duty to adjudicate a controversy properly before it, justified only in the exceptional circumstances where resort to state proceedings clearly serves an important countervailing interest. Id. With these considerations in mind, this Court will address the question of whether the Younger doctrine is applicable to any aspect of the proceedings initiated by the plaintiffs in the Court of Common Pleas.
To do so, this Court looks to the Supreme Court's decision in Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 73 L. Ed. 2d 116, 102 S. Ct. 2515 (1982), which sets forth the analysis to be applied when a federal court is urged to abstain under Younger in deference to a state proceeding. See Monaghan v. Deakins, 798 F.2d 632, 642 (3d Cir. 1986), cert. granted, 479 U.S. 1063, 107 S. Ct. 946, 93 L. Ed. 2d 996 (1987). The Supreme Court in Middlesex stated that the appropriate inquiry is three-fold in that a federal district court must answer affirmatively the following three questions before abstaining under the Younger doctrine:
" first, do [the pending state 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." Middlesex County Ethics Committee, 457 U.S. at 432.
This Court will now apply the three-part test to each of the actions the plaintiffs have raised in the state court in their Petition for Return of Foster Child; first, to the plaintiffs' state law action for custody and then, to the plaintiffs' due process action.
With respect to plaintiffs' state law action for custody, this Court at the outset finds that the proceedings initiated by plaintiffs in this regard in the state court are ongoing in the sense that exceptions to the order that Judge Schmidt entered on this matter remain to be litigated; first, post-trial and then on direct appeal. Moreover, this Court will assume without deciding that the proceedings on plaintiffs' state law action for custody are proceedings that implicate important state interests as these terms have been defined by Younger and its progeny. This Court, however, finds that the third-prong of the Middlesex test is not satisfied in this case.
In deciding whether there is "an adequate opportunity in the state proceedings to raise constitutional challenges", see Middlesex, 457 U.S. at 432, a federal court must determine "whether [a constitutional] challenge can be raised in the pending state proceedings subject to conventional limits on justiciability." Moore v. Sims, 442 U.S. 415, 425, 60 L. Ed. 2d 994, 99 S. Ct. 2371. See id. at 425 n.9. Thus, in deciding whether the Younger doctrine applies to the custody proceedings initiated in the Common Pleas Court, this Court must resolve the question of whether the plaintiffs, as former foster parents, have standing under Pennsylvania law to sue for custody of the foster child. Unless the plaintiffs have standing to sue for custody of the foster child, they can not litigate the exceptions they filed to the order entered by Judge Schmidt on July 10, 1986.
This standing issue was addressed by the Pennsylvania Superior Court in Priester v. Fayette County Children and Youth Services, 354 Pa. Super. 562, 512 A.2d 683 (1986).
In Priester, the Superior Court held, as a matter of Pennsylvania law, that "former foster parents who no longer have possession of the child, lack standing to pursue an action for custody[.]" Id.
The Priester decision was rendered by the Superior Court on July 7, 1986, three days before Judge Schmidt entered his order on July 10, 1986, denying plaintiffs' Petition for Return of Foster Child.
Nevertheless, the Priester decision would operate in the case at bar so as to foreclose the plaintiffs' opportunity to litigate those exceptions to Judge Schmidt's final order that pertain to their action for custody. The plaintiffs now simply lack standing to do so. See generally Bradley v. School Board of City of Richmond, 416 U.S. 696, 711-718, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974).
Before this Court, counsel for defendants argued that " Priester. . . makes clear that former foster parents do not possess standing at any time to request the return of a former foster child to their custody." Tr. of Oral Arg. 7 (emphasis added).
While focusing more specifically on the case at bar, counsel for defendants added that "the problem is, once the child has been relinquished to the agency and the plaintiffs have waited a substantial period of time before initiating any action, . . . Priester would have application, and that is the situation that we are currently faced with today." Tr. of Oral Arg. 8.
Because the plaintiffs lack standing to pursue their federal constitutional claims in the proceedings pending in the state court on their custody action, abstention by this Court under the Younger doctrine would be inappropriate.
The defendants, however, in their supplemental brief filed after oral argument, take the position, in contradiction to the position taken above, that it is unclear under Pennsylvania law whether foster parents, who no longer have possession of the child and who were denied their right to appeal an agency's relocation decision, as in the case at bar, have standing to pursue an action for custody in the Pennsylvania courts.
This Court disagrees. The decision by the Superior Court in Priester is dispositive on this point of law.
The Superior Court's decision in Priester to deny former foster parents standing to pursue an action for custody was based on its examination of the nature of the foster parent / foster child relationship. In reaching its result, the Priester court not only determined that foster care is "noninstitutional substitute care" . . . "that is for a planned period", but implied that to grant foster parents standing to pursue an action for custody would impair the ability of a foster family care agency "to protect the interests of children such as the one whose custody appellant - [foster parent] seeks." Priester, 512 A.2d at 685. Thus, the holding in Priester is based on considerations that are independent of and that do not turn on the process rights afforded to foster parents under a state administrative regulation. See Priester, 512 A.2d at 685 (Beck, J., concurring) ("consideration of the provisions of Section 3700 does not affect the result reached by the majority").
Foster parents who are denied their regulatory right to appeal a foster family care agency's decision to relocate a foster child from their foster family home, see 55 Pa. Code § 3700.73, are entitled only to the process that is due them under the state administrative regulation.
Before this Court can decide whether the Younger doctrine applies to the plaintiffs' due process action that is pending in the state court, this Court must address plaintiffs' assertion that the Family court division is not competent to adjudicate their civil rights claim. Plaintiffs argue that jurisdiction to decide their due process action is vested only in the Civil Division of the Court Of Common Pleas. This Court, however, disagrees.
The Family court division of the Court of Common Pleas is an administrative branch of the state trial court. See 42 Pa. C.S. §§ 951, 952. The Family court division, contrary to plaintiffs' suggestion, "is vested with the full jurisdiction of the whole court [Court of Common Pleas] . . . ." 42 Pa. C.S. § 952. While the plaintiffs' due process action might have been more appropriately brought in the Civil Division, the Family court division can adjudicate the merits of plaintiffs' due process claim. See Hollman v. Hollman, 347 Pa. Super. 289, 500 A.2d 837 (1985).
Pennsylvania courts have rejected "the notion that a jurisdictional issue is raised merely by consideration of the division within a common pleas court in which an action is commenced. . . ." Hollman v. Hollman, 347 Pa. Super. 289, 500 A.2d 837, 852 (1985) (Johnson, J., concurring and dissenting opinion in which Rowley, J., joined and in which Spaeth, President Judge, Cavanaugh and McEwen, JJ., joined as to subject-matter jurisdiction only).
"The question as to which division of a court of common pleas is the proper forum for commencing an action . . . is not one of jurisdiction, but of internal common pleas court administration." Id. at 853 (citations omitted).
Now this Court turns to determine the applicability of the Younger doctrine to the plaintiffs' due process action. Where the pending state proceeding is a privately initiated one, as is the case with the plaintiffs' due process action, the state's interest in the proceeding is not strong enough to merit Younger abstention, for it is no greater than its interest in any other litigation that takes place in its courts. See Harris v. Pernsley, 755 F.2d 338, 344 (3d Cir. 1985), reh'g denied 758 F.2d 83 (1985), cert. denied, 474 U.S. 965, 106 S. Ct. 331, 88 L. Ed. 2d 314 (1985); Williams v. Red Bank Board of Education, 662 F.2d 1008, 1019 (3d Cir. 1981); Johnson v. Kelly, 583 F.2d 1242, 1249 (3d Cir. 1978). See also New Jersey Education Association v. Burke, 579 F.2d 764, 767 (3d Cir. 1978).
The plaintiffs' due process action, being one that could have been brought, in the first instance, in either a state or a federal forum, is more properly viewed as a state law action that is concurrent to the action presently brought by plaintiffs in this Court. Accordingly, this Court concludes that as to the plaintiffs' due process action the Younger doctrine has no application.
IV. Colorado River Water Conservation District Abstention
Where the plaintiffs lack standing to pursue their action for custody and only their due process action remains pending in the state court, this Court must decide whether it should abstain from exercising jurisdiction over plaintiffs' claims once again; this time, however, under the principles set forth by the Supreme Court in Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). See Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983); McClellan v. Carland, 217 U.S. 268, 54 L. Ed. 762, 30 S. Ct. 501 (1910).
Generally, as between state and federal courts, the rule is that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction . . . ." McClellan, 217 U.S. at 282. This rule pertains because "federal courts have a 'virtually unflagging obligation . . . to exercise the jurisdiction given them.'" Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 15, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983).
A federal district court's task "in cases such as this is not to find some substantial reason for the exercise of federal jurisdiction . . .; rather, the task is to ascertain whether there exist 'exceptional circumstances,' . . . that can suffice to justify the surrender of that jurisdiction." Moses H. Cone Memorial Hospital, 460 U.S. at 25-26 (emphasis in original).
The Supreme Court has not provided federal district courts with a hard-and-fast rule by which they can determine whether dismissal of a case under Colorado River is warranted; rather, the Supreme Court has described some of the factors relevant to making a decision of this type. See id. at 15. The factors include:
1. the inconvenience of the federal forum;
2. the desirability of avoiding piecemeal litigation;
3. the order in which jurisdiction was obtained by the concurrent forums; and