. West Virginia law

authorizes the DHHR to “accept children for care from

their parent or parents, guardian, custodian or relatives

and to accept the custody of children committed to its care

by courts.” W. Va. Code § 49–2–101(a). Children typically

enter DHHR custody through either abuse and neglect

petitions or in connection with juvenile delinquency

proceedings or juvenile status offense proceedings. See W.

Va. Code § 49–4–601; W. Va. Code § 49–4–701(e). West

Virginia law allows its circuit courts to place these juvenile

offenders in DHHR custody as an alternative to

placement in a Bureau of Juvenile Services (“BJS”) secure

detention facility. W. Va. Code § 49–2–901. Further, some

children may come into DHHR custody through an abuse

and neglect proceeding and may also be the subject of a

juvenile delinquency or juvenile status offense

proceeding. (ECF No. 109–1 at 4.)

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The parties dispute whether named Plaintiff Garrett

M. was in the custody of the DHHR at the time the

Complaint was filed. The parties agree that Garrett

originally came into the legal and physical custody of the

DHHR in 2013 in connection with an abuse and neglect

case. (ECF No. 97 at 3; ECF No. 98 at 4.) In March of

2018, Plaintiffs argue that the BJS filed a delinquency

petition against Garrett and that he was then undergoing

both dependency and delinquency proceedings at the

same time. (ECF No. 98 at 4.) Plaintiffs further argue that

Garrett remained in the custody of the DHHR even after

his parent’s parental rights were restored in 2018, and

that Garrett was in the custody of the DHHR when the

Complaint was filed. (Id. at 5.)

On the other hand, Defendants argue that the DHHR

was no longer Garrett’s guardian after his parental rights

were restored, which occurred well over one year before

the Complaint was filed. (ECF No. 97 at 5.) Defendants

argue Garrett was solely in the custody of the BJS at the

time the Complaint was filed and that he resided at a

juvenile detention facility as a result of a juvenile

delinquency adjudication. (ECF No. 97 at 2.) Defendants

argue that Garrett was in the custody of the BJS from

June of 2019, until his release in December of 2019. (Id. at

3.) However, the parties agree that Garrett left the

custody of the DHHR during the pendency of this case

because he turned 18 years of age. (ECF No. 97 at 3; ECF

No. 98 at 1.)

Named Plaintiff Gretchen C. was never removed from

her family as a result of abuse and neglect proceedings but

was placed in an institution solely as a result of an

adjudicated delinquency proceeding for a violent offense.

(ECF No. 109–1 at 2.) The Complaint states that Gretchen

entered foster care as a result of abuse and neglect

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proceedings, but Plaintiffs admit that the Complaint is

incorrect. (ECF No. 116 at 2.) Further, Gretchen was

released to the custody of a family member in December

of 2019 and is no longer in the custody of the DHHR or the

BJS. (ECF No. 109–1 at 14.) Plaintiffs acknowledge that

Gretchen was released from DHHR custody and is no

longer in its care. (ECF No. 116 at 9.)

On November 26, 2019, Defendants filed their first

Motion to Dismiss. (ECF No. 17.) Plaintiffs timely

responded, (ECF No. 29), and Defendants timely replied,

(ECF No. 35). Further, on January 29, 2020, the Court

granted Plaintiffs’ Motion for Leave to file Sur–Reply in

Response to Defendants’ Reply. (ECF Nos. 51, 52.) Next,

on February 7, 2020, Defendants filed their second Motion

to Dismiss. (ECF No. 55.) Plaintiffs timely responded,

(ECF No. 61), and Defendants timely replied, (ECF No.

65). On June 4, 2020, Defendants filed their third Motion

to Dismiss. (ECF No. 88.) Plaintiffs timely responded,

(ECF No. 98), and Defendants timely replied, (ECF No.

103). On July 31, 2020, Defendants filed their fourth

Motion to Dismiss. (ECF No. 107.) Plaintiffs timely

responded, (ECF No. 116), and Defendants timely replied,

(ECF No. 129). Finally, on November 19, 2020,

Defendants filed their fifth Motion to Dismiss. (ECF No.

167.) Plaintiffs timely responded, (ECF No. 172), and

Defendants timely replied, (ECF No. 219). As such, these

motions are fully briefed and ripe for adjudication.

II.

DISCUSSION

Plaintiffs’ Class Action Complaint alleges the following

five causes of action: (1) violations of substantive due

process under the United States Constitution;

(2) violations of the First, Ninth, and Fourteenth

Amendments to the United States Constitution;

(3) violations of the Adoption Assistance and Child

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Welfare Act of 1980; (4) violations of the Americans with

Disabilities Act; and (5) violations of the Rehabilitation

Act. (ECF No. 1.) Defendants argue this Court lacks

subject matter jurisdiction over Plaintiffs’ claims and

requested relief because they seek federal review and

ongoing oversight over West Virginia state court

decisions.2 (ECF No. 18 at 12.) Specifically, Defendants

argue the principles of federalism and comity require this

Court to abstain from oversight of West Virginia’s child

welfare system because its state courts have exclusive and

continuous jurisdiction over such determinations. (Id. at

11.) Additionally, Defendants challenge all five counts of

the Complaint for failure to state a claim and argue that

the federal laws upon which Plaintiffs base their claims do

not support the relief they seek. (Id.) Defendants also

allege that named Plaintiffs Chris K., Calvin K., Carolina

K., Garrett M., Gretchen C., and Serena S. are no longer

in DHHR custody, are no longer in the putative class, and

that their claims are now moot.

First, the Court must address the threshold question

of whether the six challenged Plaintiffs’ claims present a

justiciable claim or controversy. Then, it will consider

Defendants’ arguments related to abstention. Both

questions must be decided before this Court can address

the merits of Plaintiffs’ claims.

Despite Defendants’ arguments to the contrary, the Court’s

decision to abstain under the Younger abstention doctrine is not based

on a finding that it lacks subject matter jurisdiction over this case. See

Nivens v. Gilchrist, 444 F.3d 237, 247 n.7 (4th Cir. 2006). Younger

abstention “does not arise from lack of jurisdiction in the District

Court, but from strong policies counseling against the exercise of such

jurisdiction where particular kinds of state proceedings have already

been commenced.” Ohio Civil Rights Comm’n v. Dayton Christian

Sch., Inc., 477 U.S. 619, 626 (1986).

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A. Mootness

First, the Court will address Defendants’ motions to

dismiss named Plaintiffs Chris K., Calvin K., Carolina K.,

Garrett M., Gretchen C., and Serena S. (ECF Nos. 55, 88,

107, 167.) Article III of the United States Constitution

limits a federal courts’ jurisdiction to cases and

controversies. U.S. Const. art. III, § 2, cl.1. “The doctrine

of mootness originates in Article III’s ‘case’ or

‘controversy’ language.” Incumaa v. Ozmint, 507 F.3d

281, 286 (4th Cir. 2007) (quoting DaimlerChrysler Corp. v.

Cuno, 547 U.S. 332, 352 (2006)) (internal quotation marks

omitted). “Simply stated, a case is moot when the issues

presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the out-come.” Incumaa, 507 F.3d

at 286 (quoting Powell v. McCormack, 395 U.S. 486, 496

(1969)). Further, “even if a plaintiff has standing when he

or she files a complaint, subsequent events can moot the

claim.” Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013).

Thus, “[t]o remain a justiciable controversy, a suit must

remain alive throughout the course of litigation, to the

moment of final appellate disposition.” Catawba

Riverkeeper Found. v. N. Carolina Dep’t of

Transportation, 843 F.3d 583, 588 (4th Cir. 2016) (quoting

Bahnmiller v. Derwinski, 923 F.2d 1085, 1088 (4th Cir.

1991) (internal quotation marks omitted). “A case that

becomes moot at any point during the proceedings is ‘no

longer a “Case” or “Controversy” for purposes of Article

III,’ and is outside the jurisdiction of the federal courts.”

United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537

(2018) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91

(2013)).

Plaintiffs Chris K., Calvin K., Carolina K., and Serena

S. were adopted during the pendency of this litigation.

(ECF No. 56 at 2; ECF No. 61 at 3.) In addition, Plaintiff

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Garrett M. reached the age of eighteen during the

pendency of this case and is also no longer in the custody

of the DHHR. (ECF No. 97 at 3; ECF No. 98 at 1.) Finally,

Gretchen C. completed her juvenile delinquency

rehabilitation and is also no longer in the custody of the

DHHR. (ECF No. 109–1 at 14; ECF No. 116 at 9.) There

is no dispute that these six Plaintiffs are no longer in the

custody of the DHHR or in the foster care system.

Plaintiffs’ Complaint seeks injunctive and declaratory

relief against Defendants to prevent future harm to the

children in their custody due to an alleged deficient child

welfare system. Because these Plaintiffs have all left

Defendants’ legal or physical custody, they can neither be

further harmed by Defendants alleged illegal practices

nor do they have a current claim for injunctive relief

against Defendants arising from the operation of its child

welfare system. With regard to these six Plaintiffs, they

now “lack a legally cognizable interest in the out-come” of

this case and no live controversy exists between the

parties. Incumaa, 507 F.3d at 286. Courts considering

similar system wide challenges to a state’s foster care

system have held the same. See, e.g., 31 Foster Children v.

Bush, 329 F.3d 1255, 1263 (11th Cir. 2003) (dismissing

adopted plaintiffs’ claims as moot because “they are no

longer in the defendants’ legal or physical custody and

therefore cannot be further harmed by the defendants’

alleged illegal practices”); J.B. ex rel. Hart v. Valdez, 186

F.3d 1280, 1290 (10th Cir. 1999) (dismissing plaintiffs

“because they have reached the age of majority or

otherwise fallen outside of state custody and their claims

are now moot”); Carson P. ex rel. Foreman v. Heineman,

240 F.R.D. 456, 510–11 (D. Neb. 2007) (dismissing

plaintiffs’ claims as moot because they aged out of the

foster care system). Accordingly, Plaintiffs Chris K.,

Calvin K., Carolina K., Garrett M., Gretchen C., and

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Serena S. have no legally cognizable interest in the

outcome of this litigation and their claims are moot.

a. Wrongs Capable of Repetition Yet Evading

Review

Plaintiffs argue that the claims brought by all six of

these Plaintiffs fall within the “exception to the mootness

doctrine for a controversy that is capable of repetition, yet

evading review.”3 Kingdomware Technologies, Inc. v.

United States, 136 S. Ct. 1969, 1976 (2016) (internal

quotation marks omitted). This doctrine has been applied

where “the apparent absence of a live dispute is merely a

temporary abeyance of a harm that is capable of

repetition, yet evading review.” Brooks v. Vassar, 462

F.3d 341, 348 (4th Cir. 2006) (internal quotations omitted).

“A dispute qualifies for that exception only if (1) the

Plaintiffs’ briefing demonstrates a lack of understanding between

the very different standards for the “capable of repetition yet evading

review” and “voluntary cessation” mootness exceptions. Plaintiffs rely

on a quote from Am. Civil Liberties Union of Massachusetts v.

Sebelius, 821 F. Supp. 2d 474, 481 (D. Mass. 2012), a decision vacated

by the First Circuit Court of Appeals, to argue that Defendants bear

a heavy burden here. (ECF No. 61 at 5.) Plaintiffs further argue that

it is “predictable” that children will be discharged from the foster care

system over the course of this litigation because Defendants control

this process and it is in Defendants’ “best interest to pick off named

plaintiffs with the goal of dismissing the entire case as moot.” (Id. at

7.) In this regard, Plaintiffs’ argument invokes the voluntary cessation

exception. In these types of cases, a defendant voluntarily ceases the

alleged improper behavior but is free to return to it at any time. See,

e.g., United States v. W.T. Grant Co., 345 U.S. 629 (1953). Here,

Plaintiffs’ insinuation that Defendants are removing children from

their care simply to get this case dismissed is absurd and contrary to

the undisputed facts. The Plaintiffs’ adoption date, birth date, and

completion date for rehabilitation were well known before this case

was filed and are beyond the manipulation of Defendants.

Accordingly, Plaintiffs’ voluntary cessation exception arguments are

easily rejected.

62a

challenged action is in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there

is a reasonable expectation that the same complaining

party will be subjected to the same action again.”

Sanchez–Gomez, 138 S. Ct. at 1540 (internal quotations

omitted). The second prong of this test requires “a

reasonable expectation or a demonstrated probability that

the same controversy will recur involving the same

complaining party.” Fed. Election Comm’n v. Wisconsin

Right To Life, Inc., 551 U.S. 449, 463 (2007) (internal

quotations omitted). Supreme Court precedent holds that

“the same controversy [is] sufficiently likely to recur when

a party has a reasonable expectation that it ‘will again be

subjected to the alleged illegality,’ or ‘will be subject to the

threat of prosecution’ under the challenged law.’” Id.

(internal citations omitted). Finally, this exception applies

“only in exceptional situations.” Kingdomware, 136 S.Ct.

at 1976.

The parties dispute both prongs of this test. First,

Plaintiffs argue “that foster care is intended to be a short–

term, temporary stay for children.” (ECF No. 61 at 7.)

However, as Defendants argue, this argument is in direct

conflict with Plaintiffs’ continuing arguments that

children in West Virginia’s foster care system “languish”

for years. (ECF No. 1 at 79, ¶ 328; ECF No. 29 at 1.)

Further, the allegations contained within the Complaint

itself contradict Plaintiffs’ argument. For example,

Plaintiffs allege that named Plaintiff Johnathan R. has

spent the last seven years in institutional care and

describes alleged failures in his case that go back to 2013.

(ECF No. 1 at 16 ¶¶ 42, 45.) Next, Plaintiffs allege that

Gretchen C. has been in the custody of the DHHR since

April of 2015, which means she was in custody for over

four years before she was placed in the custody of her

grandmother. (Id. at 32, ¶ 121.) Plaintiffs also allege that

63a

named Plaintiff Dennis C. has been in DHHR custody for

over five years, (ECF No. 1 at 35, ¶ 137), that named

Plaintiffs Karter W. and Ace L. have both been in DHHR

custody since 2016, (Id. at 41, 45 ¶ 164, 183), and that

Garrett M. has been in custody since 2012, (Id. at 27, ¶

102.) In fact, the majority of the named Plaintiffs have

been in DHHR custody for significant periods of time

which undermines Plaintiffs’ argument that the children’s

time in DHHR custody is too short to allow this action to

be fully litigated.

Next, Plaintiffs argue that Chris K., Calvin K.,

Carolina K., Serena S., and Gretchen C. all face “some

likelihood of reentering the West Virginia foster care

system in the future.” (See, e.g., ECF No. 61 at 6.) Again,

this argument is contradicted by the facts of this case.

Chris K., Calvin K., and Carolina K were legally adopted

on December 10, 2019, Serena S. was legally adopted on

September 3, 2020, and Gretchen C. was placed in the

custody of her grandmother in December of 2019. None of

these Plaintiffs returned to the custody of the DHHR or

the BJS, which does not support a conclusion that there is

a “reasonable expectation” that these six Plaintiffs “will be

subjected to the same action again.” Plaintiffs have

presented no other evidence to allow this Court to

conclude that there is “a reasonable expectation or a

demonstrated probability” that these children will return

to West Virginia’s foster care system and be subject to

harm.

Finally, Garrett M. has reached the age of majority and

is not now and can never again be in the custody of the

DHHR or involved in West Virginia’s foster care system.

Garrett M. has neither a current nor future claim for relief

against Defendants arising from its deficient child welfare

system. Thus, there is no “reasonable expectation” that he

64a

will again be subjected to the actions that lead to this

Complaint. Accordingly, Plaintiffs have failed to carry

their burden and have not presented evidence to allow this

Court to conclude that these six Plaintiffs’ claims fit within

the definition of claims that are capable of repetition, yet

evading review.

b. Class Action Context

Next, Plaintiffs argue that these six Plaintiffs’ claims

are “inherently transitory” and that this Court should still

retain jurisdiction over these claims and allow these

Plaintiffs to assert claims on behalf of the putative class

members. (See, e.g., ECF No. 172 at 8.) Generally, in the

class action context, a named plaintiff’s claims must be

dismissed if the claim becomes moot prior to the

certification of the class. See, e.g., Sanchez-Gomez, 138 S.

Ct. 1532, 1538 (2018) (“Normally a class action would be

moot if no named class representative with an unexpired

claim remained at the time of class certification.”).

However, the United States Supreme Court has carved

out an exception to this mootness doctrine in particular

types of class actions and has held that the mootness of a

named plaintiff’s claim after the class action has been

properly certified does not render the action moot. See

Sosna v. Iowa, 419 U.S. 393 (1975). The Supreme Court

has made clear that it has “never adopted a flat rule” that

certification of the class alone is sufficient to allow a court

to determine the merits of a case once the claims of the

named parties are moot. Kremens v. Bartley, 431 U.S. 119,

130 (1977). This exception is not applicable here because

this Court has not yet considered Plaintiffs’ pending

motion for class certification and no class currently exists.

Plaintiffs’ argument here relies on a separate but

related line of cases established in actions like here, where

65a

the claims of named plaintiffs are mooted prior to the

certification. In Sosna, the Supreme Court

suggested that, where a named plaintiff’s individual

claim becomes moot before the district court has an

opportunity to rule on the certification motion, and

the issue would otherwise evade review, the

certification might “relate back” to the filing of the

complaint. The Court has since held that the

relation-back doctrine may apply in Rule 23 cases

where it is “certain that other persons similarly

situated” will continue to be subject to the

challenged conduct and the claims raised are “‘so

inherently transitory that the trial court will not

have even enough time to rule on a motion for class

certification before the proposed representative’s

individual interest expires.’”

Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75–76

(2013). “The ‘inherently transitory’ rationale was

developed to address circumstances in which the

challenged conduct was effectively unreviewable, because

no plaintiff possessed a personal stake in the suit long

enough for litigation to run its course.” Genesis

Healthcare Corp., 569 U.S. at 76.

As discussed above in relation to Plaintiffs’ “capable of

repetition yet evading review” argument, Plaintiffs have

failed to show that these children have been moved so

quickly in and out of DHHR custody that their claims are

effectively unreviewable. In fact, the facts alleged in the

Complaint are likewise contrary to Plaintiffs’ arguments

here. Further, unlike in the majority of cases that apply

this narrow exception, the dismissal of these six named

Plaintiffs is not a dispositive determination and this action

is not being dismissed because of this determination. In

fact, six other named Plaintiffs remain and Plaintiffs have

66a

not argued that dismissal of Chris K., Calvin K., Carolina

K., Garrett M., Gretchen C., and Serena S. would moot any

of their claims. Thus, this exception is inapplicable here.

Accordingly, Plaintiffs Chris K., Calvin K., Carolina K.,

Garrett M., Gretchen C., and Serena S. have no legally

cognizable interest in the outcome of this litigation, and

they are DISMISSED as parties to this action.

B. Younger Abstention

Next, Defendants argue that abstention is appropriate

under Younger v. Harris, 401 U.S. 37 (1971). The Supreme

Court has stated that federal courts have a “virtually

unflagging obligation . . . to exercise the jurisdiction given

them.” Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800, 817 (1976). Quite simply,

“federal courts lack the authority to abstain from the

exercise of jurisdiction that has been conferred.” New

Orleans Pub. Serv., Inc. v. Council of City of New Orleans,

491 U.S. 350, 358 (1989). There are, however,

circumstances under which a federal court must withhold

relief to prevent interference with state court

proceedings. Id. at 359. The Supreme Court has cautioned

that these exceptions are “carefully defined” and “remain

the exception, not the rule.” Id. (internal quotations

omitted) (citing Hawaii Housing Authority v. Midkiff,

467 U.S. 229, 236 (1984)).

In Younger and its progeny, the Supreme Court has

reiterated “a strong federal policy against federal-court

interference with pending state judicial proceedings

absent extraordinary circumstances.” Middlesex Cty.

Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423,

431 (1982). The reason for restraining federal courts from

exercising jurisdiction in these types of actions is the

notion of “comity,” which includes

67a

a proper respect for state functions, a recognition of

the fact that the entire country is made up of a

Union of separate state governments, and a

continuance of the belief that the National

Government will fare best if the States and their

institutions are left free to perform their separate

functions in their separate ways.

Younger, 401 U.S. at 44. “The [Younger abstention]

doctrine recognizes that state courts are fully competent

to decide issues of federal law and has as a corollary the

idea that all state and federal claims should be presented

to the state courts.” Richmond, Fredericksburg &

Potomac R.R. Co. v. Forst, 4 F.3d 244, 251 (4th Cir. 1993).

Although Younger involved state criminal proceedings,

the Supreme Court has expanded its application to

“noncriminal judicial proceedings when important state

interests are involved.” Middlesex, 457 U.S. at 432.

“Where vital state interests are involved, a federal court

should abstain unless state law clearly bars the

interposition of the constitutional claims.” Id. (internal

quotations omitted) (quoting Moore v. Sims, 442 U.S. 415,

426 (1979)). In Middlesex, the Supreme Court articulated

the following three–part test: “first, do [these

proceedings] constitute an ongoing state judicial

proceeding; second, do the proceedings implicate

important state interests; and third, is there an adequate

opportunity in the state proceedings to raise

constitutional challenges.” Id. at 432; see also Martin

Marietta Corp. v. Maryland Comm’n on Human

Relations, 38 F.3d 1392, 1396 (4th Cir. 1994).

Younger abstention applies only to “three exceptional

categories” of cases: (1) “parallel, pending state criminal

proceeding[s]”; (2) “state civil proceedings that are akin to

criminal prosecutions”; and (3) “civil proceedings

68a

involving certain orders . . . uniquely in furtherance of the

state courts’ ability to perform their judicial functions.”

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 78 (2013).

These three categories of cases define the scope of

Younger. Id. at 82.

The ongoing state court proceeding must be “the type

of proceeding to which Younger applies.” New Orleans

Public Serv., Inc. v. Council of City of New Orleans, 491

U.S. 350, 367 (1989). Plaintiffs argue that this case does

not fit within any of these exceptional circumstances.

(ECF No. 29 at 13.) However, this argument is easily

dismissed. This case is perhaps best classified as a hybrid

of both the second and third categories of cases. Not only

does this action involve state-initiated abuse and neglect

proceedings like in Moore v. Sims, 442 U.S. 415 (1979), but

Plaintiffs are also asking this Court to issue an injunction

“aimed at controlling or preventing the occurrence of

specific events that might take place in the course of

future state” abuse and neglect proceedings, like in

O’Shea v. Littleton, 414 U.S. 488, 500 (1974).

After a petition is filed, the state of West Virginia

initiates the abuse and neglect proceeding and is a party

throughout the case. W. Va. Code § 49–4–501 (“The

prosecuting attorney shall render to the Department of

Health and Human Resources . . . the legal services as the

department may require.”). The Supreme Court has held

that the principles of Younger and Huffman v. Pursue,

Ltd., 420 U.S. 592 (1975) apply to civil proceedings where

the state is a party. Trainor v. Hernandez, 431 U.S. 434,

444 (1977). Further, in Moore v. Sims, the Texas

Department of Human Resources removed children from

their parents, who were suspected of child abuse, and the

state then initiated child abuse proceedings. 442 U.S. at

418. The parents filed suit in federal court challenging the

69a

constitutionality of Texas’ laws relating to the authority of

the Department of Human Resources to protect children.

Id. The Supreme Court held that Younger applied and

stated that Texas “was a party to the state proceedings,

and the temporary removal of a child in a child-abuse

context is, like the public nuisance statute involved in

Huffman, ‘in aid of and closely related to criminal

statutes.’” Id. at 423. The Court further held that “[t]he

existence of these conditions, or the presence of such other

vital concerns as enforcement of contempt proceedings or

the vindication of ‘important state policies such as

safeguarding the fiscal integrity of [public assistance]

programs’ determines the applicability of YoungerHuffman principles as a bar to the institution of a later

federal action.” Id.

In addition, in O’Shea, the proposed class of plaintiffs

filed a lawsuit alleging that a state municipal court system

intentionally discriminated against black citizens in

various patterns and practices in its criminal justice

system. 414 U.S. at 490. The Supreme Court ultimately

dismissed the case due to ripeness but suggested that the

principles of Younger should be applied to prevent federal

court review. Id. at 498–499. The plaintiffs sought to

challenge criminal prosecutions “brought under

seemingly valid state laws” and, in essence, sought an

order that “would contemplate interruption of state

proceedings to adjudicate assertions of noncompliance” by

the defendants.” Id. at 500. The Court held that such a

system seemed to be “nothing less than an ongoing federal

audit of state criminal proceedings which would indirectly

accomplish the kind of interference that Younger v.

Harris, supra, and related cases sought to prevent.” Id.

Thus, the proposed relief contemplated in O’Shea appears

quite similar to Plaintiffs’ request here. Further, other

courts have similarly held that Younger applies to system–

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wide challenges to a state’s foster care system. See, e.g., 31

Foster Children v. Bush, 329 F.3d 1255, 1260 (11th Cir.

2003); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th

Cir. 1999). Accordingly, Younger has been found to apply

to “exceptional categories” of cases which present factual

issues very similar to the case at hand.

a. First Middlesex Factor

This Court must first determine whether there is an

ongoing state court proceeding and whether Plaintiffs’

required relief would interfere with those proceedings.

Some courts have required an additional finding be made

before the three–part test established in Middlesex can be

applied.4 Specifically, these courts require a

determination that the federal relief sought would

interfere directly with state court litigation. Here,

Plaintiffs have not acknowledged that the remaining

Plaintiffs, as children in the custody of West Virginia, are

currently, or were, subject to abuse and neglect

proceedings or other ongoing proceedings before West

Virginia’s Circuit Courts. However, the factual allegations

In 31 Foster Children, the Eleventh Circuit joined its “sister

circuits in explicitly stating that an essential part of the first

Middlesex factor in Younger abstention analysis is whether the

federal proceeding will interfere with an ongoing state court

proceeding.” 329 F.3d at 1276. While the Fourth Circuit has not

expressly held that the first Middlesex factor requires such

interference with the state court proceeding, it seems to have

implicitly assumed as much. See, e.g., Beam v. Tatum, 299 F. App’x

243, 246 (4th Cir. 2008) (“We consider first whether there is an

ongoing state proceeding.”); Norfolk S. Ry. Co. v. McGraw, 71 F.

App’x 967, 970 (4th Cir. 2003) (same). Further, the majority of circuits

which have considered this issue have required the same. See 31

Foster Children, 329 F.3d at 1276; Green v. City of Tucson, 255 F.3d

1086, 1097 (9th Cir. 2001) (en banc); J.B., 186 F.3d at 1291; FOCUS v.

Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir.

1996).

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contained in the Complaint allow this Court to infer as

much.5 Further, these ongoing state court abuse and

neglect proceedings involving each of the plaintiffs are

ongoing proceedings for the purposes of the Middlesex

analysis. See J.B. ex rel. Hart v. Valdez, 186 F.3d 1280,

1291 (10th Cir. 1999) (holding that continuing jurisdiction

The Court has dismissed the six named Plaintiffs who are no

longer in the custody of the DHHR. (See Section III.A.) Further,

Plaintiffs do not argue that any of the remaining named children are

not involved with West Virginia’s state courts such that decisions

about their welfare would not be subject to review by these courts.

For some named Plaintiffs, the Complaint alleges they were subject

to abuse and neglect proceedings or that their parents had their

parental rights terminated. For the others, sufficient information is

not provided, and Plaintiffs have failed to present any evidence or

arguments to the contrary.

In addition, the Court has also dismissed Gretchen C., who

appears to be the only named plaintiff who was in the custody of the

DHHR as a result of a juvenile delinquency proceeding and not an

abuse and neglect proceeding. Plaintiffs admit that the Complaint

misstates that Gretchen C. entered foster care as a result of an abuse

and neglect proceeding. (ECF No. 116 at 2.) In fact, Gretchen C. was

never removed from her family as a result of an abuse and neglect

proceeding but was in DHHR custody solely as a result of a juvenile

delinquency petition. (ECF No. 121 at 7.) Further, the parties dispute

whether juvenile justice youth who came into DHHR custody through

juvenile delinquency or juvenile stats offenses should be considered

within the proposed class definition. (ECF No. 121.) The Court does

not consider the merits of this issue. However, Plaintiffs do not argue

that any of the remaining named children are in the custody of the

DHHR solely because of a juvenile delinquency or juvenile status

offense proceeding. For some named Plaintiffs, the Complaint alleges

they were subject to juvenile delinquency proceedings but also alleges

that they suffered some type of abuse. Sufficient information is not

provided to determine if these remaining children are in DHHR

custody solely the result of a juvenile delinquency proceeding, and

Plaintiffs have failed to present any evidence or arguments to the

contrary. Accordingly, the Court focuses its analysis here on West

Virginia’s abuse and neglect proceedings system.

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of juvenile court and six-month periodic review hearings

constituted an ongoing state judicial proceeding); see also

31 Foster Children v. Bush, 329 F.3d 1255, 1275 (11th Cir.

2003). Once an abuse and neglect petition is filed, that

child remains subject to the continuing jurisdiction of the

state circuit courts until they reach eighteen years of age

or find a permanent placement. W. Va. Code § 49–4–608.

Further, the state is required by law to hold mandatory,

periodic review of these cases. Id. Thus, these proceedings

constitute ongoing judicial proceedings for the purposes

of Younger.

Next, this Court must determine whether the relief

sought here would result in interference with ongoing

state proceedings. This inquiry depends on the way in

which West Virginia’s Circuit Courts oversee these cases.

According to the factual allegations contained in the

Complaint, all the remaining named Plaintiffs were the

subject of either abuse and neglect proceedings or their

parents had their parental rights terminated, which would

have put them under jurisdiction of West Virginia’s

Circuit Courts. (ECF No. 1 at 15–48, ¶¶ 42–198.) Thus,

each of the named Plaintiffs and every child adjudicated

under the West Virginia Child Welfare Act are subject to

the continuing jurisdiction of West Virginia’s Circuit

Courts. See W. Va. Code § 49– 1–101.

West Virginia’s Circuit Courts play an important role

in child abuse and neglect proceedings from the outset of

the child’s case. After a petition is filed, the state court will

issue an initial order either granting temporary custody of

the child to the DHHR or not. Id. § 49–4–602. Depending

on whether temporary custody is granted, the court is

required to hold a preliminary hearing within a certain

time period. Id. At the preliminary hearing, the court will

review the petition and take evidence regarding the status

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of the child; determine whether the DHHR has made

reasonable efforts to preserve the family; and determine

whether imminent danger requires the removal of the

child from the custody of the parents or whether

emergency custody should continue. Id. § 49–4–105. Next,

the court is required to hold an adjudicatory hearing

within a certain time, depending on what was ordered at

the preliminary hearing. Id. § 49–4–601. At the

adjudicatory hearing, the court is required to determine

whether the child has been abused and neglected. Id. § 49–

4–602.

Next, a disposition hearing must occur within forty–

five days of the entry of the adjudicatory order. W. Va. R.

Child and Abuse and Neglect Proceedings 32(a). If the

child is found to be abused and neglected, the DHHR is

required to provide the court with a copy of the child’s case

plan which includes the following: a permanency plan

which documents efforts to ensure that the child is

returned home in the appropriate time or efforts to place

the child for adoption or with a legal guardian and, if

applicable, states why reunification is not possible and

details the alternative permanent placement; a family case

plan; a description of the type of home or institution where

the child will be placed, including a discussion of the

appropriateness of that placement and how the agency

will ensure that the child receives proper care and services

and accommodations as required under the Americans

with Disabilities Act; “[a] plan to facilitate the return of

the child to his or her own home or the concurrent

permanent placement of the child”; and a plan to address

the needs of the child while in kinship or foster care, which

must include a discussion of the appropriateness of the

services that have already been provided for that child. W.

Va. Code § 49–4–604(a)(1–2). The state court is required

to make findings of fact and conclusions of law, which

74a

includes, among others, dismissing the petition; returning

the child to his or her own home; referring the child and

parent to a community agency for assistance; committing

the child to the care of the DHHR, a private child welfare

agency, or an appointed guardian; or terminating parental

rights and permanently committing the child to the

custody of the non-abusing parent, the DHHR, or a child

welfare agency. Id. § 49–4–604(c)(1–6).

Finally, the state court will hold a permanency hearing

where the court will determine the permanency plan and

what efforts are being made to provide the child with a

permanent home. Id. § 49–4–608. “The court has exclusive

jurisdiction to determine the permanent placement of a

child.” W. Va. R. P. Child Abuse and Neglect Proceedings

36(e). The court also makes the determination as to

whether the DHHR is required to make reasonable

efforts to preserve the family. Id. § 49–4–608(a). Further,

the court is required to have a permanency hearing every

12 months until permanency is achieved. Id. § 49–4–

608(b). The DHHR is required to file “a progress report

with the court detailing the efforts that have been made to

place the child in a permanent home and copies of the

child’s case plan, including the permanency plan . . . .” Id.

Under the statute, the purpose of these hearings is to

“review the child’s case, to determine whether and under

what conditions the child’s commitment to the department

shall continue, to determine what efforts are necessary to

provide the child with a permanent home, and to

determine if the department has made reasonable efforts

to finalize the permanency plan.” Id.

In addition, within thirty days of the original filing of

the petition, the state court is required to convene a

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meeting of a multidisciplinary treatment team6 (“MDT”)

and the MDT is required to submit written reports to the

court and will meet with the court at least every three

months until permanency is achieved and the child’s case

is dismissed. W. Va. Code §§ 49–4–405, 602. Once the court

finds that a permanent placement has been achieved, the

court may dismiss the case. W. Va. R. P. Child Abuse and

Neglect Proceedings 42(b).

West Virginia Circuit Courts are required to make

additional determinations. They are responsible for

determining what services are needed to help children

make the transition from foster care to adulthood and

independent living. Id. § 49–4–608(c). Further, “[a] court

may not order a child to be placed in an out of state facility

unless the child is diagnosed with a health issue that no instate facility or program serves, unless a placement out of

state is in closer proximity to the child’s family for the

necessary care, or the services are able to be provided

more timely.” Id. § 49–4–608(d). In addition, the DHHR is

required to file a disclosure stating its determinations as

to whether any relatives or family members are

appropriate placement options for the child. Id. § 49–4–

601a(4). This document must be filed with the court within

forty–five days of the filing of the petition. Id.

It is clear that West Virginia’s state courts are heavily

involved in abuse and neglect proceedings and are

required to oversee and approve the majority of the

determinations related to the child’s care and placement.

The MDT is established by the prosecuting attorney of the county

where the case is initiated and consists of the prosecuting attorney, a

caseworker from the DHHR, a local law enforcement officer, a child

advocacy center representative, a health care provider, a mental

health professional, an educator, and a representative from a licensed

domestic violence program. W. Va. Code § 49–4–402(a)(1–8).

76a

A ruling favorable to Plaintiffs would interfere with and

disrupt these ongoing state court proceedings. Plaintiffs’

request that this Court enjoin the executive Defendants

from actions that West Virginia’s Circuit Courts are

currently responsible for overseeing and approving.

Specifically, Plaintiffs request oversight of needs

assessments of foster children; case plans; placement

decisions; and plans for reunification. Further, Plaintiffs

request that this Court ensure children receive services

and treatments; ensure that foster care placements are

safe or adequately monitored; oversee kinship

placements; properly assess kinship placements; ensure

children and families in kinship placements receive

services; ensure that kinship placements receive

permanency planning; and ensure that disabled children

receive services. (ECF No. 1 at 100–104, ¶¶ 405(a)(i)–

(d)(iii)). Plaintiffs further request that both this Court and

a neutral monitor oversee the implementation of these

reforms. (Id. at 104, ¶ 406.) Thus, this Court would be

tasked with ensuring that West Virginia’s state courts

comply with its mandate. Such an order would essentially

be taking decisions that are now in the hands of state

courts and placing them under the supervision of a federal

district court. Issuing Plaintiffs the declaratory and

injunctive relief they seek would undoubtedly interfere

with state court proceedings. There is a possibility that

this Court and the state court could issue conflicting

orders concerning which placement decision or which

services were best for a child. Such determinations are left

to the state courts under West Virginia law, but this

Court’s order would reassign these responsibilities, likely

leading to confusing and conflicting results.

Plaintiffs emphasize in their briefing that they are

seeking relief from West Virginia’s executive agencies and

the DHHR and any order entered by this Court would be

77a

enforced against these Defendants. (ECF No. 29 at 14.)

However, West Virginia law is clear that its state courts,

not the DHHR, have the ultimate decision-making

authority over whether to approve the child’s case plan

and to ensure that that plan is followed. W. Va. Code § 49–

4–608. Plaintiffs ask this Court to permanently enjoin

Defendants from a long list of practices that they argue

violates their rights. They further request that a neutral

monitor be appointed to implement and oversee an order

issued by this Court. Removing discretion from West

Virginia’s state courts and implementing federal court

review over these decisions is highly problematic. It

makes no difference that this case is directed at the state’s

executive agencies because the practical effects in

enforcing an order reforming West Virginia’s foster care

system would undoubtedly impact the state’s circuit

courts. Even though Plaintiffs have not framed their

request as a direct review of state court judgments, that

would be the result. As the Supreme Court articulated in

O’Shea,

[t]he objection is to unwarranted anticipatory

interference in the state . . . process by means of

continuous or piecemeal interruptions of the state

proceedings by litigation in the federal courts; the

object is to sustain “(t)he special delicacy of the

adjustment to be preserved between federal

equitable power and State administration of its own

law.”

O’Shea, 414 U.S. at 500 (quoting Stefanelli v. Minard, 342

U.S. 117, 120 (1951)). The relief Plaintiffs seek would

interfere extensively with ongoing state court proceedings

78a

for each of the named Plaintiffs.7 Accordingly, the first

Middlesex factor is satisfied.

b. Second Middlesex Factor

Next, the Court must determine if the ongoing state

court proceedings implicate important state interests.

Plaintiffs do not dispute that the state has an important

interest in the care, disposition, and welfare of the

children in its custody. While Plaintiffs do not address this

factor in their arguments, they repeatedly emphasized the

importance of West Virginia’s role in protecting the

children in its custody. (ECF No. 1 at 2, ¶ 1.) There can be

little dispute that the protection of abused and neglected

children is a vital and important state interest.

Accordingly, the second Middlesex factor is satisfied.

c. Third Middlesex Factor

Finally, for abstention to be appropriate, Plaintiff must

have an adequate opportunity to raise and litigate their

constitutional claims in the state court proceedings.

Middlesex, 457 U.S. at 432. “The question is whether that

challenge can be raised in the pending state proceedings

The majority of Plaintiffs arguments in opposition demonstrate a

misunderstanding of the Younger abstention doctrine and its purpose

as well as a misunderstanding of how abuse and neglect proceedings

are conducted in the State of West Virginia. Plaintiffs argue that

“West Virginia circuit courts, like other state courts, review agency

placement decisions” and “the state circuit courts do not identify

placements or place children in specific foster care setting.” (ECF No.

52 at 3.) However, this argument is contradicted expressly by Rule 36

of West Virginia’s Rules of Procedure for Child Abuse and Neglect

Proceedings. W. Va. R. P. Child Abuse and Neglect Proceedings 36(e)

(“The court has exclusive jurisdiction to determine the permanent

placement of a child.”). Further, Plaintiffs’ arguments ignore the fact

that West Virginia’s Circuit Courts are involved from the moment an

abuse and neglect petition is filed and retain continuous jurisdiction

over the case as it proceeds.

79a

subject to conventional limits on justiciability.” Moore v.

Sims, 442 U.S. at 425. The plaintiff has the burden to show

“that state procedural law barred presentation of their

claims.” Id. at 432. Further, “when a litigant has not

attempted to present his federal claims in related state–

court proceedings, a federal court should assume that

state procedures will afford an adequate remedy, in the

absence of unambiguous authority to the contrary.”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987).

In the present case, Plaintiffs did not give West

Virginia’s state courts an opportunity to consider their

constitutional claims, and they cannot demonstrate that

West Virginia’s courts were unavailable. Child abuse and

neglect proceedings are handled by West Virginia’s

Circuit Courts, which are trial courts of general

jurisdiction. See Syl. Pt. 2, State ex rel. Rose L. v. Pancake,

544 S.E.2d 403, 404 (W. Va. 2001) (“A circuit court has

jurisdiction to entertain an abuse and neglect petition and

to conduct proceedings in accordance therewith as

provided by W. Va. Code § 49–6– 1, et seq.”); see also State

ex rel. Silver v. Wilkes, 584 S.E.2d 548, 552 (W. Va. 2003)

(“Circuit courts are courts of general jurisdiction and have

power to determine all controversies that can possibly be

made the subject of civil actions.”). Plaintiffs argue that

the West Virginia Supreme Court of Appeals did not

contemplate state circuit courts considering claims arising

under federal law or the United States Constitution. (ECF

No. 52 at 8.) This argument is completely baseless. The

United States Supreme Court has been clear that

“[m]inimal respect for the state processes . . . precludes

any presumption that the state courts will not safeguard

federal constitutional rights.” Middlesex, 457 U.S. at 431.

As courts of general jurisdiction, West Virginia’s Circuit

Courts are capable of hearing federal claims.

80a

The law is clear that Plaintiffs bear the burden here,

and Plaintiffs have presented no “unambiguous authority

to the contrary” to prove that West Virginia’s Circuit

Courts lack the jurisdiction or ability to adjudicate their

federal statutory and constitutional claims during abuse

and neglect proceedings. In fact, this factor is what

separates this case from other child welfare class actions

where Younger abstention was denied. See, e.g., Connor

B. ex rel. Vigurs v. Patrick, 771 F. Supp. 2d 142, 158 (D.

Mass. 2011); M.D. v. Perry, 799 F. Supp. 2d 712, 723 (S.D.

Tex. 2011); LaShawn A. by Moore v. Kelly, 990 F.2d 1319,

1323 (D.C. Cir. 1993); but see 31 Foster Children, 329 F.3d

at 1281; J.B., 186 F.3d at 1292–93; Carson P, 240 F.R.D.

at 532. Accordingly, the Court finds that Plaintiffs have

failed to prove that West Virginia’s Circuit Courts prevent

the presentation of these claims during the periodic

review proceedings conducted as a part of these children’s

ongoing abuse and neglect proceedings. The third and

final prong of the Younger analysis is satisfied.

d. Exceptions to Younger

The Supreme Court has established three exceptions

to Younger abstention: (1) “‘there is a showing of bad faith

or harassment by state officials responsible for the

prosecution’; (2) ‘the state law to be applied in the criminal

proceeding is flagrantly and patently violative of express

constitutional prohibitions’; or (3) ‘other extraordinary

circumstances’ exist that present a threat of immediate

and irreparable injury.” Nivens v. Gilchrist, 444 F.3d 237,

241 (4th Cir. 2006) (quoting Kugler v. Helfant, 421 U.S.

117, 124 (1975)). The Supreme Court has recognized that

a federal court may disregard Younger’s requirements

only under these circumstances. Plaintiffs have made no

showing that would allow this Court to conclude that any

of these exceptions should be applied here. Accordingly,

81a

there is no basis to support the conclusion that Younger

abstention is inappropriate, and all three Middlesex

factors are satisfied. This Court is barred from

consideration of this case under Younger and its progeny.

III.

CONCLUSION

For the foregoing reasons, the Court GRANTS

Defendants’ five Motions to Dismiss. (ECF Nos. 17, 55, 88,

107, 167.) The following six named Plaintiffs are removed

from this action: Serena S., Garrett M., Gretchen C., Chris

K., Calvin K., and Carolina K. Further, it is ORDERED

that this civil action is DISMISSED and retired from the

docket of this Court. The Court DIRECTS the Clerk to

remove this matter from the Court’s docket.

IT IS SO ORDERED.

The Court DIRECTS the Clerk to send a copy of this

Order to counsel of record and any unrepresented party.

ENTER: July 28, 2021

s/ Thomas E. Johnston

Thomas E. Johnston, Chief Judge

82a

___________________

APPENDIX C

___________________

W. Va. Code § 49-4-102

Procedure for appealing decisions

Cases under this chapter, if tried in any inferior court,

may be reviewed by writ of error or appeal to the circuit

court, and if tried or reviewed in a circuit court, by writ of

error or appeal to the Supreme Court of Appeals.

83a

W. Va. Code § 49-4-108

Payment of services

(a) At any time during any proceedings brought pursuant

to this chapter, the court may upon its own motion, or upon

a motion of any party, order the Department of Health

and Human Resources to pay the Medicaid rates for

professional services rendered by a health care

professional to a child or other party to the proceedings.

Professional services include, but are not limited to,

treatment, therapy, counseling, evaluation, report

preparation, consultation and preparation of expert

testimony. A health care professional shall be paid by the

Department of Health and Human Resources upon

completion of services and submission of a final report or

other information and documentation as required by the

policies implemented by the Department of Health and

Human Resources: Provided, That if the service is

covered by Medicaid and the service is not provided within

30 days, the court may order the service to be provided by

a provider at a rate higher than the Medicaid rate. The

department may object and request to be heard, after

which the court shall issue findings of fact and conclusions

of law supporting its decision.

(b) At any time during any proceeding brought pursuant

to this chapter, the court may upon its own motion, or upon

a motion of any party, order the Department of Health

and Human Resources to pay for socially necessary

services rendered by an entity who has agreed to comply

with § 9-2-6(21) of this code. The Department of Health

and Human Resources shall set the reimbursement rates

for the socially necessary services: Provided, That if

services are not provided within 30 days, the court may

order a service to be provided by a provider at a rate

higher than the department established rate. The

84a

department may object and request to be heard, after

which the court shall issue findings of fact and conclusions

of law supporting its decision.

85a

W. Va. Code § 49-4-110

Foster care; quarterly status review; transitioning

adults; annual permanency hearings

(a) For each child who remains in foster care as a result

of a juvenile proceeding or as a result of a child abuse and

neglect proceeding, the circuit court with the assistance of

the multidisciplinary treatment team shall conduct

quarterly status reviews in order to determine the safety

of the child, the continuing necessity for and

appropriateness of the placement, the extent of

compliance with the case plan, and the extent of progress

which has been made toward alleviating or mitigating the

causes necessitating placement in foster care, and to

project a likely date by which the child may be returned to

and safety maintained in the home or placed for adoption

or legal guardianship. Quarterly status reviews shall

commence three months after the entry of the placement

order. The permanency hearing provided in subsection (c)

of this section may be considered a quarterly status

review.

(b) For each transitioning adult as that term is defined in

section two hundred two, article one of this chapter who

remains in foster care, the circuit court shall conduct

status review hearings as described in subsection (a) of

this section once every three months until permanency is

achieved.

remain in foster care, the circuit court shall conduct a

permanency hearing no later that twelve months after the

date the child or transitioning adult is considered to have

entered foster care, and at least once every twelve months

thereafter until permanency is achieved. For purposes of

permanency planning for transitioning adults, the circuit

86a

court shall make factual findings and conclusions of law as

to whether the department made reasonable efforts to

finalize a permanency plan to prepare a transitioning

adult for emancipation or independence or another

approved permanency option such as, but not limited to,

adoption or legal guardianship pursuant to the West

Virginia Guardianship and Conservatorship Act.

(d) Nothing in this section may be construed to abrogate

the responsibilities of the circuit court from conducting

required hearings as provided in other provisions of this

code, procedural court rules, or setting required hearings

at the same time.

87a

W. Va. Code § 49-4-113

Duration of custody or guardianship of children

committed to department

(a) A child committed to the department for guardianship,

after termination of parental rights, shall remain in the

care of the department until he or she attains the age of

eighteen years, or is married, or is adopted, or

guardianship is relinquished through the court.

(b) A child committed to the department for custody shall

remain in the care of the department until he or she

attains the age of eighteen years, or until he or she is

discharged because he or she is no longer in need of care.

88a

W. Va. Code § 49-4-116

Voluntary placement; petition; requirements;

attorney appointed; court hearing; orders

(a) Within ninety days of the date of the signatures to a

voluntary placement agreement, after receipt of physical

custody, the department shall file with the court a petition

for review of the placement. The petition shall include:

(1) A statement regarding the child's situation; and,

(2) The circumstance that gives rise to the voluntary

placement.

(b) If the department intends to extend the voluntary

placement agreement, the department shall file with the

court a copy of the child's case plan.

shall receive a copy of the case plan as provided in

subsection (b) of this section.

(d) The court shall schedule a hearing and give notice of

the time and place and right to be present at the hearing

to:

(1) The child's attorney;

(2) The child, if twelve years of age or older;

(3) The child's parents or guardians;

(4) The child's foster parents;

(5) Any preadoptive parent or relative providing care

for the child; and

(6) Any other persons as the court may in its discretion

direct.

89a

The child's presence at the hearing may be waived by

the child's attorney at the request of the child or if the

child would suffer emotional harm.

(e) At the conclusion of the proceedings, but no later than

ninety days after the date of the signatures to the

voluntary placement agreement, the court shall enter an

order:

(1) Determining whether or not continuation of the

voluntary placement is in the best interests of the

child;

(2) Specifying under what conditions the child's

placement will continue;

(3) Specifying whether or not the department is

required to and has made reasonable efforts to

preserve and to reunify the family; and

(4) Providing a plan for the permanent placement of

the child.

90a

W. Va. Code § 49-4-203

Filing petition after accepting possession of

relinquished child

A child of whom the Department of Health and Human

Resources assumes care, control and custody under this

article is a relinquished child and to be treated in all

respects as a child taken into custody pursuant to section

three hundred three, article four of this chapter. Upon

taking custody of a child under this article, the

department, with the cooperation of the county

prosecuting attorney, shall cause a petition to be

presented pursuant to section six hundred two, article

four of this chapter. The department and county

prosecuting attorney may not identify in the petition the

parent(s) who utilized this article to relinquish his or her

child. Thereafter, the department shall proceed in

compliance with part six, of this article.

91a

W. Va. Code § 49-4-303

Emergency removal by department before filing of

petition; conditions; referee; application for

emergency custody; order

Prior to the filing of a petition, a child protective

service worker may take the child or children into his or

her custody (also known as removing the child) without a

court order when:

(1) In the presence of a child protective service worker a

child or children are in an emergency situation which

constitutes an imminent danger to the physical well-being

of the child or children, as that phrase is defined in section

two hundred one, article one of this chapter; and

(2) The worker has probable cause to believe that the child

or children will suffer additional child abuse or neglect or

will be removed from the county before a petition can be

filed and temporary custody can be ordered.

After taking custody of the child or children prior to

the filing of a petition, the worker shall forthwith appear

before a circuit judge or referee of the county where

custody was taken and immediately apply for an order. If

no judge or referee is available, the worker shall appear

before a circuit judge or referee of an adjoining county,

and immediately apply for an order. This order shall ratify

the emergency custody of the child pending the filing of a

petition.

The circuit court of every county in the state shall

appoint at least one of the magistrates of the county to act

as a referee. He or she serves at the will and pleasure of

the appointing court, and shall perform the functions

prescribed for the position by this subsection.

92a

The parents, guardians or custodians of the child or

children may be present at the time and place of

application for an order ratifying custody. If at the time

the child or children are taken into custody by the worker

he or she knows which judge or referee is to receive the

application, the worker shall so inform the parents,

guardians or custodians.

The application for emergency custody may be on

forms prescribed by the Supreme Court of Appeals or

prepared by the prosecuting attorney or the applicant,

and shall set forth facts from which it may be determined

that the probable cause described above in this subsection

exists. Upon the sworn testimony or other evidence as the

judge or referee deems sufficient, the judge or referee

may order the emergency taking by the worker to be

ratified. If appropriate under the circumstances, the order

may include authorization for an examination as provided

in subsection (b), section six hundred three of this article.

If a referee issues an order, the referee shall by

telephonic communication have that order orally

confirmed by a circuit judge of the circuit or an adjoining

circuit who shall, on the next judicial day, enter an order

of confirmation. If the emergency taking is ratified by the

judge or referee, emergency custody of the child or

children is vested in the department until the expiration of

the next two judicial days, at which time any child taken

into emergency custody shall be returned to the custody

of his or her parent or guardian or custodian unless a

petition has been filed and custody of the child has been

transferred under section six hundred two of this article.

93a

W. Va. Code § 49-4-404

Court review of service plan; hearing; required

findings; order; team member's objections

(a) In any case in which a multidisciplinary treatment

team develops an individualized service plan for a child or

family pursuant to this article, the court shall review the

proposed service plan to determine if implementation of

the plan is in the child's best interests. If the

multidisciplinary team cannot agree on a plan or if the

court determines not to adopt the team's

recommendations, it shall, upon motion or sua sponte,

schedule and hold within ten days of the determination,

and prior to the entry of an order placing the child in the

custody of the department or in an out-of-home setting, a

hearing to consider evidence from the team as to its

rationale for the proposed service plan. If, after a hearing

held pursuant to this section, the court does not adopt the

teams's recommended service plan, it shall make specific

written findings as to why the team's recommended

service plan was not adopted.

(b) In any case in which the court decides to order the

child placed in an out-of-state facility or program it shall

set forth in the order directing the placement the reasons

why the child was not placed in an in-state facility or

program.

team who disagrees with recommendations of the team

may inform the court of his or her own recommendations

and objections to the team's recommendations. The

recommendations and objections of the dissenting team

member may be made in a hearing on the record, made in

writing and served upon each team member and filed with

the court and indicated in the case plan, or both made in

94a

writing and indicated in the case plan. Upon receiving

objections, the court will conduct a hearing pursuant to

paragraph (a) of this section.

95a

W. Va. Code § 49-4-405

Multidisciplinary treatment planning process

involving child abuse and neglect; team membership;

duties; reports; admissions

(a) Within thirty days of the initiation of a judicial

proceeding pursuant to part six, of this article, the

Department of Health and Human Services shall convene

a multidisciplinary treatment team to assess, plan and

implement a comprehensive, individualized service plan

for children who are victims of abuse or neglect and their

families. The multidisciplinary team shall obtain and

utilize any assessments for the children or the adult

respondents that it deems necessary to assist in the

development of that plan.

(b) In a case initiated pursuant to part six of this article,

the treatment team consists of:

(1) The child or family's case manager in the

Department of Health and Human Resources;

(2) The adult respondent or respondents;

(3) The child's parent or parents, guardians, any

copetitioners, custodial relatives of the child, foster or

preadoptive parents;

(4) Any attorney representing an adult respondent or

other member of the treatment team;

(5) The child's counsel or the guardian ad litem;

(6) The prosecuting attorney or his or her designee;

(7) A member of a child advocacy center when the child

has been processed through the child advocacy center

program or programs or it is otherwise appropriate

that a member of the child advocacy center participate;

96a

(8) Any court-appointed special advocate assigned to a

case;

(9) Any other person entitled to notice and the right to

be heard;

(10) An appropriate school official; and

(11) Any other person or agency representative who

may assist in providing recommendations for the

particular needs of the child and family, including

domestic violence service providers.

The child may participate in multidisciplinary

treatment team meetings if the child's participation is

deemed appropriate by the multidisciplinary treatment

team. Unless otherwise ordered by the court, a party

whose parental rights have been terminated and his or her

attorney may not be given notice of a multidisciplinary

treatment team meeting and does not have the right to

participate in any treatment team meeting.

planning team has been convened, the team shall advise

the court as to the types of services the team has

determined are needed and the type

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.