### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 08, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-10180

________________________ D.C. Docket No. 00-02116-C V-FAM

31 FOSTER CHILDREN, on behalf of themselves a

nd all other Children in Florida Foster Care, Plaintiffs-Appe llants,

versus JEB BUSH, as Governor of the State of Florida, KATHLEEN KEARNEY, as Secretary

of the Florida Department of Children and Families, CHUC K BATES, District Administrator, ROBERT WILLIAMS, District Administrator, ESTER TIBBS, District Administrator, et al., Defendants-Appe llees.

__________________________ Appeal from the United States District Court for the

Southern District of Florida

_________________________ (May 8, 2003)2

Before ANDERSON and CARNES, Circuit Judges, and HAND*, District Judge. CARNES, Circuit Judge: This case involves a proposed class action brought on behalf of all children in Florida’s foste

r care system

against the Governo

r of Florida, the Secretary of Florida’s Depa

rtment of Child

ren and Famili

es (“the Depa

rtment”), a

nd the administrators

of fourteen of the Department’ s fifteen districts , all of whom collectively a

dminister Flor

ida’s foster ca

re system.

The individual plaint

iffs’ amended complaint alleges widespread deficiencies in the state’s foster care system, in violation of the United States Consti tution and federal s tatutory law. The plaintiffs appe

al the district cour

t’s order insofar

as it grants the defe

ndants’ motions to dismiss parts of the amended complaint on grounds of Younger v. Harris abstention and Elev enth Amendment immunity. In Part I of this opi

nion, we set out the allegations contained in the multicount complaint a

nd the procedural his

tory of the case . In Part II, w e address the justiciability

concerns raised by

the defendants and conclude that although th e claims of two of the plaintiffs ar e moot, the othe

r plaintiffs have st

anding to pursue their claims.In Part III, w e review the plain

tiffs’ federa

l statutory clai

ms and

____________________ *Honorable William B. Hand, United States District Judge forthe Southern District of Alabama, sitting by designation.1 The plaintiffs who filed the amended complaint are: Bonnie L., Reggie B., Rebecca B., Laurie S., Lillie S., Leslie F., Sandra M., Tany a M., Candice D., Jay D., Matthew I., Hugh S., Leanne G., Tammy G., Elaine R., Paul B., Rache l C., Cathy W., Larissa C., John J., Melinda, and Karina. 3 affirm the district court’s order dismissing those claims, because the statutes at issue do not give rise to enforceable rights. In Part IV, we discuss the Younger abstention doctrine a

nd conclude that the dis

trict court did not ab

use its discretion in abstaining from

deciding the plaintif

fs’ claims.

Part V contains our

conclusions and instructions for t

he district court on r

emand. I. THE COMPLAINT AND PROCEDURAL HISTORY In June of 2000, the pl

aintiffs filed suit o

n behalf of them

selves and a statewide class of

children in custody

of the defendants. The amended c omplaint contains six counts, a

lleging that the defe

ndants’ practice s deny and threat en the plaintiffs’ 1 claimed rights to: (1) safe care

that meets thei

r basic needs, prom

pt placements w

ith permanent f

amilies, and s ervices extended a fter their eightee

nth birthdays, as gu

aranteed by subs

tantive due process (

Count I); (2) proce

dural due process in determ

ining the services the

y will receiv

e (Count II); (3)

family association with sibl

ings as guaranteed by

the First, Ninth,

and Fourteenth Amendme

nts (Count III); (4

) prompt place

ment with perm

anent familie s and to have their medical and educational backgrounds provided to their care givers, as4

guaranteed by 42

U.S.C. §§ 675( 5)(D) and (E), which are provision

s of the Adoption Assistance

and Child Welfar

e Act of 1980, Pub.L. No. 96-272, 94 Stat. 500, 516 (June 17, 1980) (codified as am

ended at 42 U.S.C . §§ 620-628 and §§ 670-679a) (“the

Adoption Act”) (Count IV); (5) heal th screening and foll

owup under schedules esta

blished pursuant to the M edicaid Act, 42 U .S.C. §§ 1396a(a)(43)(B) , 1396(a)(43)(C) , and 1396d(r) (Cou nt V); and (6) in the

case of the black plaintiff foster children, freedom from racial discrim

ination in the provision of care an

d services, as guar

anteed by Title

VI of the 1964 Civil R

ights Act (Count VI). The plaintiffs bro

ught their lawsuit und

er 42 U.S.C. § 1983, seeking declaratory and injunctive relief relating to the operation of Florida’s foster care system. S

pecifically,

they requested that the court: (1) declare uncons

titutional and unlawf

ul the following alle

ged practices: (a) th e fail ure to provi de for the pl ainti ffs’ b asic n eeds, safet y, free dom fro m harm, freedom from

unreasonable restr

aints on their libert

y, care and t

reatment, f

reedom from being placed into unnecessary state-created da

nger, and freedom

from arbitrary and

capricious actions a

nd decisions that depri

ve them of benefits to which they are entitled; (b) deprivation of state-created entitlements without an adequate and fair procedure; (c) unn ecessary sepa

ration of siblings and d

enial of2 The class description was later modified to exclude children who were plaintiffs in a

sep arat e cl ass act ion inv olv ing o nly c hil dren in f ost er ca re i n Bro ward Cou nty. 5 visitation among t

hem; (d) fail

ure to comply

with the Adoption Ac

t and the Medicaid Act; and (e) discrimination on the basis of race; (2) enjoin the De

partment and the

defendants from

violating the plaintif

fs’ constitutional rights, including those described in (1) above; (3) order appropr

iate remedia

l relief to ensure compliance wi th the Constitution and laws of the United State s; (4) appoint an expert panel to develop and oversee the implementation of a plan for re form; (5) appoint a perm

anent ombudsm

an or children’s a

dvocate to present th

e plaintiffs’ inte

rests to the defenda

nts, and require the

defendants to me

et regularly and frequently w

ith that ombudsm

an; and (6) grant other equi table relief as the cou rt sees fit. After amend

ing the complaint

, the plaintiffs m

oved to certify

the statewide class of all children who are or would be in foster care in Florida, along with a subclass of black chi

ldren. 2 Upon motion of th e defendants, the c

ourt appointed a guardian ad litem

, who concluded af

ter investigation tha

t “a class act

ion lawsuit is an appr opriat e mechani sm to sec ure a reme dy for all the chi ldren i n State custod y .6

. . [and] that t

he prosecution of this lawsuit to a final r esolution . . . wi

ll be in the best interests of the Plaintiff children and the class they represent.” The district court dismissed all of the plaintiffs’ claims on the pleadings. It ruled that Count IV,

which involves the A

doption Act claim

s, is barred by

the Eleventh Amendment and dismissed those claims with prejudic e. The court also dismissed with pr

ejudice the consti

tutional claims – Counts I, II, an d III – as to all plaintiffs who are

not in extended foster

care (which exis

ts only for perso

ns age 18 or older); it did so based upon the abstention doctrine of Younger v. Harr is , 401 U.S. 37, 91 S. Ct. 746 (1971). T he court dismisse

d with prejudice t

he portion of Count VI that alleg

es disparate im

pact discrimin

ation under Title V

I of the Civil Rights Act of 1964. Concluding that the am ended complaint was not a “shor t and plain statement

” of claims, the court dismiss ed all the other cla ims (including the Title VI claim

s for intentional disc

rimination) in t

he amended com

plaint without prejudice, granting the plaintiffs leave to replead those claims that had not been dismissed on some other bas is. Thereafter, eleven of the twent y-two nam

ed plaintiffs who ha

d filed the amended complaint settled all of their claims, executed a relea se, and are no longer part of the lawsuit . Some of the eleven plaintiffs w

ho remain in the

lawsuit also settled some of their claims. More specifically, all the intentional racial3 Because of that settlement, none of the plaintiffs filed an amendment to the complaint

repleading those claims, even though the district court’s dismissal of them had been without prejudice.

4 They are: Reggie B., Rebecc a B., Laurie S., Lillie S., Tany a M., Leanne G., Tammy G., Elaine R., Rac hel C., Larissa C.,

and John J.

5 Although the disparate impact portion of the black children’s Title VI claims in Count VI was also di smissed wi th prejudi ce, the plai ntiffs do n ot contest that rulin g. 7 discrimination c

laims and all the

Medicaid Act cla

ims have been se

ttled and dismissed. 3 The settlement left no unadjudicated claims pending in the district

court. The plaintiffs who appealed to this Court are the remaining eleven named plaintiffs still in f

oster care in Flor

ida for persons under

the age of eighteen. 4 The issues they rais e in this appeal conce rn only Counts I thr

ough IV, which invol

ve some of the claims that were dismissed with prej udice. 5 II. JUSTICIABILITY Initially, we

are faced with s ome threshold que stions about whether the plaintiffs’ cla

ims present a j usticiable case or controversy. Specifically , we must decide whether the claims of two of the plaintiffs are moot and whether the other plaintiffs have st anding to challen ge the practices at iss ue. A. MOOTNESS8

The exercise of j urisdiction by the federal courts “

depends upon the existence of a case or controversy.” North Carolina v. Rice , 404 U.S. 244, 246, 92 S. Ct. 402, 404 (19 71) (citation and inte rnal quotation ma

rks omitted). “[A] cas e is moot when the iss

ues presented are no longer ‘live’ or the parties lac k a legally cognizable interest in the outcome.” Powell v. McCormack , 395 U.S. 486, 496, 89 S. Ct. 1944, 1951 (1969). “Put another way, [a] case is moot when it no longer presents a live contr

oversy with re spect to which the court can give me aningful relief.” Fla. Ass’n of R

ehab. Facilities , Inc. v. Fla.Dep’t of Heal th & Rehabilitative Ser

vs. , 225 F.3d 1208, 1217 (11th Cir. 2000) (citations and internal quotation marks omitted). We consider questions of mootness under a plenary standard of review. United States v. Fla. Azalea Spe cialists , 19 F.3d 620, 621 (11th Cir. 1994). The defendants cont

end that Larissa C .’s and Leanne G.’s claim

s are moot, and we agree. Because Larissa C. and Leanne G . have been adopted, they are no longer in the defendants’ legal or physical custody and therefore cannot be further harmed by t

he defendants’ a

lleged illegal prac

tices. Because t

he plaintiffs’ amended com

plaint seeks only p

rospective injunct

ive relief against

the defendants to prevent future ha rm, no live controversy exist s between them and these two9

plaintiffs. Lar

issa C. and Leanne

G. have no legally

cognizable interes

t in the outcome of this l

awsuit. All of th

eir claims ar

e moot. B. STANDING The three prerequisites for standing are that: (1) the plaintiff have suffered an “injury in fact” – an invasion of a judicially cognizable interest, which is (a ) concrete and parti

cularized, and (

b) actual or im

minent, not conj ectural or hypothetical; (2) there be a causal connection between that injury and the conduct complained of – t

he injury m

ust be fairly tr

aceable to the cha

llenged action of the defendant, and not t

he result of the inde

pendent action of som

e third party not before the court; a

nd (3) it be likely

, not merely

speculative, that the injury wi ll be redressed by a favorable de cision. Bennett v. Spear , 520 U.S. 154, 162, 117 S. Ct. 1154, 116 1 (1997). Th ese three el ements “consti tute[] the co re of Articl e III’s case-or-controversy requirement.” Steel Co. v. C itizens fo r a Better Env ’t , 523 U.S. 83, 103-04, 118 S. Ct. 1003, 1017 (1998). The plaintiffs bea

r the burden of esta

blishing each of the th

ree standing elements. Bennett , 520 U.S. at 167-68, 117 S. Ct. at 1163-64. How much evidence is necessary to

satisfy that bur

den depends on the stage of litigation at whic

h the standing challen ge is made. Id. At the pleading stag e, “general

factual allegatio

ns of injury res

ulting from the d

efendant’s conduc

t may suff

ice, for on a m

otion to10

dismiss we presume that general allegations embrace those specific facts that ar e necessary to support the claim.” Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S. Ct. 2130, 21 37 (1992) (citatio ns and internal marks omitted ). Because Larissa

C.’s and Lean

ne G.’s claim

s are moot, w

e have nine remaining plaintiffs who appe aled to this Court and for whom the st anding ques tion matter s: Reg gie B. , Rebe cca B. , Lauri e S., Li llie S ., Tanya M., Tammy G., Elaine R., Rachel C., and John J. Taking the allegations of the complaint as true for present purp oses, as we must, Pompey v. Broward County , 95 F.3d 1543, 1548 n.6 (11th Cir. 19 96) , we will proceed count-by-count as to all the injury claimed by

the plaintiffs who h

ave appealed to this Court. In Count I, the plai

ntiffs claim t

hat the defendants ha

ve violated their substantive due proce ss rights by engagi ng in a pattern and pra

ctice of failing to meet their obli

gations in the followi

ng ways: failin

g to satisfy the pl

aintiffs’ basic needs for food, clothing, and shelter, as well as for medical, educational and other services; failing t

o provide safe car

e and placeme

nts that protect the plaintiffs from harm and servi

ces that prevent or ameliorate ha rm; and failing

to provide the plaintiffs with care consistent with the purposes for which the defendants assumed custody of them.11

As additional claim

ed violations of their

substantive due proce ss rights in Count I, eight of the n ine remaining plaintif fs – Tanya M., Laurie S., Lillie S., Elaine R., Rac

hel C., Reggie B ., John J., and T ammy G. – assert that t

he defendants knowingly placed

and retained them

in foster care pla

cements that w

ere dangerous, abusive, neglectf

ul, overcrowded,

or wholly inappr

opriate for me

eting the children’s needs. The plaintiffs fur ther claim tha

t the defendants ignor

e or inappropriately

respond to compla

ints or other inform

ation identifying

certain placements as dangerous, abusive, neglectful, overc

rowded, or wholly inappropriate for m

eeting the children’ s needs, and have done so in the placem

ents of Tanya M., Laurie S., Lillie S., Tammy G., and John J. Further, the def endants are alleged to have

engaged in a pattern

and practice of pla

cing some childr

en, including Rachel C.and Tamm y G., in tem

porary shelter

s or group homes on

a long-term basis

because of the unava

ilability of fost

er homes to acc

ommodate them. They are alleged to have retai ned children, inclu ding Laurie S., Lillie S., Reggie B., and Re

becca B., in fos

ter care longer th

an necessary a

nd to have subjected children t o multiple, unwarranted pl acements. The position of the plaintiffs is that the

defendants have a pa

ttern and practice

of engaging in the conduct alleged in Count I, which has caused and continues to cause the plaintiffs injury.12

In Count II, the plaintiffs assert violations of procedural due process. They allege that the def

endants have failed

to establish a proce ss for an admini strative hearing or professi

onal review of dec

isions that deny the

plaintiffs benefit

s to which they are entitled, including caseworker supervision of children in foster care and shelter care,

medical car

e, foster care

after reaching th

e age of maj ority, and participation in a sub sidized Independent L iving Program.Specifically , it is alleged that Reggie

B. has been and cont

inues to be injured b

y this pattern an

d practice, beca

use he has been denie

d treatment ne

cessary to rep air a cleft palat e and for other medical needs. In Count III, eigh

t of the remai

ning plaintiffs – Ta

nya M., Tam

my G., Laurie S., Lillie S. , John J., Elaine R., Reggie B.,

and Rebecca B. –

claim that the defendants have viola

ted their First, N

inth, and Fourteent

h Amendme

nt rights by unnecessarily separating them from their siblings and depriving them of regular and frequent visitat

ion with their separ

ated siblings. They

allege that the defendants have a pat tern and practice of do ing so, and that it h as harmed them. In Count IV, the pl

aintiffs allege tha

t the defendants have

violated rights granted them under the Ado ption Act. Specificall y, Laurie S., Lillie S., Reggie B., and Rebecca B. c

laim that the defendants routinely fail to initiate pro ceedings for termination of

parental rights to c

hildren in their custody for 15 of the m ost recent13

22 months as required under 42 U.S.C. § 675(5)(E), and that they have been harmed by t

his practice. Re

ggie B. also allege s specifically that his health and education records were not provided to foster parents or foster care providers immediately upon his placement in a hom e or facility, as required under 42 U.S.C. § 675(5)(D), and t

he other eight rem

aining plaintiffs all

ege generally that the defendants routinely fail to obtain the required information, update it, or provide a record of the information to each foster home or facili ty. The defendants cont

end that none of the pla

intiffs has standing to

bring claims under C ount II (procedura l due process) or Cou

nt IV (Adoption Ac

t). With regard to Count I (s

ubstantive due proces s), the defendants contend that only f

our plaintiffs – Lauri

e S., Lillie S ., Reggie B.,

and Rebecca B. –

have standing to claim that they have be

en in foster care longer than reasonably necessary. They conten d that only three plaintiffs – Tam my G., Laurie S., an

d Lillie S. – have standing to bring a claim un

der Count III (sibl

ing association) for

failure to be place

d in a foster home with their sib lings. Finally, they contend that only t

wo plaintiffs – Elaine R. and Tammy

G. – have standing to raise a claim under Count III for failure to allow visitation w

ith siblings. The defendants’ basis f or claiming tha

t most plaintiffs lack standing for these claims is that most of them fail to allege either a6 In addition to in jury in fac

t, plaintiffs must al

so allege that th

eir injuries are

“fairly traceable to the challenged action of the defendant, and not the result of the independe nt action of some third party not before the court,” and that it is likely the injury will be redressed if the court rules in their favor. Bennett v. Spear , 520 U.S. 154, 167, 11 7 S. Ct. 1154, 1163 (19 97). These aspects of standing are not disputed in this case. According to the amended complaint, the defendants’ fa

ilures caused the

plaintiffs’ injuri

es and their conti

nued failures ar

e likely to c

ause further injuries. The plaintiffs do allege that their injuries are related to the challenged c onduct of the defendan

ts. Therefore,

the alleged inju

ries suffered b

y the plaintif

fs are fairly

traceable to the conduct of the defendants. In addition, the plaintiffs seek a declaratory judgment and prospective injunctive relief that will prevent the defendants from violating their constitutional and federal statutory rights. The relief the plaintiffs seek w ould clearly remedy their c laimed injuries. 14 palp able i njury o r the i mminent risk o f harm. 6 Instead, accord ing to the defendants, most of the plain

tiffs complain

about past harms

and seek relief f

or aspects of the Florida foster care system that h ave not caused them injury. In order to satisfy the “injury in fact” requirem ent of standing, a plaintiff need not wait for a

n injury to occu

r. An allegation o f future injury satisfies this prong of standing so long a s the alleged injur

y is “im minent” or “

real and immediate” and not merely “conjectural” or “hypothetical.” Lujan , 504 U.S. at 560, 112 S. Ct. at

2136; City of Los Ang

eles v. Lyons , 461 U.S. 95, 101-02, 103 S. Ct. 1660, 1665 (1983).

An injury is i

mminent if

it is likely to occ

ur, and likely t

o do so immed iately. Lujan , 504 U.S. at 560 , 112 S. Ct. at 213 6. When a pl aintif f canno t show t hat an i njury is l ikely to occur i mmediatel y, the plaintiff does not have standing to seek prospective relief even if he has suffered a past inj ury. For exam ple, in Lyons , the plaintiff sough t to enjoin the use15

of “chokeholds” by police officers. 461 U.S. at 98, 103 S. Ct. at 1663. T he Court stated that the plaintiff’s standing to seek that relief hinged on “whether he was likely to suffer future injury from the use of the chokeholds by police office rs.” Id. at 105, 103 S. Ct. at 1667. The Court held that the plaintif

f lacked standing, because the probabi lity of future injury was too sp eculative, id. at 106-07, 103 S. Ct. at 1667-68, exp

laining: In order to establish an actual controversy in this case, [the plaintiff] would have had not only to allege that he would have another encounter with the police but also to m ake the incredible a

ssertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter . . . or (2) that the City ordered or authorized police officers to act in such manner.

Id. at 105-06, 103 S. Ct. at 1667. As Lyons illustrates , future injury that depends on either the random

or unauthorized act

s of a third party

is too speculative to satisfy standing r

equirements. However, whe n the threatened ac

ts that will cause injury are a

uthorized or part of

a policy, it is s

ignificantly m

ore likely that t

he injury will occur again. See id. at 106, 103 S. Ct. at 1667 (plaintiff may have had16

standing if he had alle

ged “that the Ci

ty ordered or a

uthorized police off

icers to [perform illegal chokeholds]”). This case is more like Church v. City of Huntsville , 30 F.3d 1332 (11th Cir. 1994), than Lyons . In Church , the plaintiffs were homeless persons who sought an injunction against th

e City of Huntsv

ille to prevent the C

ity and its em

ployees from harassing, intimidating, detaining, and arresting them solely because they wer e homeless, as part of a concert ed effort to drive the m out of the city. Id. at 1335. We held that the pl

aintiffs had standing , because they were far m

ore likely than t

he Lyons plaintiff to have fu ture encounters wi

th the police, wer

e homeless involuntarily, a

nd could not “‘a

void future exposure t

o the challenged cour

se of conduct’” in which the City engaged. Id. at 1338 (quoting O’Shea v. Li ttleton , 414 U.S. 488, 497, 94 S. Ct. 669, 677 (1974)). Importantly, the Church plaintiffs alleged that municipal policy authorized the constitutional deprivations they claimed and tha

t the City had a “

custom, pract

ice and policy” of engaging in the challenged condu ct. Id. at 1339. For the reasons that the Church plaintiffs had standi ng, the plaintiffs i

n this case who are in the

defendants’ phy

sical custody hav

e standing to pursue the

ir substantive due proce ss claims (Count I). The plaintif

fs who are in the defendants’ physical custody

and have siblings in the

defendants’ cust

ody – Tamm

y G., Laur

ie17

S., Lillie S. , John J., Reggie B ., and Rebecca B. – have standing to p ursue their sibling association claims (Count III). These plaintiffs are in much the same legal position as the Church plaintiffs. The y are in the cust

ody of the defend

ants involuntarily and will be until they are returned to the

ir parents, are adopted, or reach the age of m

ajority. T hey cannot avoid e

xposure to the defenda

nts’ challenged conduct. The alleged systemic deficiencies in the Florida foster care system are

similar to an in

jurious policy,

and different fro

m the random

act at issue in Lyons . The alleged pattern and practice in this case presents a substantial likelihood that the alleged injury will occu r. See Church , 30 F.3d at 1339. Moreover, the pla

intiffs’ allega

tions under Counts I and

III support the conclusion that future

injury will pr

oceed with a high deg

ree of imm

ediacy. The Supreme Court

addressed this aspec

t of the injury

in fact requirem

ent in Lujan , holding that because th

e plaintiffs faile

d to demonstrate

their injury w

ould “proceed wit

h a high degree of im

mediacy, so as to reduce the po ssibility of deciding a case in which no injury would have occurred at all,” they lacked standing to pursue their

claim. 504 U .S. at 559, 564 n. 2, 112 S. Ct. at 21 35-36, 2138 n.2. Thus, under Lujan , one cannot me rely allege tha

t an injury wi

ll be suffered at “ some time”

in the future. How

ever, a plaintiff

need not demonstr

ate that the injury will occur wi thin days or even weeks to have standing. See, e.g. ,18

Adarand Constructo

rs, Inc. v. Pe

na , 515 U.S. 200, 211-12, 115 S. Ct. 2097, 2105 (1995) (plaintiff who was likely to suffer injury within one year period had standing to sue). Th e court must make a qualitativ e inquiry into this q uestion. See Wilderness Soc’y v. Alcock, 83 F.3d 386, 390 (11 th Cir. 1996) (whe n determining standing, court foc

uses on qualitative suf

ficiency of the

injury). I

n this case, for those plaintiffs who

are in the physical custody of the defendants, the de gree of immediac y is sufficientl

y high that there

is little likelihood the

district court will

be deciding a case “in which no injury would have occurred at all.” Lujan , 504 U.S. at 564 n.2, 112 S. Ct. at 213 8 n.2. However, the tw

o plaintiffs who ar

e not in the defendant

s’ physical c

ustody lack standing to pursue

the constitutional cla

ims under Counts I

and III. The amended com

plaint states that T

anya M. has ru

n away, and a

t oral argumen

t the plaintiffs’ couns el referred to E laine R. as one of t

he “hundreds of m

issing children.” Plaintiffs who ar e not in the defendant

s’ physical c

ustody cannot demonstrate tha

t their constitutional

injuries are im

minent. They

may retur

n to the defendants’ phy

sical custody, but they may not. If they do

not return to the defendants’ physical custody, then they will never be harm ed by the alleged practices of the defendants. It follows that they cannot demonstrate any injury that would “proceed with a high degree of immediacy.” Id.19

Only Reggie B. has standing to pursue the procedural due process claims set out in Count II, because he is the only plaintiff who has demonstrated injury in fact as to that claim. He claims that he has been denied me dical care to repair a cleft palate (and other un

specified medi

cal care) and tha

t the defendants have

not provided a process for review of that denial. If his cleft palate has not been repaired, he has been denied an alleged entitlement, and he is asking for procedural protections he claims have not been provided. His is a concrete injury that is real and immediate. Id. at 560, 112 S. Ct. at 2136. The other plaintiffs, howe

ver, have not alleged that they

have been denied any

entitlement. Without such an all egation, the other plaintiff

s are essentially

asserting that they

will be denied a ben

efit in the future, and that w

hen that happens, the

defendants will pr

ovide them with no process for reviewing the denial. The plaintiffs’ procedural due process claims are different from their substantive due process claims because the procedural injury requires two steps: the defendants m ust deny the plaint

iffs a benefit and t

hen deny them process. Such an injury may never occur. See id. at 564 n.2, 112 S. Ct. at 2138 n.2. As to the Adoption Ac

t claims in Count

IV, all of the pla

intiffs whose parents’ parent

al rights have not bee

n terminated w

ithin the period set out

in the statute have standing to pursue a claim under 42 U.S.C. § 675(5)(E). Their claim ed20

injury is concr

ete. In the am

ended complaint,

Laurie S., L

illie S., Reggie

B., and Rebecca B. pre sent such claim s. Other plaintif

fs, the ones who hav

e not been in the defendants’ c

ustody for the sta

tutory period, do not have standing to br ing a claim under § 675 (5)(E), becau se they may

not be injured at a

ll; they ma

y return to their parents’ custod y. All of the rem

aining plaintiffs in t

he defendants’ phy

sical custody hav

e claims under 42 U.S.C. § 675(5)(D) for the defendants’ failure to provide updated health and education r

ecords to the plaintif

fs’ foster car

egivers for the sam

e reasons that they have st

anding to pursue their substantive due proce ss claims. Be cause it is alleged that the defendants routinely fail to obtain the re

quired informa

tion, update the records, and provide the information to the foster caregivers, all children who are within the

defendants’ phy

sical custody ar

e at risk of imm

ediate harm f

rom that pattern and practice. In sum, Lari ssa C.’s and Le anne G.’s cla

ims are m oot because they

have been adopted. Reggi e B., Rebecca B., Laurie S., Lillie S., Tammy G., Rachel C., and John J. have standi

ng to pursue their Count

I claims. Re

ggie B. has standing t

o pursue his Count II cl

aims. Tam

my G., Laurie S., L

illie S., John J.,

Reggie B., and Rebecca B. have standin g to pursue their Co unt III claims. Laurie S., Lillie S., Reggie B., and Re

becca B. have sta

nding to pursue their C ount IV claims for7 The district court did not decide this question, instead dismissing the plaintiffs’ Adoption

Act claims as barred by the Eleventh Amendment under Seminole Tribe of Florida v. Florida , 517 U.S. 44, 116 S. Ct. 1114 (1996). In view of our conclusion that the Adoption Act claims are due to be dismissed on other grounds, we need not address the Eleventh Amendment issue

. McClendon v. Ga. D

ep’t of Cmty.

Health , 261 F.3d 1252, 1258-59 (11th Cir. 2002).

21 failure to terminate parent al rights in the sta tutory period. Reggie B., Reb ecca B., Laurie S., L

illie S., Tam

my G., Rachel C., and J

ohn J. have standing to p ursue their Count IV claim

s for failure to pr

ovide updated health a

nd education records

to foster caregiver

s. III. THE PLAIN

TIFFS’ CLAIM

S UNDER § 1983 FOR VIOLATION S OF §§ 675(5)(D) AND (E) OF THE ADOPTION ACT

Because some of the plaintiffs have standing to pursue their Adoption Act claims, we must now decide whether 42 U.S. C. §§ 675(5)(D) a nd (E) provide right

s enforceable under

42 U.S.C. § 1983

. 7 It provides a feder al remedy for violations not only of the Consti tution but federal statutes as well. Maine v. Thiboutot , 448 U.S. 1, 100 S. Ct. 2502 (1980). In order to have a viable cause of action under § 1983 based on the violati on of a federal sta

tute, however, a plaintiff mus t establish that the statute all egedly violated gives the plaintiff enforc eable rights. Gonzaga Univ. v. Doe , 536 U.S. 273, 283, 122 S. Ct. 2268, 2275 (2002) (reje

cting the notion22

that case law per

mits “any thing short of an unam

biguously conferr

ed right to support a cause of act ion brought und er § 1983”). We emphasiz

e, as did the Court i

n Gonzaga , that in cases brought to enforce legislation enacted

pursuant to Congress’ spending power, suc h as the Adoption Act, Congress m

ust “speak with

a clear voice” a

nd manifest an “

unambiguous” intent to confer indiv

idual rights before f

ederal funding provis

ions will be read to provide a basis for p rivate enforcement. Id. at 280, 122 S. Ct. at 2273 (citing Pennhurst State Sch. & Hosp. v. Halderman , 451 U.S. 1, 17 , 28 & n.21, 101 S. Ct. 1531, 1540, 1545 & n.21) (1981)). “I

n legislation enacte

d pursuant to the spendin g power, the typical remedy for state noncom pliance with federally imposed conditions is not a priva

te cause of action f

or noncompliance

but rather action by the Federal Government to terminate funds to the State.” Pennhurst , 451 U.S. at 28, 101 S. Ct. at 1545. Only twice since Pennhurst has the Supreme Court held that spending legisl ation gave rise to ri ghts enforceable vi a § 1983. See Wilder v. Va. Hosp. Ass’n , 496 U.S. 498, 110 S. Ct. 2510 (1990) (holding that health care providers could, pur

suant to § 1983, enforce the Boren Am endment to the Medicaid Act); Wright v. Roanoke Redevelopment

& Hous. Auth. , 479 U.S. 418, 107 S. Ct. 766 (1987) (holding that the Brooke Amendment to the Housing Act provided a cause of action under § 1983).23

The Supreme Court has set forth three requirements that m ust be met before a federal statute

will be read to conf

er a right enforce

able under § 1983: (1) Congress must have intended that the provisions in question benefit the plaintiff; (2) the plaintiff m

ust demonstrate

that the right asser

tedly protecte

d by the statute is not so vague and am

orphous that its enfor

cement would st

rain judicial re sources; and (3) the provision gi

ving rise to the asser

ted right must be

couched in mandatory, rather than precatory, terms. Blessing v. Freest one , 520 U.S. 329, 340- 41, 117 S. Ct. 1353,

1359 (1997). The Su

preme Court in Gonzaga

clarified the fir

st of the Blessing

requirements, making it plain that only unambiguously conferre d rights, as distinguished from mere benefits or interests, may be enforced under § 1983. 536 U.S. at 283, 122 S. Ct. at 2275 (rejecting the notion private plaintiffs have enforceable federal rights merely because they are the intended beneficiaries of a statute or fall with in its zone of intere st). The Court held in Gonzaga that a private plain

tiff could not bring an

action under § 1983 to enforce provisions of the Family Educational Rights and Privacy Act of 1974 (FERP

A), 20 U.S.C . § 1232g. In FERP A Congress directe

d the Secretary of Education to deny federal funding to any state with a policy or practice of permitting the unauthorized release of education records or personal information. Congress was explic it about it, sayi

ng: “No funds sha

ll be made24

available . . . to any [school] which has a policy or practice of per

mitting the rele

ase of education recor

ds . . . of students

without the writte

n consent of their par

ents . . . .” 20 U.S.C. § 1232g(b)(1). In holding that FERP

A does not create a

right enforceable

under § 1983, the Supreme Court

explained that the ac

t lacks “rights- creating” language critical to showing congressional

intent to create ne

w rights. Instead

, the act speaks only

to the Secretary of Education, directing him to withhold funds if the prohibited practice exists. Gonzaga , 536 U.S. at 287, 122 S. Ct. at 2277. The Court contrasted FERP

A’s language tha

t “[n]o funds shall be made a vailable,” with t

he individu ally focused language o f Titles VI an d IX, which mand ate that “[n]o person . . . shall

. . . be subjec

ted to discrimin

ation,” statutes tha

t do create enforceable rights, see Cannon v. Univ. of Chicago , 441 U.S. 677, 99 S. Ct. 1946 (1979). The Cour

t concluded in Gonzaga

that the focus of FE

RPA is “two s

teps removed from

the interests of indi

vidual students and par

ents.” 536 U.S.287, 122 S. Ct. at 2277. Instead of creating an enforceable duty on the part of the school, t he act only imposed a duty on the pa rt of the federal

government – the

duty to withhold funds. A second reason the

Supreme Cour

t gave in Gonzaga

for concluding that FERPA does not create enforceable rights is that its nondisclosure provisions speak25

only in term

s of institutional polic

y and practice , not about “indiv idual instances of disclosure.” Id. at 288, 122 S. Ct. at 2278. The provisions therefore have an aggregate focus, instead of a concern for “whether the needs of any particular person have been satisfied.” Id. (citation omitt ed). Also thought sig

nificant is the fact that institutions can avoid funding termination under FERPA by substantial compliance with the act’s requirements; com pliance in every case is not necessary to avoid loss of fu nding. Id. Finally, the S

upreme Court considered in Gonzaga the mechanism that Congress chose to prov

ide for enforcing t

he provisions of FER

PA. The act expressly author

izes the Secreta

ry of Educatio

n to “deal with violations” of it and to establish a revie

w board for investig

ating and adjudicat

ing such violations. 20 U.S.C. § 1232g(f). The Secretary’ s regulations create an office to act as a review board, and students can file individual wr itten complaints

with that office.This review mech

anism, the Cour

t concluded, evidences a congressional in tent to avoid the multiple inte

rpretations of FE

RPA that might

arise if the act c

reated enforcea

ble individual righ ts. Gonzaga , 536 at 289-90, 122 S. Ct. at 2278-79. We take from Gonzaga

the lesson that we are to look at the text and structure of a statute in order t o determine if it unambiguou sly provides enforceabl e rights. If the text and structure “provide no indication that Congress intends to create new26

individual rights, there is no basis for a private suit.” Id. at 286, 122 S. Ct. at 227 7. If they provide

some indication t

hat Congress ma

y have intended to

create individual rights, and

some indication i

t may not hav

e, that means

Congress has not spoken with the requ isite “clear voice.” Ambiguity preclu des enforceable righ ts. Id. at 280, 122 S.Ct. at 2273. The first Blessing requirement, which is what Gonzaga addressed, is that Congress must ha ve intended that the pr

ovision in question benefit the pl

aintiff. Factor

s to consider in deter

mining if it did inc

lude whether the statute : (1) contains “ rights-creating” l

anguage that is individu

ally focused; (2) addre sses the needs of indiv idual persons being sat

isfied instead of having a system

wide or aggregate

focus; and (3) lack

s an enforcem

ent mechanism through which an ag grieved individu al can obtain review. Turning to the specif

ic legislation at hand

, the Adoption Act comprises Par ts B and E of Title IV of the Social Security Act and is a federal funding statute that establishes a prog ram of payments to states for foster car e and adoption ass istance. 42 U.S.C. §§ 620- 628, 670-679a . Sections 675(5)(D) and (E) are found in Part E. For a state to rec eive funds under Par t E, it must sa

tisfy certain requirements. The state must subm

it for approval by

the Secretary

of Health and Hum

an Services a plan for foster care and adoption assist ance. 42 U.S.C. § 671(a). If a state follows27

its approved plan, it receives federal funds. 42 U.S.C. § 670; 42 U.S.C. § 1320a2a. If the state does not follow its approved p

lan, it may

lose all or some

of the federal funds it otherwise would receive. Section 1320a-2a requires the Secretary to promulgate r

egulations for use in r

eviewing state prog

rams in order t

o determine whether the programs are in s ubstantial confo rmity with the state plan. 42 U.S.C. § 1320a-2a(a)(3).Under the statute, the regulations m

ust require the Sec

retary to withhold federal funds if a state has failed to substantially conform to its approved plan, id. § 1320a-2a(b)(3), and the regulations do exactly that, 45 C.F.R. §§ 1355.35(c)(4), 1355.36(b). The plaintiffs in this case brought suit under § 675, a section that provides definitions for both Parts B and E, including a definition for the term “case review system.” 42 U.S.C. § 675(5). The plaintiff s’ position is that tho se provisions relating to a case revi ew system give them an enforceable rig ht under the statut e. Section 675(5) provid

es, in relevant pa

rt: The term “

case review sy

stem” mea

ns a procedure for assuring that –

***28

(D) a child’s he

alth and education re

cord (as described

in paragraph (1)(A)) is revi

ewed and updated, and supplied to the foste r parent or foster care provider with whom the child is placed, at the time of each placement of the child in foster care;

(E) in the case of

a child who has been in foster care unde r the responsibility of the State for 15 of the most recent 22 months, or, if a court of competent jurisdiction has determined a child to be an abandoned infant (as defined under State law) or has made a determination t

hat the parent has committed m urder of another c

hild of the parent, com

mitted voluntary

manslaughter of

another child of the parent, aided or abetted, attem pted, conspired, or

solicited to commit suc

h a murder or su

ch a voluntary m

anslaughter, or committed

a felony assaul

t that has resulted in

serious bodily inj ury to the child or to another child of the parent, the State shall file a petition to term

inate the parental

rights of the child’ s parents (or, if such a petition has bee

n filed by another

party, seek to

be joined as a party to the petition)

. . . .29

42 U.S.C. § 675(5). Because §§ 675(5)(D

) and (E) are definitional in nature, they alone canno

t and do not suppl y a basis for conferring rig hts enforceable und er § 1983. See Gonzaga , 536 U.S. at 280 , 122 S. Ct. at 227 3; see also Charlie H. v. Whitman , 83 F. Supp. 2d 476, 490 (D.N.J. 2000) (§ 675(5), standing alone, does not confer a right enforceable

under § 1983); B.H. v. Johnson, 715 F. Supp. 1387, 140 1 (N.D. Ill. 1989) (“I

t would be strange f

or Congress to crea

te enforceable r

ights in the definitional sect ion of a statute.”). Other than the definition, the only provision in Part E of Title IV that uses the term “

case review sy

stem” is 42 U. S.C. § 671(a)(1 6). That section c onditions receipt of feder

al funds on the existen

ce of a state plan t

hat, among othe

r things, provides for “a

case review sy

stem which m

eets the requirem

ents described in section 675(5)(B) .

. . with respec

t to each such child. ” Section 671(a)( 16) does not go beyond that and e

xplicitly requir

e a plan to meet

the requireme

nts described in §§ 675(5)(D) and (E). The plaintiffs cont

end otherwise. T

hey argue that w

e should not interpret

§ 671(a)(16) to requi

re compliance

only with § 675(5) (B) in order for s tates to receive federa

l funds, but we think t

hat is the most log

ical interpretati

on. The statute plainly directs that the state must have a plan that provides for a case review8 Part B creates a joint federal-state program that provides federa l funds for child welfare services. In order to be eligible for these funds, 42 U.S.C. § 622(b)(10)(B )(ii) requires that each state have a plan

for child welfar

e services that “

provide[s] assuran

ces that the State

– is operating, to the satisfaction of the Secretary – a ca se review system (as defined in section 675(5) of this title) for each child receiving foster care under the supervision of the State.” Another provision, 42 U.S.C. § 626(b)(3), requires that, in order for states to receive funds for projects for the development of alternate care arrangement for infants who do not need to be in hospital settings, the state develop “a case review system of the ty pe described in § 675(5) of this title” for each infant. The plaintiffs have not sued under either 42 U.S.C. § 622(b)(10)(B)(ii) or § 626(b)(3), which are in Part B, and instead have repeatedly sa id that their claims arise under Part E. Section 671(a)(16) is the only section in Part E that refers to a “case re view system.” So, we have confined our consideration to it. However, other courts have found that § 622(b)(10)(B)(ii), at least, does not confer an enforceable right. See Charlie H. v. Whitman , 83 F. Supp. 2d 476, 485- 89 (D.N.J. 2000) (§ 6

22(b)(10)(B)(ii) is not so unambig uous as to confer

a right enforc

eable under § 1983); Eric L. v. Bird , 848 F. Supp. 303, 312 (D.N.H. 1994) (plaintiffs have no enforceable right to compel state’s implementation of programs under predece ssor to § 622(b)(10)(B)(ii)). 30 system “which m

eets the requirements described in section 675(5)(B) of this title.” 42 U.S.C. § 671(a)(16). It does not say that a plan’s case review sy stem must meet the requireme

nts of §§ 675(5)(D) a

nd (E). Moreove

r, in other provision

s of the Adoption Act, provisions that are codified in Part B of Title IV, Congress has required compl

iance with all of § 675(5) in order for a state to receive funds. 8 The conclusion we reac

h is that Congress knew

how to require com

pliance with all aspects of a case review s ystem, as described in § 675(5 ), when it wanted to do so

. It did not choose t o do so in § 671(a)(1 6).Additionally, §§ 675(5)(D) and (E) do not have the kind of focused-on-theindiv idual, rights -creati ng lang uage re quired by Gonzaga . Instead, the la nguage of31

those provisions gives them an aggregate or system wide focus instead of one that indicates concern wi th whether the needs o f any particular child are met. Gonzaga , 536 U.S. 288, 122 S . Ct. at 2277-78. Although the text of th e provisions speaks to “a child’s he

alth and education re

cord” provided at “

each placeme

nt of the child” and to termination of the parental rights of “the child’s parents,” the case review system as a whole is defined as “a procedure for assuring” that the desired steps are taken. 42 U.S. C. § 675(5). The references to ind

ividual children and t

heir placements ar

e made in the co

ntext of describing w

hat the procedure is

supposed to ensure, and such pr

ovisions “cannot m

ake out the requisite

congressional intent to confer individual rights enforceable by § 1983.” Gonzaga , 536 U.S. at 289, 122 S. Ct. at 2278. Further, Congress has required the Secretary of Health and Human Se rvices to promulgate r

egulations for the re

view of the child w

elfare and adoption assistance programs set out in Parts B and E in order “to determine w hether such programs are

in substantial conform

ity with – State plan requirements under such parts B and E.” 42 U.S.C. § 1320a-2a(a)(1) (emphasis added). The substantial conformity

requirement i s similar to FE RPA’s, whic

h the Court in Gonzaga concluded showed an a

ggregate instead of

an individual focus. 536 U.S. at 288, 122 S. Ct. at 2278; see also Blessing , 520 U.S. at 335 , 343, 117 S. Ct. at 1357,32

1361 (holding that Title

IV-D of the Soc

ial Security A

ct did not support a righ

t enforceable pursuant to § 1983, in part because the statute mandated “substantial compliance” with federal regulations). As for enforcem

ent of §§ 675(5)(D)

and (E), it is tr

ue that the statutes d

o not contain “a rem

edial scheme s

ufficiently co

mprehensive to d

emonstrate congressional intent to preclude the remedy of suits under § 1983.” Blessing , 520 U.S. at 346, 117 S. Ct. at 1362 (internal marks omitted). In fact, the Adoption Act contains no mechanism by which ag grieved individu als can enforce its pro visions. Instead, the Sec

retary enfor

ces the Adoption Ac

t by requiring the

implement

ation of corrective action or withholding federal funds if the states fail to comply with an approved plan. See 42 U.S.C. § 1320a -2a. Federal r

egulations require t

hat the Secretary a

udit states to determ

ine whether they

are in complia

nce. 45 C.F.R.§§ 1355.32-33; 1355.36. This enforcement scheme is not like those that have been held by the Supreme Court to p reclude suits und er § 1983. See Gonzaga , 536 U.S. at 289-90, 122 S. Ct . at 2278-79 (crea tion of centralize

d review board for individual compla

ints and enforcem

ent of FERPA pr

ecluded private suit

s); Smith v. Robinson , 468 U.S. 992, 1010-12, 1 04 S. Ct. 3457, 3467-6 8 (1984), superseded in part by 20 U. S.C. § 1415 (review scheme in Education of the Handicapped Act permitting aggr

ieved individuals to invo ke “carefull

y tailored” local administrat ive33

procedures followed by federal judicial review precluded § 1983 suits because such suits would “re

nder superfluous m

ost of the detailed pr

ocedural protectio

ns outlined in the statute

”); Middlesex County Sewerage Auth. v. Nat’l Sea Clam mers Ass’n , 453 U.S. 1, 13 , 20, 101 S. Ct. 2 615, 2623, 2626-27 (1981 ) (“unusually elaborate enforcement provisions” of the Federal W

ater Pollution Contr

ol Act, which provided m

any enforcem

ent options, including n

oncompliance or

ders, civil suits, and crim

inal penalties and au

thorized private pe

rsons to initiate enf

orcement actions, foreclosed § 1983 suit). Nonetheless, in this case, the lack of an enforcement mechanism

by which an aggr

ieved individual can ob

tain review is but one of the factors w

e consider. The o

thers point in the other

direction and preve

nt us from say

ing that Congress spoke

with a clear voic e to unambiguously manifest its intent to create

enforceable right

s. One other, more specific argument o f the plaintiffs need s to be discussed. They contend that § 103(c) of the Adoption and Safe Families Act of 1997 (ASFA), Pub. L. No. 105- 89, 111 Stat. 2115, 2119, shows that Congr ess intended that the right to have parental rights termination proceedings initiated within the statutory period be an enforc eable right for chi ldren in foster car

e. Section 103(c)

provides:34

(1) NEW FOSTER CHILD REN.– In the case of a child who enters foster care . .. under the responsi bility of a Stat

e after the date o f the enactment of t

his Act–

(A) if the State

comes into com

pliance with the am

endments made by [section 103(a), which amended the Adoption Act] before the child has been in su

ch foster care f

or 15 of the most r

ecent 22 months, the Sta

te shall comply

with [42 U.S.C . § 675(5)(E)] with respect to the child when the child has been in such foster ca re for 15 of the most recent 22 months; and

(B) if the State comes into such compliance after the child has been in such foster care for 15 of the m ost recent 22 mon

ths, the State shall comply

with [42 U.S.C . § 675(5)(E)] with respect to the child not later than 3 m

onths after the end of

the first regular

session of the State legislature

that begins after su

ch date of enactm

ent.35

(2) CURRENT

FOSTER CHI

LDREN.– In t

he case of childre

n in foster care under

the responsibility

of the State on the da

te of the enactment of t

his Act, the State

shall–

***

(C) not later than 18 months after the end of such first regular [legislative] se ssion, comply with [42 U.S.C . § 675(5)(E)] with respect to all of suc

h children.

ASFA § 103(c). Section 103(c) does mandate that a

state must com

ply with 42 U.S.C. § 675(5)(E) with respect to all children in fo ster care. However, when

examined in light

of the structure of

both that section of the ASFA and the Ado

ption Act as a whole , § 103(c) is am biguous. Section 103(

c)(4) provides that the requirements of § 103(c) “shall be treated as State plan requirements imposed by [42 U.S.C. § 671(a)].” Treating § 103(c) as a plan requirement m

eans that the Secr

etary is to rev

iew compliance with the requirements of § 103(c) only f or substantial com

pliance, not for compliance in every individual case. See 42 U.S.C. § 1320a -2a(a)(1) (re

quiring Secretar

y to36

“promulgat

e regulations for the

review of such programs [under Parts B and E of Title IV] to de

termine whet

her such program

s are in substantial conform ity with – State plan require

ments under such

parts B and E.”)

(emphasis adde

d). The substantial conformity standard applicable to § 103(c) of the ASFA puts that provision on the sam

e footing as 42 U.S .C. §§ 675(5)(D) and (E), and it pr

events us from finding tha

t the statute ma

nifests an unamb

iguous congressional int

ent to create a right enf

orceable under § 1983

. Taken as a whole,

§§ 675(5)(D) and (E

) do not contain rights- creating language; they ha

ve an aggregate, n

ot individual, focus.Those provisions do not give plaintiffs an “

unambiguously

conferred right to

support a cause of a

ction brought under § 1983.” Gonzaga , 536 U.S. at 283 , 122 S. Ct. at 227 5. Congress has not spoken with a c

lear voice ma

nifesting an unam

biguous intent for those provisions of th e Adoption Act to pro vide a basis for priv ate enforcement. Id. at 280, 122 S. Ct. at

2273; Pennhurst , 451 U.S. at 17, 28 & n.21, 101 S. Ct. at 1540, 1545 & n.21. Count IV

of the complain

t, therefore, does not state a clai m upon which relief can

be granted. IV. YOUNGER

ABSTENTION Because some of the plaintiffs have standing to pursue the constitutional claims, we turn to the issue arising from the dist rict court’s dism

issal of Counts I9 The genealogy of the Luckey case is: Luckey

v. Harris , 860 F.2d 1012 (11th Cir. 1988) (“ Luck ey I ”); Luckey

v. Harris , 896 F.2d 479 (11th Cir. 1989) (“ Luckey II ”); Harris v. Luckey , 918 F.2d 888 (11th Cir. 1990) (“ Luckey III ”); Luckey v. Miller , 929 F.2d 618 (11th Cir. 1991) (“ Luckey IV ”); and Luckey v. Miller , 976 F.2d 673 (11th Cir. 1992) (“ Luck ey V ”).

37 through III under the abstention doctrine of Younger v. Harr is , 401 U.S. 37, 91 S. Ct. 746 (1971). We review an ab stention decisio n only for an abuse of dis cretion. Boyes v. Shell

Oil Prods. Co. , 199 F.3d 1260, 1265 (11th Cir. 2000). The Supreme

Court has said that f

ederal courts have

a “virtually

unflagging obligation . . . to exercise the jurisdiction given them.” Col. River Water Conservation Dist. v. United States , 424 U.S. 800, 817, 96 S. Ct. 1236, 1246 (1976). But “v

irtually” is not “

absolutely,” a

nd in exceptional cas es federal courts may and shoul

d withhold equitable r

elief to avoid inter

ference with sta

te proceedings. New Orleans Pu b. Serv., Inc.

v. Council of New

Orleans , 491 U.S. 350, 359, 109 S. Ct.2506, 2513 (1989). W hile non-abstention re

mains the rule,

the Younger exception is an im

portant one. It derives from “ the vital considerat

ion of comity between the state and national governments,” Luckey v. Miller , 976 F.2d 673, 676 (11th Cir. 1992) (“ Luckey V ”), 9 which Younger itself character

ized as a “sensitivity to the legit imate interests of both S tate and National Gov ernments,” 401 U.S. at 44, 9 1 S. Ct. at 750.38

Although Younger

concerned state criminal proceedings, its principles are “fully appl

icable to noncrim

inal judicial proc eedings when im portant state inter

ests are involved.” Middlese x County Eth ics Comm. v. Garde n State Bar As s’n , 457 U.S. 423, 432, 1 02 S. Ct. 2515, 2521 (1982). “Proceedings necessar y for the vindication of important state policies or for the functioning of the state judicial system . . . evidence the state’s substantial interest in the litigation.” Id. “Where vital state interests are involved, a federal court should abstain unless state law clearly bars the interposition of the constitutional claims.” Id. (citation omitted). As the Middlesex Court framed the issue, “T

he question . . . is

threefold: first,

do [the proceedings] constitute an ongoing sta te judicial proce

eding; second, do the proceedings impl

icate importa

nt state interests; and third, is there an adequate opportunity in the state proceedings to raise constitutional challenges.” Id. (emphasis om

itted); see also Old Republic Union I ns. Co. v. Tillis

Trucking Co. , 124 F.3d 1258, 126 1 (11th Cir. 1997). The parties agree, and so do we, that the continuing state dependency proceedings involving e

ach of the plaintiff

s are ongoing state pr

oceedings for the purposes of Middlesex analysis, see J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1291 (10th Cir. 1999) (

holding that continuing j urisdiction of juven ile court and six month periodic review hearings constituted an ongoing state judicial proceeding),39

although they disput

e whether this fed

eral proceeding,

if allowed to go for

ward, would interfere with those state proceedings. The parties also agree , and so do we, that important state interests are involved. The parties disagree about whether the state court depende

ncy proceedings provide the plaintiff s with an opportunity

to raise and v indicate t he federal c onstitut ional clai ms, if those cl aims are valid . We will start by a

ddressing whether t

he first Middlesex factor is properly read as requiring federal court interference with state proceedings and whether a federal court proceeding i n this case would in terfere with the depend ency proceedings. Then we will address wheth er the plaintiffs hav e an adequate state remedy.

A. THE FIRST MIDDLESEX FACTOR Both the plaintiffs a

nd the defendants have

presumed the f

irst Middlesex factor, in addition

to requiring an ongoing s tate proceeding, a

lso requires that the federal relief

the plaintiffs seek

would interfere w

ith those proceedings,

and that if it would not interfe

re with the state pr

oceedings, then the federal court has no basis for abstaining under Younger

. See generally , Middlesex , 457 U.S. at 431, 102 S. Ct. at 2521 (“ Younger v. Harr is . . . and its progeny espouse a strong federal policy against federal- court interferen ce with pending state

judicial proceed

ings absent extraordinary circumstances.”). Decisions from some other circuits support that view. See, e.g. , Green v. City of Tucson , 255 F.3d 1086, 1097 (9th Cir. 2001) (en40

banc) (“[T]he three part t est we deriv ed fro m Middlesex is a suitable guide fo r analysis only when the threshold condition for Younger abstention is present – that is, when the relief sought in federal court would in some manner directly ‘ interfere’ with ongoing state ju

dicial proceedings. ”); J.B. , 186 F.3d at 1291 (st ating first Middlesex factor as requiring abstention under Younger “when feder

al proceedings would . . . inter

fere with an ongoing

state judicial pr

oceeding”); FOCUS v. Allegheny County Court of Common Pleas , 75 F.3d 834, 843 (3d Cir. 1996) (stating first Middlesex factor as “there must be an ongoing state judicial proceeding to which the federal plaintiff is a party and with which the federal proceeding will int erfere”). We have not ye

t expressly held that the first Middlesex factor requires that the federal proce

eding interfere w

ith the state procee

ding, but implici

tly we seem

to have assumed as much. For example, in Old Republic , the plaintiff filed a declaratory j udgment action in federal court to a

void paying a state

court judgmen

t and to have its obligations under certain insurance policies determined by a federal court instead of a state court. 124 F.3d at 1259. In applying the Middlesex factors, we concluded that the first factor was met, not simply beca use there was an ongoing state proceed

ing, but because tha

t proceeding would ha

ve been effective

ly enjoined by a declaratory judgment i ssued by the federal cour t. Id. at 1261-62; see41

also For Your Eye s Alone, Inc. v.City of Colum bus , 281 F.3d 1209, 1216 n. 13 (11th Cir. 2002) (“ [T]he Suprem e Court has held that Younger abstention is sometimes applicable to restrain federal court interference with certain noncrim inal

state proce edin gs th at impl icate import ant st ate in teres ts.”) . Inde ed, th e Supr eme Court in Middlesex held that “[b] ecause respondent .. . had an opportunit y to raise and have timely decided by a competent state tribunal the f ederal issues invo lved . . . fede ral co urts s houl d abst ain fr om interfering with t he ongoing proceedings .” 457 U.S. at 437, 102 S. Ct. at 2524 (em phasis added) (cita

tion and internal quota

tion marks omitted). Therefore, we join our sister circuits in explicitly stating that an essential part of th

e first Middlesex factor in Younger abstention analy

sis is whether the federal proceeding will interfere with an ongoing state court proceeding. If th

ere is no interfer

ence, then abstent

ion is not required. In order to decide w

hether the federa

l proceeding would int

erfere with the state proceeding,

we look to the relief requested and the e ffect it would have

on the state proceedings

. See O’Shea v. Li ttleton , 414 U.S. 488, 499-502, 94 S. Ct. 669, 677-79 (1974); Luckey V , 976 F.2d at 679 ( Younger

and O’Shea

require “foc

us on the likely resul

t of an attempt to enforce an order of the nature sought he

re”). The relief sought need not directly interfere with an ongoing proceeding or terminate an ongoing proceeding in order for Younger abstention to be requi

red. In O’Shea , the42

Supreme Court

held that abstention w

as required wher

e an injunction woul

d have

“ indirectly

accomplish[ed

] the kind of inter

ference that Younger v. Harr is . . . and related cases sought to prevent.” Id. at 500, 94 S. Ct. at 678 (emphas is added). The plaintiffs in O’Shea

did not seek to enjoin directly any pending prosecutions but apparently di

d seek a federal court injunction aim ed at controlling or preventing the occur

rence of specific

events that might

take place in the co

urse of future state crim

inal trials. The

requested injuncti

on contemplated interruption of the state proceedin

gs in order for the f

ederal court to adj udicate complia nce by the defendants with the injunction, through what the Supreme Court called “an ongoing federal audit of state criminal proceedings.” Id. at 500, 94 S. Ct. at 678. The Court found that

the injunction “

would disrupt the norm

al course of proceedings in the sta

te courts via resor

t to the federal suit

for determina

tion of the claim ab initio .” Id. at 501, 94 S. Ct. at 679. We applied the reasoning of O’Shea in Luckey V . 976 F.2d at 678-79. In that case, the plaintiffs had a sserted a class ac

tion on behalf of “

all individuals who are or will in the f

uture be adversely

affected by t

he unconstitutional pra

ctices of the indigent defense system within Georgia.” Id. at 676. They s ought injunctive relief to reform the indigent defense system, including orders that the system provide speedy appointment of counsel and ensure that there would be counsel at43

all probable cause d

eterminations,

and would have requi

red monitoring th

e implementation of the injunc tion. Id. Adopting in full the e xplanation in the district court’s abstention order, w e concluded that the d

ecree requested by the plaintiffs inevit ably would interfere with s tate criminal proceeding s. Id. at 677. Luckey V did not involve a direc t termination of

ongoing state proceed

ings, and the plaintiffs did

not directly con

test any single c

riminal convict

ion or seek to restrain any in

dividual prosecution.Nevertheless, a s we observed, the

injunctive relief the plaintif

fs sought would have ha

d the effect of re straining every indigent prosecution unt il the systemic improvements they wanted were i n place. Id. We focused on the effect o f the requested relief o n the state proceedi ngs. See id. ; see also Joseph A. ex rel. Wolfe v. Ingram , 275 F.3d 1253, 1272 ( 10th Cir. 2002) (“ Younger

governs whenever t

he requested relief would interfere with the state court’s ability

to conduct proceedings, regardless of w hether the relief

targets the conduct of a procee

ding directly.”

) (citing News-Journal Corp. v. Foxman , 939 F.2d 1499, 1511 (11th C

ir. 1991) (affir

ming district co

urt’s decision to a

bstain under Younger

from hearing newspaper’s challenge to state court’s pre-trial order because an injunction would restrict the ability of the state court to impanel an impartial jury)).44

Whether the eff

ect of the federa

l court injunctive r

elief the plaintiff

s seek in this lawsuit will int

erfere with ongoi

ng state dependency

proceedings depends i

n part upon the nature a

nd extent of those proceedings . The state tria l level courts of Florida play a critically important role in dependency hear ings from the outset of a child’s case. A

fter the Departm

ent files a petition f

or dependency,

the court holds an adjudicatory

hearing as soon as pra

cticable. Fla.Stat. § 39.507. I f the facts alleged in the depende

ncy petition are

proven in the adjudicatory hearing a nd the child is determined to b e dependent, the stat e court conducts a di sposition hearin g. Id. §§ 39.507(7); 39.521( 1). The Depart ment must pr

epare a written case plan and a predisposition study and file these items with the court no later than 72 hours before the disposi tion hearing. Id. § 39.521(1)(a). The case plan is a d

ocument that “

follows the child fr

om the provision of voluntary services through any dependency, foster care, or term ination of parental rights proceeding or related activity or process.” Id. § 39.01(11). It must include, among other item

s, a description of the permanenc y goal for the ch

ild, a description of the type of hom

e or institution in whic

h the child is to be placed, a discussion of the safety and a

ppropriateness of th

e child’s placem

ent, the services

that the child needs and will rec eive, a descripti on of the visitation rig

hts of the parents, and a45

descripti on of the ef forts to be undertake n to maintai n the stab ility of the child’s education. Id. § 39.601(3)(a)-(i). The case plan must be approv ed by the court. Id. §§ 39.601(2), (3); 39 .603. It may be a

mended if all th

e parties agree a

nd the court approves,

or after a heari

ng it may be a

mended by the

court on its own m

otion or that of a par

ty, based on competent evidence that demonstrates the need fo r an amendment. Id. § 39.601(9)(f). I

f at the hearing on th

e case plan, whic

h occurs in conjunct

ion with the disposition hearing , the court determ ines that any of t

he elements re

quired in the plan are not pre sent, it can order the Departme

nt to amend the pl

an to include what is necessary. Id. § 39.603(2). The state court ha

s continuing jurisdic

tion over a dependenc

y case and reviews the child’s sta tus at least every six months

. Id. § 39.701(1)(a). Prior to the review hearing, the Department must furnish to the court a written report that includes, amon

g other items,

a description of the

placement of t

he child, its appropriateness, the safety of t he child, the num

ber of placem

ents, document

ation of the efforts of a

ll parties to com

ply with the cas e plan, the num ber of times the child’s educationa

l placement ha

s been changed, and c

opies of all med

ical and psychological records that support the t erms of the case plan. Id. § 39.701(6)(a). At the review hearing, the court considers the child’s situation, including whether46

there has b een complian ce with the c ase plan, t he approp riateness of the chil d’s current placem

ent, and whether the child is in a settin g that is family

-like and consistent with th e child’s best interes ts and special needs

. Id. § 39.701(7)(d), (g). No later than 12 m

onths after the date

that the child is plac ed in shelter care , the court must conduct a judi cial review to plan for t he child’s permanent placement. Id. § 39.701(8)(f). If the child is not re turned to his parents,

the case plan m

ust document steps the Department is taking to find an adoptive parent or other permanent living arrang ement for the child. Id. If the Departm

ent has not compli

ed with the case pla

n, the court ma

y find it in contempt. Id. § 39.701(8)(c). The court can also issue prot ective orders. Id. § 39.701(8)(g). A

protective order can require a perso n or agency to m

ake periodic reports to the court containing such information as the court prescribes. Id. The court can issue a protective order in support of, or as a condition to, any other order it may make. Id. The Tenth Circuit has addressed two cases similar to this one and held that abstention was required because the plaintiffs’ federal proceeding would interfere with the state cour

t proceedings by “

fundamentally

changing the dispositions and oversight of the children.” J.B. , 186 F.3d at 1291-92; see also Joseph A. , 275 F.3d 1253. In J.B. , the plaintiffs, mentally or

developmentall

y disabled childr

en in the10 Some of the provisions that the Tenth Circuit cited as “[p]articularly problematic” under

Younger included provisions governing assessment and treatment planning conferences for children entering the Department of Human Services’ custody and periodic review of the Department’s plans for those children. Joseph A. , 275 F.3d at 1267-68.

47 custody of New Mexico, alleged violations of the Constitution and federal statutes and brought suit against

several state off

icers in their off

icial capacities,

seeking declaratory and injunctive relief. The Tenth Circuit concluded that the relief requested would give

the federal distri

ct court an oversight

role over the entir

e state program for children with disabilities and would give it control over decisions then in the hands of the Ne

w Mexico Children’ s Court, such as whe ther to return a chi

ld to his parents or whet her to modify a treatment plan. J.B. , 186 F.3d at 1292. In the other similar case de cided by the Tenth Circuit , Joseph A. , the plaintiffs, who w

ere children in Ne

w Mexico’s custod

y because of ab

use or neglect, and the N

ew Mexico Depar

tment of Hum

an Services had ent

ered into a federal court consent decree. 275 F.3d at 1259. When the plaintiff children moved the court to hold the D epartment in contempt for all egedly violating t

he consent decree, the De

partment m

oved for dismissa

l based on Younger

abstention. The Tenth Circuit held that federal cour t enforcemen

t of certain provisi

ons of the decree would inter

fere with the ongoin

g juvenile procee

dings in the state cour

t. 10 Id. at 1272. It conclude

d that “federa

l court oversight of st

ate court operation

s,48

even if not fram

ed as direct revie

w of state court j udgments, m ay nevertheles s be problematic for Younger purposes,” citing O’Shea and Luckey V

. Id. at 1271. In this case, the pl

aintiffs are seek

ing relief that wou

ld interfere wit

h the ongoing state dependenc

y proceedings by

placing decisions that

are now in the hands of the state cou

rts under the direc

tion of the federal

district court. T

he declaratory j udgment and inju nction that they r

equest would interf

ere with the state proceedings in numerous ways. The federal and state courts could well differ, issuing conflicting orders about what is best for a particular plaintiff, such as whether a partic

ular placeme

nt is safe or appropr

iate or whether su

fficient efforts are being made

to find an adoptive fa

mily. Th e federal court r

elief might effectively r

equire an ame

ndment to a child’ s case plan that the s tate court would not have approved, a

nd state law gives it

s courts the responsibi

lity for decidin

g upon such an amendment. See Fla. Stat. § 39.601(9)(f). Even though any remedial order would run aga

inst the Departm

ent, state law m

akes it a duty of s

tate courts to decide whether to a

pprove a case plan,

and to monitor the

plan to ensure it is followed. Id. § 39.701(1), (7)-(8). The plaintiffs seek to have the district court appo int a p anel a nd gi ve it a utho rity to impleme nt a sys temwid e plan to rev amp and reform dependency proceedings in Florida, as well as the appointment of a permanent chil

dren’s advocate to oversee that plan. To say the lea

st, taking the11 The plaintiffs argue that the requested relief would not interfere because it is directe d solely at the

Department of Chi

ldren and Familie

s and not the state c

ourts. We previousl

y rejected essentially that same argument in Luck ey V , and we reject it again here. In that case, the plaintiffs sued the Governor of Georgia and all state court judges who presided over pr osecutions of indigent defendants. 976 F.3d 673, 678. The plaintiffs contended that the relief they requested against the Governor of Georgia would not interfere with state court procee dings because the onus to comply would be on the state executive and not the judiciary. Id. We observed that “a case cannot be decided in a vacuum, and the potential enforcement difficulties of any order reforming such

an integral asp

ect of a state cr

iminal justice proc

ess as the indige

nt defense system would be significant.” Id. at 679. This case r aises the same co

ncerns that Luck ey V did, and the federal court relief the plaintiffs seek would interfere with the ongoing state dependency hearings, eve

n if it were direc

ted against the D

epartment and sta

te officers, inst

ead of state cour

ts and judges. 49 responsibility fo

r a state’s child

dependency proceedings away f rom state cour

ts and putting it under fe

deral court control

constitutes “fe

deral court oversig

ht of state court operat

ions, even if not fr

amed as direc

t review of state

court judgmen

ts” that is problematic, calling for Younger abstention. Joseph A. , 275 F.3d at 1271. The relief that t

he plaintiffs seek w

ould interfere ext

ensively with the

ongoing state proceedings for each plaintiff. 11 The first Middlesex factor is satisfie d. B. THE THIRD MIDDLESEX FACTOR As for the other Middlesex factor that is disputed, the third one, the plaintiffs have the burden of establishing that the state proceedings do not provide an adequate remedy for their federal c laims. Butler v. Al a. Judicia l Inquiry Co mm’n , 261 F.3d 1154, 1159 (11t h Cir. 2001). “

Minimal respec

t for the state processes, of

course , preclu des any presumption that the state courts will not safeguard federal constitutional rights.” Middlesex , 457 U.S. at 431, 102 S. Ct. at 2521. A federal50

court “should ass

ume that state p

rocedures will af

ford an adequate re

medy, in th

e absence of unambiguous authority to the contrary.” Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 15, 107 S. Ct. 1519, 1528 (1987). Plaintiff

s, having failed to r

aise their federal claim

s in the ongoing state pr

oceedings involving them , must overcom

e this initial presumption by demonstrating that the s tate remedies are inadequat e. Butler , 261 F.3d at 1159. In determining whether the state remedies are adequate, as the district court correctly obse

rved, “[t] he relevant question is not whether the st ate courts can do all that Plaintiff

s wish they could,

but whether the ava

ilable remedi

es are sufficient

to meet Pennzoil ’s requirement that the remedy be a dequate.” The district court found that “the juvenil e court can act to prot ect children within its jurisdiction,” citing Dep’t of Children & Family Servs. v. I .C. , 742 So. 2d 401, 404 ( Fla. 4th DCA 1999) , and declined to hold that the remed ies available are

inadequate

. We agree with its conclu sion. A Florida state court can remedy in a dependency proceeding the harm s that a child in the defend ants’ custody and in tha t court’s jurisdiction might suffer. Although the Depar

tment has discr

etion regarding the i

dentification of a s

pecific placement for a child, State v. Brooke , 573 So. 2d 363, 368 (Fla. 1st DCA 1991), the court can order that siblings be placed together in foster care, one of the very51

things that some of the se plaintiffs seek. See Div. of Family Servs. v. S.R. , 328 So. 2d 270, 271 (Fla. 1st

DCA 1976); F.B. v. State , 319 So. 2d 77, 79 (Fla. 1st DCA 1975). The court can ord er that a child be place d in a therapeutic set ting, In the Interest o f L.W. , 615 So. 2d 834, 839 ( Fla. 4th DCA 1993) , and that a child be treated by a licensed heal th care professional or receive mental health trea tment. Fla. Stat. § 39.407(4). While the state court cannot compel the Departm ent to place children where space is not available, Dep’t of Children & Family Servs. v. M.H. , 830 So. 2d 849, 850 (Fl

a. 2d DCA 2002),

it can hold the Depa

rtment in conte

mpt for failing to com

ply with a child’ s case plan and can or der the Departm

ent to submit proposals for co mpliance. Fla. Stat. § 39. 701(8)(c); L.W. , 615 So. 2d at 837-38. Even though the court cannot prevent the Department from using unsafe or inappropriate fa

cilities for all ch

ildren, as to those c

hildren within its divi sion, the court can take protective measures. It can determine whether a f acility in which a child is located is safe, either by appointing a child’s representative to make an inquiry or itself

investigating condition

s at the facility . Fla. Stat. § 39.701(8)(g); I.C. , 742 So. 2d at 405 . If the investigat ion reveals that a c

hild within the jurisdiction of the

court (meanin

g within its division) is

in a dangerous facil

ity, the court can take act

ion, including finding t

he Departme

nt in contempt for

failing to comply with the child’s case pla n. See generally , Fla. Stat. §§ 39.601(3)(e);52

39.701(8)(c); I.C. , 742 So.2d at 404-06. Case plans alway

s call for an approp

riate placement, and an unsafe faci lity is not an appropri ate one. Fla. Stat. § 39.601(3)(e) (“

placement is in

tended to be safe, the least restrict ive and most family-l ike setting available

consistent with the be st interest and speci al needs of the child, and in as close proximity as possible to the child’s home”). Again, the Tenth Circuit’s decisi ons in similar ca

ses are helpful. I

n J.B. , that Court affirmed the district court’s decision to abstain, because the plaintiffs had failed to show clea

rly that they

could not have raised

their claims i

n their periodic review hearings i

n the New Mexico C

hildren’s Court.186 F.3d at 1292. The Court concluded that New

Mexico law “s eemingly gr ants the Children’ s Court wide power to determine the needs and claims of children during the periodic review proceeding.” Id. Additionally, because the Children’s Court was a court of general jurisdiction and had

full constitutional pow

ers under New Me

xico law, the plaintiffs had not pro

vided the “unam

biguous authority”

that Pennzoil

requires to prove that the stat e courts could not afford an adequate remedy. Id. at 1292-93. In Joseph A., the Tenth Circuit h eld that a certifi

ed class of plaintif

fs had not shown that the New

Mexico Children’ s Court offered ina dequate opportunities to raise federal constitutional and statut ory claims . 275 F.3d

at 1274. The plaint

iffs in that case argued tha

t the system

wide, structura

l relief they sought was not availabl e53

in the Children’s Cou rt and cited a New Mexico d ecision, In re T.B. , 913 P.2d 272 (N.M. App. 199 6), for that proposi tion. The Tenth C

ircuit was not convin

ced the T.B. decision established the Children’s Co urt was precluded f

rom granting systemic r

elief. 275 F.3d a

t 1274 n.6. Although in T.B. the Children’s Court had dismissed a motion brought under § 1983 to require the Department of Human Services “to s

ubmit an action pl

an for a system

for the proper lice

nsure and regulation of therapeutic foster care,” the New Mexico Court of Appeals had addressed the dismissal only in dicta, noting that the guardian ad litem who had filed the motion had failed to identif y which feder

al laws secured th

e rights the plaintiffs sough t to enforce. Id. The Court held that the plaintiffs had not provided unambiguous author ity that the relief they soug ht was unavailable. Id. at 1274. In the present case, each of these plaintiffs is represented by counsel. There are no procedural c

onstraints preventing

them from

presenting the claim

s in this case to the state co

urts in their depende

ncy review hearings. They have not provided unambiguo

us authority esta

blishing that the proce

dures available in st

ate court dependency

proceedings do not prov ide an adequate oppor

tunity for them

to raise their constitutional claims. At dependency review proceedings for each plaintiff in this case, the state court will consider whether the parties have complied with the child’s case plan, the appro priateness of that c

hild’s current f

acility54

placement, e

ducational placem

ent, and any spe

cial needs the child has. Fla. Stat. §§ 39.701(7)(d), (

g). If the Depa

rtment is not com

plying with the c ase plan for the child, the court can h old it in contempt. Id. §§ 39.701(8)(c), (g). If the plaintiff claims that he i s in an unsafe and inap propriate placem

ent, as we have a

lready noted, the court ca

n order the Depar

tment to com

ply with the cas e plan by putting him in a safe and appropria te place. Id. §§ 39.601(3)(e); 39. 701(8)(c). If t he plaintiff claim

s that he has been in f

oster care longer

than reasonably

necessary, t

he court can require the Department to document the steps that it is taking toward permanent placement. Id. § 39.701(f). If the plaintiff has not been placed with his siblings, the court can order them b e placed together or it can require visit

ation between them. See Div. of Family Servs. v. S.R. , 328 So. 2d 270, 271 ( Fla. 1st DCA 1976). The availability

of these forms

of relief and the e

xistence of the stat

e courts’ protective order a

nd contempt powe

rs mean that the

plaintiffs have not carried their burden of establishing that the ongoing state court proceedings do not provide an adequate opportunity to raise and vindicate each plaintiff child’s individual12 In LaShawn A. ex r el. Moore v. Kelly

, 990 F.2d 1319, 1323-24 (D.C. Cir. 1993), the Court held that the District of Columbia’s juvenile review proceedings did not provide the plaintiffs an adequate opportunity to raise their constitutional challenges. The plaintiffs in that case brought a class action on behalf of children who were in foster car e under the supervision of the District of Columbia Department of Human Services, alleging widespread federal constitutional and statutory violations. The D.C. Circuit affirmed the district court’s decision that Younger

abstention was not

warranted afte

r noting that the s

tate court had “e

xplicitly rejected the use of review hearings to adjudge claims requesting br oad-based injunctive relief based on federal law” in In re Brim , No. 489-80 (D.C. Super. Ct. July 20, 1984). In the Brim case the family court had denied a motion by two children for injunctive relief against the Department for its alleged mishandling of Social Security disability payments it had collected on the children’s behalf and noted that the appropriate forum for such issues is federal court. LaShawn A. , 990 F.2d at 1323. T he D.C. Circuit

therefore rejected Younger abstention becau

se “there was no pending judicial proceeding in the District of Columbia which could have served as an adequate forum for the class of children in this case to present its multifaceted request for broad-based injunctive relief based on the Constitution and on federal and local statutory law .” Id. In contrast to

the D.C. Circuit, ho

wever, in this cir

cuit’s Younger

decisions, we have not determined whether the broad relief the plaintiffs would prefer is available but instead whether the forum itself is adequate for addressing the claims and providing a sufficient remedy to the individual plaintiffs. In the Luckey case, the plainti

ffs sought broa

d-based injunctiv

e relief to reform Georgia’s indigent defense sy stem. Luck ey V , 976 F.2d at 676. Although we did not expressly address the third Middlesex factor in our opinion in that case, we did affirm the district court’s decision to abstain under Younger

. Id. at 679. The decision turned on the fact that the Luckey plaintiffs could have brought their challenges in their individual criminal trials, even though it is obvious that the broad-sweeping remedy they sought was unavailable there. “Equity need not int erve ne i mme dia tel y in p lai nti ffs ’ st ate tri als . Pl ain tif fs h ave a n ad equ ate rem edy at lawfor any ineffective assistance of counsel they may actually receive . Most important, they can present objections to sixth amendment violations at their state trials and in their state appeals.” Luckey v. Harris , 896 F.2d 479, 482 (11th Cir. 1989) (“ Luckey II ”) (Edmondson, J., dissenting).

55 claims. 12 Therefore, th

e third and final Middlesex factor is satisfied. The district court did not abuse its discretion in abstaining under the Younger doctrine.56 V. CONCLUSION Insofar as it rela

tes to Larissa C.and Leanne G., the district court’ s judgment is VACATED

and the case is REM

ANDED with i

nstructions to dism

iss that part of the amended com

plaint as moot. Insofar as it rela tes to Tanya M.and Elaine R., the district court’s judgment is VA CATED and the case is REMAND ED with instructions to dism

iss that part of the a

mended com

plaint for lack of st

anding. The district court’s judgment is also VACATED a s to those portions of the

complaint for which the each of the seven remaining plaintiffs do not have standing, as discussed in Part II, and th

e case is REMAN

DED with instruc

tions to dismiss thos e portions of the amended complaint for lack of standing. In all other respects, the district court’s judgment is AFFIRMED.