### 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 Distric t 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 Healt h Council (Council) could not reject its application for funding on the basis of its parental consent policy. The Counci l removed the case to federal court and moved to dismiss for failure to stat e
a cla im. The district court denied the County's motion to remand afte r 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 f amily planning services to state and nonprofit organiz ations. 42 U.S.C. § 300. The Council is a not-forprofit organization which receives Title X funds and exists almost entirel y 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 regulatio ns 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 Counci l of a new policy it was enforcing. The policy required parental consent fo r ad olescents to receive prescriptive medications or intrusive medica l procedures, includingsome forms of contraceptives. The Council informed the County that its application would not be considered because th e parental consent policy disqualified it from receiving Title X funds.

The Count y then filed its petition for declaratory relief, claiming that under Missouri law, § 431.061 Mo. Rev. Stat., it was required to adop t the parental consent policy and that "therefore, the policy is not a basis upon which the Council may refuse to consider th e County's application for the Title X grant." The Council removed the case to federal court , claiming jurisdictionbased on a federal question and moved for dismissal for failure to state a claim. The County filed a motion to remand, but th e district court determined there was federal jurisdiction and granted the motion to dismiss, finding that the County could not prove any set of fact s entitling it to be eligible for funding under Title X. The County appeals , arguing t he district court erred by failing to remand the case to stat e court and by dismissing the case for failure to state a claim.

The County argues that federal jurisdiction is lacking because it s 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 fu nds and qualifications for those funds are deter mined 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). Whe n jurisdiction is based on
a fede ral question, the well-pleaded complaint rule requires that th e "federal question is presented on the face of the plaintiff's properl y pleaded complaint." Caterpillar, Inc. v. Williams , 482 U.S. 386, 39 2 (1987). A district court does not have discretion to remand a case that states a federal question. Gaming Corp. , 88 F.3d at 542 (citation s omitted).
In its pe tition for declaratory judgment, the County stated that it

prays this court to declare that the polic y regarding informed consent is consistent with state la w, specifically §431.061 R.S.Mo., and tha t therefore, the policy is no t a basis upon which the Cou ncil 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 lette r rejecting its application for Title X funds because the parental consent poli cyviolated Title X regulations and guidelines. The face of th e County 's petition contains the federal question of whether the parenta l
conse nt policy can be a basis for denying the County's application fo r Title X funds. The relief which the County seek s is a declaration that it is n ot ineligible to receive federal funds. The action arises unde r federal law, and the

### In its brief and at oral argument, the County raised a ne w 3 

### argument stating it receives two streams of funding for its clinics and Titl e X funds would not be used for procedures which requir e parental consent. No facts or information concerning this funding argument were contained in its petition or in any accompanyin g material s, and the County did not move to have any such materia l considered by the district court. Only facts alleged in th e 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 Coun ty also argues that the district court erred in dismissin g the case for failure to state a claim because its parental consent policy is r equired by state law and therefore should not disqualify it fro m receiving Title X funds. The Counc il 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 pa rental consent for minors.

Amoti on to dismiss for failure to state a claim should be grante d only if it is clear that no relief could be granted under any set of facts , constr uing the allegations in the complaint favorably to the pleader

. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974) (quo ting 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. Unite d States Nuclear Regulatory Comm'n , 970 F.2d 421, 425 (8th Cir. 1992).

Title X explicitly provides that family planning services fo r adolescents are to be provided by the programs which it funds. 42 U.S.C. § 300 (a). The statute states that family participation should b e
encour aged only "to the extent practical," and the legislative histor y indicates that Congre ss did not desire mandatory parental notification or par ental consent for a minor to receive Title X services. Planne d 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 notificatio n
or consent). The related regulations thus require that family plannin g 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 tha t 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.) (enjoi ning the enforcement of state law requiring parental consent fo r minors to receive Title X services); New York v. Heckler , 719 F.2d 1191, 1197 (2d Cir. 1983) (invalidating regulations requiring parental notice an d requiring recipients of Title X funds to abide by state law on parenta l consent); Planned Parenthood Fed. of Am. , 712 F.2d 650, 665 (same).

Inits petition, the County set forth the Missouri law which i t believed required parental consent, its policy on parental consent, and it s appl icationto the Council informing it about the policy. The Count y 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 o f 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 la w. See, e.g. , Doe v. Utah Dep't of Health , 776 F.2d at 255-56; Planned Pa renthood Fed. of Am. , 712 F.2d 650, 665. Looking at the allegations in the petition in the most favorable light, it does not app ear that the County could prove facts entitling it to relief. Th e 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.