                                        PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                       ______


                     No. 15-3111
                       ______


              HARRY E. HAMILTON,
                          Appellant

                          v.

    NICOLE BROMLEY, Centre County Children
              and Youth Services;
 DIRECTOR OWNER OPERATOR YOUTH HAVEN;
  JUDGE BRADLEY P. LUNSFORD; JOHN DOES,
JANE DOES, Employees of Children and Youth Services,
           Youth Haven or ABC Corps
                    ______


    On Appeal from the United States District Court
        for the Middle District of Pennsylvania
             (M.D.Pa. No. 4-14-cv-02248)
     District Judge: Honorable Matthew W. Brann
                       ______
                 Argued on May 22, 2017
Before: HARDIMAN, ROTH and FISHER, Circuit Judges.


                   (Filed: July 10, 2017)


Jon G. Heintz       [ARGUED]
Jennifer L. Swize
Jones Day
51 Louisiana Avenue, N.W.
Washington, DC 20001
       Counsel for Harry E. Hamilton

James P. Johnson [ARGUED]
1901 East College Avenue
State College, PA 16801
       Counsel for Nicole Bromley

Steven F. Baicker-McKee
Babst Calland
Two Gateway Center, 6th Floor
603 Stanwix Street
Pittsburgh, PA 15222

Amy H. Marshall [ARGUED]
Babst Calland
330 Innovation Boulevard, Suite 302
State College, PA 16803
       Counsel for Director Owner Operator Youth Haven




                             2
Michael Daley       [ARGUED]
Supreme Court of Pennsylvania
Administrative Office of Pennsylvania Courts
1515 Market Street, Suite 1414
Philadelphia, PA 19102
       Counsel for Judge Bradley P. Lunsford

                            ______


                 OPINION OF THE COURT
                            ______



FISHER, Circuit Judge.
        It is a longstanding principle that the federal courts
“have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given.” Cohens
v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821). But in
Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court
recognized “a far-from-novel exception to this general rule,”
Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)
(internal quotation marks omitted), which it expanded in
subsequent decisions. Under the Court’s Younger
jurisprudence, federal courts are obligated to abstain from
exercising their jurisdiction where it would interfere with
“state criminal prosecutions,” certain “civil enforcement
proceedings,” or “civil proceedings involving certain orders
that are uniquely in furtherance of the state courts’ ability to
perform their judicial functions.” New Orleans Pub. Serv.,
Inc. v. Council of New Orleans, 491 U.S. 350, 368 (“NOPSI”)
(1989).




                               3
       In this case, Harry Hamilton seeks declaratory and
injunctive relief from an alleged conspiracy to deprive him of
contact with his son. But because he now has custody of his
son subject to pending state-court proceedings, the District
Court opined that this case could be moot and dismissed it on
Younger abstention grounds. Although the District Court
erred in dismissing this case under Younger before resolving
whether it is moot—a federal court can abstain from
exercising its jurisdiction only if it has jurisdiction to abstain
from—we find that Hamilton’s custody of his son has mooted
his case. We will accordingly affirm the District Court’s
dismissal on that alternate ground.
                               I
       Since 2004, Harry Hamilton and his ex-wife, Sherrilyn
Washington, have fought in state court for custody of their
son, S.H. This case originates from that dispute, centering on
a three-week period in 2014 when Hamilton had partial
custody of S.H. and S.H. accused Washington of abusing
him.
                             A
       On November 7, 2014, S.H. fled from Washington’s
home to Hamilton’s claiming that he had been abused by her.
Hamilton filed a motion in the Centre County Court of
Common Pleas for a temporary order giving him full custody
of S.H. And after S.H. stayed with Hamilton over the
weekend, Washington filed a petition for emergency custody,
alleging that S.H was with Hamilton without her consent.
      That same day, Common Pleas Judge Bradley
Lunsford granted Washington’s petition for emergency
custody and authorized the police to enforce his order.
Concurrently, S.H. was referred to Centre County’s Children
and Youth Services (“CYS”) due to S.H.’s abuse allegations.




                                4
CYS concluded that the alleged incident did not meet the
definition of child abuse. But it spoke with Washington—who
maintained that Hamilton was influencing S.H.—and S.H.—
who stated that he did not feel safe with Washington. CYS
continued its investigation, giving S.H. the option of moving
into a group home or remaining with his mother. S.H.
continued to tell CYS that he did not want to stay with her. So
CYS advised placing S.H. in a group home called Youth
Haven.
        On November 13, Washington arranged for S.H. to be
placed in Youth Haven. At the time, she objected to S.H.
being able to contact Hamilton, claiming that she had sole
custody of S.H. Over her objection, CYS recommended
allowing S.H. to contact Hamilton and Youth Haven agreed
to facilitate that contact. The night S.H. moved in, Hamilton
called S.H. The next day, he delivered clothes for S.H. And
during the week that followed, he regularly spoke with S.H.
on the phone. On November 16, Hamilton visited S.H. During
that visit, he noticed several conditions that concerned him,
including that S.H. was subject to search by staff,
disproportionately assigned chores, and placed in a ground
level room that lacked blinds. He shared his concerns with
Youth Haven, which told CYS that S.H. could not stay there
due to problems that had occurred during Hamilton’s visit. To
facilitate S.H.’s stay in Youth Haven, Nicole Bromley, a CYS
employee, informed Hamilton that he could no longer contact
S.H. at Youth Haven.
                             B
       On November 24, 2014, Hamilton filed a pro se suit in
federal district court against Nicole Bromley, CYS and
certain of its employees, Youth Haven and certain of its
employees, and Judge Lunsford. In his complaint, he sought




                              5
declaratory and injunctive relief, alleging that the Defendants
conspired to deprive him of his constitutional rights by
“placing S.H. in a shelter tantamount to confinement” and
“arbitrarily and capriciously terminating all paternal visits and
contact.” App. 17-18. Separately, Hamilton sought a
temporary restraining order, which was denied. The District
Court referred the case to a magistrate judge for pretrial
management and resolution of all dispositive motions.
       While Hamilton’s federal case progressed, custody
proceedings also continued in Pennsylvania state court. On
November 25, CYS updated Judge Lunsford on its abuse
investigation; on November 28, S.H. left Youth Haven; and
on December 2, Judge Lunsford recused himself. Eventually,
Clinton County Court of Common Pleas Judge Michael
Williamson took over the state case. And in April 2015, he
entered an order that vacated Judge Lunsford’s prior
emergency custody order, granted Hamilton physical custody
of S.H., and prohibited contact between S.H. and
Washington.
       On May 5, 2015, the magistrate judge in Hamilton’s
federal case learned that Hamilton regained physical custody
of S.H. and issued an order for Hamilton to show cause why
the case should not be dismissed on abstention or mootness
grounds. The magistrate judge subsequently issued a Report
and Recommendation (“R&R”) advising dismissal of
Hamilton’s complaint under Younger. In so recommending,
the magistrate judge noted that it was “unable to make . . . a
determination” as to whether Hamilton’s case was moot.
Hamilton v. Bromley, 2015 WL 4077591, at *5 n.2 (M.D. Pa.
July 2, 2015). The District Court adopted the R&R and




                               6
dismissed this case on July 2, 2015. This timely appeal
followed.1
                               II
        Although the constitutional elements of both our
jurisdiction and the District Court’s jurisdiction are at issue in
this case, the statutory elements are not. The District Court
had federal question jurisdiction under 28 U.S.C. § 1331. We
have appellate jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over a trial court’s ruling on
mootness, Weitzner v. Sanofi Pasteur, Inc., 819 F.3d 61, 63-
64 (3d Cir. 2016), and its determination of whether Younger
abstention is proper. Addiction Specialists, Inc. v. Twp. of
Hampton, 411 F.3d 399, 408 (3d Cir. 2005). Our review of
whether subject-matter jurisdiction exists is also plenary.
Weitzner, 819 F.3d at 63.
                               III
        On appeal, Hamilton argues that the District Court
erred in dismissing this case. He maintains that the District
Court improperly abstained under Younger and that his case
has not been mooted by the fact that he has regained full
custody of S.H. In responding to Hamilton’s argument, the
sequence in which we address mootness and abstention is
critical as “[m]ootness is a jurisdictional question” that
derives from Article III of the Constitution, North Carolina v.
Rice, 404 U.S. 244, 246 (1971), whereas Younger abstention
is not. Ohio Civil Rights Comm’n v. Dayton Christian Schs.,
Inc., 477 U.S. 619, 626 (1986) (“[Younger abstention] does

       1
         Pro bono counsel has represented Hamilton on
appeal. We express our gratitude to counsel for accepting this
matter pro bono and for the quality of counsel’s
representation.




                                7
not arise from lack of jurisdiction . . . but from strong policies
counseling against the exercise of such jurisdiction where
particular kinds of state proceedings have already been
commenced.”).
        Because federal courts “have an independent
obligation to determine whether subject-matter jurisdiction
exists,” Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006),
and because the “statutory and (especially) constitutional
elements of jurisdiction are an essential ingredient of
separation and equilibration of powers,” Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 101 (1998), “Article III
jurisdiction is always an antecedent question.” Id. Thus a
court cannot abstain under Younger unless it concludes that it
has Article III jurisdiction to abstain from. See, e.g., Juidice v.
Vail, 430 U.S. 327, 331 (1977) (noting that the Court was
“first obliged to examine the standing of appellees, as a
matter of the case-or-controversy requirement associated with
Art. III” before addressing Younger); Pennzoil Co. v. Texaco,
Inc., 481 U.S. 1, 23 (1987) (Marshall, J., concurring) (“There
is no occasion to decide if abstention would have been proper
unless the District Court had jurisdiction.”); Sansotta v. Town
of Nags Head, 724 F.3d 533, 548 (4th Cir. 2013) (“[A]
district court can abstain only when it has . . . jurisdiction.”).
       In this case, the District Court dismissed Hamilton’s
case under Younger before concluding whether it is moot.
And in failing to consider if it had Article III jurisdiction first,
the District Court erred. See Steel Co., 523 U.S. at 94-95
(“The requirement that jurisdiction be established as a
threshold matter springs from the nature and limits of the
judicial power of the United States and is . . . without
exception.” (brackets and internal quotation marks omitted)).
To avoid that same error, we will analyze mootness first even




                                 8
though the District Court dismissed this case on Younger
abstention grounds.
                                A
        Though federal courts have a “virtually unflagging
obligation . . . to exercise the jurisdiction given them,”
Colorado River Water Conservation Dist. v. United States,
424 U.S. 800, 817 (1976), Article III of the Constitution
limits the federal judiciary’s authority to exercise its “judicial
Power” to resolving “Cases” and “Controversies.” U.S.
Const. Art. III, § 2. This case-or-controversy limitation is
“essential to our system of separated powers,” Toll Bros., Inc.
v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 2009), by
“ensuring that the Federal Judiciary respects the proper—and
properly limited—role of the courts in a democratic society.”
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)
(internal quotation marks omitted). And we enforce it
“through the several justiciability doctrines that cluster about
Article III,” including “standing, ripeness, mootness, the
political-question doctrine, and the prohibition on advisory
opinions.” Toll Bros., 555 F.3d at 137 (internal quotation
marks omitted).
       As the parties agree, the fact that Hamilton has
regained custody of S.H. implicates mootness, a doctrine that
“ensures that the litigant’s interest in the outcome continues
to exist throughout the life of the lawsuit,” Freedom from
Religion Found. Inc. v. New Kensington Arnold Sch. Dist.,
832 F.3d 469, 476 (3d Cir. 2016) (internal quotation marks
omitted), and is “concerned with the court’s ability to grant
effective relief.” Cty. of Morris v. Nationalist Movement, 273
F.3d 527, 533 (3d Cir. 2001). Under our precedent, a case is
moot if “developments occur during the course of
adjudication that eliminate a plaintiff’s personal stake in the




                                9
outcome of a suit or prevent a court from being able to grant
the requested relief.” Blanciak v. Allegheny Ludlum Corp., 77
F.3d 690, 698-99 (3d Cir. 1996).
        Like most rules, mootness has exceptions and “when a
litigant is unable to meet the requirements of the general
mootness inquiry, the litigant may invoke an exception to the
mootness doctrine to gain judicial review.” Chong v. Dist.
Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001). One exception is
when “secondary or ‘collateral’ injuries survive after
resolution of the primary injury”; another is when “the
defendant voluntarily ceases an allegedly illegal practice but
is free to resume it at any time.” Id. Other exceptions to
mootness include when “the issue is deemed a wrong capable
of repetition yet evading review” or the case is “a properly
certified class action suit.” Id.
        Because the illegal conduct of which Hamilton
complains—being separated from his son and deprived of
contact with him—is no longer occurring, he must invoke an
exception to mootness to gain judicial review. He has not
requested damages and because equitable relief “is available
only so long as there is an actual controversy among the
parties,” Jersey Cent. Power & Light Co. v. New Jersey, 772
F.2d 35, 40 (3d Cir. 1985), and because “[p]ast exposure to
illegal conduct does not in itself show a present case or
controversy regarding [equitable] relief . . . if unaccompanied
by any continuing, present adverse effects,” O’Shea v.
Littleton, 414 U.S. 488, 495-96 (1974), neither a
declaratory judgment nor an injunction is available here.
        Relying on our decision in Winston by Winston v.
Children & Youth Servs. of Delaware Cty., 948 F.2d 1380 (3d
Cir. 1991), Hamilton claims his past injury is capable of
repetition yet evading review because there is a reasonable




                              10
expectation that he “will again be subject to the same
unlawful limitations on his parental rights.” Hamilton Br. 37.
We disagree. The capable-of-repetition doctrine is a narrow
exception that “applies only in exceptional situations” where
“(1) the challenged action is in its duration too short to be
fully litigated prior to cessation or expiration, and (2) there is
a reasonable expectation that the same complaining party will
be subject to the same action again.” Spencer v. Kemna, 523
U.S. 1, 17 (1998) (brackets and internal quotation marks
omitted). And though we agree with Hamilton that the fluid
nature of custody proceedings can make situations like his too
short litigate before a change in circumstances, we cannot
find a “reasonable expectation” or “demonstrated probability”
that the “same controversy will recur” here. Murphy v. Hunt,
455 U.S. 478, 482 (1982).
       First, circumstances have changed dramatically since
this case was filed: a new judge is presiding over the divorce-
and-custody proceedings; Hamilton has had physical custody
of S.H. for over two years; S.H. is approximately sixteen
years old; and the most recent custody order prohibits contact
between S.H. and Washington unless S.H. desires to speak
with her. Any one of these changes could have made a
significant difference when CYS recommended S.H.’s
placement at Youth Haven—particularly the shift in custody
from Washington, who was alleged to have abused S.H., to
Hamilton, who was not—making it unlikely that Hamilton
“will once again be faced with the restrictions . . . that are the
subject of this lawsuit.” Winston, 948 F.2d at 1384.
       Second, the “conduct complained of was . . .
necessarily predicated on the unique features of [a] particular
series of [events]” and “[n]othing on this record apprises us of
the likelihood of a similar chain of events.” New Jersey Tpk.
Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 33 (3d Cir.




                               11
1985). Before Hamilton is subject to the same restrictions on
his parental rights that were imposed in 2014, there would
need to be (1) some strife between child and father or father
and mother (2) that CYS got involved in. And at that point,
CYS would (3) need to encourage and convince S.H. to stay
in a group home while mediating that dispute and (4) the
shelter would have to deprive Hamilton of access to S.H. On
this record, it is too speculative that any one of those actions
would occur—let alone all four—and more than speculation
is required to invoke the capable-of-repetition exception. See
id. (“‘Capable of repetition’ is not a synonym for ‘mere
speculation;’ it is a substantive term on which the moving
party must provide a reasonable quantity of proof—perhaps
even by the preponderance of the evidence.”).
        Finally, our decision in Winston does not suggest
otherwise. In that case, a child was placed in CYS’s
protective custody after his father was arrested on a drug
charge and his mother was transported to the hospital for
intoxication. 948 F.2d at 1382. CYS limited the parents’
visitation rights during that protective custody and the parents
sued to challenge those limitations as unconstitutional. Id.
When the father regained custody, CYS moved to dismiss the
complaint for mootness. On appeal, we found that the dispute
was capable of repetition yet evading review noting that:
       [W]e cannot share the dissent’s optimism that there is
       no reasonable expectation that the family unit,
       composed as it is of two parents who have a history of
       drug use, will not experience another breakdown
       requiring CYS to retake temporary custody of Samuel
       Jr. In fact, as appellants have noted, legal custody was
       returned to the parents only subject to conditions
       which, if not complied with, could subject them to a
       repeat of the situation which precipitated this lawsuit.




                              12
Id. at 1384.
        Unlike in Winston, Hamilton’s custody is not subject
to monitoring conditions. Unlike in Winston, where both
parents had a history of drug abuse, only one parent has been
alleged to have abused S.H. and that parent lacks custody of
him. And unlike in Winston, Hamilton is not challenging a
specific state policy that would apply to any future custody
dispute. These distinctions are critical—in Winston, all that
was required for the parents to be subject to “a repeat of the
situation which precipitated th[eir] lawsuit,” id., was for one
of them to use drugs again, whereas the same limitations on
Hamilton’s parental rights could not recur absent the chain of
events discussed above and despite the shift in custody to a
parent with no history of abusing S.H. Consequently, while
there is a “theoretical possibility” that S.H. will again be
placed in a group home where Hamilton cannot contact him,
that possibility is not enough to invoke the capable-of-
repetition exception. Murphy, 455 U.S. at 482. Because the
case is moot and no mootness exception applies, it is not
justiciable and the District Court should have dismissed it on
that basis.
                              B2
       Since we lack Article III jurisdiction over this case, we
cannot resolve whether Younger abstention is appropriate
because a “judicial decision rendered in the absence of a case
or controversy is advisory, and federal courts lack power to
render advisory opinions.” United States v. Thomas, 713 F.3d
165, 168 (3d Cir. 2013); see also Ex parte McCardle, 74 U.S.
(7 Wall.) 506, 514 (1868) (“Jurisdiction is power to declare

       2
        Judge Hardiman joins the opinion except as to
Section III.B.




                              13
the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause.”). But because the opinion below
contains an uncontested error, we believe the District Court’s
Younger analysis warrants comment.
        In dismissing this case on Younger grounds, the
District Court relied on a non-precedential opinion of this
Court to hold that “[u]nder Younger, abstention is proper if:
(1) there is an ongoing state proceeding; (2) the proceeding
implicates an important state interest; and (3) the state
proceeding affords the plaintiff an adequate opportunity to
raise federal claims.” Hamilton, 2015 WL 4077591, at *4
(citing Dixon v. Kuhn, 257 F. App’x 553, 555 (3d Cir. 2007)).
Notably, it did not consider the Supreme Court’s decision in
Sprint, nor did it consider our recent precedential opinions
examining Sprint. See, e.g., Gonzalez v. Waterfront Comm’n
of New York Harbor, 755 F.3d 176 (3d Cir. 2014); ACRA
Turf Club, LLC v. Zanzuccki, 748 F.3d 127 (3d Cir. 2014).
        These three factors the District Court relied on in
justifying abstention originate in Middlesex Cty. Ethics
Comm. v. Garden State Bar Ass’n, 457 U.S. 423 (1982). But
the Supreme Court explained in Sprint that the “three
Middlesex conditions . . . [a]re not dispositive,” 134 S. Ct. at
593, because “Younger extends” only to “the three
‘exceptional circumstances’ identified in NOPSI,” id. at 594,
including: (1) “ongoing state criminal prosecutions”; (2)
“certain civil enforcement proceedings”; and (3) “pending
civil proceedings involving certain orders . . . uniquely in the
furtherance of the state courts’ ability to perform their judicial
functions.” Id. at 591 (internal quotation marks omitted). In
considering only the three Middlesex factors, the District
Court committed the same error that the Supreme Court
faulted the Eighth Circuit with making in Sprint. And while




                               14
that error may be understandable—as we noted in ACRA Turf
Club, “most courts strictly and mechanically applied the
three-part test from Middlesex” between NOPSI and Sprint,
748 F.3d at 135—Sprint makes clear that the Middlesex
factors are only relevant in assessing whether Younger
abstention is proper after a court identifies one of the three
categories of proceedings identified in NOPSI. By not
applying the correct test for Younger abstention, the District
Court erred. And this was an error irrespective of whether
Younger abstention is appropriate here—an issue we cannot
opine on.
                               IV
       For the reasons set forth above, we will affirm the
District Court’s dismissal of this case on the alternate ground
that Hamilton’s claims are moot.




                              15
