                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2541
                         ___________________________

  Katelyn Webb, as guardian and next friend of K.S. and D.S. and on behalf of
Herself and all Others Similarly Situated; Jerimey Lay, as guardian and next friend
   of R.L. and C.L.; Tabitha Lay, as guardian and next friend of R.L. and C.L.

                       lllllllllllllllllllllPlaintiffs - Appellants

                                           v.

      Chelsea Smith, Individually and in her Official Capacity; Stacy Houck,
 Individually and in her Official Capacity; Mischa Martin, Individually and in her
   Official Capacity; Cindy Gillespie, Individually and in her Official Capacity

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                              Submitted: June 11, 2019
                               Filed: August 28, 2019
                                   ____________

Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
                         ____________

ARNOLD, Circuit Judge.

      Few liberty interests are more important than the one parents have in the care,
custody, and management of their children, or the one that parents and children have
in the care and companionship of each other. See Whisman ex. rel. Whisman v.
Rinehart, 119 F.3d 1303, 1309 (8th Cir. 1997). And few governmental interests are
more compelling than protecting minor children from abuse or deadly harm. See id.
Unfortunately these interests sometimes clash, as happened here, when the Arkansas
Department of Human Services took two minor children of Katelyn Webb and three
minor children of Jerimey and Tabitha Lay into protective custody.

       Under Arkansas law, DHS social workers may take a child into emergency
protective custody, without a court order, if continued custody of the parent or
guardian "presents an immediate danger to the health or physical well-being of the
child." Ark. Code Ann. § 12-18-1001(a). That custody may not exceed seventy-two
hours, but if the seventy-two hour limit expires on a weekend or holiday, then custody
may be extended until the next business day. Id. at § 12-18-1001(b). When a social
worker takes a child into emergency protective custody, she must notify DHS "and
make every effort possible to notify" the parent or guardian of, as relevant, the child's
location, the location and phone number of the court, and the procedure for obtaining
a hearing. See id. § 9-27-313(c)(1). If DHS wishes to extend its custody beyond
seventy-two hours, it must demonstrate "probable cause to believe that immediate
emergency custody is necessary to protect the health or physical well-being of the
juvenile from immediate danger." See id. § 9-27-314(a)(1). If DHS does so, "the
circuit court shall issue an ex parte order for emergency custody to remove the
juvenile from the custody of the parent," id., and that order must include notice to the
parents or guardians of their right to a hearing within five business days after the ex
parte order is issued. See id. § 9-27-314(b)(1). The circuit court must then hold a
probable-cause hearing within five business days after issuing the ex parte order. See
id. § 9-27-315(a)(1)(A). The hearing is limited to "determining whether probable
cause existed to protect the juvenile" and whether it still exists. See id.
§ 9-27-315(a)(1)(B)(i). So it can take ten to fourteen days (depending on when
weekends and holidays fall) after a child has been removed before state law gives a
parent the right to be heard at a hearing.

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       In Webb's case, a state juvenile court jailed her for five days for contempt of
court in a matter not relevant here and ordered Chelsea Smith, a DHS social worker,
to take Webb's minor children into custody. Webb alleges that, two days after
completing her five days in jail (and thus contrary to the seventy-two hour rule in
§ 12-18-1001(b)), DHS petitioned the juvenile court for an ex parte order allowing
it to maintain temporary protective custody over Webb's children. The juvenile court
granted the petition and set a probable-cause hearing for seven days (five business
days) later. The day before the scheduled hearing, the juvenile court postponed the
hearing for an unknown reason. Because the juvenile court did not hold the hearing
within five business days of issuing the ex parte order, it appears state law was again
violated. See id. at § 9-27-315(a)(1)(A). The juvenile court rescheduled the hearing
for eight days after the initial probable-cause hearing was scheduled. That hearing
occurred as scheduled, but when the juvenile court was about to appoint counsel for
Webb, she informed the court she preferred different counsel. The juvenile court
continued the hearing and reset it for six days later so Webb could secure counsel. At
that hearing, the juvenile court held that probable cause had existed at the time the
children were removed but that there was no need for DHS to continue its custody.
The juvenile court restored custody of the children to Webb, but it also ordered that
a protective-services case be opened. In total, DHS had protective custody of the
Webb children for about twenty-eight days.

       As for the Lays, DHS social worker Stacy Houck took the Lay children into
emergency protective custody after, as the district court said, "a serious charge of
abuse was asserted against Jerimey." Two days later DHS petitioned for an ex parte
order extending its custody, and two days after that a juvenile court entered an ex
parte order doing so. The court held a probable-cause hearing three days later, but the
hearing did not conclude that day. The juvenile court therefore ordered that the
children be returned to the Lays unless the attorney ad litem objected within two days.
The attorney ad litem objected, so the hearing resumed four days after it had
originally begun. At the resumption of the hearing, the juvenile court ordered that the

                                         -3-
children be returned to Tabitha Lay under certain conditions, including that Jerimey
Lay could not contact the children or live in the family home. In all, the Lay children
spent about eleven days in emergency protective custody.

        Webb and the Lays filed this lawsuit on behalf of themselves and their children
against the social workers involved in their cases and two of their DHS supervisors,
all in their individual and official capacities. Asserting violations of the First, Fourth,
and Fourteenth Amendments to the U.S. Constitution, the plaintiffs raised, as the
district court interpreted their complaint, "four categories of federal claims." They
complained, first, that the social workers unconstitutionally seized their children
because they lacked a reasonable suspicion of child abuse or neglect and filed
petitions to remove the children that contained knowingly false allegations; second,
that the social workers deprived them of an opportunity to be heard in a timely
manner after the seizures; third, that the DHS supervisors failed to train and supervise
the social workers and established policies that led to the constitutional violations;
and fourth, on behalf of themselves and a proposed class of similarly situated people,
that the Arkansas statutes governing post-deprivation proceedings for the parents of
children taken into emergency protective custody are facially unconstitutional.

       The defendants moved to dismiss the complaint on the grounds that, as relevant
here, the plaintiffs lacked standing and failed to state a claim. The district court
rejected the defendants' argument that, since the alleged injuries were not fairly
traceable to the defendants, the plaintiffs lacked standing. The court pointed out,
however, that a decision striking down the statutes governing post-deprivation
proceedings might not redress the harms the plaintiffs sustained because those harms
had already occurred and would not necessarily occur again. In other words,
according to the district court, that claim was moot because the plaintiffs had not
demonstrated any continuing, present adverse effects entitling them to declaratory or
injunctive relief. The district court also held that the Rooker-Feldman doctrine barred
the plaintiffs' claims against the individual social workers for unconstitutionally

                                           -4-
seizing their children by filing petitions containing false allegations. Finally, the
district court dismissed the due-process claim against Houck because she had
promptly initiated judicial proceedings after seizing the Lay children; the court
declined to dismiss the related claim against Smith and her DHS supervisors because
Smith did not promptly initiate proceedings to remove the Webb children.

       Both parties asked the court to reconsider its decision, and the plaintiffs moved
for leave to file an amended complaint to cure some of the deficiencies the court had
identified relating to mootness. After considering some of the transcripts of the state
court proceedings, the district court dismissed the action in full. (The plaintiffs do not
take issue with the court's decision to consider those transcripts.) The district court
also denied plaintiffs leave to amend their complaint, on the ground that amendment
would be futile; but it nonetheless considered the new information alleged in the
proposed amended complaint to hold that the plaintiffs indeed had standing and that
their claims were not moot. The court considered new allegations that the adult
plaintiffs were Arkansas residents of childbearing age, that many of the child
plaintiffs were still minors, and that the families' prior dealings with DHS increased
the odds "that another situation with DHS will occur." The district court reasoned that
these new facts had "established a reasonable likelihood that they may be subject to
having their children taken into protective custody by DHS in the future," so their
claims were not moot.

       Despite that finding, the district court declined to rule whether the Arkansas
statutes at issue are facially unconstitutional, explaining that "[t]here is no binding
authority on point and this Court will not, under the guise of interpreting the
constitution, create a rule that would render the Arkansas statutes facially invalid"
given the difficulty of raising a successful facial challenge. The court stood by its
other rulings, except that the transcripts and other record materials from the state
court proceedings showed that Smith had initiated judicial proceedings promptly, so



                                           -5-
the claims against her and her DHS supervisors were dismissed. The plaintiffs
appealed, arguing that the district court erred in dismissing their claims.

       The defendants noted in their brief on appeal that, though they "do not concede
that [the plaintiffs] have standing, they do not address this issue in this appeal." We
nonetheless begin with a consideration of whether the plaintiffs have presented an
Article III case or controversy because we have an independent obligation to assure
ourselves of subject-matter jurisdiction, even when no party raises the issue. See
Oglala Sioux Tribe v. Fleming, 904 F.3d 603, 609 (8th Cir. 2018). Plaintiffs must
demonstrate they have standing for each claim they bring and for each form of relief
they seek. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).

       We have no difficulty concluding that the plaintiffs have standing to seek
damages, to the extent they do so, against the individual defendants. Though the
defendants below challenged whether the plaintiffs' injuries were "fairly traceable"
to the defendants' conduct, a requirement for standing, see id., we agree with the
district court that, since "the seizure of the children did lead to the court proceedings,"
and the complaint alleges those seizures were unlawful, the plaintiffs have done
enough at this stage to demonstrate standing. As explained later in this opinion, we
do not think ultimate responsibility for the plaintiffs' alleged due-process injuries
rests with the defendants. But the fairly-traceable inquiry is much more forgiving than
the merits-based, tort-causation inquiry. If the two inquiries were coterminous, they
would collapse into one another, and a court could never reject a plaintiff's claim on
the merits for lack of causation, which is traditionally a merits-based inquiry. We
think this is one of the numerous cases where claims satisfy Article III's fairly-
traceable requirement but nonetheless fail on the merits because of a lack of
causation.

      The plaintiffs' standing to obtain declaratory and injunctive relief, which they
seek as remedies for their facial attack on the constitutionality of the relevant statutes,

                                           -6-
is a more difficult matter. They ask for a declaratory judgment "that any statute that
allows more than three days for a post-seizure hearing . . . is unconstitutional," and
an injunction "requiring the Defendants to provide Plaintiff[s] and the class with a
prompt, proper, and post deprivation hearing within 72 hours of seizure or other
appropriate time to be set by the Court." The plaintiffs argue here, and the district
court held, that the new allegations in their proposed amended complaint, already
noted, prevented their claims from becoming moot because the harm they suffered is
capable of repetition yet evading review. See Abdurrahman v. Dayton, 903 F.3d 813,
817 (8th Cir. 2018). The plaintiffs may indeed be correct that the cloud of DHS
emergency intervention prevents their claims from becoming moot. But "if a plaintiff
lacks standing at the time the action commences, the fact that the dispute is capable
of repetition yet evading review will not entitle the complainant to a federal judicial
forum" because some harms "may be too speculative to support standing[] but not too
speculative to overcome mootness."See Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 190–91 (2000).

        To demonstrate standing for prospective relief, the plaintiffs must show that
they face "a real and immediate threat that [they] would again suffer similar injury in
the future," not a conjectural or hypothetical one. See Frost v. Sioux City, 920 F.3d
1158, 1161 (8th Cir. 2019). Their previous injuries do not give them standing to
pursue injunctive or declaratory relief; they must show they are experiencing an
ongoing injury or an immediate threat of injury. See id. at 1161–62. We do not think
the plaintiffs have done so. All they propose to allege is that they have an increased
chance of having "another situation" with DHS. They do not show, or even allege,
that a subsequent "situation" with DHS will involve DHS taking their minor children
into emergency custody for more than seventy-two hours or that they will be subject
to untimely hearings in violation of their constitutional rights. To conclude that these
events are likely or immediate would "take us into the area of speculation and
conjecture." See Smook v. Minnehaha Cty., 457 F.3d 806, 816 (8th Cir. 2006). We
therefore uphold the district court's dismissal of the plaintiffs' facial challenge to the

                                           -7-
relevant statutes, but instruct the court on remand to dismiss this claim without
prejudice. See Wallace v. ConAgra Foods, Inc., 747 F.3d 1025, 1033 (8th Cir. 2014).

       Turning to the merits of the claims for damages, we first consider whether the
district court erred in dismissing the plaintiffs' claims against the individual social
workers for failing to provide a timely post-deprivation hearing. Since parents have
a liberty interest in the care, custody, and management of their children, and parents
and children have a liberty interest in each other's companionship, see Whisman, 119
F.3d at 1309, due process requires that a state provide a prompt post-deprivation
hearing after taking a child into emergency custody. Swipies v. Kofka, 419 F.3d 709,
715 (8th Cir. 2005). As the district court noted, neither we nor other circuit courts
have drawn a bright line applicable in all cases that establishes a moment when a
hearing is no longer considered prompt; instead, courts consider the facts of each
particular case. So, for example, we explained in Whisman that, "[u]nder the facts of
this case," a hearing that occurred seventeen days after removal of the children was
not prompt. 119 F.3d at 1310. We reached the same conclusion in Swipies. 419 F.3d
at 715.

      At first glance, it might appear that the plaintiffs here did not receive prompt
post-deprivation hearings: Webb did not receive a hearing for twenty-eight days, and
the Lays, in a closer case, did not receive a (completed) hearing for eleven days. But
even assuming their due process rights were violated, a matter we need not decide,
we agree with the district court that the violation cannot be attributed to Smith or
Houck. Both social workers timely engaged the cogs of the judicial machinery by
swearing out affidavits within two days of the children being removed. We do not
understand how they contributed to any subsequent delays, considering they lack the
authority to file ex parte petitions or to schedule hearings on state-court dockets.

       The plaintiffs respond by pointing out that we have held other people, like
social workers, legally responsible when they took children into emergency protective

                                         -8-
custody without ensuring that their parents received a prompt post-seizure hearing.
But in those cases, the people who removed the children contributed to the delay in
proceedings. In Whisman, a social worker helped delay a hearing and the return of the
child to the parent or a suitable family member, resulting in a hearing being held
seventeen days after seizure. 119 F.3d at 1310. In Swipies, a police officer removed
a child from his father's custody but did not inform the juvenile court or the parent
that he had taken the child to the child's other custodial parent. 419 F.3d at 713. The
social workers here did nothing of the sort.

        The plaintiffs also point to Hayes v. Faulkner County, a case that involved an
arrestee who spent thirty-eight days in jail before appearing in front of a judge. 388
F.3d 669 (8th Cir. 2004). The arrestee sued the sheriff and county where he was
detained, but they maintained, as do the social workers here, that it was the court's
responsibility to schedule a hearing. We rejected the argument, noting that the law
placed the onus on the defendants to bring a detainee to the court for a first
appearance. Id. at 674. Further, we mentioned that the only thing the defendants did
to initiate judicial proceedings was send a jail roster to the courts in the county and
then wait for the court to identify whom it would pick up for hearings. Id. Here, by
contrast, the social workers took a much more active role in initiating court
proceedings by swearing out lengthy affidavits, to be included in ex parte petitions,
discussing the specific circumstances of each removal. That's fundamentally different
from merely passing along a jail roster and leaving it to the court to identify new
arrestees who had not yet received a hearing. Further, in the emergency-custody
context, state law places the onus on state courts to provide a hearing, not social
workers. See Ark. Code Ann. § 9-27-315(a)(1)(A). We therefore do not think Hayes
applicable.

      Because we agree with the district court that the plaintiffs have failed to state
a claim against Smith and Houck based on the untimeliness of post-deprivation
hearings, we affirm the district court's dismissal of those claims. We also affirm the

                                         -9-
court's dismissal of the claims against their DHS supervisors. Since Smith and Houck
did not cause any of the plaintiffs' harm, we cannot say that a policy or custom their
supervisors created or applied, or their alleged failure to train or supervise them, did
either. Cf. Brockinton v. City of Sherwood, 503 F.3d 667, 673 (8th Cir. 2007).

       We next turn to the plaintiffs' claim that Smith and Houck violated their
constitutional rights by seizing their children using ex parte petitions containing
knowingly false allegations. We do not read the plaintiffs' complaint as requesting
prospective relief on these claims, and, if they did, they would lack standing to do so
for reasons we have already discussed. We also read the complaint as alleging these
claims against only Smith and Houck, not their DHS supervisors in their supervisory
roles.

       The district court held that the Rooker-Feldman doctrine barred these claims,
a decision we review de novo. See Edwards v. City of Jonesboro, 645 F.3d 1014,
1017 (8th Cir. 2011). That doctrine "precludes lower federal courts from exercising
jurisdiction over actions seeking review of, or relief from, state court judgments."
Hageman v. Barton, 817 F.3d 611, 614 (8th Cir. 2016). Only the Supreme Court has
jurisdiction over such actions. Edwards, 645 F.3d at 1017. The Supreme Court has
cautioned lower courts not to take a broad view of Rooker-Feldman, expressly
limiting its application to "cases brought by state-court losers complaining of injuries
caused by state-court judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of those judgments."
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). An
important consideration for a court confronted with the issue of whether Rooker-
Feldman applies is to analyze "the effect the requested federal relief would have on
the state court judgment." See Simes v. Huckabee, 354 F.3d 823, 827 (8th Cir. 2004).

      We hold that the district court erred in applying Rooker-Feldman. The state
courts here never issued any judgments; they entered orders in cases that were later

                                         -10-
voluntarily dismissed, which under Arkansas law is a decision "without prejudice and
is not an adjudication on the merits." Beverly Enters.-Ark., Inc. v. Hillier, 14 S.W.3d
487, 488 (Ark. 2000). So the requested federal relief cannot affect any state-court
judgments because there aren't any. See Simes, 354 F.3d at 827. As one commentator
explains, "[i]f there is no state-court judgment, the complaint cannot address injury
caused by a judgment; whatever other questions may arise, Rooker-Feldman does not
apply." 18B Charles Alan Wright et al., Federal Practice & Procedure § 4469.1 (2d
ed. April 2019 Update). At least one other circuit has rejected application of Rooker-
Feldman when the underlying state suit was voluntarily dismissed and thus did not
proceed to a final judgment. See Del-Ray Battery Co. v. Douglas Battery Co., 635
F.3d 725, 730 (5th Cir. 2011).

       Relatedly, there is in the Rooker-Feldman context a distinction between "a
federal claim alleging injury caused by a state court judgment and a federal claim
alleging a prior injury that a state court failed to remedy." See Skit Int'l, Ltd. v. DAC
Techs. of Ark., Inc., 487 F.3d 1154, 1157 (8th Cir. 2007). The plaintiffs here do not
appear to be seeking to get out from under a state-court judgment; they are trying to
obtain damages from state actors who allegedly violated their rights. In a similar case
involving the application of Rooker-Feldman to a state court's ex parte order
regarding emergency protective care of a minor, we noted that Rooker-Feldman did
not apply because the plaintiffs "do not seek to overturn the ex parte order by this
action. Rather, they seek redress under 42 U.S.C. § 1983 for an alleged
unconstitutional seizure of" their child. See Riehm v. Engelking, 538 F.3d 952, 965
(8th Cir. 2008). In other words, the plaintiffs do not allege injury from the state-court
orders; they allege injury from the actions of the social workers. Rooker-Feldman
therefore doesn't apply.

      That is not to say that the plaintiffs' claims against the social workers are
meritorious. All we are saying is that Rooker-Feldman does not bar these claims, and



                                          -11-
we leave it to the district court on remand to determine whether those claims have
merit going forward.

      We therefore affirm in part, reverse in part, and remand this case for further
proceedings.
                      ______________________________




                                       -12-
