Morrow v. Winslow

PUBLISH

UNITED STATES COURT OF APPEALS Filed 8/23/96

TENTH CIRCUIT

ROBERT LLOYD MORROW,

Plaintiff-Appellant,

v. No. 95-5182

THE HONORABLE DAVID
WINSLOW; JOHN DOE; and JANE
DOE,

Defendants-Appellees.

CHEROKEE NATION and
CAROL GRANT,

Intervenors.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 95-C-429-B)

Submitted on the briefs:

Chadwick Smith, Tulsa, Oklahoma, for Plaintiff-Appellant.

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 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, et seq. (ICWA). 1

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 born 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

1
After examining the briefs and appellate record, this panel has determined
that oral argument would not materially assist the determination 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.

2
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.

3
 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 state court

overruled the motion to transfer on January 25, 1995.

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).

4
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

5
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 completed on December 16, 1995. The

appellees' memorandum says that the state judge resolved the second stage of the

adoption against Morrow, determining that the adoption was in the best interest of

the child and should be finalized on December 13, 1995; that no written

memorialization of this ruling has been filed; and that there is a pending motion to

settle the terms of the order so that the actual decree of adoption had not been

6
entered when appellees' supplemental memorandum was filed July 17, 1996.

Plaintiff-Appellant Morrow's supplemental memorandum filed July 19, 1996,

essentially agrees on the status of the state adoption case, but adds that it was

Morrow who on April 19, 1996 filed the motion to settle the journal entry of

judgment and that a hearing on this matter was set for July 19, 1996. The clerk of

the state district court informs us that no judgment has been entered as of August 12,

1996.

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 Fiberglass 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

7
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

8
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 back into the State's own system.'" 744

F.2d at 742-43 n.2 (citation omitted). 2

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.

2
See also Walnut Properties, Inc. v. City of Whittier, 861 F.2d 1102, 1106 (9th
Cir. 1988) (declining to address abstention issue because issue was not raised until
second appeal from district court and after earlier remand from Supreme Court), cert.
denied, 490 U.S. 1006 (1989); Shannon v. Telco Communications, Inc., 824 F.2d
150, 151-52 (1st Cir. 1987) (because state did not press the abstention issue before
court of appeals, court addressed merits of appeal); Universal Amusement Co. v.
Vance, 587 F.2d 159, 163 n.6 (6th Cir. 1978) ("[a]ppellant did not raise the question
of Younger abstention, and that issue, being non-jurisdictional, is thus not before this
court."), aff'd, 445 U.S. 308 (1980) (per curiam); but see Federal Express v.
Tennessee Public Service Comm'n, 925 F.2d 962, 966 (6th Cir.), (noting in dictum
that the Supreme Court has indicated that abstention may be raised by the court sua
sponte), cert. denied, 502 U.S. 812 (1991).

9
Nevertheless, we feel we should address the abstention issue sua sponte.

In Belloti 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

3
The strongest statement suggesting that a party must raise abstention is found
in Winston v. Children and Youth Services, 948 F.2d 1380 (3rd Cir. 1991), cert.
denied, 504 U.S. 956 (1992). There the majority concluded that "[a]bstention, unlike
mootness, does not present a jurisdictional issue. A party who wishes a federal court
to abstain from deciding a live controversy in deference to a pending state action
must preserve its claim in both the district court and the court of appeals." Id. at
1384. The majority concluded that the abstention issue was not preserved properly
and therefore was waived. Id. at 1385.
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.

10
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).

We are convinced that we have properly raised the abstention issue sua sponte.

Therefore, we will consider whether abstention is appropriate in these circumstances.

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:

11
 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., 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

12
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).

We must be observant of these teachings in NOPSI. We nevertheless do not

feel that they require that we dismiss the forceful reasoning and applications of

Younger. The Court has instructed us that "Younger . . . and its progeny espouse a

strong federal policy against federal court interference with pending state judicial

proceedings absent extraordinary circumstances." Middlesex County Ethics Comm.

v. Garden State Bar Ass'n, 457 U.S. 423, 431 (1982) (emphasis added). In

13
Middlesex the Court also made it clear that the "policies underlying Younger are

fully applicable to noncriminal judicial proceedings when important state interests

are involved." Id. at 432. It cannot be gainsaid that adoption and child custody

proceedings are an especially delicate subject of state policy, the Court stating that

"[f]amily relations are a traditional area of state concern." Moore v. Sims, 442 U.S.

415, 435 (1979). The Court further noted in Moore that the doctrine of Younger,

"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." Moore,

442 U.S. at 423.

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 434-435.

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.

14
 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

15
 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 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, 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

16
 determinations are not based on a "white middle-class standard which,
in many cases, forecloses placement with [an] Indian family." Id., at
24.

490 U.S. at 37.

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, 967 F.2d 435, 437 (10th Cir. 1992). Morrow alleged violations of

§§ 1912 and 1913, and therefore, under § 1914 and Roman-Nose, we believe there

is jurisdiction to hear Morrow's claims in either federal or state court since those

courts fall within the definition of "any court of competent jurisdiction" in § 1914. 4

4
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, 543 A.2d 925, 935-36 (N.J. 1988); In
re Adoption of Baby Boy L, 643 P.2d 168, 175-76 (Kan. 1982); In Interest of
S.A.M., 703 S.W.2d 603, 608 (Mo. Ct. App. 1986). These courts have read the
phrase "from whose custody such child was removed" as modifying both the phrase
"Indian custodian" and "any parent." Under this interpretation of § 1914, the Indian
child's parent could bring a suit only if the child was removed from the parent's
custody. Some of these courts have also held that "custody" refers to physical rather
than legal custody. See In re Adoption of Baby Boy L, 643 P.2d at 175-76
(suggesting that "custody" in § 1914 means physical control); In Interest of S.A.M.,
703 S.W.2d at 608 (same). We believe these cases incorrectly interpret § 1914 in

17
 This does not answer our abstention question, however, because it is not clear

from the language of § 1914 that Congress intended to allow federal courts to enjoin

ongoing state adoption proceedings. Because of this uncertainty, it is appropriate to

look to the legislative history of the ICWA. See United States v. Abreu, 962 F.2d

1447, 1450 (10th Cir. 1992) ("[w]hen the plain language of [a] statute does not

unambiguously reveal its meaning, we turn to the legislative history"), vacated on

other grounds, 508 U.S. 935 (1993) (mem.).

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

light of the ICWA's broad purpose to protect the rights of Indian children, parents
and tribes.
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, because the purpose of the statute is to protect the rights of Indian parents,
children and tribes, we believe the interpretation which is more protective of those
rights is the more appropriate interpretation. The more restrictive interpretation that
"from whose custody such child was removed" modifies "any parent" is contrary to
this protective purpose, so we reject that interpretation and conclude that "any
parent" stands alone, unmodified by the phrase "from whose custody such child was
removed." Therefore, § 1914 provides a cause of action for Morrow without regard
to whether or not Credence was removed from his custody.

18
 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,

5
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. 490 U.S. at 53-54.
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.
(continued...)

19
we believe that § 1914 and related provisions of the ICWA do not preclude our

consideration of abstention. 6 Younger's principles of comity and federalism would

5
(...continued)
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.
6
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).
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
(continued...)

20
be disregarded by allowing federal court intervention into ongoing state court

proceedings here. And, if federal court intervention was allowed it could result in

numerous delays as multiple, piecemeal federal litigation worked its way through the

federal courts. Here, the state proceedings were stayed by the state judge pending

the federal district court proceedings. Since the state proceedings resumed, there

have been a number of substantial developments in the state case. We do not believe

that Congress envisioned § 1914 to authorize the type of federal court supervision

into ongoing state adoption proceedings that Morrow asks us to impose.

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

6
(...continued)
of parental rights (§ 1913(a)); that withdrawal of consent to foster care placement
may be 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)).

21
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

7
In Schall v. Joyce, 885 F.2d 101 (3d Cir. 1989), the Third Circuit applied
Younger to a constitutional challenge to Pennsylvania's confession of judgment
procedures. At the time of the federal suit, the plaintiff was also involved in state
proceedings to set aside a judgment entered against her by confession. The federal
district court stayed the federal suit pending the resolution of the state proceedings.
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. 885 F.2d at 109-10. The
court concluded that although the state judgment at issue was ex parte, this was no
basis for concluding that the state interest was any weaker than it was in Pennzoil.
Id. at 109. The majority in Schall stated, however, that "the state's interest in
litigation between private persons is less weighty than other state interests protected
by Younger," and, therefore, "federal courts may, in an appropriate case, interfere
(continued...)

22
said that as in Juidice v. Vail, 430 U.S. 327 (1977), it relied on the State's interest

in protecting the authority of the judicial system so that its orders and judgments

were not rendered nugatory. Pennzoil, 481 U.S. at 14 n.12. The Court added that

both Juidice and Pennzoil involved challenges to the processes by which the state

compels compliance with the judgments of its courts. Id. at 13-14. While private

litigation was involved, due to such interest of the state in the litigation, abstention

was applied, the injunctive order was reversed and the case was remanded for

dismissal.

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 "[f]amily 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,

7
(...continued)
with an ongoing privately initiated state proceeding in which the state court has not
yet rendered judgment even if Younger would preclude such interference in a case
in which the state has already entered a judgment." 885 F.2d at 109.
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.

23
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 § 1983 action in a federal district court, alleging

unconstitutional infringement of his privacy interests, inter alia. The Ninth Circuit

held that federal jurisdiction did exist and that Younger did not require dismissal on

24
abstention grounds, noting the unflagging obligation of the federal courts to exercise

their jurisdiction.

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 the circumstances before us call for application of the abstention

doctrine. Plaintiff-Appellant Morrow participated in the state adoption proceeding

and continues to participate there. In November 1994, Morrow asserted claims of

violations of the federal ICWA and the Oklahoma Indian Child Welfare Act. We

feel that the ongoing state proceeding does "afford an adequate opportunity" to raise

the ICWA and constitutional claims of Morrow, Moore v. Sims, 442 U.S. at 430, and

there is no showing of a procedural bar against his assertion of those claims. We are

persuaded that "Younger . . . and its progeny espouse a strong federal policy against

federal court interference with pending state judicial proceedings absent

extraordinary circumstances." Middlesex County Ethics Comm. v. Garden State Bar

25
Ass'n, 457 U.S. at 431. Quackenbush instructs us that the Court has "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." 116 S. Ct. at

1722. We are convinced that this is such a case and that the circumstances before

us counsel abstention.

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.

26
No. 95-5182, MORROW v. WINSLOW

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), 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 23 of its

opinion that family relations are a traditional area of state concern, quoting Moore

v. Sims, 442 U.S. 415 (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.” 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.

Because the whole purpose of the ICWA is to set out these standards and

impose them on the States as a matter of federal law, I must also disagree with the

majority’s statements at page 19 that Congress did not intend section 1914 of the

-2-
ICWA to allow a federal suit challenging the legality of an ongoing state custody

determination of an Indian child. The majority cites no authority for that proposition

and it is, of course, directly contrary to the canon of construction that “[s]tatutes are

to be construed liberally in favor of the Indians, with ambiguous provisions

interpreted to their benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759,

766 (1985); see also Native Village of Venetie, 944 F.2d at 548. Section 1914

authorizes any competent court to invalidate the custody placement of an “Indian

child who is the subject of any action for foster care placement or termination of

parental rights under State law” when the action violates enumerated provisions of

the ICWA. Removing an Indian child from the custody of a parent or Indian

custodian frequently occurs during such proceedings and long before a final

disposition of the case is made. Nothing in the language of the statute or its

legislative history provides any support for the majority’s conclusion that this

removal cannot be challenged until a final order in the underlying action is entered.

Indeed, the plain intent of the statute appears to me to be to the contrary. As the

Supreme Court has pointed out, allowing an expeditious determination of whether

the required Federal standards have been followed will avoid much potential anguish.

See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 53-54 (1989).

Moreover, given our holding in Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 590-92

(10th Cir. 1985), cert. denied, 479 U.S. 872 (1986), that section 1914 may not be

used to challenge the legality of a state custody determination after a final decision

-3-
has been made in the state courts, the majority’s proposal to require abstention until

that final decision has been made will in essence strip section 1914 of any

meaningful application whatsoever.

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.

-4-