                                 ___________

                                 No. 96-3029
                                 ___________

County of St. Charles,              *
Missouri,                           *
                                    *
           Appellant,               *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Eastern District of Missouri.
Missouri Family Health Council,     *
                                    *
           Appellee.                *
                               ___________

                         Submitted:   January 16, 1997

                           Filed: February 27, 1997
                                  ___________

Before BOWMAN and MURPHY, Circuit Judges, and KYLE,1 District        Judge.
                               ___________

MURPHY, Circuit Judge.


     This is a declaratory judgment action brought by the County of St.
Charles, Missouri, to clarify its eligibility for funding under Title X,
42 U.S.C. § 300.    The County sought a declaration in state court that the
Missouri Family Health Council (Council) could not reject its application
for funding on the basis of its parental consent policy.        The Council
removed the case to federal court and moved to dismiss for failure to state
a claim.     The district court2 denied the County's motion to remand after
determining there was federal jurisdiction and then granted the Council's
motion to dismiss.    The County appeals, and we affirm.




     1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota, sitting by designation.
         2
       The Honorable Stephen N. Limbaugh, United States District
Judge for the Eastern District of Missouri.
     Title X provides federal funds for family planning services to state
and nonprofit organizations.    42 U.S.C. § 300.   The Council is a not-for-
profit organization which receives Title X funds and exists almost entirely
for the purpose of administering Title X grants to subgrantees in Missouri.
As a condition for receiving these funds, the Council agrees to abide by
the related regulations to Title X.    Similar entities which award Title X
funding to subgrantees are used in each state.


     The County had received Title X grant money through the Council until
1995, but in the application it submitted that year it notified the Council
of a new policy it was enforcing.   The policy required parental consent for
adolescents to receive prescriptive medications or intrusive medical
procedures, including some forms of contraceptives.      The Council informed
the County that its application would not be considered because the
parental consent   policy disqualified it from receiving Title X funds.


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


     The County argues that federal jurisdiction is lacking because its
petition only requires interpretation of the Missouri statute




                                      -2-
which prompted its parental consent policy.     The Council responds that the
action was properly removed to federal court because the County asserted
in its petition that it qualified for Title X funds and qualifications for
those funds are determined by 42 U.S.C. § 300.      The denial of a motion to
remand to state court is reviewed de novo.      Gaming Corp. of Am. v. Dorsey
& Whitney, 88 F.3d 536, 542 (8th Cir. 1996).


     Only actions which originally could have been filed in federal court
may be removed there.    28 U.S.C. § 1441(a).   When jurisdiction is based on
a federal question, the well-pleaded complaint rule requires that the
"federal question is presented on the face of the plaintiff's properly
pleaded complaint."      Caterpillar, Inc. v. Williams, 482 U.S. 386, 392
(1987).     A district court does not have discretion to remand a case that
states a federal question.       Gaming Corp., 88 F.3d at 542 (citations
omitted).


     In its petition for declaratory judgment, the County stated that it


              prays this court to declare that the policy
              regarding informed consent is consistent with state
              law, specifically §431.061 R.S.Mo., and that
              therefore, the policy is not a basis upon which the
              Council may refuse to consider the [C]ounty's
              application for a Title X grant . . . .


The County attached to its petition a copy of the Council's letter
rejecting its application for Title X funds because the parental consent
policy violated Title X regulations and guidelines.         The face of the
County's petition contains the federal question of whether the parental
consent policy can be a basis for denying the County's application for
Title X funds.    The relief which the County seeks is a declaration that it
is not ineligible to receive federal funds.         The action arises under
federal law, and the




                                     -3-
district court therefore properly declined to remand the case.


      The County also argues that the district court erred in dismissing
the case for failure to state a claim because its parental consent policy
is required by state law and therefore should not disqualify it from
receiving Title X funds.3      The Council responds that the motion to dismiss
was properly granted because Title X regulations and guidelines prohibit
the recipient of Title X funds from requiring parental consent for minors.


      A motion to dismiss for failure to state a claim should be granted
only if it is clear that no relief could be granted under any set of facts,
construing the allegations in the complaint favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (quoting Conley v. Gibson, 355
U.S. 41, 45-46 (1957)).     Whether a complaint states a claim is a question
of law which is reviewed de novo.          Concerned Citizens of Neb. v. United
States Nuclear Regulatory Comm'n, 970 F.2d 421, 425 (8th Cir. 1992).


      Title   X   explicitly    provides   that   family   planning   services    for
adolescents are to be provided by the programs which it funds.           42 U.S.C.
§   300(a).   The   statute     states   that   family   participation   should    be
encouraged only "to the extent practical," and the legislative history
indicates that Congress did not desire mandatory parental notification or
parental consent for a minor to receive Title X services.                  Planned
Parenthood Fed. of Am. v. Heckler, 712 F.2d 650, 656-61 (D.C. Cir. 1983)
(examining whether




       3
      In its brief and at oral argument, the County raised a new
argument stating it receives two streams of funding for its clinics
and Title X funds would not be used for procedures which require
parental consent. No facts or information concerning this funding
argument were contained in its petition or in any accompanying
materials, and the County did not move to have any such material
considered by the district court.      Only facts alleged in the
complaint and materials attached to it are considered on a motion
to dismiss. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986).

                                         -4-
legislative history of Title X permits requirement of parental notification
or consent).     The related regulations thus require that family planning
services must be provided without regard to age, 42 C.F.R. § 59.5(a)(4),
and circuits which have considered the issue have uniformly found that
parental consent cannot be required before a minor receives Title X
services.   Doe v. Utah Dep't of Health, 776 F.2d 253, 255-56 (10th Cir.)
(enjoining the enforcement of state law requiring parental consent for
minors to receive Title X services); New York v. Heckler, 719 F.2d 1191,
1197 (2d Cir. 1983) (invalidating regulations requiring parental notice and
requiring recipients of Title X funds to abide by state law on parental
consent); Planned Parenthood Fed. of Am., 712 F.2d 650, 665 (same).


     In its petition, the County set forth the Missouri law which it
believed required parental consent, its policy on parental consent, and its
application to the Council informing it about the policy. The County
alleged that because its parental consent policy conformed with state law,
the Council could not deny its application for Title X funds on the basis
of the policy.     All the circuits which have considered the validity of
parental consent requirements for adolescents to receive Title X federal
services have found them prohibited by statute, regardless of whether they
are based on state law.   See, e.g., Doe v. Utah Dep't of Health, 776 F.2d
at 255-56; Planned Parenthood Fed. of Am., 712 F.2d 650, 665.   Looking at
the allegations in the petition in the most favorable light, it does not
appear that the County could prove facts entitling it to relief.       The
district court therefore did not err in granting the Council's motion to
dismiss.


     The judgment of the district court is affirmed.




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A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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