Morrow v. Winslow, 95-5182

• Citation: 94 F.3d 1386
• Decision Date: 23 August 1996
• Docket Number: No. 95-5182,95-5182
• Parties: Robert Lloyd MORROW, Plaintiff-Appellant, v. The Honorable David WINSLOW, John Doe, and Jane Doe, Defendants-Appellees. Cherokee Nation and Carol Grant, Intervenors.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1386

94 F.3d 1386

Robert Lloyd MORROW, Plaintiff-Appellant, v. The Honorable David WINSLOW, John Doe, and Jane Doe,

Defendants-Appellees.

Cherokee Nation and Carol Grant, Intervenors.

No. 95-5182.

United States Court of Appeals, Tenth Circuit.

Aug. 23, 1996.

Chadwick Smith, Tulsa, Oklahoma, for Plaintiff-Appellant.

Michael E. Yeksavich, Tulsa, Oklahoma, for Defendants-Appellees.

Luke Goodwin, Tulsa, Oklahoma, for Intervenor Carol Grant.

Before SEYMOUR, Chief Judge, HOLLOWAY and BRISCOE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-Appellant Robert Lloyd Morrow appeals from the district court's order denying him injunctive and declaratory relief on his complaint challenging Oklahoma adoption proceedings concerning his Indian child as violative of his rights under the Fourteenth Amendment Due Process Clause and the federal Indian Child Welfare Act. Morrow claimed there was subject matter jurisdiction below pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3), and 42 U.S.C. § 1983, and the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. (ICWA). ¹

I

Plaintiff-Appellant Morrow is an "Indian" as defined by 25 U.S.C. § 1903(3) (a citizen of the Cherokee Nation) and the biological father of Credence Monroe Grant born September 29, 1994 to Carol Grant, a non-Indian and Morrow's former wife. The boy Credence is an "Indian Child" as defined by 25 U.S.C. § 1903(4) of the ICWA. Defendant-Appellee David Winslow is an Oklahoma state district judge in Tulsa County who presided over adoption proceedings regarding Credence and Defendant-Appellees John and Jane Doe, the prospective adoptive parents.

During the first trimester of her pregnancy (winter 1994) Carol Grant decided she wanted to place her unborn child for adoption. She desired an open adoption where she and her 15-year-old son could maintain contact with the child. Carol contacted a Cherokee Nation adoption specialist and a private adoption agency for help in the adoption process. Through these services Carol decided, prior to the birth of Credence, to place her child with the Does.

In February 1994 and again in June 1994, Morrow was contacted regarding the adoption. He told the adoption agency representative that while he did not favor the adoption, he would not fight it. Credence was born on September 29, 1994 and was placed with the Does. On October 12, 1994, the Does filed their petition to adopt Credence in the Oklahoma state district court in Tulsa County. This petition was accompanied by an application for a determination that Robert Morrow's consent to the adoption was not necessary.

Also on October 12 Carol Grant gave her consent to the adoption of Credence by the Does before defendant Judge Winslow. Plaintiff Morrow never executed a written consent to the child's placement. Judge Winslow set a hearing for November 4, 1994 to determine whether plaintiff's consent was necessary for the adoption. At that hearing Morrow for the first time objected to the adoption and termination of his parental rights. On November 15, 1994, Morrow filed a counterclaim in the state proceeding, requesting custody of Credence. On November 15, 1994, Morrow also filed a motion to dismiss the Does' adoption petition on the grounds of failure to comply with the federal ICWA and the Oklahoma Indian Child Welfare Act. I App. at 91, 95..

On December 9, 1994, Morrow filed a motion to transfer the adoption proceedings to the Cherokee Nation District Court in Tahlequah. On January 9, 1995, the Cherokee Nation filed a motion to intervene, which was granted. Carol Grant objected to the transfer to the Cherokee tribal court, and the state court overruled the motion to transfer on January 25, 1995.

The original trial date in the state adoption case, December 16, 1994, was continued numerous times, but finally reset for May 17, 1995. However, on May 11, 1995, Morrow filed this suit in the United States District Court for the Northern District of Oklahoma, and the May 17 trial date for the state adoption case was stayed that day by the state judge, pending the federal proceedings.

In his complaint in federal court, Morrow named as defendants Judge Winslow and John and Jane Doe, the prospective adoptive parents. Morrow sought a temporary and permanent injunction enjoining the defendants "from continuing their policy, practice, custom or usage of non-compliance with the Indian Child Welfare Act...." II App. at 306 (Complaint, p 7). In addition he sought a declaratory judgment on these questions:

Whether the Defendants have violated due process of law by the Fifth and Fourteenth Amendments of the U.S. Constitution by failing to comply with the ICWA, by denying Plaintiff custody or visitation with his minor child, and by denying Plaintiff a timely hearing to protect his parental interest and bonding with the minor child.

Whether the provisions of the ICWA supersede Oklahoma law regarding rights of unwed fathers pursuant to 10 O.S.A. § 60.6(3).

Id. at p 8.

After answers were filed, an evidentiary hearing was held in federal court on June 30, 1995, on which date a partial stipulation of facts was filed. On July 31, 1995, the federal district judge entered an order denying all relief to plaintiff Morrow, and granting judgment in favor of defendants John and Jane Doe and Judge Winslow and against Morrow and the Cherokee Nation. In that ruling, the district judge concluded "that under the ICWA and the OICWA Carol Grant had standing to and did timely object to the transfer of this case to the tribal court." Judgment of July 31, 1995 at 4, p 12.

The federal judge's order addressed the merits of plaintiff Morrow's constitutional claims and held that "there has been no showing that the state court proceeding, and the Honorable David Winslow presiding, has and/or have denied Plaintiff Robert Lloyd Morrow and the Plaintiff/Intervenor, Cherokee Nation, due process in the adoption matter of minor child Credence Monroe Grant, nor is there any showing that such a denial of due process in [sic] imminent." The court therefore denied all relief. Morrow appeals from this judgment. The Cherokee Nation does not appeal.

After the instant appeal was commenced, the state adoption court considered the matter of whether Morrow's consent to the adoption was necessary. A trial on this issue was held on October 16, 1995. On December 1, 1995, the state adoption judge entered an order discussing Morrow's contentions and concluding that his consent was not necessary for the adoption. After submission of this appeal on the briefs in March 1996, on June 27, 1996, on our own motion, we ordered the parties to submit supplemental memoranda advising us of the current status of the state adoption proceeding and addressing two questions: (1) if an adoption order has been entered in that proceeding, what are the positions of the parties as to whether dismissal of this federal suit should be ordered under the doctrine of Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), and Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); and (2) if the state adoption proceeding is still pending, whether we should vacate and remand, directing abstention by the federal district court under the rationale of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979).

The supplemental memoranda of the parties were filed in July 1996 and we are advised that following the state adoption judge's December 1, 1995 order finding that plaintiff-appellant Morrow's consent was not necessary for the adoption, the second stage of the state adoption proceeding was completed on December 16, 1995. The appellees' memorandum says that the state judge resolved the second stage of the adoption against Morrow, determining that the adoption was in the best interest of the child and should be finalized on December 13, 1995; that no written memorialization of this ruling has been filed; and that there is a pending motion to settle the terms of the order so that the actual decree of adoption had not been entered when appellees' supplemental memorandum was filed July 17, 1996. Plaintiff-Appellant Morrow's supplemental memorandum filed July 19, 1996, essentially agrees on the status of the state adoption case, but adds that it was Morrow who on April 19, 1996 filed the motion to settle the journal entry of judgment and that a hearing on this matter was set for July 19, 1996. The clerk of the state district court informs us that no judgment has been entered as of August 12, 1996.

We have considered the parties' memoranda and their previously submitted briefs. For reasons that follow, we conclude that we should direct abstention. Because we conclude that abstention is appropriate we do not reach the Rooker-Feldman question. See Owens-Corning Fiberglas Corp. v. Moran, 959 F.2d 634, 635 (7th Cir.1992) (rather than attempting "a problematic application of the Rooker-Feldman doctrine," the court applied abstention principles and refused to issue an injunction to enjoin pending state litigation on the grounds that principles of federalism and comity would be upset).

II

A

A threshold question we face is whether we may raise the abstention issue ourselves since it was not raised below. Of course, abstention has now been addressed in the parties' supplemental memoranda filed in July 1996 as our order of June 27, 1996 directed. Plaintiff-Appellant Morrow's supplemental memorandum argues that abstention should not be applied because the state adoption case here is private litigation, with neither the State nor any State agencies being parties. The Defendants-Appellees' supplemental memorandum says that if the case is not to be dismissed under the Rooker principle, which appellees first...