Robert Lloyd MORROW, Plaintiff-Appellant, v. The Honorable David WINSLOW, John Doe, and Jane Doe, Defendants-Appellees. Cherokee Nation and Carol Grant, Intervenors.
No. 95-5182
United States Court of Appeals, Tenth Circuit.
Aug. 23, 1996.
94 F.3d 1386
Michael E. Yeksavich, Tulsa, Oklahoma, for Defendants-Appellees.
Luke Goodwin, Tulsa, Oklahoma, for Intervenor Carol Grant.
Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.
HOLLOWAY, Circuit Judge.
Plaintiff-Appellant Robert Lloyd Morrow appeals from the district court‘s order denying him injunctive and declaratory relief on his complaint challenging Oklahoma adoption proceedings concerning his Indian child as violative of his rights under the Fourteenth Amendment Due Process Clause and the federal Indian Child Welfare Act. Morrow claimed there was subject matter jurisdiction below pursuant to
I
Plaintiff-Appellant Morrow is an Indian as defined by
During the first trimester of her pregnancy (winter 1994) Carol Grant decided she wanted to place her unborn child for adoption. She desired an open adoption where she and her 15-year-old son could maintain contact with the child. Carol contacted a Cherokee Nation adoption specialist and a private adoption agency for help in the adoption process. Through these services Carol decided, prior to the birth of Credence, to place her child with the Does.
In February 1994 and again in June 1994, Morrow was contacted regarding the adoption. He told the adoption agency representative that while he did not favor the adoption, he would not fight it. Credence was born on September 29, 1994 and was placed with the Does. On October 12, 1994, the Does filed their petition to adopt Credence in the Oklahoma state district court in Tulsa County. This petition was accompanied by an application for a determination that Robert Morrow‘s consent to the adoption was not necessary.
Also on October 12 Carol Grant gave her consent to the adoption of Credence by the Does before defendant Judge Winslow. Plaintiff Morrow never executed a written consent to the child‘s placement. Judge Winslow set a hearing for November 4, 1994 to determine whether plaintiff‘s consent was necessary for the adoption. At that hearing Morrow for the first time objected to the adoption and termination of his parental rights. On November 15, 1994, Morrow filed a counterclaim in the state proceeding, requesting custody of Credence. On November 15, 1994, Morrow also filed a motion to dismiss the Does’ adoption petition on the grounds of failure to comply with the federal ICWA and the Oklahoma Indian Child Welfare Act. I App. at 91, 95.
On December 9, 1994, Morrow filed a motion to transfer the adoption proceedings to the Cherokee Nation District Court in Tahlequah. On January 9, 1995, the Cherokee Nation filed a motion to intervene, which was granted. Carol Grant objected to the transfer to the Cherokee tribal court, and the
The original trial date in the state adoption case, December 16, 1994, was continued numerous times, but finally reset for May 17, 1995. However, on May 11, 1995, Morrow filed this suit in the United States District Court for the Northern District of Oklahoma, and the May 17 trial date for the state adoption case was stayed that day by the state judge, pending the federal proceedings.
In his complaint in federal court, Morrow named as defendants Judge Winslow and John and Jane Doe, the prospective adoptive parents. Morrow sought a temporary and permanent injunction enjoining the defendants from continuing their policy, practice, custom or usage of non-compliance with the Indian Child Welfare Act.... II App. at 306 (Complaint, ¶ 7). In addition he sought a declaratory judgment on these questions:
- Whether the Defendants have violated due process of law by the Fifth and Fourteenth Amendments of the U.S. Constitution by failing to comply with the ICWA, by denying Plaintiff custody or visitation with his minor child, and by denying Plaintiff a timely hearing to protect his parental interest and bonding with the minor child.
- Whether the provisions of the ICWA supersede Oklahoma law regarding rights of unwed fathers pursuant to
10 O.S.A. § 60.6(3) .
Id. at 18.
After answers were filed, an evidentiary hearing was held in federal court on June 30, 1995, on which date a partial stipulation of facts was filed. On July 31, 1995, the federal district judge entered an order denying all relief to plaintiff Morrow, and granting judgment in favor of defendants John and Jane Doe and Judge Winslow and against Morrow and the Cherokee Nation. In that ruling, the district judge concluded that under the ICWA and the OICWA Carol Grant had standing to and did timely object to the transfer of this case to the tribal court. Judgment of July 31, 1995 at 4, ¶ 12.
The federal judge‘s order addressed the merits of plaintiff Morrow‘s constitutional claims and held that there has been no showing that the state court proceeding, and the Honorable David Winslow presiding, has and/or have denied Plaintiff Robert Lloyd Morrow and the Plaintiff/Intervenor, Cherokee Nation, due process in the adoption matter of minor child Credence Monroe Grant, nor is there any showing that such a denial of due process in [sic] imminent. The court therefore denied all relief. Morrow appeals from this judgment. The Cherokee Nation does not appeal.
After the instant appeal was commenced, the state adoption court considered the matter of whether Morrow‘s consent to the adoption was necessary. A trial on this issue was held on October 16, 1995. On December 1, 1995, the state adoption judge entered an order discussing Morrow‘s contentions and concluding that his consent was not necessary for the adoption. After submission of this appeal on the briefs in March 1996, on June 27, 1996, on our own motion, we ordered the parties to submit supplemental memoranda advising us of the current status of the state adoption proceeding and addressing two questions: (1) if an adoption order has been entered in that proceeding, what are the positions of the parties as to whether dismissal of this federal suit should be ordered under the doctrine of Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), and Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), cert. denied, 431 U.S. 916 (1977); and (2) if the state adoption proceeding is still pending, whether we should vacate and remand, directing abstention by the federal district court under the rationale of Younger v. Harris, 401 U.S. 37 (1971), and Moore v. Sims, 442 U.S. 415 (1979).
The supplemental memoranda of the parties were filed in July 1996 and we are advised that following the state adoption judge‘s December 1, 1995 order finding that plaintiff-appellant Morrow‘s consent was not necessary for the adoption, the second stage of the state adoption proceeding was com-
We have considered the parties’ memoranda and their previously submitted briefs. For reasons that follow, we conclude that we should direct abstention. Because we conclude that abstention is appropriate we do not reach the Rooker-Feldman question. See Owens-Corning Fiberglas Corp. v. Moran, 959 F.2d 634, 635 (7th Cir.1992) (rather than attempting a problematic application of the Rooker-Feldman doctrine, the court applied abstention principles and refused to issue an injunction to enjoin pending state litigation on the grounds that principles of federalism and comity would be upset).
II
A
A threshold question we face is whether we may raise the abstention issue ourselves since it was not raised below. Of course, abstention has now been addressed in the parties’ supplemental memoranda filed in July 1996 as our order of June 27, 1996 directed. Plaintiff-Appellant Morrow‘s supplemental memorandum argues that abstention should not be applied because the state adoption case here is private litigation, with neither the State nor any State agencies being parties. The Defendants-Appellees’ supplemental memorandum says that if the case is not to be dismissed under the Rooker principle, which appellees first favor, abstention under Younger v. Harris and Moore v. Sims should be applied since otherwise Morrow would be permitted to pursue a second avenue of review and litigation he already has pursued in the state proceeding, producing chaos.
We are persuaded that we correctly raised the abstention question sua sponte and that we should weigh carefully the considerations relevant to abstaining. We are mindful that the Supreme Court has held that abstention may be waived. In Ohio Civil Rights Comm‘n v. Dayton Christian Schools, Inc., 477 U.S. 619, 626 (1986), the Court said:
A State may of course voluntarily submit to federal jurisdiction even though it might have had a tenable claim for abstention. See Brown v. Hotel Employees, 468 U.S. 491, 500, n. 9 (1984); Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 479-480 (1977); Sosna v. Iowa, 419 U.S. 393, 396-397, n. 3 (1975). But in each of these cases the State expressly urged this Court or the District Court to proceed to an adjudication of the constitutional merits. We think there was no similar consent or waiver here, and we therefore address the issue of whether the District Court should have abstained from deciding the case.
Our court has also said that the Younger abstention argument may be waived. In Association of Community Organizations for Reform Now v. Municipality of Golden, Colorado, 744 F.2d 739 (10th Cir.1984), we concluded that under the circumstances of that case we should not invoke the Younger doctrine: We conclude that the City of Golden has voluntarily submitted to a federal forum, and therefore ‘principles of comity [underlying the Younger abstention doctrine] do not demand that the federal court force the case
During the state court hearing on May 17, 1995 in the instant case, the date on which the state trial was set, Morrow‘s attorney advised the state judge that he had on file a motion to stay the state proceedings. Counsel for the intervening natural mother then stated he was ready for trial, but that he understood the court‘s logic in not commencing any trial at that time and in passing the case to a date subsequent to the federal court‘s review. I App. at 294. Counsel for the adoptive parents said that he was in the same position as the mother‘s counsel; that he was torn by the wisdom of going to trial in the state court; and that he would just as soon dispose of the federal case as a practical matter before returning to state court. Id. Nevertheless, we feel we should address the abstention issue sua sponte.
In Bellotti v. Baird, 428 U.S. 132, 143 n. 10 (1976), the Court noted the fact that the full arguments in favor of abstention may not have been asserted in the District Court does not bar this Court‘s consideration of the issue.3 The Court also stated: Indeed, it would appear that abstention may be raised by the court sua sponte. Id. at 144 n. 10. In addition, the Court recently noted that federal courts have the power to refrain from hearing cases that would interfere with a pending state criminal proceeding, Younger v. Harris, 401 U.S. 37 (1971), or with certain types of state civil proceedings, see Huffman v. Pursue, Ltd., 420 U.S. 592 (1975); Juidice v. Vail, 430 U.S. 327 (1977).... Quackenbush v. Allstate Insurance Co., 116 S. Ct. 1712, 1721 (1996). In Quackenbush the Court noted that it has long been established that a federal court has the authority to decline to exercise its jurisdiction when it ‘is asked to employ its historic powers as a court of equity‘.... Id. (quoting Fair Assessment in Real Estate Ass‘n, Inc. v. McNary, 454 U.S. 100, 120 (1981) (Brennan, J., concurring)). The Court went on to say:
Though we have thus located the power to abstain in the historic discretion exercised by federal courts sitting in equity, we have not treated abstention as a technical rule of equity procedure. [Citation omitted]. Rather, we have recognized that the authority of a federal court to abstain from exercising its jurisdiction extends to all cases in which the court has discretion to grant or deny relief.
Quackenbush, 116 S. Ct. at 1721-22 (emphasis added).
B
Younger v. Harris involved the indictment of Harris in a California state court for alleged violations of the California Criminal Syndicalism Act. After his indictment, Harris filed suit in federal district court to enjoin the state district attorney from proceeding with the prosecution on the ground that the California act violated his First and Fourteenth Amendment rights to free speech and press. A three-judge district court found that the California act violated Harris‘s constitutional rights and enjoined his prosecution. The Supreme Court reversed, concluding that the injunction violated the national policy forbidding federal courts to stay or enjoin pending state court proceedings except under special circumstances. 401 U.S. at 41. The Court said:
This underlying reason for restraining courts of equity from interfering with criminal prosecutions is reinforced by an even more vital consideration, the notion of comity, that is, a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways. This, perhaps for lack of a better and clearer way to describe it, is referred to by many as Our Federalism, and one familiar with the profound debates that ushered our Federal Constitution into existence is bound to respect those who remain loyal to the ideals and dreams of Our Federalism.
Younger abstention has also been applied in cases involving state civil proceedings. In Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), the Court vacated a federal injunction against enforcement of a state judgment insofar as it closed a theater as a nuisance for showing obscene films which had not been adjudged obscene in prior adversary hearings. The Court held that Younger principles applied even though the state proceeding was civil in nature; it said the state procedure there was more akin to a criminal prosecution than most civil cases; and the Court said that federalism considerations, if anything, weighed more heavily toward federal restraint where injunctive relief was sought against state judicial proceedings than where relief against executive officers was sought. Id. at 603-04. The Court also held that the federal plaintiff should not be permitted the luxury of federal litigation of issues presented by ongoing state proceedings. Id. at 605. The court said that a party must exhaust his state appellate remedies before seeking a federal injunction unless he can bring himself within one of the exceptions in Younger. Id. at 609, 611. Those exceptions are (1) if the state proceeding is motivated by a desire to harass or is conducted in bad faith; (2) if the challenged statute is flagrantly violative of express constitutional prohibitions in every clause and paragraph thereof; or (3) if extraordinary circumstances exist. Phelps v. Hamilton, 59 F.3d 1058, 1063-64 (10th Cir.1995). We find that from the record before us, and in the supplemental memoranda of the parties addressing Younger abstention, none of these Younger exceptions is shown to exist here.
We are mindful, however, that the Supreme Court itself has cautioned that Younger abstention is the exception rather than the rule:
When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction.... The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.
Willcox v. Consolidated Gas Co., 212 U.S. 19, 40 (1909) (citations omitted).
New Orleans Public Service, Inc. v. Council of New Orleans, 491 U.S. 350, 358-59 (1989) (hereinafter NOPSI).
In Moore the Texas Department of Human Resources had instituted a suit for emergency protection of three children under the Texas Family Code. After various state proceedings, the children‘s parents brought suit in federal district court where a three-judge court held part of the Texas Family Code unconstitutional and enjoined the pending state proceedings under the Code. The Supreme Court reversed, holding that Younger abstention was appropriate because of the traditional area of state concern for family relations. 442 U.S. at 434-35.
In sum, there are persuasive reasons for applying abstention in this case under the Supreme Court‘s precedents. There do remain, however, some additional questions which we should address before reaching a conclusion on applying abstention here. We turn now to these questions.
C
1
First, Morrow claims federal court jurisdiction under § 104 of the Indian Child Welfare Act,
Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child‘s tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.
Section 1914 appears to authorize the type of suit Morrow brought in the federal district court; and thus the statute arguably conflicts with the application of abstention by evincing a policy for federal adjudication of Morrow‘s case. We must therefore look to the intent and purpose of the ICWA to determine the scope of § 1914.
In the first section of the ICWA,
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families.
The declared policy of the ICWA is set forth in
The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive home which will reflect the unique values of Indian culture, and by providing assistance to Indian tribes in the operation of child and family service programs.
The Supreme Court has noted that the ICWA was the product of rising concern in the mid-1970‘s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). Evidence presented in Senate hearings showed that 25 to 35% of all Indian children had been separated from their families and placed in adoptive families, foster care, or institutions. Id.; H.R.Rep. No. 1386, 95th Cong., 2d Sess. 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531 (hereinafter House Report). In Holyfield the Court said:
The ICWA thus, in the words of the House Report accompanying it, seeks to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society. House Report, at 23. It does so by establishing a Federal policy that, where possible, an Indian child should remain in the Indian community, ibid., and by making sure that Indian child welfare determinations are not based on a white middle-class standard which, in many cases, forecloses placement with [an] Indian family. Id., at 24.
Thus, both the Court and Congress have made clear that the ICWA is intended to protect the rights of Indian children and tribes. As part of this protection, § 1914 allows a petition to invalidate a state court foster care placement or termination of parental rights action on the grounds that it violated §§ 1911, 1912, or 1913, to be brought in any court of competent jurisdiction. We have held that federal district courts have jurisdiction under
The House Report notes:
While the committee does not feel that it is necessary or desirable to oust the States of their traditional jurisdiction over Indian children falling within their geographic limits, it does feel the need to establish minimum Federal standards and procedural safeguards in State Indian child custody proceedings designed to protect the rights of the child as an Indian, the Indian family and the Indian tribe.
House Report at 19, 1978 U.S.C.C.A.N. at 7541 (emphasis added). This statement indicates that the ICWA establishes minimum Federal standards and procedural safeguards in State Indian child custody proceedings designed to protect the rights of the child as an Indian, the Indian family and the Indian tribe. Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587, 590 n. 3 (10th Cir.1985), cert. denied, 479 U.S. 872 (1986); it does not indicate, however, that the ICWA intended to allow federal court interdiction of ongoing state custody disputes involving Indian children.
While § 1914 grants any court of competent jurisdiction, and thus a federal as well as state court, authority to consider a challenge to foster care placements and terminations of parental rights, we do not believe that preemptive federal collateral attacks, such as Morrow‘s, are what Congress intended to permit in § 1914.5 Instead, we believe that § 1914 and related provisions of the ICWA do not preclude our consideration of abstention.6 Younger‘s principles of comity
Thus we are persuaded that § 1914 does not prevent full consideration of the abstention doctrine.
2
Second, Morrow argues that abstention is inappropriate because the state adoption case is private litigation, with neither the State nor any of its agencies being a party. Appellant‘s Supplemental Memorandum at 6. Morrow relies on Miofsky v. Superior Court, 703 F.2d 332 (9th Cir.1983), inter alia.
Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987), is pertinent to the argument Morrow makes because there the Court applied Younger abstention in a case where the state was not a party. Pennzoil brought suit in Texas state court and recovered a total judgment which, with prejudgment interest, would exceed $11 billion. Under Texas law Pennzoil would have been able to commence enforcement of the judgment unless Texaco could post a bond of more than $13 billion, which was not possible. Thus, Pennzoil would have been able to commence enforcement of the judgment before Texaco‘s appeal was resolved. Texaco brought suit in the United States District Court for the Southern District of New York alleging that the Texas proceedings would result in violation of the federal Constitution and various federal statutes. The district court issued the injunction, which the Second Circuit affirmed.
The Supreme Court reversed, concluding that Younger abstention was required. The Court pointed out that it did not hold that Younger abstention is always appropriate when civil proceedings were pending in a state court;7 the Court said that as in Juidice v. Vail, 430 U.S. 327 (1977), it relied on the State‘s
We are satisfied that the circumstances before us demonstrate a sufficient state interest that here also the abstention doctrine should be applied. The Supreme Court has made emphatically clear its recognition that family relations are a traditional area of state concern. Moore v. Sims, 442 U.S. at 435. The state judge who was presiding in the adoption proceeding was named as a defendant. It is that judge who has a special obligation in connection with the judicial administration of the proceeding in the best interest of the child. The state, although not a party, obviously has an interest in the orderly conduct of the proceedings in its courts in a manner which protects the interests of the child and the family relationship. In Huffman v. Pursue, Ltd., the Court said that interference with the state judicial proceeding prevented effectuation not only of state substantive policies, but also [prevented the state] from continuing to perform the separate function of providing a forum competent to vindicate any constitutional objections interposed against those policies. 420 U.S. at 604. We feel these factors demonstrate that here abstention is clearly favored, and that we should not permit the luxury of federal litigation of issues presented by ongoing state proceedings, Huffman, 420 U.S. at 605, which involve family relations, a traditional area of state concern. Moore v. Sims, 442 U.S. at 435.
We are not persuaded that Miofsky v. Superior Court, 703 F.2d 332 (9th Cir.1983), supports Morrow‘s objection to abstention here. In Miofsky, an anesthesiologist was a defendant in numerous civil actions filed by former patients. The plaintiffs in those actions scheduled depositions of psychiatrists who had examined Miofsky in connection with state criminal proceedings. Miofsky moved for a protective order to prohibit the witnesses from disclosing information about him in their depositions. After the California trial and appellate courts denied the relief sought by Miofsky, he brought a
We are satisfied that the state interest in the underlying civil litigation in Miofsky was substantially less than it is here where a traditional area of state concern for family relations is implicated. We do not find Miofsky persuasive on the Younger question before us.
In sum, we reject the contention that the absence of the state as a formal party justifies disregarding the abstention doctrine where the recognized state interest in the state‘s adoption proceeding is apparent.
3
In light of the precedents of the Supreme Court we have reviewed, we are convinced that we must follow Middlesex County Ethics Comm., 457 U.S. at 432 which instructed that policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved. We believe that, under Middlesex County and Pennzoil, Younger is applicable when important state interests are involved even if there is no state court judgment whose enforcement is sought.
Accordingly, we VACATE the district court‘s judgment on the merits of Morrow‘s claims which denied injunctive and declaratory relief. We REMAND the case to the district court with directions to abstain and to dismiss Morrow‘s case without prejudice.
SEYMOUR, Chief Judge, dissenting:
I am satisfied that the federal district court correctly resolved the merits of Mr. Morrow‘s claims under the Indian Child Welfare Act (ICWA),
I do not agree with the majority‘s conclusion that the State‘s interest here is sufficient to support abstention in the face of the strong federal interest Congress has expressed in the welfare of Indian children. The majority states at page 1397 of its opinion that family relations are a traditional area of state concern, quoting Moore v. Sims, 442 U.S. 415, 435 (1979). In Moore, the State was a party, contrary to the situation here. Moreover, and more significantly, Moore did not involve an Indian child, a distinction that I view as critical given the Congressional statements set out in the ICWA. Because of the unique legal status of Indians in American jurisprudence, legal doctrines often must be viewed from a different perspective from that which would obtain in other areas of the law. Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 553 (9th Cir.1991).
I do not believe we can assign the State‘s interest in providing a forum for determining the custody of an Indian child the requisite weight for abstention purposes in light of the Congressional finding in the ICWA that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
It is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.
Abstention is only warranted in civil proceedings when the State‘s interests in the proceedings are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987). Here, Congress has found that States have often failed to recognize federal concerns when conducting the civil proceedings at issue. Congress has therefore mandated Federal standards for use in such proceedings. Congress has further provided an enforcement mechanism through section 1914 to ensure that the State proceedings comply with these Federal standards. Given the clear Congressional statements that federal concerns are paramount in these proceedings, we are not at liberty to hold otherwise.
I would affirm on the basis of the district court‘s correct resolution of the merits.
HOLLOWAY
CIRCUIT JUDGE