MOORE ET AL. v. SIMS ET UX.
No. 78-6
Supreme Court of the United States
Argued February 26, 1979—Decided June 11, 1979
442 U.S. 415
David H. Young, Assistant Attorney General of Texas, argued the cause for appellants. With him on the brief were John L. Hill, Attorney General, David M. Kendall, First As-
Windell E. Cooper Porter argued the cause for appellees. With her on the brief were Robert L. Byrd and Martin J. Grimm.*
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Title 2 of the Texas Family Code was enacted in 1973 and first went into effect on January 1, 1974. It was amended substantially in the following year. The Title defines the contours of the parent-child relationship and the permissible areas and modes of state intervention. This suit presents the first broad constitutional challenge to interrelated parts of that statutory scheme. It raises novel constitutional questions of the correlative rights and duties of parents, children, and the State in suits affecting the parent-child relationship.
This litigation, involving suspected instances of child abuse, was initiated by state authorities in the Texas state courts in 1976. The state proceedings, however, were enjoined by the three-judge District Court below, which went on to find various parts of Title 2 unconstitutional on their face or as applied. We noted probable jurisdiction. 439 U. S. 925 (1978). This appeal first raises the question whether in light of the pending state proceedings, the Federal District Court should have exercised its jurisdiction. We conclude that it should not have done so and accordingly reverse and remand with instructions that the complaint be dismissed.
I
The appellees in this case, husband and wife and their three minor children, seek a declaration that parts of Title 2 of the
On the day that it took custody of the children, the Department decided to institute a suit for emergency protection of the children under
Five days later, the appellees appeared in court and moved to modify the ex parte order, the proper procedure for terminating the Department‘s temporary custody.4 A hearing on such a motion is required under Texas law, but the Juvenile Court Judge was temporarily unavailable and the court clerk returned the motion to appellees’ attorney. Rather than renew the motion or appeal the emеrgency order, appellees filed a petition for a writ of habeas corpus in the same Harris County court.5 A hearing on that petition was held on April 5,
The appellees then had actual knowledge that the action had been moved to Montgomery County.7 There is no indication that any effort was made to expedite the hearing in that county; the appellees did not request an early hearing from state trial or appellate courts. Nor did they appeal the temporary order. See In re Stuart, 544 S. W. 2d 821 (Tex. Civ. App. 1976). Instead, on April 19, 1976, they filed this action in the United States District Court for the Southern District of Texas, and thereby initiated two months of procedural manеuvers in both the state and federal courts.
On April 20, a temporary restraining order was denied appellees by the District Court. A hearing on the application for a
On May 4, however, one day before the scheduled federal hearing, the Simses returned to the state-court system, moving to file an original petition for a writ of habeas corpus in the Texas Court of Civil Appeals. The motion was denied for want of jurisdiction.
The next day, the Federal District Court held that the temporary orders issued by the state court had expired and that the children had to be returned to their parents, although the Department was not enjoined from pursuing a new action in state court. The court noted that it was requesting a three-judge court to consider appellees’ constitutional challenge to Title 2. On May 14, the Department did file a new
After concluding that abstention under the doctrine of Younger v. Harris, 401 U. S. 37 (1971), was unwarranted because the litigation was “multifaceted,” involved custody of children, and was the product of procedural confusion in the state courts, the District Court addressed the merits of the due process challenges. It surveyed virtually every aspect of
II
Appellants argue that the Federal District Court should have abstained in this case under the principles of Younger v. Harris, supra. The Younger doctrine, which counsels federal-court abstention when there is a pending state proceeding, reflects a strong policy against federal intervention in state judicial processes in the absence of great and immediate irreparable injury to the federal plaintiff. Samuels v. Mackell, 401 U. S. 66, 69 (1971). That policy was first articulated with reference to state criminal proceedings, but as we recognized in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), the basic concern—that threat to our federal system posed by displacement of state courts by those of the National Government—is also fully applicable to civil proceedings in which important state interests are involved. As was the case in Huffman, the State here was a party to the state proceedings, and the temporary removal of a child in a child-abuse context is, like the public nuisance statute involved in Huffman, “in aid of and closely related to criminal statutes.” Id., at 604. The existence of these conditions, or the presence of such other vital concerns as enforcement of contempt proceedings, Juidice v. Vail, 430 U. S. 327 (1977), or the vindication of “important state policies such as safeguarding the fiscal integrity of [public assistance] programs,” Trainor v. Hernandez, 431 U. S. 434, 444 (1977), determines the applicability of Younger-Huffman principles as a bar to the institution of a later federal action.8
“‘Younger, and its civil counterpart which we apply today, do of course allow intervention in those cases where the District Court properly finds that the state proceeding is motivated by a desire to harass or is conducted in bad faith, or where the challenged statute is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.“‘” 420 U. S., at 611.
The District Court, however, did not rely expressly on these established exceptions to the Younger doctrine in finding that abstention was inappropriate in this case. Rather, it concluded that Younger abstention was not warranted because the action taken by the State of Texas in this case is “multifaceted“; “there is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds.” 438 F. Supp., at 1187.
“Many of the challenged actions taken by the state do not and will not involve any judicial proceeding. Certainly as to these, there is no pending state civil litigation about which even to consider abstention.” Ibid. (footnote omitted).
The court specifically alluded to the allegations regarding the Child Abuse and Neglect Report and Inquiry System (CANRIS), id., at 1187 n. 5, that is, the appellees’ challenge on constitutional grounds to the State‘s computerized collection and dissemination of child-abuse information where that information is not the product of a judicial determination of abuse or neglect.
The meaning of the District Court‘s reference to this litigation as “multifacetеd” is unclear, but two possible interpreta-
priate unless state law clearly bars the interposition of the constitutional claims.
There are also intimations in the District Court‘s opinion that its decision to exert jurisdiction was influenced by a broader and novel consideration—the breadth of appellees’ challenge to Title 2.
“The entire statutory scheme by which Texas attempts to deal with the problem of child abuse has been challenged and should be viewed as an integrated whole. This court will not consider part of the scheme and abstain from another part. To do so would seriously jeopardize any hope for an effective statutory scheme and, in the name of comity and federalism, do violence to the state functions those principles seek to protect.” 438 F. Supp., at 1187.10
Thus, the District Court suggests that the more sweeping the challenge the more inappropriate is abstention, and thereby inverts traditional abstention reasoning. The breadth of a challenge to a complex state statutory scheme has traditionally militated in favor of abstention, not against it. This is evident in a number of distinct but related lines of abstention cases which, although articulated in different ways, reflect the same sensitivity to the primacy of the State in the interpretation of its own laws and the cost to our federal system of government inherent in federal-court interpretation and subsequent invalidation of parts of an integrated statutory framework.
The earliest abstention cases were rooted in notions of equity. In Railroad Comm‘n v. Pullman Co., 312 U. S. 496, 498 (1941), the Court observed that the dispute before it implicated “a sensitive area of social policy upon which the federal courts ought not to enter unless no alternative to its adjudication is open.” The Court found the “resources of equity” sufficient to accommodate an adjustment which would avoid “the friction of a premature constitutional adjudication” and obviate the need for a federal court to interpret state law without the benefit of an authoritative interpretation by a state court. Id., at 500. Thus evolved the doctrine of Pullman abstention: that a federal action should be stayed pending determination in state court of state-law issues central to
“The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction. There have been as many and as variegated applications of this supple principle as the situations that have brought it into play.... Few public interests have a higher claim on the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U. S. 240; Spielman Motor Co. v. Dodge, 295 U. S. 89; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U. S. 176; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U. S. 159....” Ibid.
There are three distinct considerations that counsel abstention when broad-based challenges are made to state statutes, and it is common to see each figure in an abstention decision; for the broader the challenge, the more evident each consideration becomes. There is first the Pullman concern: that a federal court will be forced to interpret state law without the benefit of state-court consideration and therefore under circumstances where a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time—thus essentially rendering the federal-court decision advisory and the litigation underlying it meaningless. Watson v. Buck, 313 U. S. 387, 401-402 (1941); and Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 459-461 (1945). These dangers increase with the breadth of the challenge.
The second consideration is the need for a concrete case or controversy—a concern also obviously enhanced by the scope of the challenge. That is demonstrated by the instant case.
The final concern prompted by broad facial attacks on state statutes is the threat to our federal system of government posed by “the needless obstruction to the domestic policy of the states by forestalling state action in construing and applying its own statutes.” Alabama State Federation of Labor v. McAdory, supra, at 471.
“The seriousness of federal judicial interference with state civil functions has long been recognized by this Court. We have consistently required that when federal courts are confronted with requests for such relief, they should abide by standards of restraint that go well beyond those of private equity jurisprudence.” Huffman v. Pursue, Ltd., 420 U. S., at 603.
State courts are the principal expositors of state law. Almost every constitutional challenge—and particularly one as far ranging as that involved in this case—offers the opportunity for narrowing constructions that might obviate the constitu-
In sum, the only pertinent inquiry is whether the state proceedings afford an adequate opportunity to raise the constitutional claims, and Texas law appears to raise no procedural barriers.12 Nor do appellees seriously argue to the contrary. Rather, they contend that because they were not granted a hearing at the time that they thought they were entitled to one, there was no practical opportunity to present their federal claims.13 Thus, the issue as posed by appellees is whether the
conduct of the state judiciary was such that it in fact denied appellees an opportunity to bе heard that was theirs in theory. That claim is related to the District Court‘s second theory why Younger abstention was not warranted in this case.
The District Court framed this “second independent basis for the inapplicability of Younger principles” as follows:
“[W]e note that the plaintiffs’ constitutional challenge is directed primarily at the legality of the children‘s seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate. See Gerstein v. Pugh, 420 U. S. 103, 108 n. 9... (1975). The denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger.” 438 F. Supp., at 1187.
The reliance on Gerstein is misplaced. That case involved a challenge to pretrial restraint on the basis of a prosecutor‘s information alone, without the benefit of a determination of probable cause by a judicial officer. This Court held that the District Court properly found that the action was not barred by Yоunger because the injunction was not addressed to a state proceeding and therefore would not interfere with the criminal prosecutions themselves. “The order to hold preliminary hearings could not prejudice the conduct of the trial on the merits.” Gerstein v. Pugh, 420 U. S. 103, 108 n. 9 (1975). Here the injunction did address the state proceeding and it was not necessary to obtain the release of the children, for they had already been placed in the custody of their parents pursuant to a federal-court order. This Court has addressed the Younger doctrine on a number of occasions since
As for the argument that the delay in affording the parents a hearing in state court made Younger abstention inappropriate, we cannot distinguish this argument from conventional claims of bad faith and other sources of great, immediate, and irreparable harm if the federal court does not intervene—traditional circumstances where a federal court need not stay its hand. We simply cannot agree that the conduct of the state authorities in this case evinces bad faith; and we do not read the District Court as expressly so finding. That there was confusion is undeniable. It is evident in the uncertainty regarding the effective period of a temporary order under
Once it is determined that there is no bad faith, there remain only limited grounds for not applying Younger. The District Court did not find, nor could it have found, “harassment.” Nor could it credibly bе claimed that Title 2 is “flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it.” Watson v. Buck, 313 U. S., at 402, quoted in Younger v. Harris, 401 U. S., at 53-54.
The District Court placed some reliance on the observation in Younger that there may be other “extraordinary circum-
“Only if ‘extraordinary circumstances’ render the state court incapable of fairly and fully adjudicating the federal issues before it, can there be any relaxation of the deference to be accorded to the state criminal process. The very nature of ‘extraordinary circumstances,’ of course, makes it impossible to anticipate and define every situation that might create a sufficient threat of such great, immediate, and irreparable injury as to warrant intervention in state criminal proceedings. But whatever else is required, such circumstances must be ‘extraordinary’ in the sense of creating an extraordinarily pressing need for immediate federal equitable relief, not merely in the sense of presenting a highly unusual factual situation.” Id., at 124-125.
See Trainor v. Hernandez, 431 U. S., at 442 n. 7.
To gauge whether such extraordinary circumstances exist in this case, we must view the situation at the time the state proceedings were enjoined. On May 21, when the District Court granted a temporary restraining order, and on June 7, when the three-judge court entered a preliminary injunction enjoining appellants from filing or prosecuting any state suit under the challenged state statutes until the District Court had finally determined the questions at issue, the two adult appellees had already successfully obtained possession of their minor children by means of the federal-court order of
It is in this posture that one must consider the propriety of the District Court‘s injunction barring further state proceedings. Paul Sims was within the custody of his parents, and a specific date had been set for the show-cause hearing regarding the writ of attaсhment, at which time the parents could press their objections. Unless we were to hold that every attachment issued to protect a child creates great, immediate, and irreparable harm warranting federal-court intervention, we are hard pressed to conclude that with the state proceedings in this posture federal intervention was warranted.
Perhaps anticipating this logic, the District Court in this case concluded that “[t]he denial of custody of the children pending any hearing regardless of the result of the hearing, is in itself sufficient to prevent the application of Younger,” 438 F. Supp., at 1187. Presumably, this conclusion was prompted by the District Court‘s observation that “the constitutional issues raised by the plaintiffs reach the application of due process in an area of the greatest importance to our society, the family.” Ibid. But the District Court again inverts
We reverse the judgment of the District Court and remand with instructions that the complaint be dismissed.
It is so ordered.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting.
Before asking whether any of the recognized exceptions to the doctrine of Younger v. Harris, 401 U. S. 37, make it appropriate for a federal court to exercise its jurisdiction to pass on the constitutionality of a state statute, the Court should first decide whether there is a legitimate basis for invoking the Younger doctrine at all. It has never been suggested that every pending proceeding between a State and a federal plaintiff justifies abstention unless one of the exceptions to Younger
The policy of equitable restraint expressed in Younger “is founded on the premise that ordinarily a pending state prosecution provides the accused a fair and sufficient opportunity for vindication of federal constitutional rights.” Kugler v. Helfant, 421 U. S. 117, 124. Since “no citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts,” Younger v. Harris, supra, at 46, there is no justification for intervention by a court of equity to rule on claims which may be raised as a defense to the criminal prosecution and which, if meritorious, will result in adequate relief in that forum. Moreover, in our federal system, intervention by a federal court with respect to the questions at issue in state proceedings carries with it additional costs in terms of comity and federalism, for it “can readily be interpreted as reflecting negatively upon the state court‘s ability to enforce constitutional principles.” Huffman v. Pursue, Ltd., 420 U. S. 592, 604.
The District Court‘s conclusion that abstention was inappropriate in this case was based squarely on its finding “that there is for these plaintiffs no ‘opportunity to fairly pursue their constitutional claims in an ongoing state proceeding.‘”1 In the absence of such an opportunity, Younger is simply inapplicable. Its underlying concerns with comity, equity, and federalism, we have recognized, have little force or vitality where there is no single pending state proceeding in which the constitutional claims may be raised “as a defense” and
In requiring abstention in this case, the Court, in my judgment, is departing from these well-established principles and extending Younger beyond its logical bounds. The Sims parents sought relief in federal court after 42 days of “diligent efforts” to secure a hearing in state court in order to regain custody of their children.4 Despite their efforts, they not only
The only proceeding pending in state court at the time they brought this suit was a “Suit Affecting the Parent-Child Relationship” initiated by the Harris County Welfare Unit on April 5 pursuant to ch. 11 of the Texas Family Code.6 As of the first hearing in federal court on May 5, the plaintiff-parents had yet to receive notice of this suit, let alone any actual hearing before the judge. Had the federal court not intervened, however, notice would eventually have been provided, assuming compliance with the statute, and an adversary hearing would eventually have taken place. But this does not mean that federal-court abstention was required or appropriate.
In the hearing to be afforded under ch. 11, the state court would be required to decide whether the children should be returned to the custody of their parents or whether their interests would be better served by alternative arrangements for their care. With limited exceptions,7 the Simses’ suit in
federal court had nothing to do with that question. The issues raised by their federal complaint did not go to their fitness as parents or to their rights to permanent custody of their children. Rather, the thrust of their federal complaint was that the procedures employed by the State to gather information and to seize and retain the children pending the formal adversary hearing under ch. 11 violated the Constitution.8
As to these constitutional claims, the hearing to be afforded in state court on parental fitness and permanent custody was virtually as irrelevant as a hearing on a traffic violation. It is clearly the case, and the majority does not suggest otherwise, that the Simses could not avoid losing custody of their children at that point by successfully arguing that the State had acted unconstitutionally in its initial seizure of the children, or that a hearing should have been afforded earlier. These claims could not be raised “as a defense to the ongoing proceedings,” Juidice v. Vail, 430 U. S. 327, 330;9 nothing in the ch. 11 determinations required the court to consider or pass upon the different issues that the Simses sought to raise in federal court.
It may well be, as the majority suggests, that the Simses could have raised their constitutional claims against the State, not in defense, but in the nature of permissive counterclaims. The findings of the District Court, however, suggest the contrary.10 But even if Texas does allow a party to raise any and
The Younger doctrine does not require a litigant to pursue such an unwise and impractical course of litigation. Younger does not bar federal-court consideration of “an issue that could not be raised in defense of the criminal prosecution.” Gerstein v. Pugh, 420 U. S. 103, 108 n. 9.11 The considerations of comity, equity, and federalism underlying that doctrine are no more implicated by the Sims deсision that claims unrelated to a pending state proceeding should be brought in federal rather than state court than they are by a similar decision in the absence of an unrelated state proceeding. If there is no requirement that federal plaintiffs initiate constitutional litigation in state rather than federal court in the first instance—and this Court has repeatedly held that there is not12—then the coincidence of an unrelated state proceeding provides no justification for imposing such a requirement.
While this factor alone is sufficient to render the Younger doctrine inapplicable, there is an even more basic objection to its application here. Younger abstention in these circumstances does not merely deprive the plaintiffs of their right to initiate new claims in the forum of their choice. Far more seriously, it deprives them of any relief at all. For this state forum could not and did not afford plaintiffs the sufficient op-
The three Sims children were taken into custody by the Harris County Child Welfare Unit on March 25, 1976, based on a telephone report that one of the children was possibly the victim of child abuse. After “diligent” but unsuccessful efforts by the parents to be heard in state court, they finally went to federal court where, 42 days after they lost custody of their children, the Simses were heard for the first time in a court of law and their children were returned to them.13 In due course, the federal court held that the state statutory procedures were defective because they did not provide for adequate notice to the parents, and did not provide for an adequate hearing whenever the State sought to retain custody for more than 10 days. Although other portions of the District Court decision as to the State‘s procedures are challenged by the appeal in this Court, the appellants have not questioned these aspects of the District Court‘s judgment.14 It is there-
Notes
“An authorized representative of the State Department of Public Welfare, a law-enforcement officer, or a juvenile probation officer may take possession of a child to protect him from an immediate danger to his health or physical safety and deliver him to any court having jurisdiction of suits under this subtitle, whether or not the court has continuing jurisdiction under Section 11.05 of this code. The child shall be delivered immediately to the court.”
These emergency seizures are to be followed by hearings provided for in
“Unless the child is taken into possession pursuant to a temporary order entered by a court under Section 11.11 of this code, the officer or representative shall file a petition in the court immediately on delivery of the child to the court, and a hearing shall be held to provide for the temporary care or protection of the child.” See Steffel v. Thompson, 415 U. S. 452, 462-463; Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509. See also Younger v. Harris, 401 U. S., at 46 (“the threat to the plaintiff‘s federally protected rights must be one that cannot be eliminated by his defense against a single criminal prosecution“).
“On a showing that the child is apparently without support and is dependent on society for protection, or that the child is in immediate danger of physical or emotional injury, the court may make any appropriate order for the care and protection of the child and may appoint a temporary managing conservator for the child.”
“(a) An order issued under Section 17.04 of this code expires at the end of the 10-day period following the date of the order, on the restoration of the child to the possession of its parent, guardian, or conservator, or on the issuance of ex parte temporary orders in a suit affecting the parеnt-child relationship under this subtitle, whichever occurs first.
“(b) If the child is not restored to the possession of its parent, guardian, or conservator, the court shall:
“(1) order such restoration or possession; or
“(2) direct the filing of a suit affecting the parent-child relationship in the appropriate court with regard to continuing jurisdiction.” See Monroe v. Pape, 365 U. S. 167, 183; Steffel v. Thompson, supra. See also Mitchum v. Foster, 407 U. S. 225; Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. 278.
“On the motion of a parent, managing conservator, or guardian of the person of the child, and notice to those persons involved in the original emergency hearing, the court shall conduct a hearing and may modify any emergency order made under this chapter if found to be in the best interest of the child.” “The plaintiffs’ having sought through diligent efforts an opportunity to bе heard in a state proceeding, this court must conclude that whatever opportunities exist for them are not such as to allow them to ‘fairly pursue’ their constitutional objections.” 438 F. Supp., at 1188-1189.
Suits affecting the parent-child relationship are authorized by
“(b) One or more matters covered by this subtitle may be determined in the suit. The court, on its own motion, may require the parties to replead in order that any issue affecting the parent-child relationship may be determined in the suit.”
As one Texas commentator has noted,
In a very recent case, In re R. E. W., 545 S. W. 2d 573 (1976), the Texas Court of Civil Appeals has indicated that under Title 2 the full range of constitutional challenges is cognizable in the emergency-removal proceedings and in suits affecting the parent-child relationship. Id., at 575. Therefore, this is not a case like Hernandez v. Finley, 471 F. Supp. 516 (ND Ill. 1978), summarily aff‘d sub nom. Quern v. Hernandez, 440 U. S. 951 (1979), where the three-judge court found, after our remand in Trainor v. Hernandez, 431 U. S. 434 (1977), that the applicable state procedures did not permit the defendant to raise a constitutional challenge. “[T]he plaintiffs’ constitutional challenge is directed primarily at the legality of the children‘s seizure and detention for a 42-day period without a hearing. It is clear that because this issue cannot be raised as a defense in the normal course of the pending judicial proceeding, abstention would be inappropriate.” Ibid.
The dissenters’ additional argument that a constitutional attack on state procedures automatically vitiates the adequacy of those procedures for purposes of the Younger-Huffman line of cases is reiteration of a theme sounded and rejected in prior cases. See Trainor v. Hernandez, supra, at 469-470 (STEVENS, J., dissenting); Juidice v. Vail, 430 U. S. 327, 339-340 (1977) (STEVENS, J., concurring in judgment). “[T]here is no single state proceeding to which the plaintiffs may look for relief on constitutional or any other grounds.” Ibid.
“Here it is abundantly clear that appellees had an opportunity to present their federal claims in the state proceedings. No more is required to invoke Younger abstention.... Appellees need be acсorded only an opportunity to fairly pursue their constitutional claims in the ongoing state proceedings... and their failure to avail themselves of such opportunities does not mean that the state procedures were inadequate.” (Footnotes omitted; emphasis in original.) See n. 3, supra.
“2. That the use of Section 11.11 (a) (4) in conjunction with Chapter 17 of Title 2 of the Texas Family Code to deprive parents of the custody of children for longer than ten (10) days measured from the date of the deprivation, without a full adversary hearing, is an unconstitutional application of said provision.
...
“5. That Section 17.03 is unconstitutional on its face insofar as it fails to require the State to make all reasonable efforts to serve notice on the
“[T]he opportunity to raise and have timely decided by a competent state tribunal the federal issues involved,”15 is, of course, required to support a Younger dismissal. And in the circumstances of this case, it is also—concededly—required by the Due Process Clause. Here, such an opportunity was simply not available in the state-court system; the opportunity
In my judgment, there could be no serious criticism of a holding that the Younger doctrine could properly be invoked in this case to bar consideration of the limited and easily divisible aspects of the Simses’ challenge which were directed at the procedures to be followed in the ch. 11 adversary hearing.17 That hearing would afford the parents “a fair and sufficient oрportunity” to raise those claims, and there is no reason why the State should not have been able, if it wished, to go forward with an adversary hearing in the April 5 suit. Were the Court‘s decision today so limited, it would be supported by its prior cases. But in going further and holding that the federal court should have abstained as to the legality of the State‘s prehearing procedures and practices, the Court is applying the Younger doctrine where it simply does not belong. The District Court‘s finding that plaintiffs did not have a fair opportunity to pursue these constitutional claims in an ongoing state proceeding is amply supported by the record and the concessions of the State. This finding should foreclose any claim that the Younger doctrine makes abstention appropriate. I respectfully dissent.
parents of the ex parte hearing to be held immediately after possession of a child is taken by the State.“6. That Section 17.05 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing with adequate notice to the parents before possession of a child taken by the State can be retained by the State beyond ten (10) days.
“7. That Section 17.06 is unconstitutional on its face insofar as it fails to require the State to hold a full adversary hearing at the expiration of the ex parte order, if the State seeks to obtain an order to retain possession of the child beyond ten (10) days.
“8. That Section 34.05 (c) is unconstitutional on its face insofar as it fails to require notice to the parents and a hearing in which the State makes a showing that a court order allowing psychological or psychiatric examinations is necessary to aid in the investigation of the abuse or neglect before such an order is obtained.” App. A-102—A-103.