DCS files multiple responses after motion to dismiss child-welfare suit denied

Less than a month after a federal court denied a motion to dismiss, the Indiana Department of Child Services is asking the judge to reconsider the original motion as well as review a second motion to dismiss in an attempt to derail a lawsuit alleging the state violated the constitutional rights of children in its care.

The defendants — the Department of Child Services, DCS executive director Terry Stigdon and Gov. Eric Holcomb — filed a motion to reconsider  and a second motion to dismiss May 29. Also, if their motion to reconsider is not granted, they have asked the court to certify an order for interlocutory appeal and a stay on proceedings.

However, plaintiffs’ attorneys filed a response, opposing the motion to reconsider and request for the interlocutory appeal order. They argued the case has been stayed since October 2019 and further delay would only injure the plaintiffs “who are vulnerable children in Defendants’ custody, whose basic constitutional and statutory rights are being systemically violated.”

The lawsuit, Ashley W. and Betty W., et al. v. Eric Holcomb, et al., 3:19-cv-00129,  was filed on behalf of Hoosier children who are in the DCS system and have pending children in need of services proceedings in state court.

Attorneys representing the children claim the state defendants are failing foster children in many ways, including not protecting them from physical, psychological and emotion harm and not providing foster care placement and services that ensure their well-being. As a result, the lawyers asserted the defendants’ actions violated the children’s right to be free from harm under the Due Process Clause of the 14th Amendment, and the right to familial association under the First, Ninth and Fourteenth Amendment.

The attorneys representing the plaintiffs are from Indiana Disability Rights, Kirkland & Ellis and the legal advocacy organization A Better Childhood. The defendants are represented by the Indiana Attorney General’s Office and Barnes & Thornburg.

In its ruling on the first motion to dismiss, the U.S. District Court for the Southern District of Indiana allowed to proceed the constitutional claims and the claim made by a subclass of plaintiffs that the defendants violated the Americans with Disabilities Act. But the court denied the allegation that the defendants violated the plaintiffs’ rights to a case plan and case review system under the Adoption Assistance and Child Welfare Act.

As part of their response, plaintiffs asserted by filing motions to reconsider and dismiss, the defendants are seeking a “second bite at the apple.” But the defendants maintained reconsideration is warranted and the district court was mistaken in finding neither the Rooker-Feldman doctrine nor Younger abstention applied to the case.

Both the doctrine and the abstention prevent federal courts from interfering with state court proceedings, but the district court agreed with the plaintiffs that the requested relief was not prohibited.   

District Judge Richard Young ruled Rooker-Feldman is not invoked because the plaintiffs are not challenging state court custody orders but rather the actions and policies of the defendants that led to the court orders. Likewise, Younger does not apply for two reasons. First the plaintiffs’ claims would not interfere with pending CHINS cases and, second, the plaintiffs lacked a “reasonable opportunity” to raise their claims during their CHINS proceedings.

However, the defendants pushed back.

“The challenged conduct isn’t ‘independent’ of the State-court orders in Plaintiffs’ CHINS proceedings,” the defendants argued in asserting Rooker-Feldman should have been applied. “The claimed wrongful acts are the very ‘actions and policies that led to the orders.’ … There is no meaningful sense in which the actual actions and policies that led to a State-court judgment are not ‘inextricably intertwined with [that] state court determination.’”

Also, the defendants and the plaintiffs tangled over whether the plaintiffs had the opportunity to be represented by counsel with both citing the Southern Indiana District Court’s ruling in Nicole K. et al. v. Stigdon et al. There, the plaintiffs argued they had a constitutional right to be represented by attorneys in a CHINS proceedings, but the federal court found the Younger abstention required the lawsuit be dismissed.

The defendants pointed out Indiana law does not prevent children in CHINS proceedings from having legal representation. Attorneys representing the plaintiffs can make the same constitutional claims in state court that they are now raising in federal court.

“The Order, however, effectively leaves to Plaintiffs’ counsel whether Indiana’s interests in administering its child-welfare system will be shielded from federal intrusion,” the defendants argued. “If counsel appear for Plaintiffs to make their constitutional claims in CHINS proceedings — which counsel easily may do, even now — Rooker-Feldman and Younger bar a federal action. But if counsel choose not to do so, the Order allows their federal lawsuit on the ground that Plaintiffs didn’t have counsel in their CHINS cases — even though their counsel here could have represented Plaintiffs in those State proceedings, where State law gave them ample opportunity to make the same claims.”

Plaintiffs responded that the Younger abstention applied in Nicole K., because an injunction requiring counsel to be appointed during a CHINS proceeding would have directly interfered with the court proceedings. Conversely, in Ashley W., the court found the “lack of counsel merely contributed to Plaintiffs’ inability to raise their claims during their CHINS proceedings.”

With their request for certification to file an interlocutory appeal if their motion to reconsider is denied, the defendants argued the district court’s ruling on the Rooker-Feldman and Younger abstentions present “controlling questions of law on which there are substantial grounds for difference of opinion.”    

Also the defendants asserted an appeal would help resolve the lawsuit in a timely manner, saving judicial resources and reducing litigation costs.

“Here, however, interlocutory appeal will materially advance termination of the litigation regardless of who prevails on appeal,” the defendants argued. “If Defendants win, the case is over. But even if the Order is upheld, there will be prompt resolution of jurisdictional issues that would have been raised — and raised first — on appeal of any later judgment for Plaintiffs.”

The plaintiffs countered by describing the defendants as manufacturing a contestable question of law where none exists.

“Defendants seem to suggest that interlocutory appeal is appropriate whenever a party raises the Rooker-Feldman doctrine or Younger abstention as defenses, or whenever a court makes a ‘closer call,’” the Plaintiffs asserted. “That is certainly not the case. … If it were, it would create significant judicial inefficiency.”

In its second motion to dismiss, the defendants argued that in the absence of Rooker-Feldman and Younger, the case should be tossed because the plaintiffs have no standing.

“This lawsuit instead purports to legislate through litigation,” the defendants asserted. “This is the express mission of (A Better Childhood), which proclaims, ‘Using the power of the courts, we develop new legal theories and apply and expand existing law to reform the various states’ foster care and other child welfare systems.’ Such advocacy has a place in the Indiana Legislature and the Indiana Executive Branch, but not in this Article III Court.”

The plaintiffs have not yet filed a response to the second motion to dismiss but in their response to the motion for reconsideration, they hinted at their arguments against dismissal.

“Finally Defendants present a strawman argument, claiming that if the requested relief would not affect custody ‘or other decisions in Plaintiffs’ CHINS cases, then … [t]his means Plaintiffs lack standing.’ That argument ignores the Plaintiffs are, of course, affected by Defendants’ policies and decisions,” the plaintiffs asserted.

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