7th Circuit: State courts, not federal, should rule on counsel for kids in CHINS cases

The question of whether children in CHINS proceedings should be appointed counsel is best left for state court resolution, the 7th Circuit Court of Appeals has ruled, finding no “civil Gideon” principle requiring counsel in child welfare cases.

That ruling comes in a case involving 10 Hoosier children who are the subject of children in need of services litigation. Parents in CHINS proceedings are automatically appointed counsel, but the children are not.

However, the children in the instant case, represented by next friends, argued they also have a constitutional right to appointed counsel at public expense, seeking a “civil parallel” to Gideon v. Wainwright, 372 U.S. 335 (1963). That issue went before the U.S. District Court for the Southern District of Indiana, but Judge James Patrick Hanlon ruled that Younger v. Harris, 401 U.S. 37 (1971), required abstention.

“When Younger applies, participants must raise their federal arguments in the state proceeding, with review by the Supreme Court of the United States if the state judiciary ultimately rejects the constitutional arguments,” 7th Circuit Judge Frank Easterbrook wrote Friday. “Plaintiffs contend on appeal that they are not the kind of parties, and CHINS proceedings are not the sort of ‘quasi-criminal’ litigation (their language), to which they believe Younger is limited.”

The 7th Circuit, however, upheld Hanlon’s abstention, writing that “(t)he variety of goals and outcomes in this kind of proceeding makes us reluctant to decide categorically whether Younger does, or does not, apply across the board.”

“… We also conclude that it does not matter whether Younger applies to all CHINS proceedings,” Easterbrook wrote. “Although, when Younger applies, abstention is compulsory, a federal court has discretion to put any federal proceeding on hold while a state works its way through an administrative process that was under way before the federal suit began. … Principles of comity entitle the states to make their own decisions, on federal issues as well as state issues, unless there is some urgent need for federal intervention.

“… Withholding peremptory federal adjudication of a single issue in the state proceedings is the appropriate disposition,” the judge continued. “Indiana represents, and plaintiffs do not deny, that state judges have the authority to appoint counsel for children. What’s more, most children have adult representatives — either guardians ad litem or special advocates.

“… Unless there is a ‘civil Gideon’ principle requiring counsel in every case,” Easterbrook wrote, “the state’s procedures suffice — at least in the sense that they permit an adult to argue, to the state judiciary, that a lawyer is necessary in a particular case.”

The U.S. Supreme Court approaches the right to counsel on a case-by-case basis in certain instances, including child welfare proceedings, the 7th Circuit panel noted. “In other words,” it held, “there is no ‘civil Gideon’ principle for child-custody or child-welfare proceedings.”

“Because children are not automatically entitled to lawyers — as opposed to the sort of adult assistance that Indiana routinely provides — it would be inappropriate for a federal court to resolve the appointment-of-counsel question in any of the ten plaintiffs’ state proceedings,” the panel concluded. “A state judge may appoint counsel, if that seems necessary, or may explain why that step is unnecessary under the circumstances.

“In the absence of a ‘civil Gideon’ analog, that question is a proper part of the state proceeding, subject (as all federal issues are) to the possibility of review by the Supreme Court once a final decision has been rendered.”

The case is Nicole K., by next friend Linda R., et al. v. Terry J. Stigdon, Director of the Indiana Department of Child Services, 20-1525.

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