Foster Children v. Jeb Bush, Kathleen Kearney, Chuck Bates, Robert Williams, Ester Tibbs

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 08, 2003
No. 02-10180 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. 00-02116-CV-FAM

31 FOSTER CHILDREN, on behalf
of themselves and all other Children
in Florida Foster Care,

Plaintiffs-Appellants,

versus

JEB BUSH, as Governor of the State
of Florida, KATHLEEN KEARNEY,
as Secretary of the Florida Department
of Children and Families, CHUCK
BATES, District Administrator, ROBERT
WILLIAMS, District Administrator,
ESTER TIBBS, District Administrator,
et al.,

Defendants-Appellees.

__________________________

Appeal from the United States District Court for the
Southern District of Florida
_________________________
(May 8, 2003)
Before ANDERSON and CARNES, Circuit Judges, and HAND*, District Judge.

CARNES, Circuit Judge:

This case involves a proposed class action brought on behalf of all children

in Florida’s foster care system against the Governor of Florida, the Secretary of

Florida’s Department of Children and Families (“the Department”), and the

administrators of fourteen of the Department’s fifteen districts, all of whom

collectively administer Florida’s foster care system. The individual plaintiffs’

amended complaint alleges widespread deficiencies in the state’s foster care

system, in violation of the United States Constitution and federal statutory law.

The plaintiffs appeal the district court’s order insofar as it grants the defendants’

motions to dismiss parts of the amended complaint on grounds of Younger v.

Harris abstention and Eleventh Amendment immunity.

In Part I of this opinion, we set out the allegations contained in the multi-

count complaint and the procedural history of the case. In Part II, we address the

justiciability concerns raised by the defendants and conclude that although the

claims of two of the plaintiffs are moot, the other plaintiffs have standing to pursue

their claims. In Part III, we review the plaintiffs’ federal statutory claims and

____________________

*Honorable William B. Hand, United States District Judge forthe Southern District of
Alabama, sitting by designation.

2
affirm the district court’s order dismissing those claims, because the statutes at

issue do not give rise to enforceable rights. In Part IV, we discuss the Younger

abstention doctrine and conclude that the district court did not abuse its discretion

in abstaining from deciding the plaintiffs’ claims. Part V contains our conclusions

and instructions for the district court on remand.

I. THE COMPLAINT AND PROCEDURAL HISTORY

In June of 2000, the plaintiffs filed suit on behalf of themselves and a

statewide class of children in custody of the defendants. The amended complaint

contains six counts, alleging that the defendants’ practices deny and threaten the

plaintiffs’1 claimed rights to: (1) safe care that meets their basic needs, prompt

placements with permanent families, and services extended after their eighteenth

birthdays, as guaranteed by substantive due process (Count I); (2) procedural due

process in determining the services they will receive (Count II); (3) family

association with siblings as guaranteed by the First, Ninth, and Fourteenth

Amendments (Count III); (4) prompt placement with permanent families and to

have their medical and educational backgrounds provided to their care givers, as

1
The plaintiffs who filed the amended complaint are: Bonnie L., Reggie B., Rebecca B.,
Laurie S., Lillie S., Leslie F., Sandra M., Tanya M., Candice D., Jay D., Matthew I., Hugh S.,
Leanne G., Tammy G., Elaine R., Paul B., Rachel C., Cathy W., Larissa C., John J., Melinda, and
Karina.

3
guaranteed by 42 U.S.C. §§ 675(5)(D) and (E), which are provisions of the

Adoption Assistance and Child Welfare Act of 1980, Pub. L. No. 96-272, 94 Stat.

500, 516 (June 17, 1980) (codified as amended at 42 U.S.C. §§ 620-628 and §§

670-679a) (“the Adoption Act”) (Count IV); (5) health screening and followup

under schedules established pursuant to the Medicaid Act, 42 U.S.C. §§

1396a(a)(43)(B), 1396(a)(43)(C), and 1396d(r) (Count V); and (6) in the case of

the black plaintiff foster children, freedom from racial discrimination in the

provision of care and services, as guaranteed by Title VI of the 1964 Civil Rights

Act (Count VI).

The plaintiffs brought their lawsuit under 42 U.S.C. § 1983, seeking

declaratory and injunctive relief relating to the operation of Florida’s foster care

system. Specifically, they requested that the court:

(1) declare unconstitutional and unlawful the following alleged practices:

(a) the failure to provide for the plaintiffs’ basic needs, safety, freedom from harm,

freedom from unreasonable restraints on their liberty, care and treatment, freedom

from being placed into unnecessary state-created danger, and freedom from

arbitrary and capricious actions and decisions that deprive them of benefits to

which they are entitled; (b) deprivation of state-created entitlements without an

adequate and fair procedure; (c) unnecessary separation of siblings and denial of

4
visitation among them; (d) failure to comply with the Adoption Act and the

Medicaid Act; and (e) discrimination on the basis of race;

(2) enjoin the Department and the defendants from violating the plaintiffs’

constitutional rights, including those described in (1) above;

(3) order appropriate remedial relief to ensure compliance with the

Constitution and laws of the United States;

(4) appoint an expert panel to develop and oversee the implementation of a

plan for reform;

(5) appoint a permanent ombudsman or children’s advocate to present the

plaintiffs’ interests to the defendants, and require the defendants to meet regularly

and frequently with that ombudsman; and

(6) grant other equitable relief as the court sees fit.

After amending the complaint, the plaintiffs moved to certify the statewide

class of all children who are or would be in foster care in Florida, along with a

subclass of black children.2 Upon motion of the defendants, the court appointed a

guardian ad litem, who concluded after investigation that “a class action lawsuit is

an appropriate mechanism to secure a remedy for all the children in State custody .

2
The class description was later modified to exclude children who were plaintiffs in a
separate class action involving only children in foster care in Broward County.

5
. . [and] that the prosecution of this lawsuit to a final resolution . . . will be in the

best interests of the Plaintiff children and the class they represent.”

The district court dismissed all of the plaintiffs’ claims on the pleadings. It

ruled that Count IV, which involves the Adoption Act claims, is barred by the

Eleventh Amendment and dismissed those claims with prejudice. The court also

dismissed with prejudice the constitutional claims – Counts I, II, and III – as to all

plaintiffs who are not in extended foster care (which exists only for persons age 18

or older); it did so based upon the abstention doctrine of Younger v. Harris, 401

U.S. 37, 91 S. Ct. 746 (1971). The court dismissed with prejudice the portion of

Count VI that alleges disparate impact discrimination under Title VI of the Civil

Rights Act of 1964. Concluding that the amended complaint was not a “short and

plain statement” of claims, the court dismissed all the other claims (including the

Title VI claims for intentional discrimination) in the amended complaint without

prejudice, granting the plaintiffs leave to replead those claims that had not been

dismissed on some other basis.

Thereafter, eleven of the twenty-two named plaintiffs who had filed the

amended complaint settled all of their claims, executed a release, and are no longer

part of the lawsuit. Some of the eleven plaintiffs who remain in the lawsuit also

settled some of their claims. More specifically, all the intentional racial

6
discrimination claims and all the Medicaid Act claims have been settled and

dismissed.3 The settlement left no unadjudicated claims pending in the district

court.

The plaintiffs who appealed to this Court are the remaining eleven named

plaintiffs still in foster care in Florida for persons under the age of eighteen.4 The

issues they raise in this appeal concern only Counts I through IV, which involve

some of the claims that were dismissed with prejudice.5

II. JUSTICIABILITY

Initially, we are faced with some threshold questions about whether the

plaintiffs’ claims present a justiciable case or controversy. Specifically, we must

decide whether the claims of two of the plaintiffs are moot and whether the other

plaintiffs have standing to challenge the practices at issue.

A. MOOTNESS

3
Because of that settlement, none of the plaintiffs filed an amendment to the complaint
repleading those claims, even though the district court’s dismissal of them had been without
prejudice.
4
They are: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Leanne G., Tammy G.,
Elaine R., Rachel C., Larissa C., and John J.
5
Although the disparate impact portion of the black children’s Title VI claims in Count VI
was also dismissed with prejudice, the plaintiffs do not contest that ruling.

7
 The exercise of jurisdiction by the federal courts “depends upon the

existence of a case or controversy.” North Carolina v. Rice, 404 U.S. 244, 246, 92

S. Ct. 402, 404 (1971) (citation and internal quotation marks omitted). “[A] case is

moot when the issues presented are no longer ‘live’ or the parties lack a legally

cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89

S. Ct. 1944, 1951 (1969). “Put another way, [a] case is moot when it no longer

presents a live controversy with respect to which the court can give meaningful

relief.” Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of Health &

Rehabilitative Servs., 225 F.3d 1208, 1217 (11th Cir. 2000) (citations and internal

quotation marks omitted). We consider questions of mootness under a plenary

standard of review. United States v. Fla. Azalea Specialists, 19 F.3d 620, 621

(11th Cir. 1994).

The defendants contend that Larissa C.’s and Leanne G.’s claims are moot,

and we agree. Because Larissa C. and Leanne G. have been adopted, they are no

longer in the defendants’ legal or physical custody and therefore cannot be further

harmed by the defendants’ alleged illegal practices. Because the plaintiffs’

amended complaint seeks only prospective injunctive relief against the defendants

to prevent future harm, no live controversy exists between them and these two

8
plaintiffs. Larissa C. and Leanne G. have no legally cognizable interest in the

outcome of this lawsuit. All of their claims are moot.

B. STANDING

The three prerequisites for standing are that: (1) the plaintiff have suffered an

“injury in fact” – an invasion of a judicially cognizable interest, which is (a)

concrete and particularized, and (b) actual or imminent, not conjectural or

hypothetical; (2) there be a causal connection between that injury and the conduct

complained of – the injury must be fairly traceable to the challenged action of the

defendant, and not the result of the independent action of some third party not

before the court; and (3) it be likely, not merely speculative, that the injury will be

redressed by a favorable decision. Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct.

1154, 1161 (1997). These three elements “constitute[] the core of Article III’s

case-or-controversy requirement.” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 103-04, 118 S. Ct. 1003, 1017 (1998).

The plaintiffs bear the burden of establishing each of the three standing

elements. Bennett, 520 U.S. at 167-68, 117 S. Ct. at 1163-64. How much evidence

is necessary to satisfy that burden depends on the stage of litigation at which the

standing challenge is made. Id. At the pleading stage, “general factual allegations

of injury resulting from the defendant’s conduct may suffice, for on a motion to

9
dismiss we presume that general allegations embrace those specific facts that are

necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

561, 112 S. Ct. 2130, 2137 (1992) (citations and internal marks omitted).

Because Larissa C.’s and Leanne G.’s claims are moot, we have nine

remaining plaintiffs who appealed to this Court and for whom the standing

question matters: Reggie B., Rebecca B., Laurie S., Lillie S., Tanya M., Tammy

G., Elaine R., Rachel C., and John J. Taking the allegations of the complaint as

true for present purposes, as we must, Pompey v. Broward County, 95 F.3d 1543,

1548 n.6 (11th Cir. 1996), we will proceed count-by-count as to all the injury

claimed by the plaintiffs who have appealed to this Court.

In Count I, the plaintiffs claim that the defendants have violated their

substantive due process rights by engaging in a pattern and practice of failing to

meet their obligations in the following ways: failing to satisfy the plaintiffs’ basic

needs for food, clothing, and shelter, as well as for medical, educational and other

services; failing to provide safe care and placements that protect the plaintiffs from

harm and services that prevent or ameliorate harm; and failing to provide the

plaintiffs with care consistent with the purposes for which the defendants assumed

custody of them.

10
 As additional claimed violations of their substantive due process rights in

Count I, eight of the nine remaining plaintiffs – Tanya M., Laurie S., Lillie S.,

Elaine R., Rachel C., Reggie B., John J., and Tammy G. – assert that the defendants

knowingly placed and retained them in foster care placements that were dangerous,

abusive, neglectful, overcrowded, or wholly inappropriate for meeting the

children’s needs. The plaintiffs further claim that the defendants ignore or

inappropriately respond to complaints or other information identifying certain

placements as dangerous, abusive, neglectful, overcrowded, or wholly

inappropriate for meeting the children’s needs, and have done so in the placements

of Tanya M., Laurie S., Lillie S., Tammy G., and John J. Further, the defendants

are alleged to have engaged in a pattern and practice of placing some children,

including Rachel C. and Tammy G., in temporary shelters or group homes on a

long-term basis because of the unavailability of foster homes to accommodate

them. They are alleged to have retained children, including Laurie S., Lillie S.,

Reggie B., and Rebecca B., in foster care longer than necessary and to have

subjected children to multiple, unwarranted placements. The position of the

plaintiffs is that the defendants have a pattern and practice of engaging in the

conduct alleged in Count I, which has caused and continues to cause the plaintiffs

injury.

11
 In Count II, the plaintiffs assert violations of procedural due process. They

allege that the defendants have failed to establish a process for an administrative

hearing or professional review of decisions that deny the plaintiffs benefits to

which they are entitled, including caseworker supervision of children in foster care

and shelter care, medical care, foster care after reaching the age of majority, and

participation in a subsidized Independent Living Program. Specifically, it is

alleged that Reggie B. has been and continues to be injured by this pattern and

practice, because he has been denied treatment necessary to repair a cleft palate and

for other medical needs.

In Count III, eight of the remaining plaintiffs – Tanya M., Tammy G., Laurie

S., Lillie S., John J., Elaine R., Reggie B., and Rebecca B. – claim that the

defendants have violated their First, Ninth, and Fourteenth Amendment rights by

unnecessarily separating them from their siblings and depriving them of regular

and frequent visitation with their separated siblings. They allege that the

defendants have a pattern and practice of doing so, and that it has harmed them.

In Count IV, the plaintiffs allege that the defendants have violated rights

granted them under the Adoption Act. Specifically, Laurie S., Lillie S., Reggie B.,

and Rebecca B. claim that the defendants routinely fail to initiate proceedings for

termination of parental rights to children in their custody for 15 of the most recent

12
22 months as required under 42 U.S.C. § 675(5)(E), and that they have been

harmed by this practice. Reggie B. also alleges specifically that his health and

education records were not provided to foster parents or foster care providers

immediately upon his placement in a home or facility, as required under 42 U.S.C.

§ 675(5)(D), and the other eight remaining plaintiffs allege generally that the

defendants routinely fail to obtain the required information, update it, or provide a

record of the information to each foster home or facility.

The defendants contend that none of the plaintiffs has standing to bring

claims under Count II (procedural due process) or Count IV (Adoption Act). With

regard to Count I (substantive due process), the defendants contend that only four

plaintiffs – Laurie S., Lillie S., Reggie B., and Rebecca B. – have standing to claim

that they have been in foster care longer than reasonably necessary. They contend

that only three plaintiffs – Tammy G., Laurie S., and Lillie S. – have standing to

bring a claim under Count III (sibling association) for failure to be placed in a

foster home with their siblings. Finally, they contend that only two plaintiffs –

Elaine R. and Tammy G. – have standing to raise a claim under Count III for failure

to allow visitation with siblings. The defendants’ basis for claiming that most

plaintiffs lack standing for these claims is that most of them fail to allege either a

13
palpable injury or the imminent risk of harm. 6 Instead, according to the defendants,

most of the plaintiffs complain about past harms and seek relief for aspects of the

Florida foster care system that have not caused them injury.

In order to satisfy the “injury in fact” requirement of standing, a plaintiff

need not wait for an injury to occur. An allegation of future injury satisfies this

prong of standing so long as the alleged injury is “imminent” or “real and

immediate” and not merely “conjectural” or “hypothetical.” Lujan, 504 U.S. at

560, 112 S. Ct. at 2136; City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.

Ct. 1660, 1665 (1983). An injury is imminent if it is likely to occur, and likely to

do so immediately. Lujan, 504 U.S. at 560, 112 S. Ct. at 2136.

When a plaintiff cannot show that an injury is likely to occur immediately,

the plaintiff does not have standing to seek prospective relief even if he has

suffered a past injury. For example, in Lyons, the plaintiff sought to enjoin the use

6
In addition to injury in fact, plaintiffs must also allege that their injuries are “fairly
traceable to the challenged action of the defendant, and not the result of the independent action of
some third party not before the court,” and that it is likely the injury will be redressed if the court
rules in their favor. Bennett v. Spear, 520 U.S. 154, 167, 117 S. Ct. 1154, 1163 (1997). These
aspects of standing are not disputed in this case. According to the amended complaint, the
defendants’ failures caused the plaintiffs’ injuries and their continued failures are likely to cause
further injuries. The plaintiffs do allege that their injuries are related to the challenged conduct
of the defendants. Therefore, the alleged injuries suffered by the plaintiffs are fairly traceable to
the conduct of the defendants. In addition, the plaintiffs seek a declaratory judgment and
prospective injunctive relief that will prevent the defendants from violating their constitutional
and federal statutory rights. The relief the plaintiffs seek would clearly remedy their claimed
injuries.

14
of “chokeholds” by police officers. 461 U.S. at 98, 103 S. Ct. at 1663. The Court

stated that the plaintiff’s standing to seek that relief hinged on “whether he was

likely to suffer future injury from the use of the chokeholds by police officers.” Id.

at 105, 103 S. Ct. at 1667. The Court held that the plaintiff lacked standing,

because the probability of future injury was too speculative, id. at 106-07, 103 S.

Ct. at 1667-68, explaining:

In order to establish an actual controversy in this case, [the plaintiff]

would have had not only to allege that he would have another

encounter with the police but also to make the incredible assertion

either (1) that all police officers in Los Angeles always choke any

citizen with whom they happen to have an encounter . . . or (2) that

the City ordered or authorized police officers to act in such manner.

Id. at 105-06, 103 S. Ct. at 1667. As Lyons illustrates, future injury that depends

on either the random or unauthorized acts of a third party is too speculative to

satisfy standing requirements. However, when the threatened acts that will cause

injury are authorized or part of a policy, it is significantly more likely that the

injury will occur again. See id. at 106, 103 S. Ct. at 1667 (plaintiff may have had

15
standing if he had alleged “that the City ordered or authorized police officers to

[perform illegal chokeholds]”).

This case is more like Church v. City of Huntsville, 30 F.3d 1332 (11th Cir.

1994), than Lyons. In Church, the plaintiffs were homeless persons who sought an

injunction against the City of Huntsville to prevent the City and its employees from

harassing, intimidating, detaining, and arresting them solely because they were

homeless, as part of a concerted effort to drive them out of the city. Id. at 1335.

We held that the plaintiffs had standing, because they were far more likely than the

Lyons plaintiff to have future encounters with the police, were homeless

involuntarily, and could not “‘avoid future exposure to the challenged course of

conduct’” in which the City engaged. Id. at 1338 (quoting O’Shea v. Littleton, 414

U.S. 488, 497, 94 S. Ct. 669, 677 (1974)). Importantly, the Church plaintiffs

alleged that municipal policy authorized the constitutional deprivations they

claimed and that the City had a “custom, practice and policy” of engaging in the

challenged conduct. Id. at 1339.

For the reasons that the Church plaintiffs had standing, the plaintiffs in this

case who are in the defendants’ physical custody have standing to pursue their

substantive due process claims (Count I). The plaintiffs who are in the defendants’

physical custody and have siblings in the defendants’ custody – Tammy G., Laurie

16
S., Lillie S., John J., Reggie B., and Rebecca B. – have standing to pursue their

sibling association claims (Count III). These plaintiffs are in much the same legal

position as the Church plaintiffs. They are in the custody of the defendants

involuntarily and will be until they are returned to their parents, are adopted, or

reach the age of majority. They cannot avoid exposure to the defendants’

challenged conduct. The alleged systemic deficiencies in the Florida foster care

system are similar to an injurious policy, and different from the random act at issue

in Lyons. The alleged pattern and practice in this case presents a substantial

likelihood that the alleged injury will occur. See Church, 30 F.3d at 1339.

Moreover, the plaintiffs’ allegations under Counts I and III support the

conclusion that future injury will proceed with a high degree of immediacy. The

Supreme Court addressed this aspect of the injury in fact requirement in Lujan,

holding that because the plaintiffs failed to demonstrate their injury would

“proceed with a high degree of immediacy, so as to reduce the possibility of

deciding a case in which no injury would have occurred at all,” they lacked

standing to pursue their claim. 504 U.S. at 559, 564 n.2, 112 S. Ct. at 2135-36,

2138 n.2. Thus, under Lujan, one cannot merely allege that an injury will be

suffered at “some time” in the future. However, a plaintiff need not demonstrate

that the injury will occur within days or even weeks to have standing. See, e.g.,

17
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211-12, 115 S. Ct. 2097, 2105

(1995) (plaintiff who was likely to suffer injury within one year period had

standing to sue). The court must make a qualitative inquiry into this question. See

Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11th Cir. 1996) (when determining

standing, court focuses on qualitative sufficiency of the injury). In this case, for

those plaintiffs who are in the physical custody of the defendants, the degree of

immediacy is sufficiently high that there is little likelihood the district court will be

deciding a case “in which no injury would have occurred at all.” Lujan, 504 U.S. at

564 n.2, 112 S. Ct. at 2138 n.2.

However, the two plaintiffs who are not in the defendants’ physical custody

lack standing to pursue the constitutional claims under Counts I and III. The

amended complaint states that Tanya M. has run away, and at oral argument the

plaintiffs’ counsel referred to Elaine R. as one of the “hundreds of missing

children.” Plaintiffs who are not in the defendants’ physical custody cannot

demonstrate that their constitutional injuries are imminent. They may return to the

defendants’ physical custody, but they may not. If they do not return to the

defendants’ physical custody, then they will never be harmed by the alleged

practices of the defendants. It follows that they cannot demonstrate any injury that

would “proceed with a high degree of immediacy.” Id.

18
 Only Reggie B. has standing to pursue the procedural due process claims set

out in Count II, because he is the only plaintiff who has demonstrated injury in fact

as to that claim. He claims that he has been denied medical care to repair a cleft

palate (and other unspecified medical care) and that the defendants have not

provided a process for review of that denial. If his cleft palate has not been

repaired, he has been denied an alleged entitlement, and he is asking for procedural

protections he claims have not been provided. His is a concrete injury that is real

and immediate. Id. at 560, 112 S. Ct. at 2136. The other plaintiffs, however, have

not alleged that they have been denied any entitlement. Without such an allegation,

the other plaintiffs are essentially asserting that they will be denied a benefit in the

future, and that when that happens, the defendants will provide them with no

process for reviewing the denial. The plaintiffs’ procedural due process claims are

different from their substantive due process claims because the procedural injury

requires two steps: the defendants must deny the plaintiffs a benefit and then deny

them process. Such an injury may never occur. See id. at 564 n.2, 112 S. Ct. at

2138 n.2.

As to the Adoption Act claims in Count IV, all of the plaintiffs whose

parents’ parental rights have not been terminated within the period set out in the

statute have standing to pursue a claim under 42 U.S.C. § 675(5)(E). Their claimed

19
injury is concrete. In the amended complaint, Laurie S., Lillie S., Reggie B., and

Rebecca B. present such claims. Other plaintiffs, the ones who have not been in

the defendants’ custody for the statutory period, do not have standing to bring a

claim under § 675(5)(E), because they may not be injured at all; they may return to

their parents’ custody.

All of the remaining plaintiffs in the defendants’ physical custody have

claims under 42 U.S.C. § 675(5)(D) for the defendants’ failure to provide updated

health and education records to the plaintiffs’ foster caregivers for the same reasons

that they have standing to pursue their substantive due process claims. Because it

is alleged that the defendants routinely fail to obtain the required information,

update the records, and provide the information to the foster caregivers, all children

who are within the defendants’ physical custody are at risk of immediate harm from

that pattern and practice.

In sum, Larissa C.’s and Leanne G.’s claims are moot because they have

been adopted. Reggie B., Rebecca B., Laurie S., Lillie S., Tammy G., Rachel C.,

and John J. have standing to pursue their Count I claims. Reggie B. has standing to

pursue his Count II claims. Tammy G., Laurie S., Lillie S., John J., Reggie B., and

Rebecca B. have standing to pursue their Count III claims. Laurie S., Lillie S.,

Reggie B., and Rebecca B. have standing to pursue their Count IV claims for

20
failure to terminate parental rights in the statutory period. Reggie B., Rebecca B.,

Laurie S., Lillie S., Tammy G., Rachel C., and John J. have standing to pursue their

Count IV claims for failure to provide updated health and education records to

foster caregivers.

III. THE PLAINTIFFS’ CLAIMS UNDER § 1983 FOR VIOLATIONS OF §§

675(5)(D) AND (E) OF THE ADOPTION ACT

Because some of the plaintiffs have standing to pursue their Adoption Act

claims, we must now decide whether 42 U.S.C. §§ 675(5)(D) and (E) provide rights

enforceable under 42 U.S.C. § 1983.7 It provides a federal remedy for violations

not only of the Constitution but federal statutes as well. Maine v. Thiboutot, 448

U.S. 1, 100 S. Ct. 2502 (1980). In order to have a viable cause of action under §

1983 based on the violation of a federal statute, however, a plaintiff must establish

that the statute allegedly violated gives the plaintiff enforceable rights. Gonzaga

Univ. v. Doe, 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002) (rejecting the notion

7
The district court did not decide this question, instead dismissing the plaintiffs’ Adoption
Act claims as barred by the Eleventh Amendment under Seminole Tribe of Florida v. Florida,
517 U.S. 44, 116 S. Ct. 1114 (1996). In view of our conclusion that the Adoption Act claims are
due to be dismissed on other grounds, we need not address the Eleventh Amendment issue.
McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1258-59 (11th Cir. 2002).

21
that case law permits “anything short of an unambiguously conferred right to

support a cause of action brought under § 1983”).

We emphasize, as did the Court in Gonzaga, that in cases brought to enforce

legislation enacted pursuant to Congress’ spending power, such as the Adoption

Act, Congress must “speak with a clear voice” and manifest an “unambiguous”

intent to confer individual rights before federal funding provisions will be read to

provide a basis for private enforcement. Id. at 280, 122 S. Ct. at 2273 (citing

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17, 28 & n.21, 101 S. Ct.

1531, 1540, 1545 & n.21) (1981)). “In legislation enacted pursuant to the spending

power, the typical remedy for state noncompliance with federally imposed

conditions is not a private cause of action for noncompliance but rather action by

the Federal Government to terminate funds to the State.” Pennhurst, 451 U.S. at

28, 101 S. Ct. at 1545. Only twice since Pennhurst has the Supreme Court held that

spending legislation gave rise to rights enforceable via § 1983. See Wilder v. Va.

Hosp. Ass’n, 496 U.S. 498, 110 S. Ct. 2510 (1990) (holding that health care

providers could, pursuant to § 1983, enforce the Boren Amendment to the

Medicaid Act); Wright v. Roanoke Redevelopment & Hous. Auth., 479 U.S. 418,

107 S. Ct. 766 (1987) (holding that the Brooke Amendment to the Housing Act

provided a cause of action under § 1983).

22
 The Supreme Court has set forth three requirements that must be met before

a federal statute will be read to confer a right enforceable under § 1983: (1)

Congress must have intended that the provisions in question benefit the plaintiff;

(2) the plaintiff must demonstrate that the right assertedly protected by the statute is

not so vague and amorphous that its enforcement would strain judicial resources;

and (3) the provision giving rise to the asserted right must be couched in

mandatory, rather than precatory, terms. Blessing v. Freestone, 520 U.S. 329, 340-

41, 117 S. Ct. 1353, 1359 (1997). The Supreme Court in Gonzaga clarified the first

of the Blessing requirements, making it plain that only unambiguously conferred

rights, as distinguished from mere benefits or interests, may be enforced under §

1983. 536 U.S. at 283, 122 S. Ct. at 2275 (rejecting the notion private plaintiffs

have enforceable federal rights merely because they are the intended beneficiaries

of a statute or fall within its zone of interest).

The Court held in Gonzaga that a private plaintiff could not bring an action

under § 1983 to enforce provisions of the Family Educational Rights and Privacy

Act of 1974 (FERPA), 20 U.S.C. § 1232g. In FERPA Congress directed the

Secretary of Education to deny federal funding to any state with a policy or practice

of permitting the unauthorized release of education records or personal

information. Congress was explicit about it, saying: “No funds shall be made

23
available . . . to any [school] which has a policy or practice of permitting the release

of education records . . . of students without the written consent of their parents

. . . .” 20 U.S.C. § 1232g(b)(1).

In holding that FERPA does not create a right enforceable under § 1983, the

Supreme Court explained that the act lacks “rights-creating” language critical to

showing congressional intent to create new rights. Instead, the act speaks only to

the Secretary of Education, directing him to withhold funds if the prohibited

practice exists. Gonzaga, 536 U.S. at 287, 122 S. Ct. at 2277. The Court

contrasted FERPA’s language that “[n]o funds shall be made available,” with the

individually focused language of Titles VI and IX, which mandate that “[n]o

person . . . shall . . . be subjected to discrimination,” statutes that do create

enforceable rights, see Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S. Ct. 1946

(1979). The Court concluded in Gonzaga that the focus of FERPA is “two steps

removed from the interests of individual students and parents.” 536 U.S. 287, 122

S. Ct. at 2277. Instead of creating an enforceable duty on the part of the school, the

act only imposed a duty on the part of the federal government – the duty to

withhold funds.

A second reason the Supreme Court gave in Gonzaga for concluding that

FERPA does not create enforceable rights is that its nondisclosure provisions speak

24
only in terms of institutional policy and practice, not about “individual instances of

disclosure.” Id. at 288, 122 S. Ct. at 2278. The provisions therefore have an

aggregate focus, instead of a concern for “whether the needs of any particular

person have been satisfied.” Id. (citation omitted). Also thought significant is the

fact that institutions can avoid funding termination under FERPA by substantial

compliance with the act’s requirements; compliance in every case is not necessary

to avoid loss of funding. Id.

Finally, the Supreme Court considered in Gonzaga the mechanism that

Congress chose to provide for enforcing the provisions of FERPA. The act

expressly authorizes the Secretary of Education to “deal with violations” of it and

to establish a review board for investigating and adjudicating such violations. 20

U.S.C. § 1232g(f). The Secretary’s regulations create an office to act as a review

board, and students can file individual written complaints with that office. This

review mechanism, the Court concluded, evidences a congressional intent to avoid

the multiple interpretations of FERPA that might arise if the act created enforceable

individual rights. Gonzaga, 536 at 289-90, 122 S. Ct. at 2278-79.

We take from Gonzaga the lesson that we are to look at the text and structure

of a statute in order to determine if it unambiguously provides enforceable rights.

If the text and structure “provide no indication that Congress intends to create new

25
individual rights, there is no basis for a private suit.” Id. at 286, 122 S. Ct. at 2277.

If they provide some indication that Congress may have intended to create

individual rights, and some indication it may not have, that means Congress has not

spoken with the requisite “clear voice.” Ambiguity precludes enforceable rights.

Id. at 280, 122 S.Ct. at 2273. The first Blessing requirement, which is what

Gonzaga addressed, is that Congress must have intended that the provision in

question benefit the plaintiff. Factors to consider in determining if it did include

whether the statute: (1) contains “rights-creating” language that is individually

focused; (2) addresses the needs of individual persons being satisfied instead of

having a systemwide or aggregate focus; and (3) lacks an enforcement mechanism

through which an aggrieved individual can obtain review.

Turning to the specific legislation at hand, the Adoption Act comprises Parts

B and E of Title IV of the Social Security Act and is a federal funding statute that

establishes a program of payments to states for foster care and adoption assistance.

42 U.S.C. §§ 620-628, 670-679a. Sections 675(5)(D) and (E) are found in Part E.

For a state to receive funds under Part E, it must satisfy certain requirements. The

state must submit for approval by the Secretary of Health and Human Services a

plan for foster care and adoption assistance. 42 U.S.C. § 671(a). If a state follows

26
its approved plan, it receives federal funds. 42 U.S.C. § 670; 42 U.S.C. § 1320a-

2a.

If the state does not follow its approved plan, it may lose all or some of the

federal funds it otherwise would receive. Section 1320a-2a requires the Secretary

to promulgate regulations for use in reviewing state programs in order to determine

whether the programs are in substantial conformity with the state plan. 42 U.S.C. §

1320a-2a(a)(3). Under the statute, the regulations must require the Secretary to

withhold federal funds if a state has failed to substantially conform to its approved

plan, id. § 1320a-2a(b)(3), and the regulations do exactly that, 45 C.F.R. §§

1355.35(c)(4), 1355.36(b).

The plaintiffs in this case brought suit under § 675, a section that provides

definitions for both Parts B and E, including a definition for the term “case review

system.” 42 U.S.C. § 675(5). The plaintiffs’ position is that those provisions

relating to a case review system give them an enforceable right under the statute.

Section 675(5) provides, in relevant part:

The term “case review system” means a procedure for assuring that –

***

27
(D) a child’s health and education record (as described in paragraph

(1)(A)) is reviewed and updated, and supplied to the foster parent or

foster care provider with whom the child is placed, at the time of each

placement of the child in foster care;

(E) in the case of a child who has been in foster care under the

responsibility of the State for 15 of the most recent 22 months, or, if a

court of competent jurisdiction has determined a child to be an

abandoned infant (as defined under State law) or has made a

determination that the parent has committed murder of another child

of the parent, committed voluntary manslaughter of another child of

the parent, aided or abetted, attempted, conspired, or solicited to

commit such a murder or such a voluntary manslaughter, or

committed a felony assault that has resulted in serious bodily injury to

the child or to another child of the parent, the State shall file a

petition to terminate the parental rights of the child’s parents (or, if

such a petition has been filed by another party, seek to be joined as a

party to the petition) . . . .

28
42 U.S.C. § 675(5).

Because §§ 675(5)(D) and (E) are definitional in nature, they alone cannot

and do not supply a basis for conferring rights enforceable under § 1983. See

Gonzaga, 536 U.S. at 280, 122 S. Ct. at 2273; see also Charlie H. v. Whitman, 83

F. Supp. 2d 476, 490 (D.N.J. 2000) (§ 675(5), standing alone, does not confer a

right enforceable under § 1983); B.H. v. Johnson, 715 F. Supp. 1387, 1401 (N.D.

Ill. 1989) (“It would be strange for Congress to create enforceable rights in the

definitional section of a statute.”).

Other than the definition, the only provision in Part E of Title IV that uses

the term “case review system” is 42 U.S.C. § 671(a)(16). That section conditions

receipt of federal funds on the existence of a state plan that, among other things,

provides for “a case review system which meets the requirements described in

section 675(5)(B) . . . with respect to each such child.” Section 671(a)(16) does not

go beyond that and explicitly require a plan to meet the requirements described in

§§ 675(5)(D) and (E).

The plaintiffs contend otherwise. They argue that we should not interpret §

671(a)(16) to require compliance only with § 675(5)(B) in order for states to

receive federal funds, but we think that is the most logical interpretation. The

statute plainly directs that the state must have a plan that provides for a case review

29
system “which meets the requirements described in section 675(5)(B) of this title.”

42 U.S.C. § 671(a)(16). It does not say that a plan’s case review system must meet

the requirements of §§ 675(5)(D) and (E). Moreover, in other provisions of the

Adoption Act, provisions that are codified in Part B of Title IV, Congress has

required compliance with all of § 675(5) in order for a state to receive funds.8 The

conclusion we reach is that Congress knew how to require compliance with all

aspects of a case review system, as described in § 675(5), when it wanted to do so.

It did not choose to do so in § 671(a)(16).

Additionally, §§ 675(5)(D) and (E) do not have the kind of focused-on-the-

individual, rights-creating language required by Gonzaga. Instead, the language of

8
Part B creates a joint federal-state program that provides federal funds for child welfare
services. In order to be eligible for these funds, 42 U.S.C. § 622(b)(10)(B)(ii) requires that each
state have a plan for child welfare services that “provide[s] assurances that the State – is
operating, to the satisfaction of the Secretary – a case review system (as defined in section 675(5)
of this title) for each child receiving foster care under the supervision of the State.” Another
provision, 42 U.S.C. § 626(b)(3), requires that, in order for states to receive funds for projects for
the development of alternate care arrangement for infants who do not need to be in hospital
settings, the state develop “a case review system of the type described in § 675(5) of this title” for
each infant.

The plaintiffs have not sued under either 42 U.S.C. § 622(b)(10)(B)(ii) or § 626(b)(3),
which are in Part B, and instead have repeatedly said that their claims arise under Part E. Section
671(a)(16) is the only section in Part E that refers to a “case review system.” So, we have
confined our consideration to it. However, other courts have found that § 622(b)(10)(B)(ii), at
least, does not confer an enforceable right. See Charlie H. v. Whitman, 83 F. Supp. 2d 476, 485-
89 (D.N.J. 2000) (§ 622(b)(10)(B)(ii) is not so unambiguous as to confer a right enforceable
under § 1983); Eric L. v. Bird, 848 F. Supp. 303, 312 (D.N.H. 1994) (plaintiffs have no
enforceable right to compel state’s implementation of programs under predecessor to §
622(b)(10)(B)(ii)).

30
those provisions gives them an aggregate or system wide focus instead of one that

indicates concern with whether the needs of any particular child are met. Gonzaga,

536 U.S. 288, 122 S. Ct. at 2277-78. Although the text of the provisions speaks to

“a child’s health and education record” provided at “each placement of the child”

and to termination of the parental rights of “the child’s parents,” the case review

system as a whole is defined as “a procedure for assuring” that the desired steps are

taken. 42 U.S.C. § 675(5). The references to individual children and their

placements are made in the context of describing what the procedure is supposed to

ensure, and such provisions “cannot make out the requisite congressional intent to

confer individual rights enforceable by § 1983.” Gonzaga, 536 U.S. at 289, 122 S.

Ct. at 2278.

Further, Congress has required the Secretary of Health and Human Services

to promulgate regulations for the review of the child welfare and adoption

assistance programs set out in Parts B and E in order “to determine whether such

programs are in substantial conformity with – State plan requirements under such

parts B and E.” 42 U.S.C. § 1320a-2a(a)(1) (emphasis added). The substantial

conformity requirement is similar to FERPA’s, which the Court in Gonzaga

concluded showed an aggregate instead of an individual focus. 536 U.S. at 288,

122 S. Ct. at 2278; see also Blessing, 520 U.S. at 335, 343, 117 S. Ct. at 1357,

31
1361 (holding that Title IV-D of the Social Security Act did not support a right

enforceable pursuant to § 1983, in part because the statute mandated “substantial

compliance” with federal regulations).

As for enforcement of §§ 675(5)(D) and (E), it is true that the statutes do not

contain “a remedial scheme sufficiently comprehensive to demonstrate

congressional intent to preclude the remedy of suits under § 1983.” Blessing, 520

U.S. at 346, 117 S. Ct. at 1362 (internal marks omitted). In fact, the Adoption Act

contains no mechanism by which aggrieved individuals can enforce its provisions.

Instead, the Secretary enforces the Adoption Act by requiring the implementation

of corrective action or withholding federal funds if the states fail to comply with an

approved plan. See 42 U.S.C. § 1320a-2a. Federal regulations require that the

Secretary audit states to determine whether they are in compliance. 45 C.F.R. §§

1355.32-33; 1355.36. This enforcement scheme is not like those that have been

held by the Supreme Court to preclude suits under § 1983. See Gonzaga, 536 U.S.

at 289-90, 122 S. Ct. at 2278-79 (creation of centralized review board for

individual complaints and enforcement of FERPA precluded private suits); Smith

v. Robinson, 468 U.S. 992, 1010-12, 104 S. Ct. 3457, 3467-68 (1984), superseded

in part by 20 U.S.C. § 1415 (review scheme in Education of the Handicapped Act

permitting aggrieved individuals to invoke “carefully tailored” local administrative

32
procedures followed by federal judicial review precluded § 1983 suits because such

suits would “render superfluous most of the detailed procedural protections

outlined in the statute”); Middlesex County Sewerage Auth. v. Nat’l Sea Clammers

Ass’n, 453 U.S. 1, 13, 20, 101 S. Ct. 2615, 2623, 2626-27 (1981) (“unusually

elaborate enforcement provisions” of the Federal Water Pollution Control Act,

which provided many enforcement options, including noncompliance orders, civil

suits, and criminal penalties and authorized private persons to initiate enforcement

actions, foreclosed § 1983 suit). Nonetheless, in this case, the lack of an

enforcement mechanism by which an aggrieved individual can obtain review is but

one of the factors we consider. The others point in the other direction and prevent

us from saying that Congress spoke with a clear voice to unambiguously manifest

its intent to create enforceable rights.

One other, more specific argument of the plaintiffs needs to be discussed.

They contend that § 103(c) of the Adoption and Safe Families Act of 1997 (ASFA),

Pub. L. No. 105-89, 111 Stat. 2115, 2119, shows that Congress intended that the

right to have parental rights termination proceedings initiated within the statutory

period be an enforceable right for children in foster care. Section 103(c) provides:

33
(1) NEW FOSTER CHILDREN.– In the case of a child who enters

foster care . . . under the responsibility of a State after the date of the

enactment of this Act–

(A) if the State comes into compliance with the amendments

made by [section 103(a), which amended the Adoption Act] before

the child has been in such foster care for 15 of the most recent 22

months, the State shall comply with [42 U.S.C. § 675(5)(E)] with

respect to the child when the child has been in such foster care for 15

of the most recent 22 months; and

(B) if the State comes into such compliance after the child has

been in such foster care for 15 of the most recent 22 months, the State

shall comply with [42 U.S.C. § 675(5)(E)] with respect to the child

not later than 3 months after the end of the first regular session of the

State legislature that begins after such date of enactment.

34
 (2) CURRENT FOSTER CHILDREN.– In the case of children in

foster care under the responsibility of the State on the date of the

enactment of this Act, the State shall–

***

(C) not later than 18 months after the end of such first regular

[legislative] session, comply with [42 U.S.C. § 675(5)(E)] with

respect to all of such children.

ASFA § 103(c). Section 103(c) does mandate that a state must comply with 42

U.S.C. § 675(5)(E) with respect to all children in foster care.

However, when examined in light of the structure of both that section of the

ASFA and the Adoption Act as a whole, § 103(c) is ambiguous. Section 103(c)(4)

provides that the requirements of § 103(c) “shall be treated as State plan

requirements imposed by [42 U.S.C. § 671(a)].” Treating § 103(c) as a plan

requirement means that the Secretary is to review compliance with the

requirements of § 103(c) only for substantial compliance, not for compliance in

every individual case. See 42 U.S.C. § 1320a-2a(a)(1) (requiring Secretary to

35
“promulgate regulations for the review of such programs [under Parts B and E of

Title IV] to determine whether such programs are in substantial conformity with –

State plan requirements under such parts B and E.”) (emphasis added). The

substantial conformity standard applicable to § 103(c) of the ASFA puts that

provision on the same footing as 42 U.S.C. §§ 675(5)(D) and (E), and it prevents us

from finding that the statute manifests an unambiguous congressional intent to

create a right enforceable under § 1983.

Taken as a whole, §§ 675(5)(D) and (E) do not contain rights-creating

language; they have an aggregate, not individual, focus. Those provisions do not

give plaintiffs an “unambiguously conferred right to support a cause of action

brought under § 1983.” Gonzaga, 536 U.S. at 283, 122 S. Ct. at 2275. Congress

has not spoken with a clear voice manifesting an unambiguous intent for those

provisions of the Adoption Act to provide a basis for private enforcement. Id. at

280, 122 S. Ct. at 2273; Pennhurst, 451 U.S. at 17, 28 & n.21, 101 S. Ct. at 1540,

1545 & n.21. Count IV of the complaint, therefore, does not state a claim upon

which relief can be granted.

IV. YOUNGER ABSTENTION

Because some of the plaintiffs have standing to pursue the constitutional

claims, we turn to the issue arising from the district court’s dismissal of Counts I

36
through III under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.

Ct. 746 (1971). We review an abstention decision only for an abuse of discretion.

Boyes v. Shell Oil Prods. Co., 199 F.3d 1260, 1265 (11th Cir. 2000).

The Supreme Court has said that federal courts have a “virtually unflagging

obligation . . . to exercise the jurisdiction given them.” Col. River Water

Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246

(1976). But “virtually” is not “absolutely,” and in exceptional cases federal courts

may and should withhold equitable relief to avoid interference with state

proceedings. New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S.

350, 359, 109 S. Ct. 2506, 2513 (1989). While non-abstention remains the rule, the

Younger exception is an important one. It derives from “the vital consideration of

comity between the state and national governments,” Luckey v. Miller, 976 F.2d

673, 676 (11th Cir. 1992) (“Luckey V”),9 which Younger itself characterized as a

“sensitivity to the legitimate interests of both State and National Governments,”

401 U.S. at 44, 91 S. Ct. at 750.

9
The genealogy of the Luckey case is: Luckey v. Harris, 860 F.2d 1012 (11th Cir. 1988)
(“Luckey I”); Luckey v. Harris, 896 F.2d 479 (11th Cir. 1989) (“Luckey II”); Harris v. Luckey,
918 F.2d 888 (11th Cir. 1990) (“Luckey III”); Luckey v. Miller, 929 F.2d 618 (11th Cir. 1991)
(“Luckey IV”); and Luckey v. Miller, 976 F.2d 673 (11th Cir. 1992) (“Luckey V”).

37
 Although Younger concerned state criminal proceedings, its principles are

“fully applicable to noncriminal judicial proceedings when important state interests

are involved.” Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457

U.S. 423, 432, 102 S. Ct. 2515, 2521 (1982). “Proceedings necessary for the

vindication of important state policies or for the functioning of the state judicial

system . . . evidence the state’s substantial interest in the litigation.” Id. “Where

vital state interests are involved, a federal court should abstain unless state law

clearly bars the interposition of the constitutional claims.” Id. (citation omitted).

As the Middlesex Court framed the issue, “The question . . . is threefold: first, do

[the proceedings] constitute an ongoing state judicial proceeding; second, do the

proceedings implicate important state interests; and third, is there an adequate

opportunity in the state proceedings to raise constitutional challenges.” Id.

(emphasis omitted); see also Old Republic Union Ins. Co. v. Tillis Trucking Co.,

124 F.3d 1258, 1261 (11th Cir. 1997).

The parties agree, and so do we, that the continuing state dependency

proceedings involving each of the plaintiffs are ongoing state proceedings for the

purposes of Middlesex analysis, see J.B. ex rel. Hart v. Valdez, 186 F.3d 1280,

1291 (10th Cir. 1999) (holding that continuing jurisdiction of juvenile court and six

month periodic review hearings constituted an ongoing state judicial proceeding),

38
although they dispute whether this federal proceeding, if allowed to go forward,

would interfere with those state proceedings. The parties also agree, and so do we,

that important state interests are involved. The parties disagree about whether the

state court dependency proceedings provide the plaintiffs with an opportunity to

raise and vindicate the federal constitutional claims, if those claims are valid. We

will start by addressing whether the first Middlesex factor is properly read as

requiring federal court interference with state proceedings and whether a federal

court proceeding in this case would interfere with the dependency proceedings.

Then we will address whether the plaintiffs have an adequate state remedy.

A. THE FIRST MIDDLESEX FACTOR

Both the plaintiffs and the defendants have presumed the first Middlesex

factor, in addition to requiring an ongoing state proceeding, also requires that the

federal relief the plaintiffs seek would interfere with those proceedings, and that if

it would not interfere with the state proceedings, then the federal court has no basis

for abstaining under Younger. See generally, Middlesex, 457 U.S. at 431, 102 S.

Ct. at 2521 (“Younger v. Harris . . . and its progeny espouse a strong federal policy

against federal-court interference with pending state judicial proceedings absent

extraordinary circumstances.”). Decisions from some other circuits support that

view. See, e.g., Green v. City of Tucson, 255 F.3d 1086, 1097 (9th Cir. 2001) (en

39
banc) (“[T]he three part test we derived from Middlesex is a suitable guide for

analysis only when the threshold condition for Younger abstention is present – that

is, when the relief sought in federal court would in some manner directly ‘interfere’

with ongoing state judicial proceedings.”); J.B., 186 F.3d at 1291 (stating first

Middlesex factor as requiring abstention under Younger “when federal proceedings

would . . . interfere with an ongoing state judicial proceeding”); FOCUS v.

Allegheny County Court of Common Pleas, 75 F.3d 834, 843 (3d Cir. 1996)

(stating first Middlesex factor as “there must be an ongoing state judicial

proceeding to which the federal plaintiff is a party and with which the federal

proceeding will interfere”).

We have not yet expressly held that the first Middlesex factor requires that

the federal proceeding interfere with the state proceeding, but implicitly we seem to

have assumed as much. For example, in Old Republic, the plaintiff filed a

declaratory judgment action in federal court to avoid paying a state court judgment

and to have its obligations under certain insurance policies determined by a federal

court instead of a state court. 124 F.3d at 1259. In applying the Middlesex factors,

we concluded that the first factor was met, not simply because there was an

ongoing state proceeding, but because that proceeding would have been effectively

enjoined by a declaratory judgment issued by the federal court. Id. at 1261-62; see

40
also For Your Eyes Alone, Inc. v. City of Columbus, 281 F.3d 1209, 1216 n.13

(11th Cir. 2002) (“[T]he Supreme Court has held that Younger abstention is

sometimes applicable to restrain federal court interference with certain noncriminal

state proceedings that implicate important state interests.”). Indeed, the Supreme

Court in Middlesex held that “[b]ecause respondent . . . had an opportunity to raise

and have timely decided by a competent state tribunal the federal issues involved . .

. federal courts should abstain from interfering with the ongoing proceedings.” 457

U.S. at 437, 102 S. Ct. at 2524 (emphasis added) (citation and internal quotation

marks omitted). Therefore, we join our sister circuits in explicitly stating that an

essential part of the first Middlesex factor in Younger abstention analysis is

whether the federal proceeding will interfere with an ongoing state court

proceeding. If there is no interference, then abstention is not required.

In order to decide whether the federal proceeding would interfere with the

state proceeding, we look to the relief requested and the effect it would have on the

state proceedings. See O’Shea v. Littleton, 414 U.S. 488, 499-502, 94 S. Ct. 669,

677-79 (1974); Luckey V, 976 F.2d at 679 (Younger and O’Shea require “focus on

the likely result of an attempt to enforce an order of the nature sought here”). The

relief sought need not directly interfere with an ongoing proceeding or terminate an

ongoing proceeding in order for Younger abstention to be required. In O’Shea, the

41
Supreme Court held that abstention was required where an injunction would have

“indirectly accomplish[ed] the kind of interference that Younger v. Harris . . . and

related cases sought to prevent.” Id. at 500, 94 S. Ct. at 678 (emphasis added).

The plaintiffs in O’Shea did not seek to enjoin directly any pending prosecutions

but apparently did seek a federal court injunction aimed at controlling or

preventing the occurrence of specific events that might take place in the course of

future state criminal trials. The requested injunction contemplated interruption of

the state proceedings in order for the federal court to adjudicate compliance by the

defendants with the injunction, through what the Supreme Court called “an

ongoing federal audit of state criminal proceedings.” Id. at 500, 94 S. Ct. at 678.

The Court found that the injunction “would disrupt the normal course of

proceedings in the state courts via resort to the federal suit for determination of the

claim ab initio.” Id. at 501, 94 S. Ct. at 679.

We applied the reasoning of O’Shea in Luckey V. 976 F.2d at 678-79. In

that case, the plaintiffs had asserted a class action on behalf of “all individuals who

are or will in the future be adversely affected by the unconstitutional practices of

the indigent defense system within Georgia.” Id. at 676. They sought injunctive

relief to reform the indigent defense system, including orders that the system

provide speedy appointment of counsel and ensure that there would be counsel at

42
all probable cause determinations, and would have required monitoring the

implementation of the injunction. Id. Adopting in full the explanation in the

district court’s abstention order, we concluded that the decree requested by the

plaintiffs inevitably would interfere with state criminal proceedings. Id. at 677.

Luckey V did not involve a direct termination of ongoing state proceedings,

and the plaintiffs did not directly contest any single criminal conviction or seek to

restrain any individual prosecution. Nevertheless, as we observed, the injunctive

relief the plaintiffs sought would have had the effect of restraining every indigent

prosecution until the systemic improvements they wanted were in place. Id. We

focused on the effect of the requested relief on the state proceedings. See id.; see

also Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1272 (10th Cir. 2002)

(“Younger governs whenever the requested relief would interfere with the state

court’s ability to conduct proceedings, regardless of whether the relief targets the

conduct of a proceeding directly.”) (citing News-Journal Corp. v. Foxman, 939

F.2d 1499, 1511 (11th Cir. 1991) (affirming district court’s decision to abstain

under Younger from hearing newspaper’s challenge to state court’s pre-trial order

because an injunction would restrict the ability of the state court to impanel an

impartial jury)).

43
 Whether the effect of the federal court injunctive relief the plaintiffs seek in

this lawsuit will interfere with ongoing state dependency proceedings depends in

part upon the nature and extent of those proceedings. The state trial level courts of

Florida play a critically important role in dependency hearings from the outset of a

child’s case. After the Department files a petition for dependency, the court holds

an adjudicatory hearing as soon as practicable. Fla. Stat. § 39.507. If the facts

alleged in the dependency petition are proven in the adjudicatory hearing and the

child is determined to be dependent, the state court conducts a disposition hearing.

Id. §§ 39.507(7); 39.521(1). The Department must prepare a written case plan and

a predisposition study and file these items with the court no later than 72 hours

before the disposition hearing. Id. § 39.521(1)(a).

The case plan is a document that “follows the child from the provision of

voluntary services through any dependency, foster care, or termination of parental

rights proceeding or related activity or process.” Id. § 39.01(11). It must include,

among other items, a description of the permanency goal for the child, a description

of the type of home or institution in which the child is to be placed, a discussion of

the safety and appropriateness of the child’s placement, the services that the child

needs and will receive, a description of the visitation rights of the parents, and a

44
description of the efforts to be undertaken to maintain the stability of the child’s

education. Id. § 39.601(3)(a)-(i).

The case plan must be approved by the court. Id. §§ 39.601(2), (3); 39.603.

It may be amended if all the parties agree and the court approves, or after a hearing

it may be amended by the court on its own motion or that of a party, based on

competent evidence that demonstrates the need for an amendment. Id. §

39.601(9)(f). If at the hearing on the case plan, which occurs in conjunction with

the disposition hearing, the court determines that any of the elements required in

the plan are not present, it can order the Department to amend the plan to include

what is necessary. Id. § 39.603(2).

The state court has continuing jurisdiction over a dependency case and

reviews the child’s status at least every six months. Id. § 39.701(1)(a). Prior to the

review hearing, the Department must furnish to the court a written report that

includes, among other items, a description of the placement of the child, its

appropriateness, the safety of the child, the number of placements, documentation

of the efforts of all parties to comply with the case plan, the number of times the

child’s educational placement has been changed, and copies of all medical and

psychological records that support the terms of the case plan. Id. § 39.701(6)(a).

At the review hearing, the court considers the child’s situation, including whether

45
there has been compliance with the case plan, the appropriateness of the child’s

current placement, and whether the child is in a setting that is family-like and

consistent with the child’s best interests and special needs. Id. § 39.701(7)(d), (g).

No later than 12 months after the date that the child is placed in shelter care, the

court must conduct a judicial review to plan for the child’s permanent placement.

Id. § 39.701(8)(f). If the child is not returned to his parents, the case plan must

document steps the Department is taking to find an adoptive parent or other

permanent living arrangement for the child. Id.

If the Department has not complied with the case plan, the court may find it

in contempt. Id. § 39.701(8)(c). The court can also issue protective orders. Id. §

39.701(8)(g). A protective order can require a person or agency to make periodic

reports to the court containing such information as the court prescribes. Id. The

court can issue a protective order in support of, or as a condition to, any other order

it may make. Id.

The Tenth Circuit has addressed two cases similar to this one and held that

abstention was required because the plaintiffs’ federal proceeding would interfere

with the state court proceedings by “fundamentally changing the dispositions and

oversight of the children.” J.B., 186 F.3d at 1291-92; see also Joseph A., 275 F.3d

1253. In J.B., the plaintiffs, mentally or developmentally disabled children in the

46
custody of New Mexico, alleged violations of the Constitution and federal statutes

and brought suit against several state officers in their official capacities, seeking

declaratory and injunctive relief. The Tenth Circuit concluded that the relief

requested would give the federal district court an oversight role over the entire state

program for children with disabilities and would give it control over decisions then

in the hands of the New Mexico Children’s Court, such as whether to return a child

to his parents or whether to modify a treatment plan. J.B., 186 F.3d at 1292.

In the other similar case decided by the Tenth Circuit, Joseph A., the

plaintiffs, who were children in New Mexico’s custody because of abuse or

neglect, and the New Mexico Department of Human Services had entered into a

federal court consent decree. 275 F.3d at 1259. When the plaintiff children moved

the court to hold the Department in contempt for allegedly violating the consent

decree, the Department moved for dismissal based on Younger abstention. The

Tenth Circuit held that federal court enforcement of certain provisions of the

decree would interfere with the ongoing juvenile proceedings in the state court.10

Id. at 1272. It concluded that “federal court oversight of state court operations,

10
Some of the provisions that the Tenth Circuit cited as “[p]articularly problematic” under
Younger included provisions governing assessment and treatment planning conferences for
children entering the Department of Human Services’ custody and periodic review of the
Department’s plans for those children. Joseph A., 275 F.3d at 1267-68.

47
even if not framed as direct review of state court judgments, may nevertheless be

problematic for Younger purposes,” citing O’Shea and Luckey V. Id. at 1271.

In this case, the plaintiffs are seeking relief that would interfere with the

ongoing state dependency proceedings by placing decisions that are now in the

hands of the state courts under the direction of the federal district court. The

declaratory judgment and injunction that they request would interfere with the state

proceedings in numerous ways. The federal and state courts could well differ,

issuing conflicting orders about what is best for a particular plaintiff, such as

whether a particular placement is safe or appropriate or whether sufficient efforts

are being made to find an adoptive family. The federal court relief might

effectively require an amendment to a child’s case plan that the state court would

not have approved, and state law gives its courts the responsibility for deciding

upon such an amendment. See Fla. Stat. § 39.601(9)(f). Even though any remedial

order would run against the Department, state law makes it a duty of state courts to

decide whether to approve a case plan, and to monitor the plan to ensure it is

followed. Id. § 39.701(1), (7)-(8). The plaintiffs seek to have the district court

appoint a panel and give it authority to implement a systemwide plan to revamp

and reform dependency proceedings in Florida, as well as the appointment of a

permanent children’s advocate to oversee that plan. To say the least, taking the

48
responsibility for a state’s child dependency proceedings away from state courts

and putting it under federal court control constitutes “federal court oversight of

state court operations, even if not framed as direct review of state court judgments”

that is problematic, calling for Younger abstention. Joseph A., 275 F.3d at 1271.

The relief that the plaintiffs seek would interfere extensively with the ongoing state

proceedings for each plaintiff.11 The first Middlesex factor is satisfied.

B. THE THIRD MIDDLESEX FACTOR

As for the other Middlesex factor that is disputed, the third one, the plaintiffs

have the burden of establishing that the state proceedings do not provide an

adequate remedy for their federal claims. Butler v. Ala. Judicial Inquiry Comm’n,

261 F.3d 1154, 1159 (11th Cir. 2001). “Minimal respect for the state processes, of

course, precludes any presumption that the state courts will not safeguard federal

constitutional rights.” Middlesex, 457 U.S. at 431, 102 S. Ct. at 2521. A federal

11
The plaintiffs argue that the requested relief would not interfere because it is directed
solely at the Department of Children and Families and not the state courts. We previously
rejected essentially that same argument in Luckey V, and we reject it again here. In that case, the
plaintiffs sued the Governor of Georgia and all state court judges who presided over prosecutions
of indigent defendants. 976 F.3d 673, 678. The plaintiffs contended that the relief they requested
against the Governor of Georgia would not interfere with state court proceedings because the
onus to comply would be on the state executive and not the judiciary. Id. We observed that “a
case cannot be decided in a vacuum, and the potential enforcement difficulties of any order
reforming such an integral aspect of a state criminal justice process as the indigent defense
system would be significant.” Id. at 679. This case raises the same concerns that Luckey V did,
and the federal court relief the plaintiffs seek would interfere with the ongoing state dependency
hearings, even if it were directed against the Department and state officers, instead of state courts
and judges.

49
court “should assume that state procedures will afford an adequate remedy, in the

absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, Inc.,

481 U.S. 1, 15, 107 S. Ct. 1519, 1528 (1987). Plaintiffs, having failed to raise their

federal claims in the ongoing state proceedings involving them, must overcome this

initial presumption by demonstrating that the state remedies are inadequate. Butler,

261 F.3d at 1159.

In determining whether the state remedies are adequate, as the district court

correctly observed, “[t]he relevant question is not whether the state courts can do

all that Plaintiffs wish they could, but whether the available remedies are sufficient

to meet Pennzoil’s requirement that the remedy be adequate.” The district court

found that “the juvenile court can act to protect children within its jurisdiction,”

citing Dep’t of Children & Family Servs. v. I.C., 742 So. 2d 401, 404 (Fla. 4th

DCA 1999), and declined to hold that the remedies available are inadequate. We

agree with its conclusion.

A Florida state court can remedy in a dependency proceeding the harms that

a child in the defendants’ custody and in that court’s jurisdiction might suffer.

Although the Department has discretion regarding the identification of a specific

placement for a child, State v. Brooke, 573 So. 2d 363, 368 (Fla. 1st DCA 1991),

the court can order that siblings be placed together in foster care, one of the very

50
things that some of these plaintiffs seek. See Div. of Family Servs. v. S.R., 328 So.

2d 270, 271 (Fla. 1st DCA 1976); F.B. v. State, 319 So. 2d 77, 79 (Fla. 1st DCA

1975). The court can order that a child be placed in a therapeutic setting, In the

Interest of L.W., 615 So. 2d 834, 839 (Fla. 4th DCA 1993), and that a child be

treated by a licensed health care professional or receive mental health treatment.

Fla. Stat. § 39.407(4). While the state court cannot compel the Department to place

children where space is not available, Dep’t of Children & Family Servs. v. M.H.,

830 So. 2d 849, 850 (Fla. 2d DCA 2002), it can hold the Department in contempt

for failing to comply with a child’s case plan and can order the Department to

submit proposals for compliance. Fla. Stat. § 39.701(8)(c); L.W., 615 So. 2d at

837-38. Even though the court cannot prevent the Department from using unsafe

or inappropriate facilities for all children, as to those children within its division,

the court can take protective measures. It can determine whether a facility in which

a child is located is safe, either by appointing a child’s representative to make an

inquiry or itself investigating conditions at the facility. Fla. Stat. § 39.701(8)(g);

I.C., 742 So. 2d at 405. If the investigation reveals that a child within the

jurisdiction of the court (meaning within its division) is in a dangerous facility, the

court can take action, including finding the Department in contempt for failing to

comply with the child’s case plan. See generally, Fla. Stat. §§ 39.601(3)(e);

51
39.701(8)(c); I.C., 742 So.2d at 404-06. Case plans always call for an appropriate

placement, and an unsafe facility is not an appropriate one. Fla. Stat. §

39.601(3)(e) (“placement is intended to be safe, the least restrictive and most

family-like setting available consistent with the best interest and special needs of

the child, and in as close proximity as possible to the child’s home”).

Again, the Tenth Circuit’s decisions in similar cases are helpful. In J.B., that

Court affirmed the district court’s decision to abstain, because the plaintiffs had

failed to show clearly that they could not have raised their claims in their periodic

review hearings in the New Mexico Children’s Court. 186 F.3d at 1292. The Court

concluded that New Mexico law “seemingly grants the Children’s Court wide

power to determine the needs and claims of children during the periodic review

proceeding.” Id. Additionally, because the Children’s Court was a court of general

jurisdiction and had full constitutional powers under New Mexico law, the

plaintiffs had not provided the “unambiguous authority” that Pennzoil requires to

prove that the state courts could not afford an adequate remedy. Id. at 1292-93.

In Joseph A., the Tenth Circuit held that a certified class of plaintiffs had not

shown that the New Mexico Children’s Court offered inadequate opportunities to

raise federal constitutional and statutory claims. 275 F.3d at 1274. The plaintiffs in

that case argued that the systemwide, structural relief they sought was not available

52
in the Children’s Court and cited a New Mexico decision, In re T.B., 913 P.2d 272

(N.M. App. 1996), for that proposition. The Tenth Circuit was not convinced the

T.B. decision established the Children’s Court was precluded from granting

systemic relief. 275 F.3d at 1274 n.6. Although in T.B. the Children’s Court had

dismissed a motion brought under § 1983 to require the Department of Human

Services “to submit an action plan for a system for the proper licensure and

regulation of therapeutic foster care,” the New Mexico Court of Appeals had

addressed the dismissal only in dicta, noting that the guardian ad litem who had

filed the motion had failed to identify which federal laws secured the rights the

plaintiffs sought to enforce. Id. The Court held that the plaintiffs had not provided

unambiguous authority that the relief they sought was unavailable. Id. at 1274.

In the present case, each of these plaintiffs is represented by counsel. There

are no procedural constraints preventing them from presenting the claims in this

case to the state courts in their dependency review hearings. They have not

provided unambiguous authority establishing that the procedures available in state

court dependency proceedings do not provide an adequate opportunity for them to

raise their constitutional claims. At dependency review proceedings for each

plaintiff in this case, the state court will consider whether the parties have complied

with the child’s case plan, the appropriateness of that child’s current facility

53
placement, educational placement, and any special needs the child has. Fla. Stat.

§§ 39.701(7)(d), (g). If the Department is not complying with the case plan for the

child, the court can hold it in contempt. Id. §§ 39.701(8)(c), (g). If the plaintiff

claims that he is in an unsafe and inappropriate placement, as we have already

noted, the court can order the Department to comply with the case plan by putting

him in a safe and appropriate place. Id. §§ 39.601(3)(e); 39.701(8)(c). If the

plaintiff claims that he has been in foster care longer than reasonably necessary, the

court can require the Department to document the steps that it is taking toward

permanent placement. Id. § 39.701(f). If the plaintiff has not been placed with his

siblings, the court can order them be placed together or it can require visitation

between them. See Div. of Family Servs. v. S.R., 328 So. 2d 270, 271 (Fla. 1st

DCA 1976).

The availability of these forms of relief and the existence of the state courts’

protective order and contempt powers mean that the plaintiffs have not carried their

burden of establishing that the ongoing state court proceedings do not provide an

adequate opportunity to raise and vindicate each plaintiff child’s individual

54
claims.12 Therefore, the third and final Middlesex factor is satisfied. The district

court did not abuse its discretion in abstaining under the Younger doctrine.

12
In LaShawn A. ex rel. Moore v. Kelly, 990 F.2d 1319, 1323-24 (D.C. Cir. 1993), the
Court held that the District of Columbia’s juvenile review proceedings did not provide the
plaintiffs an adequate opportunity to raise their constitutional challenges. The plaintiffs in that
case brought a class action on behalf of children who were in foster care under the supervision of
the District of Columbia Department of Human Services, alleging widespread federal
constitutional and statutory violations. The D.C. Circuit affirmed the district court’s decision
that Younger abstention was not warranted after noting that the state court had “explicitly
rejected the use of review hearings to adjudge claims requesting broad-based injunctive relief
based on federal law” in In re Brim, No. 489-80 (D.C. Super. Ct. July 20, 1984). In the Brim
case the family court had denied a motion by two children for injunctive relief against the
Department for its alleged mishandling of Social Security disability payments it had collected on
the children’s behalf and noted that the appropriate forum for such issues is federal court.
LaShawn A., 990 F.2d at 1323. The D.C. Circuit therefore rejected Younger abstention because
“there was no pending judicial proceeding in the District of Columbia which could have served
as an adequate forum for the class of children in this case to present its multifaceted request for
broad-based injunctive relief based on the Constitution and on federal and local statutory law.”
Id.

In contrast to the D.C. Circuit, however, in this circuit’s Younger decisions, we have not
determined whether the broad relief the plaintiffs would prefer is available but instead whether
the forum itself is adequate for addressing the claims and providing a sufficient remedy to the
individual plaintiffs. In the Luckey case, the plaintiffs sought broad-based injunctive relief to
reform Georgia’s indigent defense system. Luckey V, 976 F.2d at 676. Although we did not
expressly address the third Middlesex factor in our opinion in that case, we did affirm the district
court’s decision to abstain under Younger. Id. at 679. The decision turned on the fact that the
Luckey plaintiffs could have brought their challenges in their individual criminal trials, even
though it is obvious that the broad-sweeping remedy they sought was unavailable there. “Equity
need not intervene immediately in plaintiffs’ state trials. Plaintiffs have an adequate remedy at
law for any ineffective assistance of counsel they may actually receive. Most important, they can
present objections to sixth amendment violations at their state trials and in their state appeals.”
Luckey v. Harris, 896 F.2d 479, 482 (11th Cir. 1989) (“Luckey II”) (Edmondson, J., dissenting).

55
 V. CONCLUSION

Insofar as it relates to Larissa C. and Leanne G., the district court’s judgment

is VACATED and the case is REMANDED with instructions to dismiss that part of

the amended complaint as moot. Insofar as it relates to Tanya M. and Elaine R., the

district court’s judgment is VACATED and the case is REMANDED with

instructions to dismiss that part of the amended complaint for lack of standing. The

district court’s judgment is also VACATED as to those portions of the complaint for

which the each of the seven remaining plaintiffs do not have standing, as discussed

in Part II, and the case is REMANDED with instructions to dismiss those portions

of the amended complaint for lack of standing. In all other respects, the district

court’s judgment is AFFIRMED.

56