# Petition for Writ of Certiorari — Reggie B. v. Bush > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2079%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 984 ## Text OILED (") Q3 351 SEP 2 2003, IN THE Supreme Court of the Gnited States >Pr<¢ REGGIE AND REBECCA B., TAMMY G., ELAINE R. and RACHEL C., Petitioners, Vv. JEB BUSH, as the Governor of the State of Florida, ef 2/., Respondents. On Petition For A Writ of Certiorari To The United States Court of Appeals For The Eleventh Circuit PETITION FOR A WRIT OF CERTIORARI : Karen Gievers Marcia Robinson Lowry GIEVERS, P.A. Counsel of Record 524 East College Avenue, Suite 2 Eric E. Thompson Tallahassee, Florida 32301 Douglas C. Gray 850-222-1961 CHILDREN’S RIGHTS, INC. , 404 Park Avenue South Eleventh Floor New York, New York 10016 212-683-2210 (Additional Counsel On the Reverse) William H. Fraser LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC. 423 Fern Street, Suite 200 West Palm Beach, Florida 33401 561-655-8944 Bernard P. Ferlmutter Carolyn Salisbury UNIVERSITY. OF MIAMI SCHOOL OF LAW _ 5915 Ponce de Leon Boulevard #28 Coral Gables, Florida 33146 305-284-3123 | Christina A. Zawisza CHILD ADVOCACY CLINIC THE UNIVERSITY OF MEMPHIS SCHOOL OF LAW 109 North Main Street, 2nd Floor Memphis, Tennessee 38103 901-523-8822 ROY WASSON 210 South Dixie Highway Suite 450 Gables One Tower Miami, Florida 33146 305-666-5053 Deborah A. Schroth FLORIDA LEGAL SERVICES 126 West Adams Street, #502 Jacksonville, Florida 32202 904-355-5200 i QUESTION PRESENTED Petitioners are foster children in the custody of the State of Florida seeking to compel executive branch officials of the state to treat them in accordance with the United States Constitution. ~- The district court determined that Younger abstention was required due to petitioners’ periodic review proceedings in state juvenile court and the Eleventh Circuit affirmed. The question presented for review is: Whether the court of appeals’ Younger abstention ruling was improper where the prospective injunctive and declaratory relief sought by petitioners is directed solely at executive branch officials and will not enjoin or otherwise result in federal court control over periodic state juvenile court review proceedings in which petitioners are otherwise unable to vindicate their constitutional rights? li PARTIES TO THE PROCEEDING Petitioners Reggie and Rebecca B., Tammy G., Elaine R. and Rachel C. (plaintiffs-appellants below) — all foster children who have been adjudicated dependent and placed in _ the custody of the State of Florida’s Department of Children and Family Services (the “Department”) — are the five of twenty-two original named plaintiff foster children who have not settled all of their claims or exited the foster care system since the filing of the amended complaint in August 2000. Petitioners, on behalf of themselves and a putative class of Florida foster children, allege widespread constitutional deficiencies in the state’s provision of foster care services and seek prospective declaratory and injunctive relief to remedy these systemic deficiencies and protect them from ongoing harm. Respondents (defendants-appellees below) — the Florida executive branch officials who operate the state’s foster care system — are sued in their official capacities only. They are Governor Jeb Bush; Commissioner of the Department, Jerry Regier (formerly Kathleen Kearney); and thirteen of the Department’s fourteen sitting District Administrators: Charles Bates, Robert Williams, Ester Tibbs, Nancy Dreicer, Lynn Richard, Jr., David Dennis, Mike Murphy, Ted Simpkins, Charles Hood, III, Ron Zychowski, Beth Englander, Cynthia Schuler, and Vern Melvin. ili TABLE OF CONTENTS Page REET RR PERE PERRI om a ener i Parties to the Proceeding ......... | I auaaaibemdasacstininns iad aeibateanaisitced il a iceenecebsssinehnnbesanaunubaneneunintaason Vv POUROR TOF GR Wit OF CORIOLANT .......cescssececsoccesscevesvensvsssenseees l Opinions Below. ......... ORES EO ae LOO De l IESE EEL See eo en ae er a l Constitutional and Statutory Provisions Involved............... 2 a cca chasis snsnnnpngnasnennctnnenwnvaiionsiakebans 2 A. Introduction ..................00 aa aa 2 B. The State’s Foster Care System...................0s0000 4 C. Petitioners’ Federal Claims and Relief Sought ....9 BP, PRIS TI on sss nscesesccesvecsssesccscescessocesees 11 Reasons for Granting the Petition ................::cccesseeeesseeeeees 14 iV 1. The Writ Should Be Granted To Correct The Eleventh Circuit’s Extension Of Younger Abstention Beyond This Court’s Prior EIN isicasiancnsasatosichimesitbadiaiitianitapsemiedtuiiiuibiadebenas 15 2. The Writ Should Be Granted To Resoive Splits Among The Circuit Courrts.................... 23 Rep UITIIIDAisisnslcsctsictniiescletcelaaedebpecselibaianaliaianiaicnakdadaeaduaataeliiban 29 Appendix A (court of appeals opinion).................::cce8 la Appendix B (district court opinion) ...............::.cseeeeeee 45a Appendix C (rehearing denial) ...................cc:cccssseeeseeeeees 95a Appendix D (excerpt from amended complaint)............. 97a Appendix E (provisions involved) ...............::cssseeeseeees 10la Peet bent, OR ak et ne ee ee ee a | ——<— CASES: Boyle v. Landry, 401 U.S 77 (1971)..........ccccccsscsssescsseceeees 18 Crawley v. Hamilton County Com'’rs, FOR Fe 2 Ce, Fa ivccisnscscsrstncaitiereeanian 24 Cohens v. Virginia, 19 U.S. 264 (1821) ....cecceeeeeeeeseeeeeee 15 Colorado River Water Conservation Dist. v. United States, SOG UD. FO CES wisccsvicunesitnisestiieieatamlgaanaaaaae 16 Dep't Health and Rehab. Servs. v. B. J. M,, CSG Te. BE FRG OR, TO wiciaiccernaciccasnvneamanan 8,9 Dep't of Children & Family Servs. v. I. C., 742 So. 2d 401 (Fla. Dist. Ct. App. 1999)... 9,10 Dep't of Children and Families v. J. H., 831 So. 2d 782 (Fla. Dist. Ct. App. 2002)... cece 10 Doran v. Salem Inn, Inc., 422 U.S 922 (1975)...... 17, 18, 22 Green v. City of Tuscon, 255 F.3d 1086 (9th Cir. 2001) (en banc)........cccccccesseseeseess 24 vi Henry & Rilla White Found., Inc. v. Migdall, 720 So. 2d 568 (Fla. Dist. Ct. App. 1998)..........ccseseeeeeeeees 9 Hicks v. Miranda, 422 U.S. 332 (1975) .........cccssessseeeeeeees 18 Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).........0+. 16, 18 InreR. V., 626 So. 2d 1009 (Fla. Dist. Ct. App. 1993)... ceeeeeeeees 9 J. B. ex rel. Hart v. Valdez, 106 F.3ek 12BO CEG Cae, FBP scceccscvenssctissvccsseestermenntn 24-27 Joseph A. ex rel. Wolfe v. Ingram, 27S F.3G L253 CEO Cae. BITE) ovinssecsersensnsonsssnnsonssenents 25-27 Judice v. Vail, 430 U.S. 327 (1977) ..........cccccsscssssreeeee 17,19 Kaisner v. Kolb, 543 So. 2d 732 (Fla. 1998)..........cceceeseeee 9 Klein v. Berk Constr. Co, 260 U.S. 226 (1922)................. 15 Kugler v. Helfant, 421 U.S. 117 (1975) .....cccccessseesseeseeees 18 L. H. v. Jamieson, 643 F.2d 1351 (9th Cir. 1981)....... 27, 28 Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993) ........ eens 2 Vil Lee v.Dep’t Health and Rehab. Servs., ee , eR NT 8,9 Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) ......... eee 24 Middlesex County Essex Comm. v. Garden State Bar Ass'n, SEPT Ra Ge 0 IED siicehitebinininintiasinpiisapectinabenadaniednians 13, 16, 19 Missouri Child Care Ass’n v. Cross., ye Re: 21 Moore v. Sims, 442 U.S. 415 (1979) .o...ccccecesssesteeeeeees 19 New Orleans Pub. Serv., Inc, v. Council of City of New Orleans, 491 U.S. 350 (1989) .........ccceecsseeeeeeees passim Ohio Civil Rights Comm’n v. Dayton Christian Schs. Inc., Ee Se Cr taccenkstcnnessniisiapaiieninbntstinamninabianiaiiiis 19 O'Shea v. Littleton, 414 U.S. 488 (1974)............. 18, 20, 21 P. O. v. Dep't of Children and Families, 840 So. 2d 360 (Fla. Dist. Ct. App. 2003)... eee 6 Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987)........ 17, 19 Perez v. Ledesma, 401 U.S. 82 (1971) ...........cccseseeessereeees 18 Pompey v. Broward County, Fe Bic ee EOE Or Oe Gs CR etintiincteianatinenmnaenncians 2 Vili Samuels v. Mackell, 401 U.S. 66 (1971) ...........eeee 16, 18 Trainor v. Hernandez,431 U.S. 434 (1977) ................ 17, 18 Youngberg v. Romeo, 457 U.S. 307 (1982)..........ccccceeeeeeee 22 Younger v. Harris, 401 U.S. 37 (1971)..............c008 3, 16, 18 Will v. Michigan Dep't of State Police, Pe Ses SP SD neintiinnssininnnvannniniieiaiiiiabatieniininn 21 CONSTITUTION, STATUTES AND REGULATIONS: Pele CAME, FIER. © sccccnvescecensemeinsccrontensenmisnentiinsainiaaien 2 es MEIN a: GEMINI Cilia inosiidsd:tecincas nin tainanabeeineieaieinisaaiiasieetnaae 2 n,n er nar an ne 2 Be ss BRD GREED iicenticcrnicenctsaisimimiinnnuanioaie 2 eT a ne 8 Te Chins & SUE GED cicsttnsstvnrshincceniunoinensinnnmabianansenee 2, 11 Pe Be pe Irs acetates vitsiecnnicensassicianeanbimecaiienianiiinte 7 Fe Fee Ce ccerccetnntenenicinsnianmninsiinioniaaiiaa 6 : « : ¥ ix Fla. Stat. § 39.402(1)(a) (2003) ......ssccssccsccccccsssccssessesssseseses 7 Fla. Stat. § 39.507 (2003) ...cccccccssssssssssssssssssesesscssssssssssssseees 7 Fla. Stat. § 39.521(3)(d) (2003).....cccccscsssssssssssssessssseeseeeeee 7 Fla. Stat. § 39.601 (2003) ..cccccccccssssssssssssssssussssssssssesseeeeeeee 8 Fla. Stat. § 39.601(1)(C) (2003) ...ccccssssssssssssssssssessseseseeesees 6 Fla. Stat. § 39.603(2) (2003) ..cccccccsssssssvecssssssssssssssssssssssssse 8 Fla. Stat. § 39.701 (2003) ...ccccccccsscccccssssssssssssescessesevsssssseees 8 Fla. Stat. § 39.701(1)(b) (2003)....scsscccsscscsssseseccssssssvsssssseees 8 Fla. Stat. § 39.703 (2003) ......scccssscssscsccscsssssssseseeleeeensssssssees 8 Fla. Stat. § 39.81 1(8) (2003) ..ccccsssscccscccsssssssesessesssssnsesssnsees 7 Fla. Stat. § 39.802 (2003) ...cccccccscscsssssssssesssssssessssessesesesseees 7 Fla. Stat. § 402.72 (2003) ..scccsccccssccssssssssssssssssesessssssnssssssnees 6 Fla. Stat. § 402.731(1)-(2) (2003) ..ccccccsssssssssssesecssssseseseeee 6 Fla. Stat. § 409.145 (2003) .....cccscccccssssssssssssssseessevesssesees 5, 6 Pe EB a Sad GOD eocicncecnssencnnsesernennneenensntiopiounens 6 Pim, DOME. 6 SOG. ETS CRO) arse essvenisscsisvsnnsnnsvcnrsesensesienssssonnies 6 Fla. Admin. Code §§ 65C-13.009-11 (2003) ......... cece 6 ] PETITION FOR A WRIT OF CERTIORARI Petitioners, on behalf of themselves and a putative class of Florida foster children, respectfully petition for a writ of certiorari to the United States Court of Appeals for the Eleventh Circuit, to review that court’s judgment and opinion affirming the decision of the District Court for the Southern District of Florida to abstain from adjudicating petitioners’ constitutional claims. OPINIONS BELOW The opinion of the Eleventh Circuit affirming the district court’s decision to abstain (App. 1a-44a) is reported at 329 F.3d 1255. The per curiam order of the court of appeals denying the petition for rehearing (App. 95a-96a) is unreported. The order and opinion of the district court (App. 45a-94a) is reported at 180 F. Supp. 2d 1321, and the underlying report and recommendation of the magistrate judge that the district court not abstain from hearing petitioners’ claims is unreported. JURISDICTION The judgment of the court of appeals was entered on May 8, 2003. Rehearing was denied on June 13, 2003. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED Reprinted in the appendix to this petition are the First, Ninth and Fourteenth Amendments to the United States Constitution; 42 U.S.C. § 1983 and 28 U.S.C. § 1343(b); and pertinent provisions of the Florida Constitution and Florida Statutes-(App. 101a-123a). STATEMENT OF THE CASE A, Introduction. Petitioners are foster children who have been removed from their homes and placed into the custody of the state and who are, as a result, wholly dependent on the government for all aspects of their health and well-being. Petitioners allege that respondents, their legal custodians, have failed to satisfy their constitutional obligations to protect petitioners from harm while in state custody and to meet their basic needs for food, clothing, shelter, medical, educational and other necessary services.' As alleged by petitioners, respondents operate a deficient foster care system that gravely harms the very children it is supposed to protect. Specifically: e Respondents have failed to recruit and develop sufficient foster and adoptive placements, resulting in overcrowding and inherently dangerous living ' For purposes of this petition, the facts asserted in petitioners’ amended complaint are to be deemed true. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 165 (1993); Pompey v. Broward County, 95 F.3d 1543, 1548 n.6 (1 1th Cir. 1996). 3 environments for children (see Am. Compl. 4 142-44, 151-53); e Respondents have failed to hire and properly train sufficient caseworkers, the result being that foster children are inadequately supervised and are kept in crowded and unsafe homes and institutions (id. J§ 146- 148); e Respondents unnecessarily move foster children from placement to placement and separate them from their siblings who are also in foster care custody, resulting in emotional and psychological deterioration to the children (id. J] 157-60); and e Respondents deny basic services to foster children in their custody, even after determinations of need made by the Department itself (id. J] 164-67). The result is a statewide system that, rather than protecting damaged children, inflicts further harm on them. Petitioners seek prospective injunctive and declaratory relief requiring respondents to remedy these and other systemic failures. To date, however, petitioners have been barred from pursuing their federal claims in their chosen federal court forum by virtue of the district court’s and the Eleventh Circuit’s unprecedented expansion of the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971). The lower court, affirmed by the Eleventh Circuit, granted respondents’ motion to dismiss based on Younger abstention, holding that the prospective equitable relief sought 4 by petitioners against the solely executive branch respondents would “interfere” with the Florida juvenile court’s periodic reviews of petitioners’ status while in foster care. This Court, however, has always strictly limited application of Younger abstention to cases in which the requested relief, if granted, would enjoin or otherwise limit the state proceedings themselves — circumstances not at all present in this case. The mere fact that there may be some overlap between the subject matters encompassed by the federal and state proceedings is not, as has seemingly been determined here by the Eleventh Circuit, the standard by which a federal court should decline jurisdiction lawfully conferred upon it by Congress. The ruling of the Eleventh Circuit conflicts, at least in principle, with this Court’s prior abstention rulings and heralds a pronounced expansion of Younger that categorically bars foster children — who have periodic state judicial review proceedings by virtue of their custodial status — from pursuing their federal claims against executive branch officials in federal court. Respectfully, a grant of certiorari is warranted to review and correct the Eleventh Circuit’s ill-advised extension of Younger abstention. As an independent ground warranting review, the court of appeals’ decision is in conflict with other circuit court determinations concerning the Younger “interference” standard, and there is, moreover, a direct conflict in the circuit courts on the application of Younger abstention to foster care reform litigation of the type at issue here. B. The State’s Foster Care System. The executive branch officials in the Department, on the one hand, and the juvenile courts, on the other, both play phage ik elie TS ME TRAINS RGAE TA OTM cE ABNER SPAIN ie A RE ni SA RR cE RES RE cial dpe at bites rn fee, *. er mo 5 - important, though fundamentally distinct, roles in the protection of Florida’s abandoned, abused and neglected children. It is only the practices and inactions of the Department, not the procedures or determinations of the juvenile courts, that are challenged in this action. The Department’s central obligations with respect to the children in its care are set forth in Chapter 409 of the Florida Statutes,” which provides that The [D]epartment shall conduct, supervise, and administer a program for dependent children and their families. The services of the [D]epartment are to be directed toward the following goals: (a) The prevention of separation of children from families. (b) The reunification of families who have had children placed in foster homes or institutions. (c) The permanent placement of children who cannot be reunited with their families or when reunification would not be in the best interest of the child. (d) The protection of dependent children or children alleged to be dependent, including provision of emergency and long-term alternate living arrangements. Fla. Stat. § 409.145 (2003). The Department is exclusively > Foster care is provided through a system of Cooperative federalism, in which the federal government grants substantial funds to states to provide out-of-home foster care and related services that comport with federal standards and requirements. The state, however, creates the foster care system’s structure, including the obligations of and limitations on the powers and duties of the Department and of the juvenile court. 6 empowered to recruit, select, set standards for, and monitor homes and facilities providing care to foster children in their charge. See Fla. Stat. § 409.175 (2003); Fla. Admin. Code §§ 65C-13.009-11 (2003). The Department manages the services provided to foster children by private contractors through performance standards and penalties for non- compliance. Fla. Stat. § 402.72 (2003). And the Department alone is responsible for ensuring that the workforce it employs is appropriate to the task of caring for foster children, including through its certification that the Department’s workers meet all appropriate education, experience and training requiremenis. Fla. Stat. § 402.731(1)-(2) (2003).? In sum, the Department constructs and operates the foster care system. The juvenile court exercises its own judicial responsibilities over children in state custody. The powers and limitations of this state court vis-a-vis foster children are set out in Chapter 39 of the Florida Statutes. Though the juvenile court is to “cooperate” with the Department in carrying out the purposes of Chapter 409 (Fla. Stat. § 409.145(3) (2003)), no statute or other authority gives the Florida courts jurisdiction to directly regulate the Department’s operation of the foster care system. The juvenile court’s role begins when the child is taken into governmental custody by the Department or by law enforcement. Fla. Stat. § 39.402, § 409.145 (2003). Once the > The Department is also charged with regularly monitoring every foster child’s placement, including through face-to-face visits with the child. See Fla. Stat. § 39.601(1)(c) (2003); P.O. v. Dep’t of Children and Families, 840 So. 2d 360, 362 (Fla. Dist. Ct. App. 2003) (failure to provide for face-to-face contacts in child's case plan was in derogation of “statutorily mandated duties”). AIEEE ie Dill NEAL SDI fe iy SAY Raia 7 Department files a petition against parents or other legal guardians alleging a child to be dependent, i.e., abandoned, abused or neglected (see Fla. Stat. § 39.402(1)(a) (2003)), the juvenile court’s jurisdiction is to conduct the necessary proceedings and to either adjudicate the child as dependent or to dismiss the case and return the child to the parents. Fla. Stat. § 39.507 (2003). Ifthe court adjudicates the child dependent and determines that the child cannot be safely placed with the child’s parents or the home of a relative or other suitable “nonlicensed” placement, then the chiid is committed to the “temporary legal custody” of the Department, a commitment that “invests in the [D]epartment all rights and responsibilities of a legal custodian.” Fla. Stat. § 39.521(3)(d) (2003). The custodial adjudications made in these initial proceedings are not in any respect the subject of petitioners’ federal claims, nor are petitioners’ parents (or other legal guardians prior to removal) parties to this case.* Petitioners do not contend for instance that they were improperly removed from their parents and placed into state custody, nor do they allege that their parents were improperly denied pre-custodial services that might have prevented their entry into state custody. Petitioners challenge instead the deficient conditions of custody they are subjected to by the Department’s policies and practices after these custody adjudications have been made by the juvenile court.’ * Petitioners’ interests in this lawsuit are represented by adult “next friends.” See Fed. R. Civ. P. 17(c). > * The juvenile court may eventually be called upon to conduct a termination of parental rights proceeding in connection with a child’s case, but only if the Department (or other party) files a petition seeking such relief. Fla. Stat. §§ 39.701, 39.703, 39.802 (2003). As with the juvenile court’s custody decisions, petitioners Go not seek to challenge any decisions of the juvenile 8 From the time a child enters state custody until the child is returned home without supervision, adopted or reaches 18 years of age, the juvenile court is charged with periodically reviewing the child’s status, usually not more than once every six months. Fla. Stat. §§ 39.701(1)(b), 39.81 1(8) (2003).° Prior to all juvenile court review proceedings, the Department develops and submits to the court a case plan which details, among other things, information about the child’s placement; the behavioral changes the child’s parents must make to regain custody of the child; the frequency of parent-caseworker contacts; the “permanency” goal for the placement; and the services to be provided to the child and the child’s family to achieve the goal. Fla. Stat. § 39.601 (2003). The plan serves as the principal vehicle through which the juvenile court performs its reviews of the child’s status and the efforts being made on his or her behalf by, among others, the Department. The court must approve this case plan but does not have the authority to change the document. :f the court disapproves of the plan, it can only order the parties to make modifications and resubmit the plan for approval. Fla. Stat. § 39.603(2) (2003). Though the juvenile court may in certain limited circumstance hold the Department in contempt for failing to comply with the case plan, it cannot oversee discretionary executive functions of the Department, including (i) specific placement decisions, Dep’t Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 913 (Fla. 1995); (ii) decisions regarding staff cas dads and staffing patterns, Lee v. Dep’t Health & Rehab. Servs., 698 So. 2d 1194, 1196 (Fla. 1997); (iii) the courts relating to termination of parental rights. ° The state is also required to assure at least yearly court or administrative reviews as a condition of federal funding. See 42 U.S.C. § 675(5)(2003). 9 Department’s maintenance of adequate foster care service arrays to meet the needs of children, id.; and (iv) general conditions at facilities housing children, Dep't of Children & Family Servs. v. I.C., 742 So. 2d 401, 405 (Fla. Dist. Ct. App. 1999); Henry & Rilla White Found., Inc. v. Migdal, 720 So. 2d 568, 573 (Fla. Dist. Ct. App. 1998). Even in cases where the safety of a child is at issue, the juvenile courts have the authority to enter only specific and limited types of relief’ and cannot direct child welfare authorities in their systemic policymaking, planning, and prioritization decisions. See I.C., 742 So. 2d at 404.8 .. Petitioners’ Federal Claims and Relief Sought. Petitioners assert that respondents are violating their substantive due process rights by instituting and engaging in a pattern and practice of failing to provide them with safe foster care, placements, and necessary services and by failing to meet ” In juvenile court proceedings, the Department’s assertion of inadequate state appropriations is a defense to any contempt order the court may seek to levy against the Department for non-compliance with a case plan. See Dep't of Children & Families v. J.H., 831 So. 2d 782, 783 (Fla. Dist. Ct. App. 2002) (reversing juvenile court order requiring the Department to fund treatment of a child because the order “ignores [the Department’s] funding issues”); Jn re R.V., 626 So. 2d 1009, 1009 (Fla. Dist. Ct. App. 1993) (“the state judiciary lacks subject matter jurisdiction to review discretionary acts of the executive branch affecting the use of state resources”). * Florida’s notably robust separation of powers doctrine places off-limits to judicial oversight, including that of the juvenile courts, discretionary executive functions involving decision-making on fundamental questions of policy or planning. Kaisner v. Kolb, 543 So. 2d 732, 736-37 (Fla. 1998) (interpreting related doctrine of executive sovereign immunity from tort liability); /.C., 742 So. 2d at 404 (precluding juvenile courts from ordering or regulating discretionary function of executive authority). 10 their basic needs, all of which has significantly harmed petitioners (Am. Compl. 139-90). Petitioners further claim violations of their procedural due process rights by respondents’ failure to establish processes for an administrative hearing or professional review of decisions that deny petitioners benefits to which they are entitled (id. §4 191-201). Finally, petitioners seek redress for respondents’ violation of petitioners’ First and Ninth Amendment rights to familial association by unnecessarily separating them from, and denying visitation with, their siblings in state custody (id. 4] 202- 04).? Petitioners seek, on behalf of themselves and the putative class of children in state foster care custody: (1) a declaration that respondents’ failures are constitutional violations; (2) an injunction permanently enjoining respondents from subjecting petitioners and the putative class members to foster care practices that violate their constitutional rights; (3) an order of appropriate remedial relief to ensure respondents’ future compliance with the Constitution of the United States and their provision of legally mandated services, protection and procedures to petitioners and the putative class members; (4) the appointment of an expert panel to “develop and oversee the implementation of a plan for reform, which will ensure that [respondents] protect the federal constitutional . . rights of [petitioners] and the members of the class they seek to represent”; and (5) the appointment of a permanent ombudsman ° The only claims germane to this appeal are petitioners’ constitutional claims. Petitioners’ statutory claims under the Adoption Assistance and Child Welfare Act, as amended by the Adoption and Safe Families Act; the Early, Periodic Screening, Diagnosis and Treatment provisions of the Medicaid Title of the Social Security Act (the “EPSDT claims”); and Title VI of the 1964 Civil Rights Act were dismissed or settled on grounds not relevant to this petition. ‘ NET a, Wee ee ag a 11 or children’s advocate to present the interests of petitioners and the putative class members to respondents (App. 98a-100a).'° D. Proceedings Below. Petitioners brought suit pursuant to 42 U.S.C. § 1983 in the United States District Court for the Southern District of Florida in June 2000, filed their amended class action complaint in August 2000, and moved in September 2000 to certify the statewide class of all alleged or adjudicated dependent children who were or would in the future be in the Department’s custody and a subclass of all alleged or adjudicated dependent black children.'’ Respondents filed various motions to dismiss the amenaed complaint, a number of which were referred to a magistrate judge, along with petitioners’ class certification motion. The magistrate judge entered his report and recommendation that the motions to dismiss be denied (except with regard to four of the named plaintiffs who did not have standing to assert claims under the Adoption and Safe Families Act (the “ASFA claims”) because their parental rights had been terminated). The magistrate judge additionally entered a report and recommendation that a class should be certified, consisting '° For the convenience of the Court, the “Prayer for Relief” from petitioners’ amended complaint is excerpted in Appendix D (App. 98a-100a). '' Before responding to either the amended complaint or class certification motion, respondents moved in the district court to require counsel to produce documentation establishing their authority to represent petitioners and to stay the case. The district court denied the motion in an order appointing a guardian ad litem to report on whether prosecution of this action was in petitioners’ best interests. On December 15, 2000, the guardian ad litem issued a report concluding that the failures in Florida’s foster care system had caused petitioners “real harm” and the prosecution of the lawsuit to a final resolution was in the best interests of petitioners and the class they sought to represent. 12 of all Florida foster children except those in Broward County who were parties to a separate federal class action lawsuit. Following respondents’ objections to the reports and recommendations, on December 14, 2001, the district court entered an order dismissing with prejudice the constitutional claims of the plaintiffs who were less than 18 years of age (and therefore had pending juvenile court proceedings) based on the Younger abstention doctrine (App. 45a-94a). 2 The district court did not rule on the class certification motion that the magistrate judge had recommended be granted. Petitioners filed their notice of appeal to the Eleventh Circuit on December 31, 2001. The Eleventh Circuit affirmed the district court’s rulings by Opinion and Order dated May 8, 2003 (App. la-44a).'° Applying an abuse of discretion standard, the court affirmed the district court’s decision not to exercise jurisdiction and to abstain from adjudicating petitioners’ constitutional claims based on Younger abstention. '2 The court also (i) dismissed with prejudice plaintiffs’ ASFA claims as barred by the Eleventh Amendment, and (ii) dismissed with leave to replead the EPSDT and Title VI claims which respondents and the pertinent petitioners settled in February 2002. 13 The Eleventh Circuit first considered a number of justiciability concerns raised by respondents and concluded that, although the claims of two of the eleven petitioners seeking review were moot by virtue of these children having been adopted (and thus having left state custody), the other nine petitioners had standing to pursue their claims. The Eleventh Circuit did not reach the application of the Eleventh Amendment to these proceedings, dismissing petitioners’ ASFA claims instead on the grounds that the statutory provisions upon which the claims were predicated did not provide a basis for private enforcement (App. 6a-28a). 13 In reaching its abstention ruling, the court of appeals applied the three-part test set forth by this Court in Middlesex County Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982). Without explanation or citation to the record, the Court erroneously determined that the first Middlesex prong, _ which the court acknowledged requires not just an ongoing state proceeding but “interference” with such proceeding, was met because the relief sought by plaintiffs would “plac[e] decisions that are now in the hands of the state courts under the direction of the federal district court” (App. 37a). The court found further that the “federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff...” (App. 37a). The court of appeals also cited as grounds for abstention the potential for federal court relief that “might effectively require an amendment to a child’s case plan that the state court would not have approved . . .” (App. 37a). Finally, the court appeared to rely in part on a misreading of the amended complaint in reaching its abstention ruling, finding that the mission of a group of experts that petitioners sought to have the district court empanel to guide and advise respondents in a reform effort (see App. 99a) was instead sought to “revamp and reform dependency proceedings in Florida” (App. 37a-38a). The Eleventh Circuit also found that the third prong of the Middlesex test — the ability to raise constitutional claims in the ongoing state proceeding — was satisfied, determining that petitioners had not presented “unambiguous authority establishing that the procedures available in state court proceedings do not provide an adequate opportunity for [petitioners] to raise their constitutional claims” (App. 41a- 42a), a determination petitioners intend to challenge should this petition be granted, but which is not directly relevant to the 14 Court’s consideration of the need for review.“ By petition dated May 28, 2003, petitioners sought panel rehearing of the Eleventh Circuit’s abstention ruling, principally based on the court’s misstatement of the nature of the relief petitioners sought. By summary per curiam order dated June 13, 2003, the panel denied the petition for rehearing (App. 95a- 96a). REASONS FOR GRANTING THE PETITION The Eleventh Circuit’s decision represents a dramatic and unsound expansion of Younger abstention that raises important issues about the interaction of the nation’s dual system of federal and state courts. The decision turns a narrowly-drawn exception to a federal court’s “virtually unflagging” duty to exercise its jurisdiction into a categorical bar to foster children in state custody seeking to enjoin prospective violations of their constitutional rights by the executive officials responsible for their care. The decision conflicts in principle with three decades of this Court’s teachings on the type of federal court interference with state court proceedings that calls for application of Younger abstention. The decision also conflicts directly with decisions of other circuit courts applying the Younger abstention “interference” standard, including those concerning application of Younger to factually similar child welfare reform litigation. Respectfully, certiorari should be granted to correct the Eleventh Circuit’s expansion of the Younger doctrine far beyond the federalism principles that justify it and to resolve the '4 As noted by the court, the second Middlesex prong — the implication of important state interests by the action — is not in dispute. 15 circuit conflicts on the important jurisdictional issues raised in this case. 1. The Writ Should Be Granted to Correct the Eleventh Circuit’s Extension of Younger Abstention Beyond This Court’s Prior Limitations. The Eleventh Circuit’s decision deviates far from all prior precedents of this Court and the sound reasoning embodied in them, distorting the threshold Younger abstention requirement of “interference” with ongoing state court proceedings into an empty formalism. Correction of the judicial “under-reaching” implicit in the Eleventh Circuit’s decision is warranted to preserve the federalism and comity principles served by Younger abstention and to confine the doctrine to appropriate bounds. Within constitutional limits, Congress has the exclusive authority to define the jurisdiction of the federal judiciary and "federal courts lack the authority to abstain from the exercise of jurisdiction that has been conferred.” New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 359 (1989)(“NOPST’); Kline v. Burke Constr. Co., 260 U.S. 226, 234 (1922); Cohens v. Virginia, 19 U.S._264, 404 (1821) (Marshall, C.J.) (“[T]o decline the exercise of jurisdiction [or] usurp that which is not given. . . . would be treason to the constitution”). While a federal court’s obligation to exercise its jurisdiction does not “eliminate [its] discretion in determining whether to grant certain types of relief’ insofar as such discretion “was part of the common-law background against which the statutes conferring jurisdiction were enacted,” NOPSI, 491 U.S. at 359 (citing David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. Rev. 543, 570-77 (1985)), this 16 Court has repeatedly cautioned that the areas in which abstention is permissible are “carefully defined,” id, and abstention is an “‘extraordinary and narrow exception to the duty of a District Court to adjudicate a controversy properly before it.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813 (1976) (quoting County of Allegheny vy. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959)). Younger abstention governs one such “carefully defined” class of cases in which authorized equitable relief may be withheld: those in which a grant of the requested federal injunctive or declaratory relief would interfere with ongoing state court proceedings, implicating important state interests, and in which the federal plaintiffs would have an adequate opportunity to vindicate their federal claims. See NOPSI, 491 U.S. at 372-373; Middlesex, 457 U.S. at 432. In Younger v. Harris itself, the Court, citing equitable restraint and comity concerns, rejected an order from a federal court that restrained a state prosecutor from proceeding with an ongoing state criminal prosecution of the federal court plaintiff. 401 U.S. 37, 53-54 (1971). On the same day as it determined Younger, the Court determined that a federal court may withhold declaratory relief under the same reasoning as that set forth in Younger where the declaratory relief at issue would have the same “practical effect” as enjoining a pending state criminal prosecution. Samuels v. Mackell, 401 U.S. 66, 73 (1971). In the years since Younger and Samuels were decided, the Court has clarified that, in addition to criminal prosecutions, Younger abstention may be appropriate where the federal relief sought interferes with civil enforcement proceedings “akin to a criminal prosecution,” Huffman vy. Pursue, Ltd., 420 U.S. 592, 604 (1975) (civil 17 nuisance proceedings),'> and even to “civil proceedings involving ceriain orders that are uniquely in furtherance of the state courts’ ability to perform their judicial functions,” NOPSI, 491 U.S. at 368, such as orders relating to the enforcement of judgments and contempt proceedings.'® This Court has always maintained, however that there be unequivocal interference with state court proceedings for Younger abstention to apply. Importantly, Younger abstention does not permit federal courts to decline to exercise lawfully conferred jurisdiction over cases merely because parallel federal and state court proceedings address overlapping, or even the same, subject matters. See Doran v. Salem Inn, Inc., 422 U.S. 922, 928 (1975) (“the interest of avoiding conflicting outcomes in the litigation of similar issues, while entitled to substantial deference in a unitary systerm, must of necessity be subordinated to the claims of federalism”). It is not enough that a federal court’s disposition of a case “may well affect, or for practical purposes, pre-empt, a future . . . [or] even pending [] state court action. . . . there is no doctrine that the availability or even the pendency of state judicial proceedings excludes the federal courts.” NOPSI, 491 U.S. at 372. Rather, what is required to trigger the Younger exception is a request for injunctive or declaratory relief that would result in the federal court exercising control over a state judicial proceeding or over the state courts themselves. Thus, 'S See also Trainor y. Hernandez, 431 U.S. 434 (1977) (civil proceedings seeking attachment and return of funds allegedly obtained by welfare fraud). '© See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (civil judgment enforcement proceedings); Judice v. Vail, 430 U.S. 327 (1977) (contempt proceedings relating to post-judgment enforcement subpoenas). 18 every case in which this Court has applied Younger has involved remedies that would have the effect of putting a halt to state court proceedings. The means by which this federal control over the state court action is exercised has varied. In the most common scenario — present in eleven of this Court’s fifteen affirmative Younger abstention cases — the federal plaintiff seeks to directly enjoin (and in almost all of these cases, does in fact obtain an injunction of) state court judges, prosecutors, law enforcement officers and even court clerks from continuing with the prosecution of state court proceedings they are charged with conducting, often at the same time launching a facial attack on the constitutionality of the statute underlying the proceedings. ’” In the remaining four cases, the offending relief targets administrative bodies, executive agency officials, and even private litigants, but in each instance the federal plaintiff seeks to enjoin the state proceedings ” Trainor, 431 U.S. at 438 (enjoining clerks and sheriffs from issuing or serving attachments); Judice, 430 U.S. at 328 (enjoining state court judges from enforcement of contempt proceedings); Doran, 422 U.S. at 924 (granting injunction of town attorney and other law enforcement officials); Hicks v. Miranda, 422 U.S. 332, 340 (1975) (enjoining district attorneys and law enforcement personnel and declaring the unconstitutionality of obscenity statute in criminal proceeding); Kugler v. Helfant, 421 U.S. 117, 119 (1975) (enjoining attorney general from proceeding with criminal prosecution); Huffman, 420 U.S. at 599 (enjoining sheriff and prosecuting attorney and execution of judgment); O'Shea v. Littleton, 414 U.S. 488 (1974) (seeking to enjoin state court judges and law enforcement officials from taking certain actions in future criminal prosecutions); Perez v. Ledesma, 401 U.S. 82 (1971) (entering suppression order requiring return by law enforcement officials of materials); Boyle v. Landry, 401 U.S. 77, 78 (1971) (enjoining state court judges and state’s attorney from prosecution of intimidation statutes); Samuels, 401 U.S. at 73 (1971) (seeking to enjoin district attorney from proceeding with criminal case and to declare statue underlying prosecution unconstitutional); Younger, 401 U.S. at 53-54 (enjoining district attorney from proceeding with criminal case). 19 themselves or to enjoin a litigant from instituting or continuing with such proceedings. ® Petitioners here seek no relief even remotely akin to that which has justified Younger abstention in prior decisions of this Court. To the contrary, this is a generic civil rights action brought to compel an adrainistrative agency to comply with federal law in its institutional exercise of control over petitioners and the putative class they seek to represent. The prayer for relief in petitioners’ amended complaint calls for general declaratory and injunctive relief directed solely at the Department, not Florida’s juvenile courts, juvenile court judges or juvenile court personnel (App. 97a-100a). Petitioners do not seek to enjoin, or to have the federal court in any respect exercise control over, their ongoing state juvenile court proceedings, which will continue without interference regardless of the outcome of this suit. Nor do petitioners seek to challenge the constitutionality of any state statute, contest any juvenile court custodial or parental rights determination, or compel or restrain the Department from instituting or maintaining proceedings in juvenile court on behalf of, or against, any party. Compare with Moore v. Sims, 442 U.S. 415, 417 (1979) (state court proceedings enjoined by district court pursuant to “broad facial attack” in federal court on constitutionality of Texas Family Code brought by parents and minor children challenging children’s removal from parents’ '® See Pennzoil, 481 U.S. at 8 (enjoining attempts to enforce state court judgment or obtain lien under state law); Ohio Civil Rights Comm'n v. Dayton Christian Schs. Inc., 477 U.S. 619, 625 (1986) (enjoining civil rights commission from exercising jurisdiction over sex discrimination claim); Middlesex, 457 U.S. at 426 (seeking to enjoin state attorney disciplinary proceeding); Moore v. Sims, 442 U.S. 415, 422 (1979) (enjoining juvenile court neglect and abuse proceedings). 20 home into state custody). Notwithstanding the plain language of the amended complaint limiting the relief sought to executive conduct, the Eleventh Circuit erroneously determined that petitioners seek federal. court control over petitioners’ juvenile court proceedings and even the juvenile courts themselves. Most dramatically, the court found that plaintiffs seek implementation of a “systemwide plan to revamp and reform dependency proceedings in Florida, as well as the appointment of a permanent children’s advocate to oversee that plan,” a clear factual error (see p. 13, supra). In addition, however, the Eleventh Circuit found “interference” in (i) its conclusory statement that the relief sought by petitioners would place decisions “now in the hands of the state courts under the direction of the federal district court”; and (ii) the unarticulated potential for “conflicting orders about what is best for a particular plaintiff,” resulting in “amendment{[s] to a child’s case plan that the state court would not have approved.” (App. 37a). These concerns are misplaced and the Eleventh Circuit’s reliance on them is flatly inconsistent with this Court’s prior teachings. The Eleventh Circuit cites in support this Court’s decision in O’Shea v. Littleton for the proposition that “[t]he relief sought need not directly interfere with an ongoing proceeding or terminate an ongoing proceeding in order for Younger abstention to be required.” (App. 32a.) But O'Shea establishes only that the targets of ongoing state enforcement hearings cannot evade the Younger bar by simply framing their claim as one for prospective relief. Younger bars not only remedies that cause the federal courts to usurp present state court hearings but also prospective relief that would inevitably 21 lead to a similar result. Notably, Michael O’ Shea and his co- petitioner were state court judges, and the injunction at issue contemplated “interruption of state proceedings to adjudicate assertions of noncompliance by petitioners” which to the Court constituted “nothing less than an ongoing federal audit of state criminal proceedings.” O’Shea, 414 U.S. 488, 500 (1974). Such relief, which directly targeted judicial officers and the criminal proceedings they oversee, even if only prospectively, is a far cry from the exclusively executive branch-focused remedial relief sought in this case. Rather than relief targeting judicial decisions about what is best for an individual child before the juvenile court or amendments to a particular child’s custodial disposition or case plan, petitioners — representing a putative class of nearly all Florida’s foster children — seek such systemic changes as the employment of more and better trained caseworkers, the recruitment of more and a wider availability of appropriate and safe foster placements, and better state oversight and control over the agencies with which the state contracts to provide foster care services. This is precisely the relief that the Florida separation of powers doctrine and other procedural, substantive and practical barriers preclude Florida’s foster children from obtaining in juvenile court (see pp. 8-9, supra).'? As a result, '? Unlike the juvenile court, federal district courts are not constrained from granting relief that might require additional state expenditures. Will v. Michigan Dep't of State Police et al., 491 U.S. 58, 90 (1989) (equitable relief “may be awarded to ensure future compliance by a State with a substantive federal question determination” even if such compliance requires expending state funds); Missouri Child Care Ass’nv. Cross, 294 F.3d 1034, 1042 (8th Cir. 2002) (citing Milliken v. Bradley, 433 U.S. 267, 289 (1977); Edelman v. Jordan, 415 U.S. 651, 667-68 (1974); Wyatt v. Aderholt, 503 F.2d 1305, 1315 (Sth Cir. 1974); Anticran v. Odom, 290 F.3d 178, 186 (4th Cir. 2002)). 22 there is no likelihood of even indirect interference with, or intrusion into, the state court’s proceedings, which will continue regardless of petitioners’ ability to pursue federal judicial relief.”° Moreover, petitioners seek only injunctive and declaratory relief addressed to the actions and inactions of the Department as an executive authority — specifically, the Department’s implementation and operation of a child welfare system that comports with reasonable professional standards. See Youngberg v. Romeo, 457 U.S. 3u7, 324 (1982). Such conduct is separate and distinct from any individualized judicial review of executive action in the context of an individual foster child’s dependency review proceedings. As this Court noted in NOPSI, where Younger abstention ‘was held not to foreclose a federal court challenge to a state legislative body’s rate-setting determination subject to parallel state court review: [I]t has never been suggested that Younger requires abstention in deference to a state judicial proceeding reviewing legislative or executive action. Such a broad abstention requirement would make a mockery of the rule that only exceptional circumstances justify a federal court’s refusal to decide a case in deference to the States. 20 Not only is the prospect of inconsistent orders chimerical given the nature of the systemic relief sought by petitioners, the mere fact that there is a potential for disagreement in the outcomes of the federal and state judicial proceedings is not by itself a proper basis, under this Court’s decisional law, for application of the Younger bar. See NOPSI, 491 U.S. at 372; Doran, 422 U.S. at 928. 23 NOPSI, 491 U.S. at 368 (citations omitted). Thus, by virtue of both (i) tiie wholly divergent relief sought and available in the parallel federal and state proceedings at issue and (ii) the executive nature of the conduct challenged, this case is — like the federal challenge to the council’s rate-making determination in NOPSI — simply beyond the purview of the Younger abstention doctrine. The Eleventh Circuit has adopted such a broad abstention doctrine that the danger identified in NOPS] — the exception that would swallow the rule that Younger abstention be only a limited exception to a federal court exercising its lawfully-conferred jurisdiction — has come to pass. Some of the nation’s most vulnerable citizens, abused and neglected children in state foster care custody, have been prohibited from challenging in federal court the unconstitutional conditions of their confinement by government custodians and from obtaining appropriate relief. Respectfully, the Court should grant review to correct this harmful expansion of what federalism dictates must remain a doctrine only sparingly applied. » The Writ Should Be Granted to Resolve Splits Among the Circuit Courts. The Court’s voice is needed to resolve conflicts between the circuits on the type of “interference” with state court proceedings justifying application of Younger, including direct conflicts on Younger abstention in the context of foster care reform litigation. a. Though petitioners believe the corpus of 24 Supreme Court Younger abstention case law is consistent in requiring “interference” with ongoing state court proceeding that results in the injunction or other non-collateral limitation of those proceedings, the circuits abound with conflicts on this issue. The decisions reflect three strains: i. Direct interference with state court proceedings required — The en banc Ninth Circuit in Green v. City of Tuscon, determined emphatically that federal relief qualifying for Younger must “directly interfere” with the ongoing state court proceedings and the doctrine is not satisfied merely by the possibility of inconsistent outcomes in parallel proceedings. 255 F.3d 1086, 1097 (9th Cir. 2001) (en banc). Rather, the interference of Younger is that which seeks to “enjoin, declare invalid, or otherwise involve the federal courts in terminating or truncating the state court proceedings.” Jd. at 1098. See also Marks v. Stinson, 19 F.3d 873, 885 (3d Cir. 1994) (“since parallel proceedings always involve a likelihood that a final merits judgment in one will effectively terminate the other, it necessarily follows that the mere fact that a judgment in the federal suit might have collateral effects in the state proceeding is not interference for Younger purposes”); Crawley v. Hamilton County Com’rs, 744 F.2d 28, 30 (6th Cir. 1984) (declining to abstain where “the federal plaintiffs ... are not attempting to use the federal courts to shield them from state court enforcement efforts”). ii. At least indirect interference with state court proceedings required — \n J.B. ex rel. Hartv. Valdez, 186 F.3d 1280 (10th Cir. 1999), a suit brought on behalf of a putative class of developmentally disabled children in the custody of New Mexico, the district court denied class certification and thereafter dismissed the individual named plaintiffs’ lawsuits on 25 abstention grounds. Jd. at 1283. The Tenth Circuit affirmed the denial of class certification (id.), dismissed a number of the individual named plaintiffs’ claims as moot (id. at 1290), and upheld the district court’s decision to abstain as to the three individual plaintiff children remaining in the case (id. at 1293). The court determined that federal court consideration of three children’s individual claims was likely to interfere with the children’s ongoing proceedings because the only remaining claims required specific changes in the plaintiffs’ case plans (id. at 1295) which would “place[] the federal court in the role of making dispositional decisions such as whether to return the child to his parents in conjunction with state assistance or whether to modify a treatment plan.” /d. at 1291-92. Further along the spectrum is the Tenth Circuit’s decision in Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253 (10th Cir. 2002), and the extension of the Younger doctrine contemplated in it. The plaintiffs in Joseph A., a class of foster children, sued the New Mexico Department of Human Services for failure to provide meaningful access to foster care and adoption services. The case was settled with the parties entering into a federal court consent decree. /d. at 1256. In the context of a contempt proceeding brought by plaintiffs based on defendants’ failure to comply with the terms of a court-ordered “exit plan” from the original decree, the Tenth Circuit articulated a novel expansion of the Younger doctrine under which abstention may be warranted if a federal decree or injunction “requires interference with the operations of [state court proceedings] in an insidious way in that the [decree] expressly prevents the Department’s employees from recommending [to the state court] a range of planning options for children who are in [] custody.” /d. at 1268. The court did not find that any provision of the decree required abstention, 26 instead remanding that question to the district court, which it conceded was more familiar with the “complexities” of the case. Id. at 1273. On remand, only a sirigle provision of the remedial scheme at issue was found by the district court to interfere with the plaintiffs’ [state court proceedings], even pursuant to the Tenth Circuit's “insidious _ interference” expansion of Younger. See Joseph A. v. New Mexico Dept. of Human Servs., No. CIV 80-623 JC/DJS (D.N.M. Jan. 16, 2003). iii. No interference with state court proceedings required — Sitting outside even the Tenth Circuit’s recent extensions of Younger abstention is the Eleventh Circuit’s decision, which petitioners submit requires no actual interference with the state court proceedings at issue, direct or indirect, but merely the adjudication of potentially overlapping issues by the federal and state proceedings. The court of appeals ruling extends beyond J.B., because unlike in J.B., petitioners here do not seek to challenge any custodial or other individual “dispositional” determinations of the juvenile courts. And it extends Younger beyond Joseph A., because the district court here granted abstention on a motion to dismiss, essentially ruling that the court could grant no possible relief that would not create abstention problems. In Joseph A., by contrast, specific relief, in a written settlement decree, had already been formulated, and the Tenth Circuit acknowledged that at least some relief would not conflict with the abstention doctrine. That ruling ultimately permitted the district court’s line-by-line abstention review that resulted in that case surviving the Younger bar. b. With respect to systemic foster care litigation of the general type at issue, the Eleventh Circuit’s ruling in this 27 case, and the Tenth Circuit’s determinations in Joseph A. and J.B. that the court of appeals expressly relies upon and expands, are directly at odds with the Ninth Circuit’s ruling in L.H. v. Jamieson, 643 F.2d 1351 (9th Cir. 1981). All four cases consider the application of Younger abstention to child welfare reform litigation filed in federal court against executive branch defendants »y foster children seeking prospective injunctive. In each case, the “interference” the executive defendants claim justify Younger abstention arises from the federal court action’s supposed effect on periodic juvenile court reviews of the same generic type as the review proceedings at issue here. Though the cases differ factually, on the relevant legal point the conflict is clear-cut. As discussed, the Eleventh Circuit here, and the Tenth Circuit in J.B. and Joseph A., determined that the relief sought by petitioners violated the “interference” threshold to the first prong of Middlesex. In L.H. v. Jamieson, a case seeking additional funding for a group of private agencies that cared for a plaintiff class of Arizona foster children, the Ninth Circuit reached a contrary result, determining that there was no “interference” of the type barred by Younger in that: .... the juveniles are not seeking to enjoin any state proceeding, nor are they seeking to enjoin state officials from enforcing any state law. They are instead requesting an order that would require Arizona to spend more money to fund dispositional alternatives for juveniles in state custody. This relief may enrich the variety of dispositional alternatives available to a juvenile _ court judge, and, to this extent, affect pending and ongoing state juvenile proceedings. It does 28 not, however, have the wholly disruptive consequences associated with enjoining a state judicial proceeding or enjoining further enforcement of a state statute. 643 F.2d at 1354. Respectfully, the Court should grant review to resolve these general and specific conflicts on important issues of federal court jurisdiction. BN Ne A a a waxes : 29 CONCLUSION For the reasons stated above, the petition for certiorari should be granted. Date: September 2, 2003 Karen Gievers GIEVERS, P.A. ; 524 E. College Avenue, Suite 2 Tallahassee, FL 32301 850-222-1961 William H. Fraser LEGAL AID SOCIETY OF PALM BEACH COUNTY, INC. 423 Fern Street, Suite 200 West Palm Beach, FL 33401 561-655-8944 Bernard P. Perlmutter Carolyn Salisbury UNIV. OF MIAMI SCHOOL OF LAW 5915 Ponce de Leon Blvd. #28 Coral Gables, FL 33146 305-284-3123 Respectfully submitted, Marcia Robinson Lowry Counsel of Record Eric E. Thompson Douglas C. Gray CHILDREN’S RIGHTS, INC. 404 Park Ave. So., 11th Fl. New York, NY 10016 212-683-2210 Christina A. Zawisza CHILD ADVOCACY CLINIC THE UNIV. OF MEMPHIS SCHOOL OF LAW 109 N. Main St., 2nd Floor Memphis, TN 38103 901-523-8822 ROY WASSON 1320 South Dixie Hwy. Suite 450 Gables One Tower Miami, FL 33146 305-666-5053 30 Deborah A. Schroth FLORIDA LEGAL SERVICES 126 W. Adams St., #502 Jacksonville, FL 32202 904-355-5200 APPENDIX App. la APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 02-10180 31 FOSTER CHILDREN, on behalf of themselves and all other Children in Florida Foster Care, Plaintiffs-Appellants v. JEB BUSH, as Governor of the State of Florida, KATHLEEN KEARNEY, as Secretary of the Florida Department of Children and Families, CHUCK BATES, District Administrator, ROBERT WILLIAMS, District Administrator, ESTER TIBBS, District Administrator, et al., Defendants-Appellees On Appeal from the United States District Court For the Southern District of Florida (D.C. Docket No. 00-02116-CV-FAM) May 8, 2003 App. 2a Before ANDERSON and CARNES, Circuit Judges, and HAND’, District Judge. CARNES, Circuit Judge. This case involves a proposed class action brought on behalf of all children in Florida’s foster care system against the Governor of Florida, the Secretary of Florida’s Department of Children and Families (“the Department”), and the administrators of fourteen of the Department’s fifteen districts, all of whom collectively administer Florida’s foster care system. The individual plaintiffs’ amended complaint alleges widespread deficiencies in the state’s foster care system, in violation of the United States Constitution and federal statutory law. The plaintiffs appeal the district court’s order insofar as it grants the defendants’ motions to dismiss parts of the amended complaint on grounds of Younger V. Harris abstention and Eleventh Amendment immunity. In Part I of this opinion, we set out the allegations contained in the multi-count complaint and the procedural history of the case. In Part II, we address the justiciability concerns raised by the defendants and conclude that although the claims of two of the plaintiffs are moot, the other plaintiffs have standing to pursue their claims. In Part III, we review the plaintiffs’ federal statutory claims and affirm the district court’s order dismissing those claims, because the statutes at issue do not give rise to enforceable rights. In Part IV, we discuss the Younger abstention doctrine and conclude that the district court did not abuse its discretion in abstaining from deciding the plaintiffs’ claims. Part V contains our conclusions and instructions for the district court on remand. * Honorable William B. Hand, United States District Judge for the Southern District of Alabama, sitting by designation. 8 OIE CRG ELON EIS MO OOS Me NT NRT Pe RRR RT Ne TO Ey App. 3a I. THE COMPLAINT AND PROCEDURAL HISTORY In June of 2000, the plaintiffs filed suit on behalf of themselves and a statewide class of children in custody of the defendants. The amended complaint contains six counts, alleging that the defendants’ practices deny and threaten the plaintiffs’’ claimed rights to: (1) safe care that meets their basic needs, prompt placements with permanent families, and services extended after their eighteenth birthdays, as guaranteed by substantive due process (Count I); (2) procedural due process in determining the services they will receive (Count II); (3) family association with siblings as guaranteed by the First, Ninth, and Fourteenth Amendments (Count III); (4) prompt placement with permanent families and to have their medical and educational backgrounds provided to their care givers, as guaranteed by 42 U.S.C. §§ 675(5)(D) and (E), which are provisions of the Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96- 272, 94 Stat. 500, 516 (June 17, 1980) (codified as amended at 42 U.S.C. §§ 620-628 and §§ 670-679a) (‘the Adoption Act”) (Count IV); (5S) health screening and followup under schedules established pursuant to the Medicaid Act, 42 U.S.C. §§ 1396a(a)(43)(B), 1396(a)(43)(C), and 1396d(r) (Count V); and (6) in the case of the black plaintiff foster children, freedom from racial discrimination in the provision of care and services, as guaranteed by Title VI of the 1964 Civil Rights Act (Count VI). The plaintiffs brought their lawsuit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief relating to the ' The plaintiffs who filed the amended complaint are: Bonnie L., Reggie B., Rebecca B., Laurie S., Lillie S., Leslie F., Sandra M., Tanya M., Candice D., Jay D., Matthew I., Hugh S., Leanne G.., Tammy G., Elaine R., Paul B., Rachel C., Cathy W., Larissa C., John J., Melinda, and Karina. App. 4a operation of Florida’s foster care system. Specifically, they requested that the court: (1) declare unconstitutional and unlawful the following alleged practices: (a) the failure to provide for the plaintiffs’ basic needs, safety, freedom from harm, freedom from unreasonable restraints on their liberty, care and treatment, freedom from being placed into unnecessary state- created danger, and freedom from arbitrary and capricious actions and decisions that deprive them of benefits to which they are entitled; (b) deprivation of state-created entitlements without an adequate and fair procedure; (c) unnecessary separation of siblings and denial of visitation among them; (d) failure to comply with the Adoption Act and the Medicaid Act; and (e) discrimination on the basis of race; (2) enjoin the Department and the defendants from violating the plaintiffs’ constitutional rights, including those described in (1) above; (3) order appropriate remedial relief to ensure compliance with the Constitution and laws of the United States; (4) appoint an expert panel to develop and oversee the implementation of a plan for reform; (5) appoint a permanent ombudsman or children’s advocate to present the plaintiffs’ interests to the defendants, and require the defendants to meet regularly and frequently with that ombudsman; and (6) grant other equitable relief as the court sees fit. PERL at AE AP GLEE PR TO OR ‘ “ . App. 5a After amending the complaint, the plaintiffs moved to certify the statewide class of all children who are or would be in foster care in Florida, along with a subclass of black children.” Upon motion of the defendants, the court appointed a guardian ad litem, who concluded after investigation that “a class action lawsuit is an appropriate mechanism to secure a remedy for all the children in State custody . . . [and] that the prosecution of this lawsuit to a final resolution . . . will be in the best interests of the Plaintiff children and the class they represent.” The district court dismissed all of the plaintiffs’ claims on the pleadings. It ruled that Count IV, which involves the Adoption Act claims, is barred by the Eleventh Amendment and dismissed those claims with prejudice. The court also dismissed with prejudice the constitutional claims — Counts I, II, and III] — as to all plaintiffs who are not in extended foster care (which exists only for persons age 18 or older); it did so based upon the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). The court dismissed with prejudice the portion of Count VI that alleges disparate impact discrimination under Title VI of the Civil Rights Act of 1964. Concluding that the amended complaint was not a “short and plain statement” of claims, the court dismissed all the other claims (including the Title VI claims for intentional discrimination} in the amended complaint without prejudice, granting the plaintiffs leave to replead those claims that had not been dismissed on some other basis. Thereafter, eleven of the twenty-two named plaintiffs who had filed the amended complaint settled all of their * The class description was later modified to exclude children who were plaintiffs in a separate class action involving only children in foster care in Broward County. App. 6a claims, executed a release, and are no longer part of the lawsuit. Some of the eleven plaintiffs who remain in the lawsuit also settled some of their claims. More specifically, all the intentional racial discrimination claims and all the Medicaid Act claims have been settled and dismissed.’ The settlement left no unadjudicated claims pending in the district court. The plaintiffs who appealed to this Court are the remaining eleven named plaintiffs still in foster care in - Florida for persons under the age of eighteen." The issues they raise in this appeal concern only Counts I through IV, which involve some of the claims that were dismissed with prejudice.” Il. JUSTICIABILITY Initially, we are faced with some threshold questions about whether the plaintiffs’ claims present a justiciable case or controversy. Specifically, we must decide whether the claims of two of the plaintiffs are moot and whether the other plaintiffs have standing to challenge the practices at issue. A. MOOTNESS The exercise of jurisdiction by the federal courts “depends upon the existence of a case or controversy.” 3 Because of that settlement, none of the plaintiffs filed an amendment to the complaint repleading those claims, even though the district court’s dismissal of them had been without prejudice. ‘ They are: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Leanne G., Tammy G., Elaine R., Rachel C., Larissa C., and John J. * Although the disparate impact portion of the black children’s Title VI claims in Count VI was also dismissed with prejudice, the plaintiffs do not contest that ruling. App. 7a North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 404 (1971) (citation and internal quotation marks omitted). “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486,496, 89 S. Ct. 1944, 1951 (1969). “Put another way, [a] case is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Fla. Ass’n of Rehab. Facilities. Inc. v. Fla. Dep’t of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (citations and internal quotation marks omitted). We consider questions of mootness under a plenary standard of review. United States v. Fla. Azalea Specialists, 19 F.3d 620, 621 (11th Cir. 1994). The defendants contend that Larissa C.’s and Leanne G.’s claims are moot, and we agree. Because Larissa C. and Leanne G. have been adopted, they are no longer in the defendants’ legal or physical custody and therefore cannot be further harmed by the defendants’ alleged illegal practices. Because the plaintiffs’ amended complaint seeks only prospective injunctive relief against the defendants to prevent future harm, no live controversy exists between them and these two plaintiffs. Larissa C. and Leanne G. have no legally cognizable interest in the outcome of this lawsuit. All of their claims are moot. B. STANDING The three prerequisites for standing are that: (1) the plaintiff have suffered an “injury in fact” — an invasion of a judicially cognizable interest, which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of — the injury must be fairly traceable to the challenged action of the defendant, and App. 8a not the result of the independent action of some third party not before the court; and (3) it be likely, not merely speculative, that the injury will be redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161 (1997). These three elements “constitute[] the core of Article III’s case-or-controversy requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103-04, 118 S. Ct. 1003, 1017 (1998). The plaintiffs bear the burden of establishing each of the three standing elements. Bennett, 520 U.S. at 167-68, 117 S. Ct. at 1163-64. How much evidence is necessary to satisfy that burden depends on the stage of litigation at which the standing challenge is made. Id. At the pleading stage, “general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992) (citations and internal marks omitted). Because Larissa C.’s and Leanne G.’s claims are moot, we have nine remaining plaintiffs who appealed to this Court and for whom the standing question maiters: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Tammy G., Elaine R., Rachel C., and John J. Taking the allegations of the complaint as true for present purposes, as we must, Pompey v. Broward County, 95 F.3d 1543, 1548 n.6 ( Ith Cir. 1996), we will proceed count-by-count as to all the injury claimed by the plaintiffs who have appealed to this Court. In Count I, the plaintiffs claim that the defendants have violated their substantive due process rights by engaging in a pattern and practice of failing to meet their See => : . . . ania poner - . PHS ae sy at % are ee BES ee aa, fe rs RS eine hese i bo PAA i aA li App. 9a obligations in the following ways: failing to satisfy the plaintiffs’ basic needs for food, clothing, and shelter, as well as for medical, educational and other services; failing to provide safe care and placements that protect the plaintiffs from harm and services that prevent or ameliorate harm; and failing to provide the plaintiffs with care consistent with the purposes for which the defendants assumed custody of them. As additional claimed violations of their substantive due process rights in Count I, eight of the nine remaining plaintiffs — Tanya M., Laurie S., Lillie S., Elaine R., Rachel C., Reggie B., John J., and Tammy G. — assert that the defendants knowingly placed and retained them in foster care. placements that were dangerous, abusive, neglectful, overcrowded, or wholly inappropriate for meeting the children’s needs. The plaintiffs further claim that the defendants ignore or inappropriately respond to complaints or other information identifying certain placements as dangerous, abusive, neglectful, overcrowded, or wholly inappropriate for meeting the children’s needs, and have done so in the placements of Tanya M., Laurie S., Lillie S.., Tammy G., and John J. Further, the defendants are alleged to have engaged in a pattern and practice of placing some children, including Rachel C. and Tammy G., in temporary shelters or group homes on a long-term basis because of the unavailability of foster homes to accommodate them. They are alleged to have retained children, including Laurie S.., Lillie S., Reggie B., and Rebecca B., in foster care longer than necessary and to have subjected children to multiple, unwarranted placements. The position of the plaintiffs is that the defendants have a pattern and practice of engaging in the conduct alleged in Count I, which has caused and continues to cause the plaintiffs injury. In Count II, the plaintiffs assert viviations of . procedural due process. They allege that the defendants have App. 10a failed to establish a process for an administrative hearing or professional review of decisions that deny the plaintiffs benefits to which they are entitled, including caseworker supervision of children in foster care and shelter care, medical care, foster care after reaching the age of majority, and participation in a subsidized Independent Living Program. Specifically, it is alleged that Reggie B. has been and continues to be injured by this pattern and practice, because he has been denied treatment necessary to repair a cleft palate and for other medical needs. In Count III, eight of the remaining plaintiffs — Tanya M., Tammy G., Laurie S., Lillie S., John J., Elaine R.., Reggie B., and Rebecca B. — claim that the defendants have violated their First, Ninth, and Fourteenth Amendment rights by unnecessarily separating them from their siblings and depriving them of regular and frequent visitation with their separated siblings. They allege that the defendants have a pattern and practice of doing so, and that it has harmed them. In Count IV, the plaintiffs allege that the defendants have violated rights granted them under the Adoption Act. Specifically, Laurie S., Lillie S., Reggie B., and Rebecca B. claim that the defendants routinely fail to initiate proceedings for termination of parental rights to children in their custody for 15 of the most recent 22 months as required under 42 U.S.C. § 675(5)(E), and that they have been harmed by this practice. Reggie B. also alleges specifically that his health and education records were not provided to foster parents or foster care providers immediately upon his placement in a home or facility, as required under 42 U.S.C. § 675(5)(D), and the other eight remaining plaintiffs allege generally that the defendants routinely fail to obtain the required information, update it, or provide a record of the information to each foster home or facility. SsckaisaPiip des Shao uci gh msi A ks ok nina bs as dba ais EP Ae NR EARP Og Sra SNES EIA ES App. lla The defendants contend that none of the plaintiffs has Standing to bring claims under Count II (procedural due process) or Count IV (Adoption Act). With regard to Count I (substantive due process), the defendants contend that only four plaintiffs — Laurie S., Lillie S., Reggie B., and Rebecca B. — have standing to claim that they have been in foster care longer than reasonably necessary. They contend that only three plaintiffs — Tammy G., Laurie S., and Lillie S$. — have standing to bring a claim under Count III (sibling association) for failure to be placed in a foster home with their siblings. Finally, they contend that only two plaintiffs — Elaine R. and Tammy G. — have standing to raise a claim under Count III for failure to allow visitation with siblings. The defendants’ basis for claiming that most plaintiffs lack standing for these claims is that most of them fail to allege either a palpable injury or the imminent risk of harm.® Instead, according to the defendants, most of the plaintiffs complain about past harms and seek relief for aspects of the Florida foster care system that have not caused them injury. In order to satisfy the “injury in fact” requirement of standing, a plaintiff need not wait for an injury to occur. An ° In addition to injury in fact, plaintiffs must also allege that their injuries are “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court,” and that it is likely the injury will be redressed if the court rules in their favor. Bennett v. Spear, 520 U.S. 154, 167, 117 S. Ct. 1154, 1163 (1997). These aspects of standing are not disputed in this case. According to the amended complaint, the defendants’ failures caused the plaintiffs’ injuries and their continued failures are likely to cause further injuries. The plaintiffs do allege that their injuries are related to the challenged conduct of the defendants. Therefore, the alleged injuries suffered by the plaintiffs are fairly traceable to the conduct of the defendants. In addition, the plaintiffs seek a declaratory judgment and prospective injunctive relief that will prevent the defendants from violating their constitutional and federal statutory rights. The relief the plaintiffs seek would clearly remedy their claimed injuries. App. 12a allegation of future injury satisfies this prong of standing so long as the alleged injury is “imminent” or “real and immediate” and not merely “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136; City of Los Angeles _v. Lyons, 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665 (1983). An injury is imminent if it is likely to occur, and likely to do so immediately. Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. When a plaintiff cannot show that an injury is likely to occur immediately, the plaintiff does not have standing to seek prospective relief even if he has suffered a past injury. For example, in Lyons, the plaintiff sought to enjoin the use of “chokeholds” by police officers. 461 U.S. at 98, 103 S. Ct. at 1663. The Court stated that the plaintiffs standing to seek that relief hinged on “whether he was likely to suffer future injury from the use of the chokeholds by police officers.” Id. at 105, 103 S. Ct. at 1667. The Court held that the plaintiff lacked standing, because the probability of future injury was too speculative, id. at 106-07, 103 S. Ct. at 1667-68, explaining: In order to establish an actual controversy in this case, [the plaintiff] would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter _.. or (2) that the City ordered or authorized police officers to act in such manner. Id. at 105-06, 103 S. Ct at 1667. As Lyons illustrates, future injury that depends on either the random or unauthorized acts of a third party is too speculative to satisfy standing requirements. However, when the threatened acts that will e + ieee Se eae area et oe " ‘ ; na oe hee BY eae 3 somes s Pa OMe pt Le ago wae) ite Pe x IEEE ESE PERRIS ls LN OO a I a de Si i tink eal = Sika . EDN LEAT INO en eee Ore 4 aay. br te * aby * eit ¥ ¢ Sy " ; App. 13a cause injury are authorized or part of a policy, it is significantly more likely that the injury will occur again. See id. at 106, 103 S. Ct. at 1667 (plaintiff may have had Standing if he had alleged “that the City ordered or authorized police officers to [perform illegal chokeholds]”). This case is more like Church v. City of Huntsville. 30 F.3d 1332 (11th Cir. 1994), than Lyons. In Church. the plaintiffs were homeless persons who sought an injunction against the City of Huntsville to prevent the City and its employees from harassing, intimidating, detaining, and arresting them solely because they were homeless, as part of a concerted effort to drive them out of the city. Id. at 1335. We held that the plaintiffs had standing, because they were far more likely than the Lyons plaintiff to have future encounters with the police, were homeless involuntarily, and could not “‘avoid future exposure to the challenged course of conduct” in which the City engaged. Id. at 1338 (quoting O’Shea v. Littleton, 414 U.S. 488, 497, 94 S. Ct. 669, 677 (1974)). Importantly, the Church plaintiffs alleged that municipal policy authorized the constitutional deprivations they claimed and that the City had a “custom, practice and policy” of engaging in the challenged conduct. Id. at 1339. For the reasons that the Church plaintiffs had standing, the plaintiffs in this case who are in the defendants’ physical custody have standing to pursue their substantive due process claims (Count I). The plaintiffs who are in the defendants’ physical custody and have siblings in the defendants’ custody — Tammy G., Laurie S., Lillie S., John J., Reggie B., and Rebecca B. — have standing to pursue their sibling association claims (Count III). These plaintiffs are in much the same legal position as the Church plaintiffs. They are in the custody of the defendants involuntarily and will be until they are returned to their parents, are adopted, or reach the age of majority. They cannot avoid exposure to the App. 14a defendants’ challenged conduct. The alleged systemic deficiencies in the Florida foster care system are similar to an injurious policy, and different from the random act at issue in Lyons. The alleged pattern and practice in this case presents a substantial likelihood that the alleged injury will occur. See Church, 30 F.3d at 1339. Moreover, the plaintiffs’ allegations under Counts | and III support the conclusion that future injury will proceed with a high degree of immediacy. The Supreme Court addressed this aspect of the injury in fact requirement in Lujan, holding that because the plaintiffs failed to demonstrate their injury would “proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all,” they lacked standing to pursue their claim. 504 US. at 559, 564 n.2, 112 S. Ct. at 2135-36, 2138 n.2. Thus, under Lujan, one cannot merely allege that an injury will be suffered at “some time” in the future. However, a plaintiff need not demonstrate that the injury will occur within days or even weeks to have standing. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211-12, 115 S. Ct. 2097, 2105 (1995) (plaintiff who was likely to suffer injury within one year period had standing to sue). The court must make a qualitative inquiry into this question. See Wilderness Soc’y y. Alcock, 83 F.3d 386, 390 (llth Cir. 1996) (when determining standing, court focuses on qualitative sufficiency of the injury). In this case, for those plaintiffs who are in the physical custody of the defendants, the degree of immediacy is sufficiently high that there is little likelihood the district court will be deciding a case “in which no injury would have occurred at all.” Lujan, 504 U.S. at 564 n.2, 112 S. Ct. at 2138 n.2. However, the two plaintiffs who are not in the defendants’ physical custody lack standing to pursue the eee ee. ee ee ae FOE LE LE AE ET OO SO PO ji ie 1 a aed LL RGA INS RY PGI IEEE INE IE NDT AG IGE LAN ET eg Be ORR PE SEE AOSD Se OCT te . ib thei ris eget ed Pete Te ECG ESA GRRE To PRE BS hakiead bail itt age nat et Rdaats gs ote able ce teal ee ae Sie : - App. 15a constitutional claims under Counts I and III. The amended complaint states that Tanya M. has run away, and at oral argument the plaintiffs’ counsel referred to Elaine R. as one of the “hundreds of missing children.” Plaintiffs who are not in the defendants’ physical custody cannot demonstrate that their constitutional injuries are imminent. They may return to the defendants’ physical custody, but they may not. If they do not return to the defendants’ physical custody, then they will never be harmed by the alleged practices of the defendants. It follows that they cannot demonstrate any injury that would “proceed with a high degree of immediacy.” Id. Only Reggie B. has standing to pursue the procedural due process claims set out in Count II, because he is the only plaintiff who has demonstrated injury in fact as to that claim. He claims that he has been denied medical care to repair a cleft palate (and other unspecified medical care) and that the defendants have not provided a process for review of that denial. If his cleft palate has not been repaired, he has been denied an alleged entitlement, and he is asking for procedural protections he claims have not been provided. His is a concrete injury that is real and immediate. Id. at 560, 112 S. Ct. at 2136. The other plaintiffs, however, have not alleged that they have been denied any entitlement. Without such an allegation, the other plaintiffs are essentially asserting that they will be denied a benefit in the future, and that when that happens, the defendants will provide them with no process for reviewing the denial. The plaintiffs’ procedural due process claims are different from their substantive due process claims because the procedural injury requires two steps: the defendants must deny the plaintiffs a benefit and then deny them process. Such an injury may never occur. See id. at 564 n.2, 112 S. Ct. at 2138 n.2. As to the Adoption Act claims in Count IV, all of the plaintiffs whose parents’ parental rights have not been App. 16a terminated within the period set out in the statute have standing to pursue a claim under 42 U.S.C. § 675(5)(E). Their claimed injury is concrete. In the amended complaint, Laurie S., Lillie S., Reggie B., and Rebecca B. present such claims. Other plaintiffs, the ones who have not been in the defendants’ custody for the statutory period, do not have standing to bring a claim under § 675(5)(E), because they may not be injured at all; they may return to their parents’ custody. All of the remaining plaintiffs in the defendants’ physical custody have claims under 42 U.S.C. § 675(5)(D) for the defendants’ failure to provide updated health and education records to the plaintiffs’ foster caregivers for the same reasons that they have standing to pursue their substantive due process claims. Because it is alleged that the defendants routinely fail to obtain the required information, update the records, and provide the information to the foster caregivers, all children who are within the defendants’ physical custody are at risk of immediate harm from that pattern and practice. In sum, Larissa C.’s and Leanne G.’s claims are moot because they have been adopted. Reggie B., Rebecca B., Laurie S., Lillie S., Tammy G., Rachel C., and John J. have standing to pursue their Count I claims. Reggie B. has standing to pursue his Count II claims. Tammy G., Laurie S., Lillie S., John J., Reggie B., and Rebecca B. have standing to pursue their Count III claims. Laurie S., Lillie S., Reggie B., and Rebecca B. have standing to pursue their Count IV claims for failure to terminate parental rights in the statutory period. Reggie B., Rebecca B., Laurie S., Lillie S., Tammy G., Rachel C., and John J. have standing to pursue their Count IV claims for failure to provide updated health and education records to foster caregivers. App. 17a III. THE PLAINTIFFS’ CLAIMS UNDER § 1983 FOR VIOLATIONS OF §§ 675(5)(D) AND (E) OF THE ADOPTION ACT Because some of the plaintiffs have standing to pursue their Adoption Act claims, we must now decide whether 42 U.S.C. § 675(5)(D) and (E) provide rights enforceable under 42 U.S.C. § 1983.’ It provides a federal remedy for violations not only of the Constitution but federal statutes as well. Maine v. Thiboutot 448 U.S. 1, 100 S. Ct. 2502 (1980). In order to have a viable cause of action under § 1983 based on the violation of a federal statute, however, a plaintiff must establish that the statute allegedly violated gives the plaintiff enforceable rights. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002) (rejecting the notion that case law permits “anything short of an unambiguously conferred right to support a cause of action brought under § 1983”). We emphasize, as did the Court in Gonzaga, that in cases brought to enforce legislation enacted pursuant to Congress’ spending power, such as the Adoption Act, Congress must “speak with a clear voice” and manifest an “unambiguous” intent to confer individual rights before federal funding provisions will be read to provide a basis for private enforcement. Id. at 280, 122 S. Ct. at 2273 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. ey A 28 & n.21, 101 S. Ct. 1531, 1540, 1545 & n.21) (1981)). “In ” The district court did not decide this question, instead dismissing the plaintiffs’ Adoption Act claims as barred by the Eleventh Amendment under Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996). In view of our conclusion that the Adoption Act claims are due to be dismissed on other grounds, we need not address the Eleventh Amendment issue. McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1258-59 (11th Cir. 2002). App. 18a legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State.” Pennhurst, 451 USS. at 28, 101 S. Ct. at 1545. Only twice since Pennhurst has the Supreme Court held that spending legislation gave rise to rights enforceable via § 1983. See Wilder _v. Va. Hosp. Ass’n, 496 U.S. 498, 110 S. Ct. 2510 (1990) (holding that health care providers could, pursuant to § 1983, enforce the Boren Amendment to the Medicaid Act); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766 (1987) (holding that the Brooke Amendment to the Housing Act provided a cause of action under § 1983). The Supreme Court has set forth three requirements that must be met before a federal statute will be read to confer a right enforceable under § 1983: (1) Congress must have intended that the provisions in question benefit the plaintiff; (2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so vague and amorphous that its enforcement would strain judicial resources; and (3) the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S. Ct. 1353, 1359 (1997). The Supreme Court in Gonzaga clarified the first of the Blessing requirements, making it plain that only unambiguously conferred rights, as distinguished from mere benefits or interests, may be enforced under § 1983. 536 U.S. at 283, 122 S. Ct. at 2275 (rejecting the notion private plaintiffs have enforceable federal rights merely because they are the intended beneficiaries of a statute or fall within its zone of interest). The Court held in Gonzaga that a private plaintiff could not bring an action under § 1983 to enforce provisions App. 19a of the Family Educational Rights and Privacy Act of 1974 (FERPA), 20 U.S.C. § 1232g. In FERPA Congress directed the Secretary of Education to deny federal funding to any state with a policy or practice of permitting the unauthorized release of education records or personal information. Congress was explicit about it, saying: “No funds shall be made available... to any [school] which has a policy or practice of permitting the release of education records . . . of students without the written consent of their parents ...” 20 U.S.C. § 1232g(b)(1). 5 A thee L OEE SLES MAREE EO SO or In holding that FERPA does not create a right enforceable under § 1983, the Supreme Court explained that the act lacks “rights-creating” language critical to showing congressional intent to create new rights. Instead, the act speaks only to the Secretary of Education, directing him to withhold funds if the prohibited practice exists. Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277. The Court contrasted FERPA’s language that “[n]o funds shall be made available,” with the individually focused language of Titles VI and IX, which mandate that “[n]Jo person . . . shall . . . be subjected to discrimination,” statutes that do create enforceable rights, see Cannon vy. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946 (1979). The Court concluded in Gonzaga that the focus of FERPA is “two steps removed from the interests of individual students and parents.” 536 U.S. 287, 122 S. Ct. at 2277. Instead of creating an enforceable duty on the part of the school, the act only imposed a duty on the part of the federal government — the duty to withhold funds. A second reason the Supreme Court gave in Gonzaga for concluding that FERPA does not create enforceable rights is that its nondisclosure provisions speak only in terms of institutional policy and practice, not about “individual instances of disclosure.” Id. at 288, 122 S. Ct. at 2278. The provisions therefore have an aggregate focus, instead of a App. 20a concern for “whether the needs of any particular person have been satisfied.” Id. (citation omitted). Also thought significant is the fact that institutions can avoid funding termination under FERPA by substantial compliance with the act’s requirements; compliance in every case is not necessary to avoid loss of funding. Id. Finally, the Supreme Court considered in Gonzaga the mechanism that Congress chose to provide for enforcing the provisions of FERPA. The act expressly authorizes the Secretary of Education to “deal with violations” of it and to establish a review board for investigating and adjudicating such violations. 20 U.S.C. § 1232g(f). The Secretary’s regulations create an office to act as a review board, and students can file individual written complaints with that office. This review mechanism, the Court concluded, evidences a congressional intent to avoid the multiple interpretations of FERPA that might arise if the act created enforceable individual rights. Gonzaga, 536 at 289-90, 122 S. Ct. at 2278-79. We take from Gonzaga the lesson that we are to look at the text and structure of a statute in order to determine if it unambiguously provides enforceable rights. If the text and structure “provide no indication that Congress intends to create new individual rights, there is no basis for a private suit.” Id. at 286, 122 S. Ct. at 2277. If they provide some indication that Congress may have intended to create individual rights, and some indication it may not have, that means Congress has not spoken with the requisite “clear voice.” Ambiguity precludes enforceable rights. Id. at 280, 122 S. Ct. at 2273. The first Blessing requirement, which is what Gonzaga addressed, is that Congress must have intended that the provision in question benefit the plaintiff. Factors to consider in determining if it did include whether the statute: (1) contains “rights-creating” language that is App. 2la individually focused; (2) addresses the needs of individual persons being satisfied instead of having a systemwide or aggregate focus; and (3) lacks an enforcement mechanism through which an aggrieved individual can obtain review. Turning to the specific legislation at hand, the Adoption Act comprises Parts B and E of Title IV of the Social Security Act and is a federal funding statute that establishes a program of payments to states for foster care and adoption assistance. 42 U.S.C. § 620-628, 670-679a. Sections 675(5)(D) and (E) are found in Part E. For a state to receive funds under Part E, it must satisfy certain requirements. The state must submit for approval by the Secretary of Health and Human Services a plan for foster care and adoption assistance. 42 U.S.C. § 671(a). If a state follows its approved plan, it receives federal funds. 42 U.S.C. § 670; 42 U.S.C. § 1320a-2a. If the state does not follow its approved plan, it may lose all or some of the federal funds it otherwise would receive. Section 1320a-2a requires the Secretary to promulgate regulations for use in reviewing state programs in order to determine whether the programs are in substantial conformity with the state plan. 42 U.S.C. § 1320a-2a(a)(3). Under the statute, the regulations must require the Secretary to withhold federal funds if a state has failed to substantially conform to its approved plan, id. § 1320a-2a(b)(3), and the regulations do exactly that, 45 C.F.R. §§ 1355.35(c)(4), 1355.36(b). The plaintiffs in this case brought suit under § 675, a section that provides definitions for both Parts B and E, including a definition for the term “case review system.” 42 U.S.C. § 675(5). The plaintiffs’ position is that those provisions relating to a case review system give them an App. 22a enforceable right under the statute. Section 675(5) provides, in relevant part: The term “case review system” means a procedure for assuring that — (D) a child’s health and education record (as described in paragraph (1)(A)) is reviewed and updated, and supplied to the foster parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care; (E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination that the parent has committed murder of another child of the parent, committed voluntary manslaughter of another child of the parent, aided or abetted, attempted, conspired, or solicited to commit such a murder or such a_ voluntary manslaughter, or committed a felony assault that has resulted in serious bodily injury to the child or to another child of the parent, the State shall file a petition to terminate the parental rights of the child’s parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition). 42 U.S.C. § 675(5). Because §§ 675(5)(D) and (E) are definitional in nature, they alone cannot and do not supply a basis for conferring rights enforceable under § 1983. See Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2273; see_also Charlie H. v. Whitman, 83 F. Supp. 2d 476, 490 (D.N.J. 2000) (§ 675(5), standing alone, does not confer a right enforceable under § 1983); B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D. Ill. pa tar a pelea Ie BLN REA A PREIS NE USS ig SASS bs , App. 23a 1989) (“It would be strange for Congress to create enforceable rights in the definitional section of a statute.”). Other than the definition, the only provision in Part E of Title IV that uses the term “case review system” is 42 U.S.C. § 671(a)(16). That section conditions receipt of federal funds on the existence of a state plan that, among other things, provides for “a case review system which meets the requirements described in section 675(5)(B) .. . with respect to each such child.” Section 671(a)(16) does not go beyond that and explicitly require a plan to meet the requirements described in §§ 675(5)(D) and (E). The plaintiffs contend otherwise. They argue that we should not interpret § 671(a)(16) to require compliance only with § 675(5)(B) in order for states to receive federal funds, but we think that is the most logical interpretation. The statute plainly directs that the state must have a plan that provides for a case review system “which meets the requirements described in section 675(5)(B) of this title.” 42 U.S.C. § 671(a)(16). It does not say that a plan’s case review system must meet the requirements of §§ 675(5)(D) and (E). Moreover, in other provisions of the Adoption Act, provisions that are codified in Part B of Title IV, Congress has required compliance with all of § 675(5) in order for a state to receive funds. The conclusion we reach is that * Part B creates a joint federal-state program that provides federal funds for child welfare services. In order to be eligible for these funds, 42 U.S.C. § 622(b)(10)(B){ii) requires that each state have a plan for child welfare services that “provide[s] assurances that the State — is operating, to the satisfaction of the Secretary — a case review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State.” Another provision, 42 U.S.C. § 626(b)(3), requires that, in order for states to receive funds for projects for the development of alternate care arrangement for infants who do not need to ee er ee App. 24a Congress knew how to require compliance with all aspects of a case review system, as described in § 675(5), when it wanted to do so. It did not choose to do so in § 671(a)(16). Additionally, §§ 675(5)(D) and (E) do not have the kind of focused-on-the-individual, rights-creating language required by Gonzaga. Instead, the language of those provisions gives them an aggregate or system wide focus ‘nstead of one that indicates concern with whether the needs of any particular child are met. Gonzaga, 536 U.S. 288, 122 S. Ct. at 2277-78. Although the text of the provisions speaks to “a child’s health and education record” provided at “each placement of the child” and to termination of the parental rights of “the child’s parents,” the case review system as a whole is defined as “a procedure for assuring” that the desired steps are taken. 42 U.S.C. § 675(5). The references to individual children and their placements are made in the context of describing what the procedure is supposed to ensure, and such provisions “cannot make out the requisite congressional intent to confer individual rights enforceable by § 1983.” Gonzaga, 536 U.S. at 289, 122 S. Ct. at 2278. be in hospital settings, the state develop “a case review system of the type described in § 675(5) of this title” for each infant. The plaintiffs have not sued under either 42 U.S.C. § 622(b)(10)(B)(ii) or § 626(b)(3), which are in Part B, and instead have repeatedly said that their claims arise under Part E. Section 671(a)(16) is the only section in Part E that refers to a “case review system.” So, we have confined our consideration to it. However, other courts have found that § 622(b)(10)(B)(ii), at least, does not confer an enforceable right. See Charlie H. v. Whitman, 83 F. Supp. 2d 476, 485-89 (D.N.J. 2000) (§ 622(b)(10)(B)(ii) is not so unambiguous as to confer a right enforceable under § 1983); Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H. 1994) (plaintiffs have no enforceable right to compel state’s implementation of programs under predecessor to § 622(b)(10)(B)(ii)). ———— tS ; App. 25a Further, Congress has required the Secretary of Health and Human Services to promulgate regulations for the review of the child welfare and adoption assistance programs set out in Parts B and E in order “to determine whether such programs are in substantial conformity with — State plan requirements under such parts B and E.” 42 U.S.C. § 1320a- 2a(a)(1) (emphasis added). The substantial conformity requirement is similar to FERPA’s, which the Court in Gonzaya concluded showed an aggregate instead of an individual focus. 536 U.S. at 288, 122 S. Ct. at 2278; see also Blessing, 520 U.S. at 335, 343, 117 S. Ct. at 1357, 1361 (holding that Title IV-D of the Social Security Act did not Support a right enforceable pursuant to § 1983, in part because the statute mandated “substantial compliance” with federal regulations). As for enforcement of §§ 675(5)(D) and (BE), it is true that the statutes do not contain “a remedial scheme sufficiently comprehensive to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Blessing, 520 U.S. at 346, 117 S. Ct. at 1362 (internal marks omitted). In fact, the Adoption Act contains no mechanism by which aggrieved individuals can enforce its provisions. Instead, the Secretary enforces the Adoption Act by requiring the implementation of corrective action or withholding federal funds if the states fail to comply with an approved plan. See 42 U.S.C. § 1320a-2a. Federal regulations require that the Secretary audit states to determine whether they are in compliance. 45 C.F.R. §§ 1355.32-33; 1355.36. This enforcement scheme is not like those that have been held by the Supreme Court to preclude suits under § 1983. See Gonzaga, 536 U.S. at 289-90, 122 S. Ct. at 2278-79 (creation of centralized review board for individual complaints and enforcement of FERPA precluded private suits); Smith v. Robinson, 468 U.S. 992, 1010-12, 104 S. Ct. 3457, 3467-68 (1984), superseded in part by 20 U.S.C. § 1415 (review App. 26a scheme in Education of the Handicapped Act permitting aggrieved individuals to invoke “carefully tailored” local administrative procedures followed by federal judicial review precluded § 1983 suits because such suits would “render superfluous most of the detailed procedural protections outlined in the statute’); Middlesex County Sewerage Auth. vy. Nat’ Sea Clammers Ass’n, 453 U.S. 1, 13, 20, 101 S. Ct. 2615, 2623, 2626-27 (1981) (“unusually elaborate enforcement provisions” of the Federal Water Pollution Control Act, which provided many enforcement options, including noncompliance orders, civil suits, and criminal penalties and authorized private persons to initiate enforcement actions, foreclosed § 1983 suit). Nonetheless, in this case, the lack of an enforcement mechanism by which an aggrieved individual can obtain review is but one of the factors we consider. The others point in the other direction and prevent us from saying that Congress spoke with a clear voice to unambiguously manifest its intent to create enforceable rights. One other, more specific argument of the plaintiffs needs to be discussed. They contend that § 103(c) of the Adoption and Safe Families Act of 1997 (ASFA), Pub. L. No. 105-89, 111 Stat. 2115,2119, shows that Congress intended that the right to have parental rights termination proceedings initiated within the statutory period be an enforceable right for children in foster care. Section 103(c) provides: (1) NEW FOSTER CHILDREN.— In the case of a child who enters foster care... under the responsibility of a State after the date of the enactment of this Act— (A) if the State comes into compliance with the amendments made by [section 103(a), which amended the Adoption Act] before the child has been Bhs cs Seca sls aig loco ct 9a SOE Be SEIS vty 9 om RRIF a A Pus uaa arena te Sata IAAI iat aa aia ney Ay atts Ate MER RS RRR UR AN HID wher h EO App. 27a in such foster care for 15 of the most recent 22 months, the State shall comply with [42 U.S.C. § 675(5)(E)] with respect to the child when the child has been in such foster care for 15 of the most recent 22 months; and (B) if the State comes into such compliance after the child has been in such foster care for 15 of the most recent 22 months, the State shall comply with [42 U.S.C. § 675(5)(E)] with respect to the child not later than 3 months after the end of the first regular session of the State legislature that begins after such date of enactment. (2) CURRENT FOSTER CHILDREN.— In the case of children in foster care under the responsibility of the State on the date of the enactment of this Act, the State shall— * & (C) not later than 18 months after the end of such first regular [legislative] session, comply with [42 U.S.C. § 675(5)(E)] with respect to all of such children. ASFA § 103(c). Section 103(c) does mandate that a state must comply with 42 U.S.C. § 675(5)(E) with respect to all children in foster care. However, when examined in light of the structure of both that section of the ASFA and the Adoption Act as a whole, § 103(c) is ambiguous. Section 103(c)(4) provides that the requirements of § 103(c) “shall be treated as State plan requirements imposed by [42 U.S.C. § 671(a)].” Treating § 103(c) as a plan requirement means that the Secretary is to review compliance with the requirements of § 103(c) only for substantial compliance, not for compliance in every individual case. See 42 U.S.C. § 1320a-2a(a)(1) App. 28a (requiring Secretary to “promulgate regulations for the review of such programs [under Parts B and E of Title IV] to determine whether such programs are in substantial conformity with — State plan requirements under such parts B and E.”) (emphasis added). The substantial conformity standard applicable to § 103(c) of the ASFA puts that provision on the same footing as 42 U.S.C. §§ 675(5)(D) and (E), and it prevents us from finding that the statute manifests an unambiguous congressional intent to create a right enforceable under § 1983. Taken as a whole, §§ 675(5)(D) and (E) do not contain rights-creating language; they have an aggregate, not individual, focus. Those provisions do not give plaintiffs an “unambiguously conferred right to support a cause of action brought under § 1983.” Gonzaga, 536 U.S. at 283, 122 S. Ct. at 2275. Congress has not spoken with a clear voice manifesting an unambiguous intent for those provisions of the Adoption Act to provide a basis for private enforcement. Id. at 280, 122 S. Ct. at 2273; Pennhurst, 451 U.S. at 17,28 & n.21, 101 S. Ct. at 1540, 1545 & n.21. Count IV of the complaint, therefore, does not state a claim upon which relief can be granted. IV. YOUNGER ABSTENTION Because some of the plaintiffs have standing to pursue the constitutional claims, we turn to the issue arising from the district court’s dismissal of Counts I through III under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). We review an abstention decision only for an abuse of discretion. Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000). App. 29a The Supreme Court has said that federal courts have a “virtually unflagging obligation. . . to exercise the jurisdiction given them.” Col. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246 (1976). But “virtually” is not “absolutely,” and in exceptional cases federal courts may and should withhold equitable relief to avoid interference with state proceedings. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 359, 109 S. Ct. 2506, 2513 (1989). While non- abstention remains the rule, the Younger exception is an important one. It derives from ‘the vital consideration of comity between the state and national governments,” Luckey v. Miller, 976 F.2d 673, 676 (11th Cir. 1992) (“Luckey”),’ which Younger itself characterized as a “sensitivity to the legitimate interests of both State and National Governments,” 401 US. at 44, 91 S. Ct. at 750. Although Younger concerned state criminal proceedings, its principles are “fully applicable to noncriminal judicial proceedings when important state interests are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515, 2521 (1982). “Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system. . . evidence the state’s substantial interest in the litigation.” Id. “Where vital state interests are involved, a federal court should abstain unless state law clearly bars the interposition of the constitutional claims.” Id. (citation omitted). As the Middlesex Court framed the issue, “The question. . . is threefold: first, do [the proceedings] constitute ° The genealogy of the Luckey case is: Luckey v. Harris, 860 F.2d 1012 (1ith Cir. 1988) (“Luckey I’); Luckey v. Harris, 896 F.2d 479 (11th Cir. 1989) (“Luckey II”); Harris v. Luckey, 918 F.2d 888 (11th Cir. 1990) (“Luckey III’); Luckey v. Miller, 929 F.2d 618 (1 1th Cir. 1991) (“Luckey IV”) and Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) (“Luckey V”). App. 30a 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. (emphasis omitted); see also Old Republic Union Ins. Co. v. Tillis Trucking Co., 124 F.3d 1258, 1261 (11th Cir. 1997). The parties agree, and so do we, that the continuing state dependency proceedings involving each of the plaintiffs are ongoing state proceedings for the purposes of Middlesex analysis, see J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999) (holding that continuing jurisdiction of juvenile court and six month periodic review hearings constituted an ongoing state judicial proceeding), although they dispute whether this federal proceeding, if allowed to go forward, would interfere with those state proceedings. The parties also agree, and so do we, that important state interests are involved. The parties disagree about whether the state court dependency proceedings provide the plaintiffs with an opportunity to raise and vindicate the federal constitutional claims, if those claims are valid. We will start by addressing whether the first Middlesex factor is properly read as requiring federal court interference with state proceedings and whether a federal court proceeding in this case would interfere with the dependency proceedings. Then we will address whether the plaintiffs have an adequate state remedy. A. THE FIRST MIDDLESEX FACTOR Both the plaintiffs and the defendants have presumed the first Middlesex factor, in addition to requiring an ongoing state proceeding, also requires that the federal relief the plaintiffs seek would interfere with those proceedings, and that if it would not interfere with the state proceedings, then the federal court has no basis for abstaining under Younger. App. 3la See generally, Middlesex, 457 U.S. at 431, 102 S. Ct. at 2521 (“Younger v. Harris. . . and its progeny espouse a strong federal policy against federal-court interference with pending state judicial proceedings absent extraordinary circumstances.”). Decisions from some other circuits support that view. See. e.g., Green v. City of Tucson, 255 F.3d 1086, 1097 (9th Cir. 2001) (en banc) (“[T]he three part test we derived from Middlesex is a suitable guide for analysis only when the threshold condition for Younger abstention is present — that is, when the relief sought in federal court would in some manner directly ‘interfere’ with ongoing state judicial proceedings.”); J.B., 186 F.3d at 1291 (stating first Middlesex factor as requiring abstention under Younger “when federal proceedings would. . . interfere with an ongoing state judicial proceeding”); FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996) (stating first Middlesex factor as “there must be an ongoing state judicial proceeding to which the federal plaintiff is a party and with which the federal proceeding will interfere”). We have not yet expressly held that the first Middlesex factor requires that the federal proceeding interfere with the state proceeding, but implicitly we seem to have assumed as much. For example, in Old Republic, the plaintiff filed a declaratory judgment action in federal court to avoid paying a state court judgment and to have its obligations under certain insurance policies determined by a federal court instead of a state court. 124 F.3d at 1259. In applying the Middlesex factors, we concluded that the first factor was met, not simply because there was an ongoing State proceeding, but because that proceeding would have been effectively enjoined by a declaratory judgment issued by the federal court. Id. at 1261-62; see also For Your Eyes Alone. Inc. v. City of Columbus, 281 F.3d 1209, 1216 n.13 (llth Cir. 2002) (“[T]he Supreme Court has held that App. 32a : Younger abstention is sometimes applicable to restrain federal court interference with certain noncriminal state proceedings that implicate important state interests.”). Indeed, the Supreme Court in Middlesex held that “[because respondent.. . had an opportunity to raise and have timely decided by a competent state tribunal the federal issues involved, federal courts should abstain from interfering with the ongoing proceedings.” 457 U.S. at 437, 102 S. Ct. at 2524 (emphasis added) (citation and internal quotation marks omitted). Therefore, we join our 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. If there is no interference, then abstention is not required. In order to decide whether the federal proceeding would interfere with the state proceeding, we look to the relief requested and the effect it would have on the state proceedings. See O’Shea v. Littleton, 414 U.S. 488,499-502, 94 S. Ct. 669, 677-79 (1974); Luckey V, 976 F.2d at 679 (Younger and O’Shea require “focus on the likely result of an attempt to enforce an order of the nature sought here”). The relief sought need not directly interfere with an ongoing proceeding or terminate an ongoing proceeding in order for Younger abstention to be required. In O’Shea, the Supreme Court held that abstention was required where an injunction would have “indirectly accomplish[ed] the kind of interference that Younger v. Harris. . . and related cases sought to prevent.” Id. at 500, 94 S. Ct. at 678 (emphasis added). The plaintiffs in O’Shea did not seek to enjoi [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2079%3A1. Public record. Not legal advice.