Whether the procedures used for preliminary hearings in child removal cases violate due process rights of parents

QUESTIONS PRESENTED This case challenged the procedures that Pennington County, South Dakota officials used for preliminary hearings held within 48 hours of removing American Indian children from their families for alleged parental abuse and neglect. The district court found that during those hearings, parents were provided no notice of why their children were being removed, were not allowed to testify or to confront the welfare worker whose affidavit was the basis for the state action, and were not given a decision based on evidence presented at the hearing. The proceedings led to the removal of 823 Indian children over a four-year period, and the state won 100% of the preliminary hearings. At no point during subsequent hearings in the abuse and _ neglect proceedings did parents have any opportunity to challenge the procedural adequacy of the initial hearing—even though that hearing led to loss of custody for sixty days. The district court found that the preliminary hearing procedures blatantly violated elemental due process requirements. The court of appeals reversed, holding that the district court should have abstained from hearing plaintiffs’ claims under Younger v. Harris, 401 U.S. 37 (1971). The questions presented are: 1. Whether the Eighth Circuit erred in holding, in conflict with decisions of this Court and three other courts of appeals, that the possibility of filing a separate mandamus action was in and of itself “sufficient” to provide an “adequate opportunity” requiring Younger abstention, where plaintiffs had no opportunity to challenge the constitutionality of the preliminary hearing i procedure in the course of the state’s abuse and neglect proceedings? 2. Whether the court of appeals erred in holding, in conflict with three courts of appeals, that the “extraordinary circumstances” exception to Younger abstention applies only to flagrantly and patently unconstitutional statutes, but not to flagrantly and patently unconstitutional policies, and in concluding that separating children from their parents for sixty days with no notice or opportunity to be heard inflicted no irreparable harm?