The Honorable Richard H. Kyle, United States District Judge 1

for the District of Minnesota, sitting by designation.

 The Honorable Stephen N. Limbaugh, United States District

2

Judge for the Eastern District of Missouri.

___________

No. 96-3029

___________

County of St. Charles, *

Missouri, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Missouri Family Health Council, *

*

Appellee. *

___________

Submitted: January 16, 1997

Filed: February 27, 1997

___________

Before BOWMAN and MURPHY, Circuit Judges, and KYLE, District Judge.

1

___________

MURPHY, Circuit Judge.

This is a declaratory judgment action brought by the County of St.

Charles, Missouri, to clarify its eligibility for funding under Title X,

42 U.S.C. § 300. The County sought a declaration in state court that the

Missouri Family Health Council (Council) could not reject its application

for funding on the basis of its parental consent policy. The Council

removed the case to federal court and moved to dismiss for failure to state

a claim. The district court denied the County's motion to remand after

2

determining there was federal jurisdiction and then granted the Council's

motion to dismiss. The County appeals, and we affirm.
-2-

Title X provides federal funds for family planning services to state

and nonprofit organizations. 42 U.S.C. § 300. The Council is a not-forprofit organization which receives Title X funds and exists almost entirely

for the purpose of administering Title X grants to subgrantees in Missouri.

As a condition for receiving these funds, the Council agrees to abide by

the related regulations to Title X. Similar entities which award Title X

funding to subgrantees are used in each state.

The County had received Title X grant money through the Council until

1995, but in the application it submitted that year it notified the Council

of a new policy it was enforcing. The policy required parental consent for

adolescents to receive prescriptive medications or intrusive medical

procedures, including some forms of contraceptives. The Council informed

the County that its application would not be considered because the

parental consent policy disqualified it from receiving Title X funds. 

The County then filed its petition for declaratory relief, claiming

that under Missouri law, § 431.061 Mo. Rev. Stat., it was required to adopt

the parental consent policy and that "therefore, the policy is not a basis

upon which the Council may refuse to consider the County's application for

the Title X grant." The Council removed the case to federal court,

claiming jurisdiction based on a federal question and moved for dismissal

for failure to state a claim. The County filed a motion to remand, but the

district court determined there was federal jurisdiction and granted the

motion to dismiss, finding that the County could not prove any set of facts

entitling it to be eligible for funding under Title X. The County appeals,

arguing the district court erred by failing to remand the case to state

court and by dismissing the case for failure to state a claim.

The County argues that federal jurisdiction is lacking because its

petition only requires interpretation of the Missouri statute
-3-

which prompted its parental consent policy. The Council responds that the

action was properly removed to federal court because the County asserted

in its petition that it qualified for Title X funds and qualifications for

those funds are determined by 42 U.S.C. § 300. The denial of a motion to

remand to state court is reviewed de novo. Gaming Corp. of Am. v. Dorsey

& Whitney, 88 F.3d 536, 542 (8th Cir. 1996).

Only actions which originally could have been filed in federal court

may be removed there. 28 U.S.C. § 1441(a). When jurisdiction is based on

a federal question, the well-pleaded complaint rule requires that the

"federal question is presented on the face of the plaintiff's properly

pleaded complaint." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

(1987). A district court does not have discretion to remand a case that

states a federal question. Gaming Corp., 88 F.3d at 542 (citations

omitted). 

In its petition for declaratory judgment, the County stated that it

prays this court to declare that the policy

regarding informed consent is consistent with state

law, specifically §431.061 R.S.Mo., and that

therefore, the policy is not a basis upon which the

Council may refuse to consider the [C]ounty's

application for a Title X grant . . . .

The County attached to its petition a copy of the Council's letter

rejecting its application for Title X funds because the parental consent

policy violated Title X regulations and guidelines. The face of the

County's petition contains the federal question of whether the parental

consent policy can be a basis for denying the County's application for

Title X funds. The relief which the County seeks is a declaration that it

is not ineligible to receive federal funds. The action arises under

federal law, and the
 In its brief and at oral argument, the County raised a new

3

argument stating it receives two streams of funding for its clinics

and Title X funds would not be used for procedures which require

parental consent. No facts or information concerning this funding

argument were contained in its petition or in any accompanying

materials, and the County did not move to have any such material

considered by the district court. Only facts alleged in the

complaint and materials attached to it are considered on a motion

to dismiss. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).

-4-

district court therefore properly declined to remand the case. 

The County also argues that the district court erred in dismissing

the case for failure to state a claim because its parental consent policy

is required by state law and therefore should not disqualify it from

receiving Title X funds. The Council responds that the motion to dismiss 3

was properly granted because Title X regulations and guidelines prohibit

the recipient of Title X funds from requiring parental consent for minors.

A motion to dismiss for failure to state a claim should be granted

only if it is clear that no relief could be granted under any set of facts,

construing the allegations in the complaint favorably to the pleader.

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (quoting Conley v. Gibson, 355

U.S. 41, 45-46 (1957)). Whether a complaint states a claim is a question

of law which is reviewed de novo. Concerned Citizens of Neb. v. United

States Nuclear Regulatory Comm'n, 970 F.2d 421, 425 (8th Cir. 1992).

Title X explicitly provides that family planning services for

adolescents are to be provided by the programs which it funds. 42 U.S.C.

§ 300(a). The statute states that family participation should be

encouraged only "to the extent practical," and the legislative history

indicates that Congress did not desire mandatory parental notification or

parental consent for a minor to receive Title X services. Planned

Parenthood Fed. of Am. v. Heckler, 712 F.2d 650, 656-61 (D.C. Cir. 1983)

(examining whether
-5-

legislative history of Title X permits requirement of parental notification

or consent). The related regulations thus require that family planning

services must be provided without regard to age, 42 C.F.R. § 59.5(a)(4),

and circuits which have considered the issue have uniformly found that

parental consent cannot be required before a minor receives Title X

services. Doe v. Utah Dep't of Health, 776 F.2d 253, 255-56 (10th Cir.)

(enjoining the enforcement of state law requiring parental consent for

minors to receive Title X services); New York v. Heckler, 719 F.2d 1191,

1197 (2d Cir. 1983) (invalidating regulations requiring parental notice and

requiring recipients of Title X funds to abide by state law on parental

consent); Planned Parenthood Fed. of Am., 712 F.2d 650, 665 (same). 

In its petition, the County set forth the Missouri law which it

believed required parental consent, its policy on parental consent, and its

application to the Council informing it about the policy. The County

alleged that because its parental consent policy conformed with state law,

the Council could not deny its application for Title X funds on the basis

of the policy. All the circuits which have considered the validity of

parental consent requirements for adolescents to receive Title X federal

services have found them prohibited by statute, regardless of whether they

are based on state law. See, e.g., Doe v. Utah Dep't of Health, 776 F.2d

at 255-56; Planned Parenthood Fed. of Am., 712 F.2d 650, 665. Looking at

the allegations in the petition in the most favorable light, it does not

appear that the County could prove facts entitling it to relief. The

district court therefore did not err in granting the Council's motion to

dismiss.

The judgment of the district court is affirmed.
-6-

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.