7th Circuit questions its role in lawsuit against DCS

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A lawsuit pushing for better treatment of children in Indiana’s foster care system met a skeptical 7th Circuit Court of Appeals on March 30, when during oral arguments the panel of judges grilled the plaintiffs’ attorney about what the federal court could actually do to help.

Judge Frank Easterbrook repeatedly asked Kristen Bokhan, associate at Kirkland & Ellis, what “concrete relief for the children” the plaintiffs were seeking and whether the state court overseeing the child in need of services proceedings could provide the remedy.

“Specifically, you need to articulate some precise relief,” Easterbrook told Bokhan, “and not an injunction full of aspirations.”

The lawsuit, Ashley W., et al. v. Eric Holcomb, et al., 21-3028,  was filed in 2019 in the U.S. District Court for the Southern District of Indiana on behalf of 10 juvenile plaintiffs who were all in the custody of the Indiana Department of Child Services. According to the complaint, the children were taken from abusive homes then subjected to additional trauma by being cycled through multiple placements and not being given adequate care.

After the district court denied the state’s motion to dismiss in 2021, Indiana appealed to the 7th Circuit.

Kirkland & Ellis, along with Indiana Disability Rights and A Better Childhood, are representing the plaintiffs. The Indiana Attorney General’s Office and Barnes & Thornburg are representing DCS, Gov. Eric Holcomb and DCS Director Terry Stigdon, who have all been named as defendants.

Indiana Solicitor General Thomas Fisher reiterated the state’s position at oral arguments. Namely, he asserted the Rooker-Feldman doctrine bars the plaintiffs from turning to the federal court because they can raise their claims in state juvenile court. Also, precedent in Younger v. Harris, 401 U.S. 37 (1971), and Nicole K. v. Stigdon, 990 F.3d 534 (7th Cir. 2021), holds that the federal court should abstain from deciding the case because a ruling would affect the children’s ongoing CHINS proceedings.

“Plaintiffs demand systemic changes by way of judicial decree,” Fisher told the appellate court. “But federal courts are not substitute child welfare agencies.”

Judge Diane Wood countered that the policies and procedures the plaintiffs are wanting to change, such as possibly new evaluations for the children and more placement options, do not fall under Rooker-Feldman or abstention. She compared the children’s claims to claims made by prisoners seeking better medical care or living conditions.

“As I understand it, the CHINS judges have to apply a particular body of law,” Wood continued. “They can’t issue decrees against the department telling it to change its policies. Their powers are limited, right?”

Fisher responded, “They can order relief to a CHINS proceeding child that would implicate those policies. … The CHINS court can say, ‘No, that’s not in the best interest of the child, we have to do something else.’”

Judge David Hamilton picked up on the jurisdictional questioning and presented a hypothetical situation to Fisher: “Let’s suppose a child’s advocate says, ‘Look, the state court has issued this placement order … but the child is not getting the health care she needs.’ Is that something where a federal court could step in or not?”

“I don’t think so,” Fisher replied. He explained that the hypothetical was about the provision of the services, at which point Hamilton interjected, noting those services could be covered by the CHINS order issued by the state court.

During its questioning of Fisher, the panel noted the lawsuit is not a class action. Instead, the legal action is presenting individual claims of the 10 initial plaintiffs, of which only two are left.

Easterbrook immediately queried Bokhan on that issue before she even began speaking. The attorney said plaintiffs Sara O. and Logan S. are still in the foster care system while others have either aged out or been adopted.

Easterbrook then turned to pressing Bokhan to state exactly what the plaintiffs were seeking. He brushed aside her response that they wanted DCS to change the way it administers its policies and procedures.

“What worries me is that much of the relief that it sounds like your brief says you’re seeking is relief for people who are not yet in CHINS proceedings,” Easterbrook said. “… So it would really help me if you could concentrate on telling me what relief are you seeking that is beneficial for children in CHINS proceedings but not available from the judges in the CHINS proceedings.”

Bokhan responded by highlighting Sara O.’s story. The youngster was placed in a psychiatric ward, but when the treating physicians told DCS she had met her treatment goals and needed to be moved to a less restrictive placement, DCS took more than six months to remove her because the agency could not find another place.

Wood echoed Easterbrook’s questioning by inquiring about what remedy the plaintiffs would receive if the lawsuit was successful.

“What specifically might happen to them that’s a good thing that you’re trying to achieve by this litigation?” Wood asked, to which Easterbrook injected, “and that the CHINS court can’t order.”

Wood kept pressing and eventually began naming specifics, such as expanding the number of foster homes and setting a quicker deadline for DCS to respond to requests.

“I’m trying to come up with your list for you,” Wood said. The comment drew a chuckle from the panel.

When Bokhan added that the relief sought included enforcement of the state law that requires lower caseloads for the DCS workers, Hamilton returned to the question of the federal court’s role in the matter.

“So it sounds like you’re also asking the federal court, in essence, to order DCS to comply with its own policies and with state statutes,” Hamilton said.

Bokhan replied that the lawsuit goes beyond that by asking DCS to follow its own policies and protect the children from harm.

Hamilton responded, “Would the federal court be doing that as a matter of federal constitutional law or state law?”

Bokhan answered, “Federal constitutional law.”

This prompted Easterbrook to jump in and ask, “What federal code constitutional law requires states to follow state laws?”

Bokhan said that was not the way the complaint was framed.

“What we’re asking is for DCS to protect the children in its care from known or suspected harm while they are in the care of DCS,” she said. “And that is a constitutional right under the 14th Amendment.”

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