Lead Opinion
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 28 U.S.C. §§ 1331 and 1343(a)(3), and 42 U.S.C. § 1983, and the Indian Child Welfare Act, 25 U.S.C. § 1901, etseq. (ICWA).
I
Plaintiff-Appellant Morrow is an “Indian” as defined by 25 U.S.C. § 1903(3) (a citizen of the Cherokee Nation) and the biological father of Credence Monroe Grant bom September 29,1994 to Carol Grant, a non-Indian and Morrow’s former wife. The boy Credence is an “Indian Child” as defined by 25 U.S.C. § 1903(4) of the ICWA. Defendant Appellee David Winslow is an Oklahoma state district judge in Tulsa County who presided over adoption proceedings regarding Credence and Defendant-Appellees John and Jane Doe, the prospective adoptive parents.
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 bom 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 Tah-lequah. 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:
[ 1] 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.
[ 2] 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 ¶ 8.
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.,
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’ memoran-da 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,
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.,
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 [104 S.Ct. 3179 , 3184, n. 9,82 L.Ed.2d 373 ] (1984); Ohio Bureau of Employment Services v. Hodory,431 U.S. 471 , 479-480 [97 S.Ct. 1898 , 1903-1904,52 L.Ed.2d 513 ] (1977); Sosna v. Iowa,419 U.S. 393 , 396-397, n. 3 [95 S.Ct. 553 , 555-556, n. 3,42 L.Ed.2d 532 ] (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,
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 ease 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 tom 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,
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, — U.S. at -,
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.”
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.”
Id. at 44,
Younger abstention has also been applied in cases involving state civil proceedings. In Huffman v. Pursue, Ltd.,
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 , 40,29 S.Ct. 192 , 195,53 L.Ed. 382 (1909) (citations omitted).
New Orleans Public Service, Inc. v. Council of New Orleans,
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.
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, 25 U.S.C. § 1914. Section 1914 provides:
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, 25 U.S.C. § 1901, Congress found
(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*1394 standards prevailing in Indian communities and families.
The declared policy of the ICWA is set forth in 25 U.S.C. § 1902:
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,
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 28 U.S.C. § 1331 over complaints in which a plaintiff alleges a violation of §§ 1911,1912, or 1913. Roman-Nose v. New Mexico Dep’t of Human Services,
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,
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.
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,
Pennzoil Co. v. Texaco, Inc.,
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;
We are satisfied that the circumstances before us demónstrate a sufficient state interest that here also the abstention doctrine should be applied. The Supreme Court has made emphatically clear its recognition that “[f]amily relations are a traditional area of state concern.” Moore v. Sims,
We are not persuaded that Miofsky v. Superior Court,
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 Miof-sky 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
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.
Notes
. After examining the briefs and appellate record, this panel has determined that oral argument would not materially assist the determina-turn of this appeal. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. We therefore accept submission on the briefs as the parties have suggested.
. See also Walnut Properties, Inc. v. City of Whittier,
. The strongest statement suggesting that a party must raise abstention is found in Winston v. Children and Youth Services,
Judge Garth, in dissent, concluded that the majority ignored circuit precedent in refusing to reach the merits of the abstention issue in the absence of a proper cross-appeal. Id. at 1397-98 (Garth, J., dissenting). He concluded that the federal court should have abstained in light of the ongoing state custody proceedings. Id: at 1398 ("Under the circumstances present here, a federal court should not intrude in the state processes involving family custody issues, but rather, should abstain.”). We disagree with the Winston majority opinion and are persuaded by Judge Garth's cogent dissent.
. We note that some state courts have held that § 1914 provides a cause of action only for parents from whose custody the child is removed. See In the Matter of the Adoption of a Child of Indian Heritage, 111 NJ. 155,
It is unclear whether the phrase "from whose custody such child was removed" modifies "any parent.” Therefore, we look to the legislative history. In its section-by-section analysis, the House Report notes; "Section 104 [25 U.S.C. § 1914] authorizes the child, parent, or Indian custodian, or the tribe to set aside any foster care placement or termination of parental rights on the grounds that the rights secured under [25 U.S.C. §§ 1911, 1912, or 1913] were violated.” House Report at 23, 1978 U.S.C.C.A.N. at 7546. This statement does not indicate whether "from whose custody such child was removed” is intended to modify "any parent." However, be
. The dissent concludes that in the circumstances of Morrow’s case, § 1914 permits his collateral attack in federal court against the ongoing state adoption proceeding and prevents application of abstention principles by us. As noted in Part I, supra, in November 1994 Morrow alleged, in the state proceeding, failure of the state adoption petition to comply with the federal and state Indian Child Welfare Acts and thus he was there pressing his ICWA claims well before bringing his second front attack on May 11, 1995, in federal court by the instant suit, which also alleged his ICWA claims. II App. at 306. We do not believe the ICWA supports such a proliferation of litigation which would run counter to the purpose of expeditious determination of Indian child custody that Mississippi Band of Choctaw Indians v. Holyfield favors.
In the circumstances before us, we are persuaded that the federal ICWA should be construed as providing its minimum federal standards, as § 1902 notes, but that the statute does not indicate "that it is necessary or desirable to oust the states of their traditional jurisdiction over Indian children," in the words of the House Report. Where the Indian parent’s ICWA claims have already been asserted in the state court of competent jurisdiction, they can be vindicated there and we need not disregard the policy of abstention which can also be accommodated so as to avoid duplicitous and protracted litigation.
. These statutory provisions provide a broad spectrum of protective measures for the benefit of Indian children, their parents, and the tribes:
Section 1911 provides for exclusive tribal jurisdiction over child custody proceeding involving an Indian child who resides or is domiciled within the tribal reservation (except where such jurisdiction is vested in the state by existing federal law) (§ 1911(a)); transfer of foster care placement or termination of parental rights proceedings from state to tribal court under certain circumstances for Indian children not domiciled or residing within the reservation (§ 1911(b)); the right of the tribe, parent, custodian, or child, to intervene in state court foster care or termination proceedings (§ 1911(c)); and full faith and credit to the public acts, records and judicial proceedings of any Indian Tribe applicable to Indian child custody proceedings to the extent provided in § 1911 (d).
*1396 Section 1912 provides for notice by the state court in an involuntary proceeding to the tribe, and the parent or custodian (§ 1912(a)); appointment of counsel to indigent parents or custodians in removal, placement, or termination proceedings (§ 1912(b)); right of access to reports and documents filed with the court (§ 1912(c)); that the party seeking to effect foster care placement or termination of parental rights satisfy the court that remedial and rehabilitative efforts to prevent the breakup of the Indian family have been made and that those efforts proved unsuccessful (§ 1912(d)); that no foster care placement may be ordered in the absence of clear and convincing evidence, including expert testimony, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (§ 1912(e)); that no termination of parental rights may be ordered in the absence of proof beyond a reasonable doubt, including expert testimony, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child (§ 1912(f)).
Section § 1913 provides minimum standards for obtaining valid voluntary consent of a parent or Indian custodian to a foster care placement or to termination of parental rights (§ 1913(a)); that withdrawal of consent to foster care placement may he made at any time (§ 1913(b)); that withdrawal of consent to termination of parental rights may be made at any time prior to entry of a final decree of termination or adoption (§ 1913(c)); that withdrawal of consent to termination of parental rights up to two years after an adoption decree (and longer if allowed by state law) may be made if the consent was obtained through fraud or duress (§ 1913(d)).
. In Schall v. Joyce,
The Third Circuit affirmed, applying Younger. The majority concluded that Pennzoil applied, and that abstention was therefore appropriate because of the state’s interest in enforcing the orders and judgments of its courts.
We must follow Middlesex County Ethics Comm.,
Dissenting Opinion
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), 25 U.S.C. § 1901 et seq., and I would therefore affirm on that basis. For the reasons set out below, I am unable to agree with the majority’s decision to require abstention under Younger. Accordingly, I must dissent.
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,
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.” 25 U.S.C. § 1901(5). To remedy this failing by the States, Congress declared:
“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. ”
Id. § 1902. Congress has thus imposed Federal standards on custody disputes involving Indian children which override an otherwise traditional area of state concern precisely because the States have not been sensitive to the unique circumstances arising when the custody of Indian children is involved. In my judgment, these Congressional pronouncements clearly indicate that the federal interest is paramount here, and I therefore cannot agree that the State’s interest is sufficient to support a decision to abstain.
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.
I would affirm on the basis of the district court’s correct resolution of the merits.