UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

JOSEPH A., by next friend Corrine Wolfe; JOSEPHINE A., by next friend Corrine Wolfe; MICHAEL B., by next friend Lucy Gale McMurray; MICHELLE C., by next friend La Donna Harris and Lucy Gale McMurray; JOEL D., by next friend Lucy Gale McMurray; SUSAN E., by next friend Barbara Burns; DONALD E., by next friend Barbara Burns; Plaintiffs-Appellants, v. LAWRENCE B. INGRAM, MARGARET LARROGOITE, DAROLD CHRISTIANSEN, and JANET BRYAN, in their individual capacities, NORA BUCHANON, in her official capacity as County Office Manager of the Bernalillo County office of the Children Youth & Families Department, DEBORAH HARTZ, in her official capacity as Director of the Protective Services Division of the Children, Youth & Families Department, HEATHER WILSON, in her official capacity as secretary of the Children, Youth & Families Department, LINDA S. GARCIA, in her official capacity as the County Office Manger of the Santa Fe County office of the Children, Youth & Families Department, Defendants-Appellees. No. 00-2136 (D.C. No. CIV-80-623-JC/DJS)

(D.N.M.)* Honorable Clarence A Brimmer, District Court Judge, District of

Wyoming, sitting by designation. 2 ORDER Filed January 7, 2002

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRIMMER , * District Judge.
Plaintiffs-Appellants’ Petition for Rehearing and S uggestion for Rehearing En Banc is granted in part and denied in part. The Panel Opinion filed August 22, 2001 is withdrawn and the judgment is vacated. The attached Panel Opinion is issued in its place. The request for rehearing en banc is denied. The Appellees’ Motion for Leave to File a Surreply to Appellants’ Reply is granted.

ENTERED FOR THE COURT

Patrick Fisher Clerk of Court

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 7 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH A., by next friend Corrine Wolfe; JOSEPHINE A., by next friend Corrine Wolfe; MICHAEL B., by next friend Lucy Gale McMurray; MICHELLE C., by next friend La Donna Harris and Lucy Gale McMurray; JOEL D., by next friend Lucy Gale McMurray; SUSAN E., by next friend Barbara Burns; DONALD E., by next friend Barbara Burns; Plaintiffs-Appellants, v. LAWRENCE B. INGRAM, MARGARET LARROGOITE, DAROLD CHRISTIANSEN, and JANET BRYAN, in their individual capacities, NORA BUCHANON, in her official capacity as County Office Manager of the Bernalillo County office of the Children Youth & Families Department, DEBORAH HARTZ, in her official capacity as Director of the Protective Services Division of the Children, Youth & Families Department, HEATHER WILSON, in her official capacity as secretary of the Children, Youth & Families Department, LINDA S. GARCIA, in her official capacity as the County Office Manger of the Santa Fe County office of the Children, Youth & Families Department, No. 00-2136* Honorable Clarence A. Brimmer, District Court Judge , District of

Wyoming, sitting by designation. - 2 - Defendants-Appellees.

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-80-623-JC/DJS)
Marcia Robinson Lowry, Susan Lambiase, and Rose E. Firestein of Children’s Rights, Inc., New York, New York; and Robert Levy o f Greer, Wissel & Levy P.A., Albuquerque, New Mexico, for Plaintiffs-Appel lants. Timothy V. Flynn-O’Brien of Bryan & Flynn-O’Brien, Albuquerque, New Mexico, and Patricia A. Madrid, Attorney General a nd John H. Clough, Assistant Attorney General, New Mexico Attorney General’s Off ice, Albuquerque, New Mexico, for Defendants-Appellees.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BRIMMER , * District Judge.

EBEL , Circuit Judge.

This civil rights class action reaches this court f or the second time after more than twenty years of litigation and seventeen years of federal court oversight of New Mexico’s Department of Human Services and it s successor, the New Mexico Children, Youth and Families Department (col lectively “the Department”). Appellants brought suit in 1980 alle ging that a variety of systemic- 3 -

problems within the Department led to failures to m ake timely decisions, which effectively denied them meaningful access to adopti on services and a chance to be raised in permanent, stable families. Three years after the suit was filed and certified as a class action, the parties entered into a consent decree. The first d ecree was vacated and replaced with a second decree in September 1998. The follow ing year, Appellants moved the district court to hold the Department in contempt for failing to comply with the second decree, and the Department countered wit h a motion to dismiss on the grounds that the suit is barred by New Mexico’s sov ereign immunity and that the district court should abstain from hearing the case pursuant to Younger v. Harris , 401 U.S. 37 (1971). The district court rejected th e Department’s Eleventh Amendment argument, but nonetheless dismissed the c ase pursuant to the Youngerabstention doctrine. Appellants appeal the dismis sal of the case, and the Department cross-appeals the district court’s rejec tion of its Eleventh Amendment argument. In an opinion filed August 22, 2001, this court rul ed that the Eleventh Amendment and the Youngerabstention doctrine preclude Appellants from pursuing their claims. Appellants filed a petition for rehearing, which we have granted in part. On rehearing, we conclude that th e Eleventh Amendment does not bar Appellants’ claims, but the Youngerabstention doctrine does bar at least- 4 -

some of the claims. On remand, the district court must determine which provisions of the consent decree pose enforcement p roblems under Younger

. Accordingly, we AFFIRM the district court’s judgment in part, VACATE in part, and REMAND for further proceedings consistent with this Opinion.

I. BACKGROUND In spite of the extensive history of this case, the background to this appeal is relatively straightforward. Appellants, childre n who became wards of the state after experiencing abuse or neglect, filed suit aga inst the Department seeking damages and injunctive relief to prevent the Depart ment from causing children to spend unreasonable amounts of time in foster care. The district court certified a plaintiff class representing all those children com mitted to the Department’s custody because of parental neglect or abuse. The Department filed an unsuccessful motion requesting that the court absta in from hearing the case, and the parties subsequently entered into a settlement in which the Department agreed to undertake systemic reforms in exchange for Appel lants dropping their request for damages. The district court approved the settl ement and entered a consent decree (“Original Consent Decree”) to govern the on going relationship among the parties and class members.- 5 -

The Department moved to have the action dismissed i n 1994, arguing that it had substantially complied with the terms of the Or iginal Consent Decree, and the district court granted the motion. We reversed, ho wever, and the case was remanded to a special master who recommended that t he Department be held in contempt for violating the terms of the settlement. See Joseph A. v. N.M. Dep’t of Human Servs. , 69 F.3d 1081, 1083-84 (10th Cir. 1995). In 1998, the parties negotiated a second settlementthat was approved by the court to replace the Original Consent Decree. This new settlement was called the “Stipulated Exit Plan” (“SEP”), and it set fort h specific benchmarks that would allow the Department to remove itself from th e court’s jurisdiction, step by step, as each individual benchmark was met. The SE P imposed the following obligations upon the Department: • Provide caseworkers, supervisors, and adoption spe cialists with specific training at the time they are hired and periodicall y during their service in the Department; • Conduct an individual assessment conference to dev elop an assessment plan for each child prior to appearing at an initial cus tody hearing that is held before the New Mexico Children’s Court (“Children’s Court”), see N.M. Stat. § 32A-4-18(A);- 6 -

• Conduct a Treatment Planning Conference to develop an individualized treatment plan for each child prior to an adjudicat ory hearing held before the Children’s Court, see N.M. Stat. § 32A-4-19(B); • In developing individualized assessment and treatm ent plans, desist from selecting emancipation as a discharge goal for any child under thirteen years of age “unless the children’s court so orders , against the documented recommendation of the Department,” and provide coun seling to any children between the ages of twelve and fourteen fo r whom such a goal is selected; • In developing individualized assessment and treatm ent plans, desist from selecting long-term foster care as a discharge goal for any child except under specified conditions; • In developing individualized assessment and treatm ent plans, desist from retaining a discharge goal of “return-home” for any child that has been in foster care for more than fifteen of the most recen t twenty-two months, except in certain specified circumstances including when “[t]he Children’s Court has ordered the plan, against the documented recommendation of the Department”; • Review each child’s individualized treatment plan no less frequently than every six months;- 7 -

• File papers with the Children’s Court necessary to initiate the termination of parental rights within ninety days of the date t hat a child’s discharge plan is changed to adoption; • If a child with a plan of adoption is in a convers ion home, within sixty days of a child’s being freed for adoption, obtain a pla cement agreement from foster parents who plan to adopt children placed in their home, and, if that is unsuccessful, refer the case to the Department’s Central Adoptions Unit; • If a child with a plan of adoption is not in a con version home, within thirty days identify three prospective families for adopti on, and, if no match is found, assign the case to an adoption recruitment s pecialist to conduct a child-specific search for an adoptive home; • Complete home studies of prospective adoptive pare nts within 150 days of the date of application; • Require private contractors to comply with the pro visions of the Consent Decree; • Maintain a computerized record system containing c ertain information specified in the Consent Decree; • Employ only staff members with certain enumerated qualifications; • Comply with New Mexico state law and Department re gulations concerning Citizen Review Boards; and- 8 -

• Provide a “Neutral Third Party” appointed by the c ourt to monitor the Department’s compliance with the Consent Decree wit h certain specified information to facilitate oversight. The following year, Appellants moved the court to hold the Department in contempt for allegedly persistent violations of portions of the SEP. The Department responded by filing another motion for d ismissal, arguing that the district court should abstain pursuant to Younger v . Harris , 401 U.S. 37 (1971), and that the suit was barred by the Eleventh Amendm ent. The district court rejected the Department’s Eleven th Amendment argument, but nevertheless dismissed the case in it s entirety on the basis of Younger . Appellants then unsuccessfully moved the distric t court to alter or amend the order pursuant to Fed. R. Civ. P. 59(e), asserting that the district court applied the wrong standard of review in reaching it s decision because the Department’s motion to dismiss should have been con strued as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). T his appeal followed.- 9 - II. DISCUSSION Jurisdiction The district court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction to review the district court’s dismiss al of the action pursuant to 28 U.S.C. § 1291. A. Eleventh Amendment Immunity We first consider the Department’s appeal of the di strict court’s holding that this action is not barred by sovereign immunity pursuant to the Eleventh Amendment. “Because the State’s assertion of Eleve nth Amendment immunity challenges the subject matter jurisdiction of the d istrict court, the issue must be resolved before a court may address the merits of [ the] underlying . . . claim.” Martin v. Kansas , 190 F.3d 1120, 1126 (10th Cir. 1999), overruled o n other grounds byBd. of Trustees of Univ. of Ala. v. Garrett , 531 U.S. 356 (2001). We review de novo a district court’s determination of a motion to dismiss an action for lack of subject matter jurisdiction b ecause of Eleventh Amendment sovereign immunity. See Elephant Butte Irrigation Dist. v. Dep’t of the In terior , 160 F.3d 602, 607 (10th Cir. 1998); ANR Pipeline Co . v. Lafaver , 150 F.3d 1178, 1186 (10th Cir. 1998). The Eleventh Amendment provides: “The Judicial powe r of the United States shall not be construed to extend to any suitin law or equity, commenced or1 Neither party explicitly argues consent as a basis for waiver of Eleventh

Amendment Immunity. Furthermore, the parties expre ssly reserved the right in the SEP to raise any defenses (which would include an Eleventh Amendment immunity argument). Finally, neither party has arg ued that Congress has expressly abrogated Eleventh Amendment immunity in this context, and we agree that there is no such express abrogation. - 10 - prosecuted against one of the United States by Citi zens of another State, or by Citizens or subjects of any Foreign State.” “Thoug h the text of the Amendment does not expressly so provide, the Supreme Court ha s interpreted the Amendment to apply to federal question suits against a State brought in federal court by the State’s own citizens.” Ellis v. Univ. of Kan. Med. Ctr. , 163 F.3d 1186, 1195 (10th Cir. 1999) (citing Idaho v. Coeur d’Alene Tri be , 521 U.S. 261, 267-68 (1997)). The Supreme Court has recognized two exce ptions to the Eleventh Amendment: (1) the state may consent to be sued; or(2) in certain circumstances Congress may clearly and expressly abrogate a state ’s immunity. See Elephant
Butte , 160 F.3d at 607; ANR Pipeline , 150 F.3d at 1187-88. The parties do not argue that either of these exceptions applies in th is case. 1 Ex parte Young , 209 U.S. 123 (1908), provides a third route by wh ich a party may obtain relief against a state agency in f ederal court. The Ex parte Young doctrine holds that the Eleventh Amendment general ly does not stand as a bar to suits in which a party seeks only prospectiv e equitable relief against a state official. See id. at 159-60; ANR Pipeline , 150 F.3d at 1188. “The Young- 11 -

doctrine recognizes that if a state official violat es federal law, he is stripped of his official or representative character and may be personally liable for his conduct; the State cannot cloak the officer in its sovereign immunity.” Coeur d’Alene , 521 U.S. at 288 (O’Connor, J., concurring). This case on its face plainly falls under the Ex pa rte Young doctrine, in that it seeks only prospective, injunctive relief agains t state officers charged with carrying out the Department’s functions. The Supre me Court of the United States, however, has recognized two limitations to Ex parte Young , both of which the Department argues apply to this case. The firs t limitation was applied in Seminole Tribe v. Florida , 517 U.S. 44, 74 (1996), in which the Supreme Court held that, “where Congress has prescribed a detaile d remedial scheme for the enforcement against a state of a statutorily create d right, a court should hesitate before casting aside those limitations and permitti ng an action against a state officer based upon Ex parte Young .” The following year, in Coeur d’Alene , the Court held that Ex parte Young is inapplicable in certain instances where the relief sought implicates special sovereignty intere sts of the state and is the functional equivalent of relief that is otherwise b arred under the Eleventh Amendment. See 521 U.S. at 287-88.- 12 - 1. Coeur d’Alene We need not delay long over the Department’s conten tion that Coeur d’Alene bars the application of Ex parte Young to this action because this issue is controlled by J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1287 (10th Cir. 1999). In J.B. v. Valdez , three mentally or developmentally disabled childr en in the custody of New Mexico’s Children, Youth and Familie s Department sought structural reform to the state’s system for evaluat ing and treating mental and developmental disorders afflicting children in stat e custody. See 186 F.3d at 1282. The district court abstained from hearing th e action based on Younger v. Harris , 401 U.S. 37 (1971), and its progeny. See J.B. v. Valdez , 186 F.3d at 1283. The plaintiffs appealed, and the state then added a new argument that the suit should be dismissed on the basis of Eleventh A mendment sovereign immunity, relying, inter alia , on the Coeur d’Alene exception to Ex parte Young

. See id. at 1285-86. We rejected the state’s Eleventh Amendment argument , holding that “[a] state’s interest in administering a welfare program at least partially funded by the federal government is not such a core sovereign int erest as to preclude the application of Ex parte Young .” Id. at 1287. Further, we held that such a suit is not the functional equivalent to a suit for money d amages, and that it does not “strike at a state’s fundamental power, such as the power to tax.” See id.- 13 -

J.B. v. Valdez is squarely on point with the case at hand. Altho ugh we recognize that a state’s administration of federall y-funded welfare programs for children in its custody involves important state in terests, those interests do not implicate the “essential attribute[s] of sovereignty” with which Coeur d’Alene was concerned. 521 U.S. at 283. Therefore, we ho ld that Coeur d’Alene does not remove this action from the scope of the Ex parte Young doctrine.

2. Seminole Tribe The application of the Supreme Court’s decision in Seminole Tribe raises more difficult issues. The Department argues that Seminole Tribe requires dismissal because Congress created a detailed remed ial scheme governing a state’s obligation to provide child welfare service s under Title IV of the Social Security Act with the passage of the Adoption and S afe Families Act of 1997, 42 U.S.C. §§ 673b, 679b & 678, and the Adoption Assist ance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq. In Seminole Tribe , the Supreme Court held that Ex parte Young jurisdiction is inapplicable where “Congress chose to impose upo n the State a liability that is significantly more limited than would be the liabil ity imposed upon the state officer under Ex parte Young .” 517 U.S. at 75-76. The Seminole Tribe plaintiffs based their suit on Florida’s alleged violation of § 2710(d)(3) of the Indian- 14 -

Gaming Regulatory Act, 25 U.S.C. § 2710(d). The Co urt found that violations of § 2710(d)(3) were to be enforced against the State in actions brought under § 2710(d)(7), a provision “intended . . . not only to define, but also to limit significantly, the duty imposed by § 2710(d)(3).” 517 U.S. at 74. The Court explained: For example, where the court finds that the State h as failed to negotiate in good faith, the only remedy prescribed is an ord er directing the State and the Indian tribe to conclude a compact within 6 0 days. And if the parties disregard the court’s order and fail to con clude a compact within the 60-day period, the only sanction is that each p arty then must submit a proposed compact to a mediator who selects the on e which best embodies the terms of the Act. Finally, if the State fails to accept the compact selected by the mediator, the only sanction against it is that the mediator shall notify the Secretary of the Interiorwho then must prescribe regulations governing class III gaming onthe tribal lands at issue. Id. at 74-75. “By contrast with this quite modest setof sanctions,” the Court recognized, “an action brought against a state offi cial under Ex parte Young would expose that official to the full remedial pow ers of a federal court, including, presumably, contempt sanctions.” Id. at 75. Thus, if the substantive requirements of § 2710(d)(3) “could be enforced in a suit under Ex parte Young , § 2710(d)(7) would have been superfluous” because an Indian tribe would have no reason to “suffer through the intricate scheme o f § 2710(d)(7) when more complete and immediate relief would be available un der Ex parte Young .” Id.- 15 -

One key aspect of the Seminole Tribe analysis is the Court’s indication that the determination as to whether a statutory scheme precludes other remedies determines whether the scheme forecloses Ex parte Y oung claims: Where Congress has created a remedial scheme for th e enforcement of a particular federal right, we have, in suits again st federal officers, refused to supplement that scheme with one created by the judiciary. Schweiker v. Chilicky , 487 U.S. 412, 423, 108 S. Ct. 2460, 2468, 101 L. Ed. 2d 370 (1988) (“When the design of a Governm ent program suggests that Congress has provided for what it con siders adequate remedial mechanisms for constitutional violations t hat may occur in the course of its administration, we have not created additional . . . remedies”). Here, of course, the question is not w hether a remedy should be created, but instead is whether the Eleve nth Amendment bar should be lifted, as it was in Ex parte Young , in order to allow a suit against a state officer. Nevertheless, we think th at the same general principle applies : Therefore, where Congress has prescribed a detail ed remedial scheme for the enforcement against a State of a statutorily created right, a court should hesitate before casti ng aside those limitations and permitting an action against a stat e officer based upon Ex parte Young

. Id. at 74 (emphasis added). This is important because the case law on the preclusion of § 1983 remedies is well-developed and the holdings are consistent, at least for our purposes, in casting doubt on the notion that comprehensive substantive requirements, rather than a comprehensive remedial scheme, can suffice to foreclose Ex parte Young jurisdiction. For example, in Blessing v. Freestone , 520 U.S. 329 (1997), five mothers whose children were eligible to receive child suppo rt services from the State of Arizona brought a § 1983 suit based on the State’s violation of Title IV-D of the- 16 -

Social Security Act, 42 U.S.C. §§ 651-669b. The pl aintiffs alleged that they had an enforceable individual right to have the State a chieve “‘substantial compliance’” with Title IV-D’s requirements. Id. at 333. The Court first observed that “[e]ven if a plaintiff demonstrates t hat a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983.” Id. at 341. Dismissal is still proper if Congress foreclosed a § 1983 remedy either expressly or “by creating a comprehensive enforcement scheme that is incompatible with indivi dual enforcement under § 1983.” Id. In this regard, a § 1983 remedy “cannot be defeat ed simply by the availability of administrative mechanisms to protec t the plaintiff’s interests.” Id. at 347 (quotation and alteration omitted). The Cou rt found that Title IV-D “contains no private remedy – either judicial or ad ministrative – through which aggrieved persons can seek redress,” but rather rel ies only on the federal government’s oversight. Id. at 348. Those oversight powers, the Court concluded, “are not comprehensive enough to close t he door on § 1983 liability.” Id. The Supreme Court has found a statutory scheme suff iciently comprehensive to preclude § 1983 suits in only two cases. In Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n , 453 U.S. 1 (1981), the Court held that the “express remedies” provided by the Fe deral Water Pollution Control- 17 -

Act, 33 U.S.C. § 1251 et seq., and the Marine, Prot ection, Research, and Sanctuaries Act, 33 U.S.C. § 1401 et seq., demonstr ated “not only that Congress intended to foreclose implied private actions but a lso that it intended to supplant any remedy that otherwise would be available under § 1983.” 453 U.S. at 21. In particular, the Court relied on the fact that the s tatutes provided “comprehensive enforcement mechanisms,” id. at 20, including suits by government officials, su its by “‘any interested person,’” and “citizen-suit pro visions” authorizing private persons to sue for injunctive relief. Id. at 13-14. Against this background, the Court found it “hard to believe that Congress inten ded to preserve the § 1983 right of action.” Id. at 20. The only other statutory scheme that the Supreme Co urt has found sufficiently comprehensive to foreclose a § 1983 su it is the Education of the Handicapped Act (“EHA”), 20 U.S.C. § 1400, et seq. In Smith v. Robinson , 468 U.S. 992 (1984), the Court recognized that the EHA “establishes an enforceable substantive right to a free appropriate public educ ation,” along with “an elaborate procedural mechanism to protect the rights of handi capped children.” Id. at 1010- 11. The procedures reflect “Congress’ intent that each child’s individual educational needs be worked out through a process t hat begins on the local level and includes ongoing parental involvement, detailed procedural safeguards, and a right to judicial review.” Id. at 1011. “In light of the comprehensive nature of- 18 -

the procedures,” the Court found it “difficult to b elieve that Congress also meant to leave undisturbed the ability of a handicapped c hild to go directly to court with an equal protection claim to a free appropriate pub lic education.” Id. Such a result would not only “render superfluous most of the detailed procedural protections outlined in the statute,” but “it would also run counter to Congress’ view that the needs of handicapped children are bes t accommodated by having the parents and the local education agency work togethe r to formulate an individualized plan for each handicapped child’s ed ucation.” Id. at 1011-12. The Court thus held that “Congress intended to preclude reliance on § 1983 as a remedy for a substantial equal protection claim.” Id. at 1012. Courts have consistently held that statutory scheme s that merely give oversight and funding control to the federal govern ment do not foreclose § 1983 claims. See Wilder v. Virginia Hosp. Ass’n , 496 U.S. 498, 521-22 (1990) (holding that, even though Medicaid Act “authorizes the Secretary to withhold approval of plans or to curtail federal funds to St ates whose plans are not in compliance with the Act,” this “scheme cannot be co nsidered sufficiently comprehensive to demonstrate a congressional intentto withdraw the private remedy of § 1983” (citation omitted)); Wright v. Ci ty of Roanoke Redevelopment and Housing Auth. , 479 U.S. 418, 428 (1987) (“The Court of Appeals a nd respondents rely on HUD’s authority to audit, enfor ce annual contributions- 19 -

contracts, and cut off federal funds. But these ge neralized powers are insufficient to indicate a congressional intention to foreclose § 1983 remedies.”). In some courts, the issue is no longer contested. See Doe v. Chiles , 136 F.3d 709, 719 (11th Cir. 1998) (observing that appellants “wisely ” chose not to argue that Congress has foreclosed enforcement of the Medicaid Act under § 1983). The same reasoning has led at least one court to co nclude that oversight and funding authority does not bring a statute with in Seminole Tribe ’s exception.
See Maryland Psychiatric Soc’y, Inc. v. Wasserman , 102 F.3d 717, 719 n.* (4th Cir. 1996) (applying Wilderto reject Seminole Tribe argument without extensive discussion). And while the Supreme Court has not a ddressed whether funding remedies bring a statute within Seminole Tribe , the Court did observe, in dicta, that the enforcement provisions of the Adoption Ass istance and Child Welfare Act of 1980, 42 U.S.C. §§ 620-28, 670-79a, “may notprovide a comprehensive enforcement mechanism so as to manifest Congress’ i ntent to foreclose remedies under § 1983.” Suter v. Artist M. , 503 U.S. 347, 360 (1992). The Department portrays the statute as providing no t only funding remedies, but a private cause of action through the Multiethnic Placement Act’s jurisdictional provision. (Resp. at 3.) Even if t he Adoption Assistance Act provided for a private cause of action in addition to its funding remedies, that would not foreclose claims under Ex parte Young unless the cause of action was- 20 -

more limited than what would be available under Ex parte Young . In Marie O. v. Edgar , 131 F.3d 610 (7th Cir. 1997), the Seventh Circuitheld that the remedial provisions set forth in Part H of the Individuals w ith Disabilities Education Act, 20 U.S.C. §§ 1471-85, did not fall within the Semin ole Tribe exception to Ex parte Young even though they gave a district court the authori ty to “grant such relief as [it] determines is appropriate.” Id. at 616 (alteration in original) (quoting 20 U.S.C. § 1480(1)). Because that langua ge did “not expressly limit the role of the district court in redressing complaints concerning the failure of a state to implement the mandatory aspects of Part H,” the court found Seminole Tribe inapplicable. Id. See also AT&T Comm. v. Bellsouth Telecomm., Inc. , 238 F.3d 636, 648 (5th Cir. 2001) (finding Seminole Tribe inapplicable because it “cannot be said that Congress intended in the 1996 [Telecom munications] Act to limit significantly the federal judicial remedies availab le to an aggrieved party authorized to bring suit in an appropriate federal court”); Telespectrum, Inc. v. Public Serv. Comm’n , 227 F.3d 414, 420-21 (6th Cir. 2000) (finding Sem inole Tribe inapplicable where statute does not “provide for aremedy more limited than or materially different from that available under E x parte Young ”); MCI Telecomm. Corp. v. Illinois Bell Tel. Co. , 222 F.3d 323, 347 (7th Cir. 2000) (finding Seminole Tribe inapplicable to provision of 1996 Telecommunicatio ns Act giving jurisdiction to federal district court b ecause provision “does not limit- 21 -

the role or the power of the district court”), cert . denied , 531 U.S. 1132 (2001); MCI Telecomm. v. Public Serv. Comm’n , 216 F.3d 929, 939-40 (10th Cir. 2000) (holding, without discussion, that Seminole Tribe does “not affect the application of Ex parte Young ” to cases brought under § 252 of the Telecommunications Act, despite fact that provision gives aggrieved parties right to sue in federal court (quotation omitted)), cert. denied , 531 U.S. 1183 (2001). In this regard, the Multiethnic Placement Act is no help to the Departm ent because it only deals with a narrow issue not before us and, even then, it simply allows an individual aggrieved by adoption-related discrimination to bri ng a suit in federal court, see 42 U.S.C. § 674(d)(3)(A), and places no limits on w hat would be available under Ex parte Young

. Finally, while the Adoption Assistance Act also con templates state court remedies for some violations, in this case the poss ibility of some state court remedies does not suggest that Congress intended to foreclose federal remedies.
See Wright , 479 U.S. at 429 (holding that a “state-court reme dy is hardly a reason to bar an action under § 1983, which was adopted to provide a federal remedy for the enforcement of federal rights”). Viewed in the light offered by this case law, the s tatutes at issue in this case do not provide remedial schemes sufficient to foreclose Ex parte Young jurisdiction.- 22 -

In its response to Appellants’ petition for reheari ng, the Department argues that “any attempt to create a private right of acti on against the state through the Social Security Act would be unconstitutional as vi olating the Eleventh Amendment.” (Resp. Br. at 4.) This argument misco nstrues the nature of Appellants’ cause of action. Appellants are not trying to create a private right of action against the Department under the Social Secu rity Act. Rather, Appellants’ suit is based on an implied cause of action againststate officials under Ex parte Young , which is available to enjoin state officials from the violation of the Constitution or other federal law. See Green v. Mansour , 474 U.S. 64, 68 (1985) (“[T]he availability of prospective relief of the s ort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies desig ned to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.”); Milliken v. Bradley , 433 U.S. 267, 289 (1977) (recognizing that Ex parte Young “permits federal courts to enjoin state officials to conform their conduct to requirements of federal law”); Burgio and Campofelice, Inc. v. New York Dep’t of Labor , 107 F.3d 1000, 1006 (2d Cir. 1997) (“[T]he best explanation of Ex parte Young and its progeny is that the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the f ederal Constitution or laws.” (quoting 13B C. Wright, A. Miller & E. Cooper, Fede ral Practice & Procedure:- 23 -

Jurisdiction2d § 3566, at 102 (1984))); Guaranty Nat’l Ins. Co . v. Gates , 916 F.2d 508, 512 (9th Cir. 1990) (same). Ex parte Yo ung claims do not implicate the Eleventh Amendment. See, e.g. , Idaho v. Coeur d’Alene Tribe , 521 U.S. 261, 296 (1997) (O’Connor, J., concurring) (“The Young doctrine rests on the premise that a suit against a state official to enjoin an o ngoing violation of federal law is not a suit against the State.”). Accordingly, allo wing Appellants to proceed with their claims under Ex parte Young does not run afoul of the Eleventh Amendment. B. Younger Abstention In addressing whether Appellants’ claims run afoul of the Younger abstention doctrine, two preliminary matters must b e considered. First, we need to consider Appellants’ contention that the Departm ent in the Original Consent Decree waived any right to raise the Youngerabstention doctrine. Second, even if there is no waiver, Appellants argue that the De partment has not demonstrated a significant change in fact or law since the SEP suf ficient to justify the district court’s modification of that decree.

1. Waiver Appellants’ waiver argument is based on the followi ng language in the Original Consent Decree: “Plaintiff and the Secreta ry of the New Mexico Human Service Department hereby settle the declaratory an d injunctive claims of this- 24 -

action, and the court hereby ORDERS that the Plaint iffs and the Secretary and his successors are bound as follows . . . .” The langu age of the Original Consent Decree, however, does not constitute the last word between the parties on the matter. Rather, the SEP contains the following pro vision: “If either party decides to return to court for determination of any issue a fter December 31, 1998, execution of this Exit Plan shall not be deemed a w aiver or compromise of any obligation, defense or assertion of any legal rightor remedy which either party may claim.” Hence, the narrow question before us i s whether the Department’s seemingly unqualified submission of this issue to t he district court in the Original Consent Decree trumps the parties’ broad reservatio n of rights and defenses in the subsequent SEP. We construe the terms of a consent decree de novo u sing traditional principles of contract interpretation. See, e.g. , Joseph A. , 69 F.3d at 1085. Although we may assume without deciding that the la nguage of the Original Consent Decree would be sufficient to constitute a waiver of the Department’s right to seek abstention under Younger , see, e.g. , Morrow v. Winslow , 94 F.3d 1386, 1390 (10th Cir. 1996) (a state may waive Youn gerjurisdiction by voluntarily submitting a controversy to the jurisdi ction of a federal forum), the key issue in this case is the effect of the SEP lan guage reserving the right to raise additional defenses. In approving the SEP, the dis trict court did not merely- 25 -

modify the Original Consent Decree; it vacated the earlier decree in favor of the new one. “A judgment that has been vacated, revers ed, or set aside on appeal is thereby deprived of all conclusive effect, both as res judicata and as collateral estoppel.” Franklin Sav. Ass’n v. Office of ThriftSupervision , 35 F.3d 1466, 1469 (10th Cir. 1994) (citations and quotations omi tted); see also Inmates of Suffolk County Jail v. Rouse , 129 F.3d 649, 662 (1st Cir. 1997) (“Vacating a consent decree . . . wipes the slate clean, not onl y rendering the decree sterile for future purposes, but also eviscerating any collater al effects and, indeed, casting a shadow on past actions taken under the decree’s imp rimatur.”). Thus, the only agreement that is ultimately relevant to this issue is the SEP, which explicitly stated that the SEP “shall not be deemed a waiver o r compromise of any . . . defense or assertion of any legal right or remedy w hich either party may claim.” In light of its clear reservation of defenses, we c onclude the Department has not waived its right to argue in favor of Youngerabstention. In their petition for rehearing, Appellants contend that the Department waived its Youngerdefense simply by entering into the SEP. Basicall y, Appellants insist that the SEP would be meaningless if the Department preserved the defense, because enforcement of the SEP would b e precluded. Appellants overlook the fact that the SEP provided that no def enses could be raised for one full year, which means that the parties enjoyed the bargained-for benefits for that- 26 -

year, regardless of whether any of the potential de fenses ultimately proved successful. In light of this one-year “cease fire” – which has since expired – along with the fact that the SEP expressly preserve d all defenses, Appellants’ argument lacks merit.

2. Standard of Review of the YoungerClaim Having found that the Department did not waive its right to argue Youngerabstention, we must yet determine the standard of review we should utilize in analyzing the merits. In general, we re view de novo a district court’s application of the Youngerabstention doctrine. Appellants, however, contend that the SEP constitutes a final judgment, and ther efore that the Department must satisfy the rigorous standards for modification of a consent decree pursuant to Rule 60(b) of the Federal Rules of Civil Procedure as set forth in Rufo v. Inmates of the Suffolk County Jail , 502 U.S. 367 (1992). In Rufo , the Supreme Court held that a party seeking a modification of a consent de cree under Rule 60(b), “bears the burden of establishing that a significant chang e in circumstances warrants revision of the decree . . . . A party seeking mod ification of a consent decree may meet its initial burden by showing either a signifi cant change in factual conditions or in law.” Id. at 383-84; see also David C. v. Leavitt , 242 F.3d 1206, 1211-12 (10th Cir. 2001). A district court’s decision to m odify a consent decree is- 27 -

reviewed for abuse of discretion. See, e.g. , id. at 1210; Cablevision of Texas, III, L.P. v. Okla. W. Telephone Co. , 993 F.2d 208, 210 (10th Cir. 1993). In this case, however, the Department is not seekin g to modify the decree itself. Rather, it is seeking resolution of an unl itigated defense which not only was not specifically addressed in the decree, but w as explicitly removed from its coverage by the reservation of rights and defenses. Under such circumstances, Rufo ’s requirement that a party to a consent decree mak e a threshold showing of changed circumstances prior to modification of the decree does not govern our analysis.
3. YoungerAnalysis We now turn to the merits of the Department’s Young erabstention argument. “Under the Youngerabstention doctrine, federal courts should not ‘interfere with state court proceedings by granting equitable relief – such as injunctions of important state proceedings or decla ratory judgments regarding constitutional issues in those proceedings –’ when a state forum provides an adequate avenue for relief.” Weitzel v. Div. of Oc cupational and Prof’l Licensing , 240 F.3d 871, 875 (10th Cir. 2001) (quoting Rienh ardt v. Kelly , 164 F.3d 1296, 1302 (10th Cir. 1999)). We review de no vo a district court’s application of the Youngerabstention doctrine, see Taylor v. Jaquez , 126 F.3d 1294, 1296 (10th Cir. 1997), recognizing that abste ntion “is the exception, not the- 28 -

rule.” Ankenbrandt v. Richards , 504 U.S. 689, 705 (1992). “It should be ‘rarely

. . . invoked, because the federal courts have a virt ually unflagging obligation . . . to exercise the jurisdiction given them.’” Roe #2 v . Ogden , 253 F.3d 1225, 1232 (10th Cir. 2001) (quoting Ankenbrandt , 504 U.S. at 705). Youngerrequires that a federal court refrain from hearing an action over which it has jurisdiction “when [the] federal proce edings would (1) interfere with an ongoing state judicial proceeding (2) that impli cates important state interests and (3) affords an adequate opportunity to raise th e federal claims.” J.B. v. Valdez , 186 F.3d at 1291. Once a court finds that the re quired conditions are present, abstention is mandatory. See, e.g. , Amanatullah v. Colorado Bd. of Med.
Exam’rs , 187 F.3d 1160, 1163 (10th Cir. 1999) (“Youngerabstention is nondiscretionary; it must be invoked once the three co nditions are met, absent extraordinary circumstances.”). It is apparent that federal enforcement of some of the SEP’s provisions would significantly interfere with state court proc eedings. Particularly problematic in light of Youngerare the provisions governing assessment and treatment planning conferences for children enterin g the Department’s custody and periodic review of the Department’s plans for t hose children. These provisions require that the Department conduct two conferences – one for assessment of the child and another to create a lon g-term plan of services for the2 For example, assessment plans must include findings to identify the reason

a child is in custody, make a safety assessment and plan for the child, establish a visitation plan if appropriate, identify a permanen cy planning goal, identify necessary services and steps to reach the permanenc y planning goal, and identify parties responsible for each plan item. Treatment plans must contain similar information and, in addition, include a description of steps and services necessary to facilitate family reunification or to achieve an alternative permanent plan. - 29 - child while in the Department’s custody. In additi on, the Department is required to review the long-term plan every six months to en sure it remains appropriate. The provisions set forth detailed requirements for the contents of each plan, 2 as well as a number of restrictions on the Department’ s planning flexibility. For example, unless the Children’s Court so orders agai nst the documented advice of the Department, the SEP precludes the Department fr om recommending emancipation for children who are twelve years old or younger, and requires that children aged twelve to fourteen receive counseling before a plan of emancipation can be established. Further, the SEP bars the Depa rtment from setting a permanency planning goal of long-term foster care u nless no other goal is appropriate and a social worker consultant supervis or has approved the plan. The Department is also barred from maintaining a plan o f “Return Home” for more than fifteen of the most recent twenty-two months t hat a child is in custody unless special circumstances exist or the Children’s Courtso orders against the documented recommendation of the Department. It is against this background that we conduct our Youngeranalysis.3 Specifically, when a child has been taken into the Department’s custody,

New Mexico state law requires the Children’s Court to conduct: (1) a preliminary hearing to determine whether probable cause exists to justify additional custody and proceedings, see § 32A-4-18; (2) an adjudicatory hearing, see § 32A-4-19; (3) a dispositional hearing which results in extens ive factual findings and a determination of the level of state services necess ary for the child, see § 32A-4- 22; (4) periodic reviews of the child’s welfare fol lowing the dispositional hearing, see § 32A-4-25; and (5) a permanency hearing to determ ine when and if the child should be returned to his or her parents. See § 32A-4-25.1. - 30 - Appellants do not contest the district court’s find ing that the case at bar implicates important state interests. Although the members of the plaintiff class are each individually engaged in ongoing proceeding s before the family court,

see N.M. Stat. § 32A-4-16 et seq. (creating jurisdicti on in Children’s Court to adjudicate status of allegedly abused and neglected children), 3 Appellants contend that their class suit is at most parallel to the st ate court proceedings. Further, Appellants argue that we should reverse the distric t court because the systemic relief sought in this case is not available in the New Mexico Children’s Court. A court should not abstain from exercising its juri sdiction based merely on the presence of parallel state and federal suits. See, e.g. , Green v. City of Tucson , 255 F.3d 1086, 1097-99 (9th Cir. 2001). Moreover, we recognize that this is not the typical Youngercase in which a federal court is asked either to e njoin an action from proceeding in state court, cf., e.g. , Younger , 401 U.S. at 38-39 (considering suit to enjoin Los Angeles district attorney from enforcing state law alleged to be unconstitutional), or to issue a decl aratory judgment that would have- 31 -

essentially the same effect as an injunction. Cf., e.g. , O’Hair v. White , 675 F.2d 680, 695 (5th Cir. 1982). Enforcement of the SEP, however, requires interference with the operations of the Children’s Court in an i nsidious way in that the SEP expressly prevents the Department’s employees from recommending a range of planning options for children who are in the Depart ment’s custody. This limitation has an effect not unlike that of an inju nction or declaratory judgment because the Department is precluded ever from prese nting certain options to the Children’s Court. Therefore, the state court is, f or all practical purposes, precluded from considering these options. Courts, albeit in different contexts, have frequently observed that independent, vigorous advocacy is essential to the operation of our adversary system and as such essential to the rule of law. See,
e.g. , Legal Servs. Corp. v. Velazquez , 121 S.Ct. 1043, 1050-51 (2001) (“An informed, independent judiciary presumes an informe d, independent bar. . . . By seeking to prohibit the analysis of certain legal i ssues and to truncate presentation to the courts, the enactment under review prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”); Penson v. Ohio , 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous representation follows from the nature of our adver sarial system of justice. This system is premised on the well-tested principle that truth – as well as fairness – is ‘“best discovered by powerful statements on both si des of the question.”’”4 Indeed, Justice Stevens notes that William Shakespe ar’s oft-quoted line,

“The first thing we do, let’s kill all the lawyers, ” was not an invective against the legal profession, but rather was spoken by a rebel who “realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” See Walters , 473 U.S. at 371 n.24 (Stevens, J., dissenting and quoting William Shakespear, King Henry VI , pt. II, Act IV, scene 2, line 72). - 32 - (citations omitted)); Walters v. Nat’l Assoc. of Ra diation Survivors , 473 U.S. 305, 371 (1985) (Stevens, J., dissenting) (“[T]he c itizen’s right of access to the independent, private bar is itself an aspect of lib erty that is of critical importance in our democracy.”); 4 In re McConnell , 370 U.S. 230, 236 (1962) (“An independent judiciary and a vigorous, independent b ar are both indispensable parts of our system of justice.”); Heffernan v. Hun ter , 189 F.3d 405, 413 (3d Cir. 1999) (“The right of a litigant to independent and zealous counsel is at the heart of our adversary system and, indeed, invokes consti tutional concerns.”). A federal court’s enforcement of a decree that bars a n attorney from acting as an independent advocate for an outcome he or she belie ves is appropriate similarly interferes with the operations of a state court. T he SEP therefore implicates that prong of Youngerwhich counsels for abstention when the federal jur isdiction would interfere with an ongoing state proceeding. In their petition for rehearing, Appellants contend that applying Younger under these circumstances would stretch the abstent ion doctrine beyond recognition. However, the cases cited by Appellant s do not suggest that Younger5 Contrary to Appellants’ argument, the Ninth Circui t has not held that

Youngeris inapplicable “unless the federal court action seeks to enjoin, declare invalid, or otherwise involve the federal courts in terminating or truncating the state court proceedings.” (Pet. at 12 (quotation and alteration omitted) (emphasis added).) Rather, the Ninth Circuit held that Young erapplies only where the requested relief would interfere with the ongoing s tate proceedings; the court then observed that the action at issue “did not see k to enjoin, declare invalid, or involve the federal courts in terminating or truncating the state proceedings.” (continued...) - 33 - abstention is inappropriate under these circumstanc es. Appellants rely on the Fifth Circuit’s holding in Ciudadanos Unidos de SanJuan v. Hidalgo Cty. Grand Jury Comm’ners , 622 F.2d 807 (5th Cir. 1980), that abstention is improper where “the relief is directed to a time prior to the init iation of any actual judicial proceedings.” Id. at 830 n.49. The complaint in that case challenge d the exclusion of certain groups from the grand jury poo l; the court emphasized that the requested relief “can be fully accomplished and evaluated before any actual proceedings are commenced [and] before even the gra nd jury’s consideration of any indictments.” Id. Here, the SEP’s restrictions are ongoing, and the y impact the conduct of the proceedings themselves, not justthe body charged with initiating the proceedings. The other cases cited by Appellants do not establis h the limits of Younger abstention. See, e.g. , Crawley v. Hamilton Cty. Comm’ers , 744 F.2d 28, 30 (6th Cir. 1984) (finding Youngerinapplicable where “the plaintiffs are not attempt ing to use the federal courts to shield them from state court enforcement efforts”). 55 (...continued)

Green v. City of Tucson , 255 F.3d 1086, 1098 (9th Cir. 2001). The distinc tion is subtle, but important. - 34 - Although not directly on point, a more relevant cas e is O’Shea v. Littleton , 414 U.S. 488 (1974), in which the Supreme Court, re versing the Seventh Circuit, upheld the dismissal of a § 1983 suit on Youngergrounds. The suit alleged that various officials in an Illinois county, including two judges, unfairly targeted blacks for criminal prosecution. Id. at 491-92. The two judges allegedly engaged in certain unfair practices regarding the setting o f bond and sentencing. And while there was no specific indication as to the type of injunctive relief that might be justified, the Seventh Circuit had “suggested th at it might include a requirement of periodic reports of various types of aggregate data on actions on bail and sentencing.” Id. at 493 n.1 (quotation omitted). The Supreme Court held that such a suit could not b e heard in federal court. In language that is at least indirectly supportive of our holding, the Court reasoned: Respondents do not seek to strike down a single state statute, either on its face or as applied; nor do they seek to enjoin any criminal prosecutions that might be brought under a challeng ed criminal law. . . . What they seek is an injunction aimed at contro lling or preventing the occurrence of specific events that might take p lace in the course of future state criminal trials. The [proposed] order. . . would be operative only where permissible state prosecutions are pending against one or more of the beneficiaries of the injunction. Apparently the order would contemplate interruption of state proceedings to adjudicate- 35 -

assertions of noncompliance by petitioners. This s eems to us nothing less than an ongoing federal audit of state crimina l proceedings which would indirectly accomplish the kind of interferenc e that Younger v. Harris . . . sought to prevent. Id. at 500. Even though “[t]he Court of Appeals discl aimed any intention of requiring the District Court to sit in constant day -to-day supervision of these judicial officers,” the “periodic reporting system it thought might be warranted would constitute a form of monitoring of the operat ion of state court functions that is antipathetic to established principles of c omity.” Id. at 501 (quotation and footnote omitted). Given “the availability of othe r avenues of relief open to respondents for the serious conduct they assert, an d the abrasive and unmanageable intercession which the injunctive reli ef they seek would represent,” the Court held that the federal courts could not he ar the suit. Id. at 504. In Suggs v. Brannon , 804 F.2d 274 (4th Cir. 1986), the Fourth Circuit applied O’Shea ’s reasoning to a complaint challenging state offic ials’ enforcement of anti-obscenity laws. The complaint alleged that officials had been harassing adult book store employees, repeatedly ar resting them, and subjecting them to inordinately high bail amounts. The plaint iffs tried to circumvent Youngerby emphasizing that “they do not seek to enjoin th e state prosecutions or even to obtain a declaratory judgment that the obsc enity statutes are unconstitutional.” Id. at 278. Rather, “they seek injunctive relief only against bad faith enforcement of the obscenity laws that ch ill their first amendment rights- 36 -

without due process of law, issuing court orders barring them from the bookstores where they are employed, fixing excessive bail, int imidating them by threats of future prosecutions, and engaging in illegal search es and seizures.” Id. The court held that abstention was proper because “[e]ntry of such an injunction would require the district court to direct and monitor pa rt of the state proceedings.” Id. at 279. Other courts have echoed this reasoning. See, e.g. , Bonner v. Circuit
Court , 526 F.2d 1331, 1336 (8th Cir. 1976) (applying You ngerbecause complaint seeking to enjoin state officials from violating Co nstitution “would require nothing less than an ongoing federal audit of state criminal proceedings” (quoting O’Shea , 414 U.S. at 500)). The reasoning of O’Sheaand its progeny suggests that federal court oversight of state court operations, even if not fr amed as direct review of state court judgments, may nevertheless be problematic fo r Youngerpurposes. And other cases establish that the federal court’s role need not focus on a particular state court proceeding to fall within the scope of Younger . For example, in Williams v. Rubiera , 539 F.2d 470 (5th Cir. 1976), the Fifth Circuit applied Youngerto a complaint seeking a declaration that state co urt defendants were entitled to court-appointed counsel for crimes puni shable by a fine, but not imprisonment. Id. at 471-72. The Fifth Circuit held that abstention was required because “[i]f relief were granted in this case it w ould have the effect of a federal- 37 -

court telling a state court how to run an ongoing c riminal prosecution, i.e., whether it could constitutionally try the defendantwithout appointed counsel.” Id. at 473. This “would have the intrusive impact on the state proceeding that Youngerand its progeny abhorred.” Id. at 474. Similarly, in Luckey v. Miller , 976 F.2d 673 (11th Cir. 1992), the Eleventh Circuit held that Youngerbarred federal courts from hearing a § 1983 suit challenging Georgia’s indigent defense system. The complaint sought the following relief: (1) a court order providing for an indigent defense system that; (a) furnishes counsel, if requested, at probable ca use determinations; (b) furnishes speedy appointment of counsel for crit ical stages; (c) furnishes adequate services and experts; and (d) furnishes adequate compensation for counsel (2) a court order that “uniform standards be promul gated and adopted governing the representation of indigent [sic] cons istent with the judgment in this case”; (3) monitor the implementation of those standards; (4) award attorney’s fees and other proper relief. Id. at 676. The plaintiffs sought to avoid Youngerby contending that “they do not seek to contest any criminal conviction, nor to restrain any criminal- 38 -

prosecution, and that they seek only to have this C ourt consider systemic issues which cannot be raised in any individual case.” Id

. at 677. The Sixth Circuit nevertheless applied Younger , reasoning that “a decree of the sort requested by the plaintiffs would, inevitably, interfere with ev ery state criminal proceeding.” Id. In some regard, the SEP’s requirements will have a discernible impact on juvenile court proceeding in New Mexico – albeit no t to the same degree as the order requested in Luckey

. The fact that the SEP’s requirements constrain the State’s attorneys, rather than the court directly, does not preclude Younger ’s application, for the reasoning reflected in the above line of cases applies not ju st to state court judges, but to officers of the court. For example, in J.P. v. DeS anti , 653 F.2d 1080 (6th Cir. 1981), the plaintiffs brought suit challenging stat e court probation officers’ practice of preparing “social histories” of juvenil e defendants and providing them to the court before disposition of the cases. The histories included extensive personal histories of the defendants, but were not made available to the defendants themselves. See id. at 1082. The Sixth Circuit held that the Supreme Court case law requires abstention if federal intervention would cause interference with such a state proceeding and the f ederal issue can be raised in the state proceeding. Id. at 1084. Under this standard, the court observed that the juvenile court’s “predisposition use of social hist ories is an integral part of [its]- 39 -

handling of cases,” and that the proposed relief wo uld “entail[] ongoing federal court interference with the daily operations of the juvenile court.” Id. at 1084. Under these circumstances, Youngerabstention was required. Id. at 1085. Youngergoverns whenever the requested relief would interf ere with the state court’s ability to conduct proceedings, regar dless of whether the relief targets the conduct of a proceeding directly. See News-Journal Corp. v. Foxman , 939 F.2d 1499, 1511 (11th Cir. 1991) (abstaining fr om hearing newspaper’s challenge to state court’s pre-trial gag order beca use an injunction “impermissibly would restrict the ability of the trial court to impanel an impartial jury”); Kevorkian v. Thompson , 947 F. Supp. 1152, 1164 (E.D. Mich. 1997) (holdin g that enjoining state from prosecuting defendant would vi olate Younger ). The relevant case law supports abstention where, as here, federal court oversight of state court proceedings is required, c oupled with significant restrictions on the freedom of attorneys to presentinformation to the court. Under these circumstances, it is appropriate to app ly Younger , especially given the Supreme Court’s recent emphasis on the importan ce of independent and unfettered advocacy to the operation of the courts. See Legal Servs. Corp. , 121 S. Ct. at 1050-51. Accordingly, Youngermandates that the federal courts abstain from enforcing at least some of the SEP’s provision s.- 40 -

After concluding that Youngerrequires abstention in this case, the district court simply applied Youngerto the entire SEP without verifying that the enforcement of each provision would interfere with state court proceedings. A provision-by-provision Youngeranalysis appears prudent, however, for the fact that one provision may not be enforceable in light of Youngerdoes not necessarily warrant voiding the entire consent decr ee (see SEP at 9-10 (providing that State is relieved from performing particular p rovision if that performance is rendered impossible)), or dismissing the entire act ion. Cf. Doran v. Salem Inn,
Inc. , 422 U.S. 922, 930-31 (1975) (dismissing claims of one plaintiff pursuant to Younger , but allowing co-plaintiffs’ claims to proceed bec ause they did not pose risk of interference with ongoing state court proce edings); Ballard v. Wilson , 856 F.2d 1568, 1571-72 (5th Cir. 1988) (dismissing clai ms for injunctive relief pursuant to Younger , but allowing claim for monetary damages where suc h claim was not cognizable in state court proceedings). Some of the SEP’s provisions may be characterized a s stand-alone provisions, amenable to enforcement independent of the more problematic provisions. While this issue is best left for the district court to resolve on remand, this court offers some preliminary observat ions. Enforcement of the provisions governing training of social workers (SE P at 2-3), the development of a computerized management information system (SEP at 7), and qualifications for- 41 -

social workers (SEP at 7-8) do not appear to risk i nterference with state court proceedings. As discussed above, the provisions go verning assessment and treatment planning conferences present a stronger r isk of running afoul of Younger . Also, federal enforcement of the provision calli ng for the use of statecreated Citizen Review Boards may be problematic. Under state law, the Board reviews the disposition of children in the Departme nt’s custody prior to judicial review. The Board then submits a report to the Chi ldren’s Court, which becomes part of the child’s permanent court record. See NM ST §§ 32A-8-5, 32A-8-6. In making the Citizen’s Review Board proceedings enfor ceable by a federal district court, the SEP asks the federal court to review the operation of a mechanism that is an essential part of the state court proceedings . This certainly suggests a risk of improper interference with state proceedings und er Younger . See DeSanti , 653 F.2d at 1085-86 (applying Youngerabstention where plaintiff sought to enjoin probation officers’ practice of preparing “social h istories” of juvenile defendants because the juvenile court’s use of the histories “ is an integral part of [its] handling of cases”). Many of the remainder of the SEP’s provisions appear to be procedural, setting forth the means by which the St ate can exit the decree’s requirements, and it is not obvious, at least on th e record before us, that they would pose Youngerproblems.- 42 -

However, rather than making decisions as to which p rovisions do, and do not, violate Younger , we deem it more prudent to remand for further bri efing and findings by the district court. The various SEP pr ovisions may present complexities not apparent on the record before us. Thus, the district court should determine in the first instance which, if any, of t he SEP’s provisions can be enforced in light of Younger

. Finally, we must consider whether the state proceed ings offer adequate opportunities for Appellants to raise their claims. In opposing abstention on the grounds that the federal remedy requested is not av ailable in state court, “[p]laintiffs bear the burden of proving that state procedural law barred presentation of their claims in the New Mexico Chil dren’s Court.” J.B. v. Valdez , 186 F.3d at 1292. As an initial matter, it is clea r that the Children’s Court has the power to consider federal claims, including claims of procedural due process violations. See State ex rel. Children, Youth & Families Dep’t v. Ruth Anne E. (In re Ruth Anne E.) , 974 P.2d 164, 171 (N.M. Ct. App. 1999) (reversing Children’s Court for failing to grant continuance o n procedural due process grounds to allow incarcerated parent to attend hear ing to terminate parental rights); T.B. v. State (In re T.B.) , 913 P.2d 272, 276 (N.M. Ct. App. 1996) (affirming Children’s Court’s rejection of a motion for attorneys fees under 426 Appellants cite In re T.B. , 913 P.2d at 274, to show the Children’s Court

Rules of Civil Procedure preclude the Children’s Co urt from considering cases seeking systemic relief against the Department. Al though Appellants are correct that the Children’s Court dismissed a motion brough t under § 1983 to require the Department “to submit an action plan for a system f or the proper licensure and regulation of therapeutic foster care” as “not well taken,” In re T.B. does not hold that such systemic relief is never available f rom the Children’s Court. The New Mexico Court of Appeals addressed the propriety of the dismissal only in dicta, noting that the Guardian ad Litem who brough t the motion “did not identify by citation what federal laws or constitut ional provisions secure the rights he was seeking to enforce” under § 1983. Id

. at 275. - 43 - U.S.C. § 1988 in light of the Children’s Court’s di smissal of a due process claim brought under 42 U.S.C. § 1983). Appellants contend, however, that it is not enough that they may be able to raise their federal claims in the context of their individual proceedings before the Children’s Court. Rather, they argue that abstenti on is inappropriate because the Children’s Court Rules of Civil Procedure make no p rovision for class actions, and therefore the Children’s Court will never be pr esented with a set of facts that would enable it to grant the systemic injunctive re lief they sought against the Department in the present action. We assume without deciding that the Children’s Court is not authorized to hear class actions and other representative suits. 6 However, we could find no case, and Appellants cite none, that hold that a pa rty is entitled to avoid the effects of the Youngerabstention doctrine in cases where relief is avail able to individual litigants in ongoing state proceedings b ut not to represented parties in a- 44 -

class action. See J.B. v. Valdez , 186 F.3d at 1292 (abstaining in light of court’s conclusion that “plaintiffs fail to clearly show th at the Children’s Court could not have adjudicated these federal claims during the pe riodic review process”). Moreover, we note that Appellants have not attempte d to raise their procedural due process claims in their individual proceedings. “[W]hen a litigant has not attempted to present his federal claims in related state-court proceedings, a federal court should assume the state procedures wi ll afford an adequate remedy, in the absence of unambiguous authority to the cont rary.” Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 15 (1987). Here, the Appellants have failed unambiguously to show that the relief they seek, in cluding structural relief, would not effectively be available through the Children’s Court.

III. CONCLUSION We affirm the district court’s ruling that Appellan ts’ claims are not barred by the Eleventh Amendment, albeit for different rea sons than were reflected in the district court’s opinion. Some of Appellants’ clai ms may run afoul of the Youngerabstention doctrine, but we vacate and remand so t hat the district court may determine whether any of the SEP’s provisions m ay be enforced in light of Younger . The district court’s judgment is AFFIRMED in part and VACATED in- 45 -

part. The case is REMANDED for further proceedings consistent with this opinion.