Opinion
CASE NO. 8:02CV575
January 7, 2004
MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Dismiss (Filing No. 25) filed by the Defendants, the State of Nebraska ("State") and the Honorable Jane Prochaska, Judge of the Douglas County Court of Nebraska. The Motion is supported by briefs. (Filing Nos. 26 and 33). The Plaintiff, Kimberly Preston, has submitted briefs in opposition. (Filing Nos. 29 and 35). For the reasons stated below, the Motion will be granted.
The State and Prochaska assert a total of four grounds in their Motion to Dismiss. Both Defendants contend: 1) this Court should abstain from further proceedings on the basis of Younger v. Harris, 401 U.S. 37 (1971); 2) this Court should not revisit or revise past rulings of the Douglas County Court under the doctrine announced in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (the " Rooker-Feldman" doctrine); and 3) the Complaint fails to state a claim upon which relief can be granted. In addition, the State contends that it is immune from suit under the Eleventh Amendment and, therefore, this Court lacks subject matter jurisdiction over Preston's claim against the State.
Federal Rule of Civil Procedure 12(b)(1) permits a party to raise by motion "lack of jurisdiction over the subject matter." Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion "failure to state a claim upon which relief may be granted." A motion to dismiss under Rule 12(b)(6) will only be granted if "it is clear that no relief can be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King and Spalding, 467 U.S. 69, 73 (1984).
With respect to both Rules 12(b)(1) and (b)(6), the Court must accept all factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Howard. v. Conventry Healthcare, 293 F.3d 442, 444 (8th Cir. 2002) (discussing Rule 12(b)(6)); Citizens for Equal Protection, Inc. v. Bruning, No. 4:03CV3155, 2003 WL 22571708, at *2 (D. Neb. Nov. 10, 2003) (discussing Rule 12(b)(1)).
FACTS
The following facts are derived from the Amended Complaint (Filing No. 16), and are accepted as true for purposes of the Motion to Dismiss.
The Plaintiff, Kimberly Preston ("Preston"), is the biological mother of Raelynn Marie Preston ("Raelynn"), who was born on May 6, 1991. On November 30, 1999, the Douglas County District Court of Nebraska granted custody of Raelynn to Lorenzo Hoffman, who was determined by the court to be Raelynn's biological father. Hoffman left Raelynn in the care of Terri Anne Miller, and, in December 2000, Prochaska, in her official capacity as Judge of the Douglas County Court, named Miller as Raelynn's guardian. Preston acknowledges that she filed a "Voluntary Appearance and Waiver of Notice" to the proceeding in Douglas County Court.
Although Preston is an enrolled member of the Omaha Tribe and Raelynn is an enrolled member of the Santee Sioux Tribe, no notice of the guardianship proceedings was sent to those tribes. Preston contends that the order granting guardianship of Raelynn to Miller was, therefore, voidable. On February 1, 2002, Preston filed a petition in the Douglas County Court to contest Miller's guardianship of Raelynn, and a "withdrawal of consent" to Raelynn's foster care placement. In the petition, Preston alleged that the December 2000 guardianship proceedings did not comply with the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. ("ICWA"). At the time of the filing of the Amended Complaint on March 21, 2003, Prochaska had not scheduled a hearing on "that issue." (Filing No. 16, ¶ 8). This Court infers that Preston alleges that the County Court has ignored Preston's petition contesting Miller's guardianship of Raelynn.
ANALYSIS
Sovereign Immunity
The State asserts its immunity from suit by private citizens under the Eleventh Amendment to the United States Constitution. The State notes that it has not waived its Eleventh Amendment immunity from suit under the ICWA, and Preston does not point to any such waiver.
The State acknowledges that Congress may abrogate a state's Eleventh Amendment immunity by (1) an unequivocal expression of such an intention, (2) made pursuant to a valid exercise of power. Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996). Nebraska notes that the ICWA does not contain any clear expression of congressional intent to abrogate states' Eleventh Amendment immunity because the ICWA contains no reference to the role of the state as a defendant, in contrast to the provisions of the Indian Gaming Regulatory Act examined by the Supreme Court in Seminole Tribe. Even if the ICWA did contain such a clear expression of congressional intent to abrogate states' Eleventh Amendment immunity, the State argues that the abrogation would be invalid because the ICWA was enacted pursuant to the power of Congress to "regulate Commerce . . . with Indian tribes." U.S. Const., art. I, § 8, cl. 3; 25 U.S.C. § 1901(1). As noted by the State, the Supreme Court has determined that the Indian Commerce Clause does not confer on Congress the power to abrogate Eleventh Amendment immunity. Seminole Tribe, 517 U.S. at 72-73.
Although Preston argues against dismissal of the State as a Defendant, Preston's argument focuses on the status of Prochaska as a proper Defendant in her official capacity under Ex Parte Young, 209 U.S. 123 (1908). That is a separate issue. In her Supplemental Brief (filing No. 35), Preston also cites to Doe v. Mann, 285 F. Supp.2d 1229 (N.D. Ca. 2003) for the proposition that a state may be sued in federal court for a violation of the ICWA. However, no state was named as a defendant in that case, and Eleventh Amendment immunity was not an issue. See generally id. The Doe decision will be addressed in the discussion of the applicability of the Rooker-Feldman doctrine, infra. This Court finds that the State is immune from suit in this action under the Eleventh Amendment, and that the State's Motion to Dismiss should be granted on that basis. Younger v. Harris
Abstention
Both the State and Prochaska ask this Court to abstain from further proceedings in this matter on the basis of Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court declared that federal courts should refrain from interfering with pending state judicial proceedings, absent extraordinary circumstances. Id. at 43-44. Such abstention is warranted "if the action complained of constitutes the basis of an ongoing state judicial proceeding, the proceedings implicate important state interests, and an adequate opportunity exists in the state proceedings to raise constitutional challenges." Harmon v. City of Kansas City, 197 F.3d 321, 325 (8th Cir. 1999). See also Cedar Rapids Cellular Tel. v. Miller, 280 F.3d 874, 879 (8th Cir. 2002) (discussing the Younger doctrine). Opposing abstention, Preston argues that there is no pending or ongoing state court proceeding, and that it would be "an exercise in futility" for Preston to avail herself of her state court remedies, because the outcome "has been pre-ordained." (Filing No 29, Plaintiff's Brief in Response to Motion to Dismiss at 7-9.)
Under Nebraska law, until a guardianship is dissolved, the court in which it was established maintains jurisdiction over the guardians and the individuals in their care. Neb. Rev. Stat. §§ 43-247(3), (5) and (9) (Cum. Supp. 2002), and 30-2621 to 30-2628 (Reissue 1995). The state court proceeding involving the custody of Raelynn is, therefore, ongoing. The alleged failure of the Douglas County Court to schedule a hearing on Preston's petition contesting the guardianship and withdrawing her consent to the foster care placement does not leave Preston without a state court remedy. Among her remedies is the right to petition a Nebraska state court of higher jurisdiction for a writ of mandamus to the County Court under Neb. Rev. Stat. § 25-2156 (Reissue 1995). She also has the right to petition for transfer of the proceedings to tribal jurisdiction. Neb. Rev. Stat. § 43-1504(2) (Reissue 1998).
Proceedings involving guardianship of children within a state implicate "important state interests," and Preston may raise constitutional or other federal law challenges in the state court proceedings. Nebraska courts have enforced the ICWA and the tribal and parental rights recognized in that Act. See, e.g., In re Interest of C.W., 479 N.W.2d 105 (Neb. 1992). The Nebraska Indian Child Welfare Act provides: "It shall be the policy of the state to . . . ensure that the intent and provisions of the Federal Indian Child Welfare Act are enforced." Neb. Rev. Stat. § 43-1502 (Reissue 1998). "In any case when federal law applicable to a child custody proceeding provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under the Nebraska Indian Child Welfare Act, the state court shall apply the federal standard." Neb. Rev. Stat. § 43-1513 (Reissue 1998).
Both the Defendants and Preston cite to Morrow v. Winslow, 94 F.3d 1386 (10th Cir. 1996), as the leading case on the issue of federal court abstention in matters of alleged state court non-compliance with the ICWA. In Morrow, the father of an Indian child sued in federal court under 25 U.S.C. § 1914, seeking a declaratory judgment that his rights had been violated by the state court's alleged non-compliance with the ICWA. Id. at 1393. The federal court held that Younger required it to refrain from intervening in the state adoption proceeding. Id. at 1396-98. Although Preston argues that Morrow is not binding on this Court, reflects bad policy, and can be distinguished on the facts, this Court agrees with the reasoning in Morrow, and concludes that abstention under Younger is appropriate in this case. Rooker-Feldman Doctrine
In a related argument, Defendants State of Nebraska and Prochaska contend that this Court lacks jurisdiction over Preston's claims under the Rooker-Feldman doctrine. In Ballinger v. Culotta, 322 F.3d 546 (8th Cir. 2003), the doctrine was summarized as follows:
"with the exception of habeas corpus petitions, lower federal courts lack subject matter jurisdiction over challenges to state court judgments." Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir. 2000). District courts may not review state court decisions, "even if those challenges allege that the state court's action was unconstitutional," Feldman, 460 U.S. at 486, because "[f]ederal jurisdiction to review most state court judgments is vested exclusively in the United States Supreme Court," Lemonds, 222 F.3d at 492. A party who was unsuccessful in state court thus "is barred from seeking what in substance would be appellate review of the state judgment in a United States district court based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-1006 (1994). This jurisdictional bar extends not only to "straightforward appeals but also [to] more indirect attempts by federal plaintiffs to undermine state court decisions." Lemonds, 222 F.3d at 492.Id. at 548 (citations omitted).
The Defendants argue: 1) Preston's federal court claim is "inextricably intertwined" with the state court proceeding, because the issues raised by Preston in both courts are the same; and 2) if this Court were to grant Preston the relief she seeks, i.e. the invalidation of Miller's guardianship of Raelynn, this Court would in effect be overruling the Douglas County Court's pending order.
In Doe, 285 F. Supp.2d at 1233-34, the United States District Court for the Northern District of California held that the Rooker-Feldman doctrine did not preclude it from taking jurisdiction over a collateral attack under 25 U.S.C. § 1914 to a state court judgment terminating the plaintiff's parental rights. Doe, relied upon by Preston, appears to be the only reported decision directly addressing the issue of the applicability of the Rooker-Feldman doctrine to collateral attacks on state child custody orders under 25 U.S.C. § 1914. The Doe court may be correct that the Rooker-Feldman doctrine is not an absolute bar to federal court jurisdiction over collateral attacks on child custody orders when the attacks are brought under 25 U.S.C. § 1914. However, the California court was careful to distinguish the case before it from: a case in which state proceedings were not yet final, see Confederated Tribes of the Colville Reservation v. Superior Court, 945 F.2d 1138 (9th Cir. 1991); and a case in which the plaintiff had chosen to litigate the issues in state court, see Comanche Indian Tribe v. Hovis, 53 F.3d 298 (10th Cir. 1995). Unlike the plaintiff mother in Doe, Preston acknowledged notice of the Douglas County Court proceedings, submitted to the jurisdiction of that court, and initiated new proceedings in that court that have not yet been resolved. The Doe court's rationale for declining to apply the Rooker-Feldman doctrine does not apply in the case before this Court.
Regardless, this Court concludes that the Rooker-Feldman doctrine is not applicable to Preston's claim because the action in Douglas County Court is in fact still "pending." This Court will, therefore, abstain from exercising jurisdiction under Younger, and the Court need not engage in further discussion of the Rooker-Feldman doctrine.
Failure to State a Claim
The Defendants allege that Preston's Amended Complaint fails to state a claim upon which relief can be granted, because Preston was not a parent "from whose custody" Raelynn "was removed," and therefore Preston has no standing to petition for relief under § 1914. The statute 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.25 U.S.C. § 1914.
Preston argues that the phrase "from whose custody such child was removed" should be read to modify "Indian custodian" and not "parent." This Court agrees with Preston's interpretation of the statute, and finds that she does have standing to contest Raelynn's foster care placement under 25 U.S.C. § 1914.
CONCLUSION
Although the Amended Complaint is not dismissed on the basis of any failure to state a claim upon which relief can be granted under 25 U.S.C. § 1914, it will be dismissed with respect to: the Defendant, the State of Nebraska, on the basis of Eleventh Amendment immunity; and with respect to both the State of Nebraska and Prochaska on the basis of abstention under Younger v. Harris.
IT IS ORDERED:
1. The Motion to Dismiss (Filing No. 25) filed by the Defendants, State of Nebraska and the Honorable Jane Prochaska is granted;
2. All claims against the Defendant the State of Nebraska are dismissed with prejudice;
3. All claims against the Honorable Jane Prochaska are dismissed without prejudice.