Ashley W. v. Holcomb

34 F.4th 588

ASHLEY W., et al., Plaintiffs-Appellees,

v.Eric HOLCOMB, Governor of Indiana, et al., Defendants-Appellants.

No. 21-3028

United States Court of Appeals, Seventh Circuit.

Argued March 30, 2022

Decided May 16, 2022

Kristen Leigh Bokhan, Attorney, Kirkland & Ellis LLP, Washington, DC, Aaron H. Marks, Attorney, Kirkland & Ellis LLP, New York, NY, Marcia Robinson Lowry, Attorney, A Better Childhood, Inc., New York, NY, for Plaintiffs-Appellees.

John Robert Maley, Peter J. Rusthoven, Dylan Alexander Pittman, Attorneys, Barnes & Thornburg LLP, Indianapolis, IN, Julia Catherine Payne, Esq., Attorney, Thomas M. Fisher, Melinda R. Holmes, Attorneys, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants.

David R. Carpenter, Attorney, Sidley Austin LLP, Los Angeles, CA, for Amicus Curiae Nonprofit Child Advocacy Organizations.

Before Easterbrook, Wood, and Hamilton, Circuit Judges.

Easterbrook, Circuit Judge.

Like Nicole K. v. Stigdon , 990 F.3d 534 (7th Cir. 2021), this case entails challenges to aspects of Indiana's system for resolving child-welfare matters, which the state calls CHINS (for Children in Need of Services). When the state's Department of Child Services identifies a situation that appears to involve the neglect or abuse of a child, it files a petition and asks a judge for relief, which may include the child's placement with foster parents. The litigation ends only when the court determines that the child's parents can resume unsupervised custody, the child is adopted, or the child turns 18.

Our opinion in Nicole K. quoted at length from the state's description of the CHINS procedure, and that description will help to understand this case too:

The State's intervention begins with a report of suspected child abuse or neglect. Upon receipt of such a report, the Indiana Department of Child Services initiates an assessment of the allegation. See Ind. Code §§ 31-33-7-1 et seq. , 31-33-8-1 et seq. If the Department is able to substantiate the allegation of abuse or neglect, it may then initiate a CHINS proceeding by filing a CHINS petition on the child's behalf. See Ind. Code ch. 31-34-9 et seq.

The trial court must hold an initial hearing within ten days of the Department's filing of a CHINS petition, Ind. Code § 31-34-10-2(a), earlier (within two days) if the child has been removed from the home upon the Department's assessment of the reported abuse or neglect. See Ind. Code §§ 31-34-5-1(a), 31-34-10-2(j). During the initial hearing, the parents are asked to admit or deny the allegations in the petition: If the parents deny the allegations, then the court must generally hold a fact-finding hearing within 60 days, Ind. Code § 31-34-11-1, and if after that hearing the court determines that the child is a CHINS, it must then schedule a dispositional hearing to occur within 30 days of the CHINS determination. Ind. Code §§ 31-34-11-2, 31-34-19-1(a). But if the parents admit the allegations at the initial hearing, the court enters judgment and schedules a dispositional hearing. See Ind. Code §§ 31-34-10-8, 31-34-10-9(a), (c).

During the dispositional hearing, the court considers appropriate placement and treatment for the child and then enters a dispositional decree. See Ind. Code § 31-34-19-1, ch. 31-34-20 et seq. The court's dispositional decree not only provides for the child's placement and services, but in most cases it also spells out the services in which the parent must engage to remedy the conditions that led to the CHINS adjudication. See Ind. Code §§ 31-34-20-1, 31-34-21-5.5 ; cf. Ind. Code § 31-34-21-5.6 (providing for narrow circumstances under which services are not required).

After the court enters the dispositional decree, it periodically reviews the case—at least once every six months—to ensure that the child's case plan, services, and placement continue to serve the child's best interests. Ind. Code §§ 31-34-21-2, 31-34-21-4.5, 31-34-21-5(a). The court takes into account a host of considerations, including whether the child requires additional services or counseling and the extent to which the child's parent, guardian, or custodian has enhanced the ability to fulfill parental obligations and has cooperated with reunification efforts. See Ind. Code § 31-34-21-5(b). In the course of its review, the court also considers whether to prepare or implement a permanency plan for the child. Ind. Code § 31-34-21-5(b)(15).

CHINS cases remain open until "the objectives of the dispositional decree have been met," Ind. Code § 31-34-21-11, which can mean several things, such as reunification or termination of parental rights and adoption, among others. If reunification is not a viable option, the State may initiate a termination of parental rights (TPR) proceeding. See, e.g., Ind. Code §§ 31-34-21-7.5, 31-35-2-1. The CHINS case continues until the child achieves permanency, which often does not occur until after the TPR proceeding (including any appeals) concludes. See Ind. Code §§ 31-19-11-6 ; 31-34-21-11.

In a CHINS or TPR proceeding, state law entitles the child's parents to counsel as a matter of right, while the child does not have such a statutory entitlement, see Ind. Code §§ 31-32-4-1, 31-34-4-6(a)(2)(A) —though the state trial court does have discretion to appoint counsel for the child, see Ind. Code § 31-32-4-2(b), and the Department can request appointment of counsel for the child as well. But in practice, trial courts rarely have occasion to consider whether to appoint counsel to children in CHINS cases.

The child's interests ... are neither unrepresented nor disregarded. In addition to the State's parens patriae protection, most children are represented by a Guardian ad Litem (GAL), a Court Appointed Special Advocate (CASA), or both. See Indiana Youth Institute, 2019 Indiana Kids Count Data Book 23 (2019) ("In 2017, 29,630 Hoosier children were designated as Children in Need of Services. ... In 2017, 4,273 volunteers spoke for abused and neglected Hoosier children in 30,480 CHINS cases."). Indeed, one of the first things a court does upon the filing of a CHINS petition is to determine whether appointment of such an advocate is warranted. Ind. Code § 31-34-10-3. State law requires the court to appoint a GAL or CASA in abuse and neglect cases, id. , but courts may appoint a GAL or CASA even if not required, see Ind. Code § 31-32-3-1 ; Gibbs v. Potter , 77 N.E. 942, 943 (Ind. 1906).

990 F.3d at 536–37.

Plaintiffs in this suit, ten minors who are or were subject to CHINS proceedings, contest almost every aspect of that process. They contend that Indiana violates the Due Process Clause of the Constitution's Fourteenth Amendment as well as federal and state law. They want the court to issue a detailed regulatory injunction specifying better procedures for both the Department's operations and CHINS proceedings. The injunction would cover how the Department investigates child welfare before CHINS proceedings begin, when the Department may or must initiate CHINS proceedings, and what relief the Department may or must pursue in a CHINS court.

Indiana (as we call the defendants collectively) asked the district court to dismiss. It argued that the plaintiffs lack standing and that, at all events, the CHINS process is the right forum for plaintiffs' arguments, given the abstention principles laid out in Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d (1971). We know from Moore v. Sims , 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979), that Younger applies to state-initiated child-welfare litigation. See also, e.g., Brunken v. Lance , 807 F.2d 1325, 1330–31 (7th Cir. 1986) ; Milchtein v. Chisholm , 880 F.3d 895 (7th Cir. 2018). Indiana maintained that, under these decisions, abstention is mandatory. But the district court denied the request to abstain and likewise declined to dismiss the suit on jurisdictional grounds. 467 F. Supp. 3d 644 (S.D. Ind. 2020). Later the district court certified this order for interlocutory review, 2021 U.S. Dist. LEXIS 214154 (S.D. Ind. Sept. 21, 2021), and we granted the state's petition for leave to appeal. See 28 U.S.C. § 1292(b).

Indiana repeats the arguments it presented to the district court: that plaintiffs lack standing, that a federal court lacks jurisdiction under the Rooker-Feldman doctrine to review any issue decided in a CHINS proceeding, and that Younger requires abstention. Plaintiffs concede that the Rooker-Feldman issue is reviewable on appeal but maintain that other arguments are not, because Indiana did not adequately (in plaintiffs' eyes) flag them for the district judge's attention when seeking a § 1292(b) certification, and because the judge did not identify these issues as deserving appellate consideration. Yet although § 1292(b) tells district judges to consider whether some "controlling question of law" justifies interlocutory review, the thing certified to the court of appeals is the court's order, not the issue that prompted the certification. Once an order has been certified, every legal question affecting the order's propriety is open on appeal. Yamaha Motor Corp. v. Calhoun , 516 U.S. 199, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996). The order that the district court certified is the one declining to dismiss the whole suit, and every issue that might affect the validity of that order is before us now. That order briefly discussed plaintiffs' claims on the merits, but we start and end with the question whether the suit should have been dismissed on procedural grounds.

Indiana contends that the plaintiffs lack standing. The district judge replied, in essence, that of course the plaintiffs have standing—as litigants in CHINS proceedings, they are vitally concerned with questions such as the size and training of the Department's staff, whether the Department does its utmost to prevent siblings from being sent to different foster homes, how often CHINS reviews occur, and so on. It is hard to disagree with that view in the...