Petition for Writ of Certiorari — Nicole K., by Next Friend Linda R., et al., Petitioners v. Terry J. Stigdon, Director, Indiana Department of Child Services, et al.

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APPENDIX A

In the

United States Court of Appeals

For the Seventh Circuit

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No. 20-1525

NICOLE K., by next friend LINDA R., et al.,

Plaintiffs-Appellants,

v.

TERRY J. STIGDON, Director of the Indiana Department

of Child Services, et al.,

Defendants-Appellees.

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Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19-cv-01521-JPH-MJD –

James Patrick Hanlon, Judge.

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ARGUED OCTOBER 26, 2020 – DECIDED MARCH 5, 2021

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Before EASTERBROOK, ROVNER, and WOOD, Circuit

Judges.

EASTERBROOK, Circuit Judge. When officials in Indiana believe that children may be suffering from

abuse or neglect, they initiate a process that they call

CHINS, for Child in Need of Services. The plaintiffs in

this suit are children (represented by next friends)

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about whom CHINS proceedings are under way. Indiana automatically appoints lawyers to represent the

parents in CHINS proceedings but does not do the

same for children. Plaintiffs contend that the Constitution entitles each of them to appointed counsel at

public expense. In other words, they seek a civil parallel to the holding in Gideon v. Wainwright, 372 U.S. 335

(1963), that all criminal defendants are entitled to

counsel when imprisonment is in prospect. But the district court declined to resolve this contention, ruling

that Younger v. Harris, 401 U.S. 37 (1971), requires abstention. 2020 U.S. Dist. LEXIS 36844 (S.D. Ind. Mar.

3, 2020).

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. 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.

Moore v. Sims, 442 U.S. 415 (1979), holds that

Younger applies to some kinds of child-welfare proceedings, and Milchtein v. Chisholm, 880 F.3d 895 (7th Cir.

2018), adds that child-custody proceedings are among

those governed by Younger. But, as plaintiffs see

things, CHINS proceedings do not always entail the

same state interests as child-custody matters. The

state’s brief describes the CHINS process, showing

that it can span a variety of situations and correspondingly a wide range of state interests:

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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 §§ 3133-7-1 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. 31-349 et seq.

The trial court must hold an initial hearing

within ten days of the Department’s filing of a

CHINS petition, Ind. Code §31-34-102(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 §31-3411-1, 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

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for the child and then enters a dispositional

decree. See Ind. Code §31-34-19-1, ch. 31-3420 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 §§ 313420-1, 31-34-21-5.5; cf. Ind. Code §31-34-215.6 (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, 31-34-215(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 §3134-21-5(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,

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the State may initiate a termination of parental rights (TPR) proceeding. See, e.g., Ind.

Code §§ 31-34-21-7.5, 3135-2-1. 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 §§ 3119-11-6; 31-3421-11.

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 §§ 3132-4-1, 31-34-4-6(a)(2)(A)—though the state

trial court does have discretion to appoint

counsel for the child, see Ind. Code §31-32-42(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

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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).

Indiana Br. 3–6 (cleaned up).

The 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. Ten children are plaintiffs, and Indiana does not

contend that all of them have been separated from

their parents or are at risk of that outcome.

We also conclude that it does not matter whether

Younger applies to all CHINS proceedings. 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. See, e.g., Courthouse News Service

v. Brown, 908 F.3d 1063 (7th Cir. 2018). 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. This is

summed up in the rule that there is no such thing as

federal-defense removal. See, e.g., Chicago v. Comcast

Cable Holdings, L.L.C., 384 F.3d 901, 904 (7th Cir.

2004). Many a federal issue will arise in the resolution

of a proceeding under state law, but the norm is that

the state tribunal handles the entire proceeding, with

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review of the federal question (if one matters in the

end) by the Supreme Court rather than a federal district judge.

Withholding peremptory federal adjudication of a

single issue in the state proceedings is the appropriate

disposition. 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. Some of those adult representatives

may be lawyers; others may engage counsel to advise

them how best to represent the children’s interests.

Unless there is a “civil Gideon” principle requiring

counsel in every case, 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.

Gideon overruled a series of cases, exemplified by

Betts v. Brady, 316 U.S. 455 (1942), that abjured any

rule about whether counsel is necessary in criminal

prosecutions. Betts held that courts must decide

whether each particular defendant could represent his

own interests adequately. The Justices stated in Gideon that the program of Betts had failed because judges

just can’t tell, even with the benefit of hindsight, what

a lawyer might have done had one been appointed. The

only reliable solution, Gideon held, is to appoint

counsel all the time. This understanding lies behind

plaintiffs’ argument that every child in every CHINS

proceeding is entitled to an appointed lawyer.

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But the Justices have not taken Gideon as far as

they might. They treat it as a decision about the scope

of the Counsel Clause in the Sixth Amendment rather

than the Due Process Clause in the Fifth. They have

not extended Gideon to courts martial, see Middendorf

v. Henry, 425 U.S. 25 (1976), or to civilian misdemeanor

criminal prosecutions that do not end in sentences of

imprisonment, see Nichols v. United States, 511 U.S.

738 (1994). Revocation of probation or supervised release does not entail an automatic right to counsel,

even though the consequences may include imprisonment. See Gagnon v. Scarpelli, 411 U.S. 778 (1973). In

these and other situations, the Justices have used the

case-by-case approach of Betts.

The situations the Justices have approached one

dispute at a time under the Due Process Clause include civil child-welfare proceedings. So, for example, a

parent is not automatically entitled to counsel in a

civil-contempt proceeding arising out of a child-welfare

adjudication, even though the remedies for defiance to

a court may include imprisonment until the recalcitrant litigant obeys. See Turner v. Rogers, 564 U.S. 431

(2011). And in M.L.B. v. S.L.J., 519 U.S. 102, 116–19

(1996), while analogizing child-custody-termination

proceedings to criminal prosecutions for the purpose of

determining whether a state may condition appeal on

ability to prepay the cost of a transcript (the Due Process Clause bars this, the Court held), the Justices reaffirmed the holding of Lassiter v. Department of Social

Services, 452 U.S. 18 (1981), that the Constitution does

not automatically entitle parents to appointed counsel

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before a court terminates parental rights. No decision

since M.L.B. has even hinted at restiveness about the

holding of Lassiter. In other words, 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 appointmentof-counsel question in any of the ten plaintiffs’ state

proceedings. 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.

AFFIRMED

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APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

NICOLE K. by next friend

)

Linda R.; for themselves

)

and those similarly situated, )

ABIGAIL R. by next friend

)

Nancy B.; for themselves

)

and those similarly situated, )

ANNA C. by next friend Jessie )

R.; for themselves and those )

similarly situated„ ROMAN

)

S. by next friend Linda R.; for )

themselves and those similarly )

situated, LILY R. by next

)

friend Nancy B.; for them)

selves and those similarly

)

situated, RACHEL H. by

)

next friend Nancy B.; for

)

themselves and those similarly )

situated, BRIAN P. by next

)

friend Jessie R.; for themselves )

and those similarly situated, )

AMELIA P. by next friend

)

Jessie R.; for themselves

)

and those similarly situated, )

ALEXA C. by next friend

)

Jessie R.; for themselves and )

those similarly situated,

)

ZACHARY H. by next friend )

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Jessie R.; for themselves and

those similarly situated,

)

)

)

Plaintiffs,

)

v.

) No. 1: 19-cv-01521TERRY J. STIGDON Director ) JPH-MJD

of the Indiana Department of )

Child Services in her official )

)

capacity, MARILYN A.

MOORES Honorable, Marion )

Superior Court Judge, in her )

)

official capacity, MARK A.

)

JONES Honorable, Marion

Superior Court Judge, in his )

official capacity, THOMAS P. )

STEFANIAK, JR. Honorable, )

Lake Superior Court Jude, in )

his official capacity, MARSHA )

OWEN HOWSER Honorable, )

Scott Superior Court Judge,

)

in her official capacity,

)

JASON M. MOUNT

)

Honorable, Scott Circuit Court )

Judge, in his official capacity, )

Defendants.

)

ORDER GRANTING DEFENDANTS’

MOTION TO DISMISS

(Filed Mar. 3, 2020)

This case was brought by several minors who are

involved in Child in Need of Services (“CHINS”) proceedings pending in state courts in Marion, Scott, and

Lake counties, Indiana. Plaintiffs allege that because

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they were not appointed counsel to represent them in

their CHINS cases, the Director of the Indiana Department of Child Services and state judges in those counties caused the deprivation of their liberty interests

without due process. See dkt. 40. Defendants have filed

a motion to dismiss the complaint for lack of subjectmatter jurisdiction and failure to state a claim upon

which relief can be granted. Dkt. [59]. Important state

interests presented in CHINS proceedings require the

Court to abstain under the doctrine of Younger v. Harris, so Defendants’ motion is GRANTED.

I.

Facts and Background

Because Defendants have moved for dismissal under Rule 12(b)(1) and 12(b)(6), the Court accepts and

recites “the well-pleaded facts in the complaint as

true.” McCauley v. City of Chicago, 671 F.3d 611, 616

(7th Cir. 2011); Scott Air Force Base Props., LLC v. Cty.

of St. Clair, Ill., 548 F.3d 516, 519 (7th Cir. 2008).

Plaintiffs are ten children involved in Indiana

CHINS proceedings. N.K. and R.S. live with a foster

parent in Marion County and have been designated

CHINS by the Marion Superior Court. Dkt. 40 at 13.

A.R., L.R., and R.H. live with a foster parent in Lake

County and have been designated CHINS by the Lake

Superior Court. Id. at 15. An.C., B.P., A.P., Al.C., and

Z.H. are in foster care in Scott County and have been

designated CHINS by the Scott Superior Court. Id. at

18.

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Plaintiffs are not represented by counsel in their

pending CHINS proceedings. Id. at 14, 17, 21. Under

Indiana law, appointment of counsel for children in

CHINS proceedings is discretionary. Id. at 26 (citing

Ind. Code § 31-32-4-2(b)). The Indiana Department of

Child Services (“DCS”) can request that counsel be appointed, but in practice it does not do so. Id. at 27. And

courts presiding over CHINS proceedings rarely appoint counsel. Id. at 29–32. In the Marion Superior

Court, Lake Superior Court, and Scott Superior and

Circuit Courts, counsel is appointed for children in

CHINS proceedings in less than 10% of cases. Id.

Plaintiffs have sued Terry Stigdon, the Director of

DCS; Marilyn Moores and Mark Jones, judges and coheads of the Marion Superior Court Juvenile Division;

Thomas Stefaniak, Jr., judge of the Lake Superior

Court Juvenile Division; Marsha Howser, judge of the

Scott Superior Court; and Jason Mount, judge of the

Scott Circuit Court. Plaintiffs allege that Defendants

violated the Fourteenth Amendment equal protection

and due process rights “of children in dependency proceedings by failing to provide counsel to those children.” Id. at 4, 34–35. They seek declaratory and

injunctive relief, including: (1) a declaration that Ind.

Code § 31-32-4-2(b) is unconstitutional on its face and

as applied to Plaintiffs; (2) a declaration that Defendants have unconstitutionally caused Plaintiffs to have

no attorney representation in CHINS and termination

of parental rights proceedings; and (3) an injunction

requiring the appointment of counsel to Plaintiffs. Id.

at 36.

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Defendants have filed a motion to dismiss this

case for lack of jurisdiction and for failure to state a

claim upon which relief can be granted, arguing that

this case should be dismissed for several reasons, including the Younger abstention doctrine. Dkt. 59.1

II.

Applicable Law

A motion to dismiss on abstention grounds fits

best under Federal Rule of Civil Procedure 12(b)(1).

Nadzhafaliyev v. Hardy, No. 17 C 4469, 2019 WL

4138996 at *3 (N.D. Ill. Aug. 29, 2019). The Court accepts as true the well-pleaded factual allegations,

drawing all reasonable inferences in the plaintiffs’ favor. Scott Air Force Base, 548 F.3d at 519.

III.

Analysis

Defendants argue this case should be dismissed

under the Younger abstention doctrine because Indiana trial courts are able to address Plaintiffs’ constitutional claims in the pending CHINS proceedings. Dkt.

60 at 18–19. Plaintiffs respond that Younger abstention is improper because this case does not involve the

same subject matter as the CHINS cases and because

it does not fit into any of the three exceptional categories to which the Supreme Court has limited Younger’s

1

Plaintiffs’ unopposed motion for leave to file a surreply is

GRANTED. Dkt. [80].

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application. Dkt. 67 at 26–27 (relying on Sprint

Comms., Inc. v. Jacobs, 571 U.S. 69, 78 (2013)).

A. Younger Abstention

A federal court’s obligation to hear and decide a

case within its jurisdiction is “virtually unflagging.”

Sprint, 571 U.S. at 78. An exception to this rule, the

Younger abstention doctrine, requires federal courts to

abstain from deciding cases when the federal claims

can be raised in state court and “the prospect of undue

interference with state proceedings counsels against

federal relief.” Sprint, 571 U.S. at 78; see Younger v.

Harris, 401 U.S. 37 (1971). Abstention in these circumstances is required by comity and federalism;

specifically, “a proper respect for state functions, a

recognition of the fact that the entire country is made

up of a Union of separate state governments, and a

continuance of the belief that the National Government will fare best if the States and their institutions

are left free to perform their separate functions in their

separate ways.” New Orleans Pub. Sew., Inc. v. Council

of New Orleans, 491 U.S. 350, 364 (1989) (“NOPSI”)

(quoting Younger, 401 U.S. at 44).

Because Younger abstention is an exception to

the rule that a federal court must hear and decide

cases within its jurisdiction, the doctrine applies in

only three “exceptional” categories. Sprint, 571 U.S.

at 78; see NOPSI, 491 U.S. at 368. They are when

federal involvement would intrude into (1) state criminal prosecutions, (2) quasi-criminal civil enforcement

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proceedings, or (3) “civil proceedings involving certain

orders . . . uniquely in furtherance of the state courts’

ability to perform their judicial functions.” Id. Defendants argue that this case falls into Sprint’s second

and third categories, and that abstention is appropriate under both pre- and post-Sprint case law. Dkt. 77

at 6–9. Plaintiffs respond that Sprint “narrowed the

scope of Younger abstention,” and that this case does

not fall into any of Sprint’s categories. Dkt. 80-1 at 2;

dkt. 67 at 27.

Sprint is not the narrowing that Plaintiffs imagine. In Sprint, the Supreme Court merely held that

Younger abstention is limited to the categories identified by the Court in NOPSI thirty years ago—it did not

remove or narrow those categories. Sprint, 571 U.S. at

78 (holding that “in accord with” prior cases, the three

categories “define Younger’s scope”); NOPSI, 491 U.S.

at 368 (identifying the three exceptional categories “after surveying prior decisions”).

B. Plaintiffs’ CHINS proceedings are state

quasi-criminal enforcement proceedings.

The exercise of federal jurisdiction here would intrude into state quasi-criminal civil enforcement proceedings. The Supreme Court and Seventh Circuit

have consistently found that Younger abstention applies in similar quasi-criminal contexts. In Moore v.

Sims, for example, parents brought a federal constitutional challenge to Texas’s child-custody framework

after one of their children was taken into custody

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because of an abuse report. 442 U.S. 415, 419–21

(1979). The Supreme Court held that because of the

important state interests and quasi-criminal context of

the pending state-court custody proceedings, Younger

abstention applied. Id. at 423. In Sprint, the Court

cited Moore to explain that a “state-initiated proceeding to gain custody of children allegedly abused by

their parents” is a quasi-criminal proceeding that triggers Younger abstention. 571 U.S. at 79.

Plaintiffs argue that the state CHINS proceedings

are not quasi-criminal because the purpose is not to

punish parents, and parents cannot be incarcerated,

put on probation, or even fined. Dkt. 67 at 27. But in

Brunken v. Lance, the Seventh Circuit reversed a district court’s decision not to abstain under Younger from

a federal challenge to a pending Illinois child-custody

case. 807 F.2d 1325, 1330–31 (7th Cir. 1986). The court

emphasized the similarities to a criminal proceeding,

including that the state is heavily involved in the proceedings and prosecutes “its very strong interest in the

health and welfare of the child.” Id. These same interests are at the core of Indiana’s child-welfare system.

As the Indiana Supreme Court recently emphasized,

nothing less than the “fundamental right” of parents to

raise their children is at stake. In re Ma.H., 134 N.E.3d

41, 44–46 (Ind. 2019). Moreover, CHINS and termination of parental rights proceedings “can implicate a

parent in criminal activity,” so trial courts presiding

over those cases “must remain conscientious of possible criminal implications and safeguard a parent’s constitutional rights.” Id.

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C. Addressing the constitutional issue

here would intrude on Indiana’s childwelfare framework.

As the Seventh Circuit recently said, important

state interests require “federal court[s] [to] abstain”

under Younger “from resolving isolated legal issues

that might matter” to pending state child-welfare or

child-custody proceedings. Milchtein v. Chisholm, 880

F.3d 895, 898–99 (7th Cir. 2018). Because of its compelling interest in child health and welfare, Brunken, 807

F.2d at 1330, the state must “encourage and support

the integrity and stability of an existing family environment and relationship” throughout a CHINS proceeding, In re KD., 962 N.E.2d 1249, 1258 (Ind. 2012).

The constitutional issue here—whether children in

CHINS proceedings are entitled to counsel—is therefore one piece of a much larger and integrated childwelfare framework. The cost of a federal court’s interference in that state system “militate[s] in favor of abstention.” Moore, 442 U.S. at 427.

Plaintiffs nevertheless argue this case does not

involve the same subject matter as the pending CHINS

proceedings because the appointment of counsel is a

procedural issue that does not go to the outcome or

merits of the CHINS proceedings. Dkt. 67 at 26. But

the entire premise of Plaintiffs’ case is that not having counsel in a CHINS proceeding is what caused

their loss of liberty interests. See dkt. 40 ¶ 1; dkt. 67 at

14–15. Moreover, as explained above, even “isolated legal issues” that might matter to pending state childwelfare or child-custody proceedings trigger Younger.

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Milchtein, 880 F.3d at 898–99. Similarly, the Supreme

Court’s decision in Kowalski v. Tesmer teaches that

“ancillary challenges” implicate Younger abstention.

543 U.S. 125 (2004). Kowalski involved a federal challenge to a Michigan law that allowed state courts not

to appoint counsel for a criminal appeal after a guilty

plea. Id. at 127. The Supreme Court said that the criminal-defendant plaintiffs could not circumvent Younger

by raising the “ancillary” right-to-counsel issue in federal court. Id. at 133. Since the appointment of counsel

implicated Younger in Kowalski, it does here too.

D. Plaintiffs have not shown they cannot

raise their federal claims in their statecourt CHINS proceedings.

For the reasons above, Younger abstention is appropriate here so long as Plaintiffs had the opportunity

to present their federal claims in the state proceedings.

See Moore, 442 U.S. at 425 (citing Juidice v. Vail, 430

U.S. 327, 337 (1977)). Plaintiffs argue that they did not

have that opportunity, dkt. 67 at 27 n.2, but they fail to

carry their burden of proving it, see Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (citing Moore, 442 U.S.

at 432). Plaintiffs do not identify any legal barrier to

raising their claims in their CHINS proceedings. See

Moore, 442 U.S. at 426 (“Certainly, abstention is appropriate unless state law clearly bars the interposition of

the constitutional claims.”). And they have not alleged

or argued that they tried to raise these claims there.

See Pennzoil, 481 U.S. at 15 (“[W]hen a litigant has not

attempted to present his federal claims in related

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state-court proceedings, a federal court should assume

that state procedures will afford an adequate remedy,

in the absence of unambiguous authority to the contrary.”). The Southern District of Texas case cited by

Plaintiffs, M.D. v. Perry, 799 F. Supp. 2d 712, 721 (S.D.

Tex. 2011), does not relieve Plaintiffs of their obligation

to try to raise their constitutional claim in the CHINS

proceeding or explain why they cannot do so. In M.D.,

the court found that the “limited state court review

hearings” that Texas provided in foster-care cases did

not provide an adequate opportunity to raise complex

federal constitutional challenges. Id. Plaintiffs do not

argue that Indiana’s CHINS proceedings are similarly

limited.

In sum, Plaintiffs have not shown that they cannot

raise their federal constitutional challenges in their

pending CHINS cases. Exercising federal jurisdiction

over this case therefore presents the same danger as

in Kowalski: “unnecessary conflict between the federal and state courts” and “confusion among [Indiana]

judges attempting to implement . . . conflicting commands.” 543 U.S. at 133 n.4. The better path—since

Indiana courts are competent to adjudicate these federal constitutional claims—is to leave the integrated

CHINS framework to the Indiana courts. Moore, 442

U.S. at 430; Milchtein, 880 F.3d at 899.2 Plaintiffs

2

In a footnote in their response brief and in one sentence in

their surreply, Plaintiffs hint that this Court should not abstain

under Younger because they are seeking class relief. Dkt. 67 at 27

n.2; dkt. 80-1 at 3. But underdeveloped arguments are waived.

See Dexia Credit Local v. Rogan, 629 F.3d 612, 624–25 (7th Cir.

2010). Notwithstanding waiver, Plaintiffs cite only M.D., 799

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should therefore raise their claim in state court and, if

necessary, follow the state appellate process. See Simpson v. Rowan, 73 F.3d 134, 138 (7th Cir. 1995) (citing

NOPSI, 491 U.S. at 369; Huffman v. Pursue, Ltd., 420

U.S. 592, 608 (1975)).

Therefore, this case is DISMISSED without

prejudice. See Moses v. Kenosha County, 826 F.2d 708,

710 (7th Cir. 1987) (Younger abstention “require[s] the

district court to dismiss all claims without prejudice to

the plaintiffs right to raise the same contentions in a

state tribunal”).3

IV.

Conclusion

Defendants’ motion to dismiss is GRANTED.

Dkt. [59]. Plaintiffs’ motion for class certification is

F. Supp. 2d 712, in support. There, the Southern District of

Texas declined to abstain under Younger in part because Plaintiffs sought “broad-based,” “overarching systemic,” and “wideranging” class relief. Id. at 721–22; see M.D. v. Perry, No. C-1184, 2011 WL 2173673 (S.D. Tex. June 2, 2011) (certifying the

class). This case is different because no class has been certified

and Plaintiffs pursue one discrete constitutional theory—that the

Fourteenth Amendment provides them a right to counsel in their

CHINS proceedings—without explaining why that position cannot be sufficiently addressed by the state courts presiding over

the CHINS proceedings.

3

Because Younger abstention applies, the Court does not

consider Defendants’ other arguments for dismissal, including

that Plaintiffs lack standing. See dkt. 60; Tenet v. Doe, 544 U.S.

1, 6 n.4 (2005) (recognizing that Younger abstention “may be resolved before addressing jurisdiction”).

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DENIED as moot. Dkt. [43]. This case is DISMISSED; final judgment will issue in a separate

entry.

SO ORDERED.

Date: 3/3/2020

/s/ James Patrick Hanlon

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

Annavieve C. Conklin

DELANEY 85 DELANEY LLC

ACONKLIN@DELANEYLAW.NET

Kathleen Ann DeLaney

DELANEY 85 DELANEY LLC

kathleen@delaneylaw.net

Robert C. Fellmeth

CHILDREN’S ADVOCACY INSTITUTE

cpil@sandiego.edu

Jefferson S. Garn

INDIANA ATTORNEY GENERAL

Jefferson.Garn@atg.in.gov

Stephen D. Keane

MORRISON 85 FOERSTER LLP

skeane@mofo.com

Stephanie V. McGowan

FROST BROWN TODD LLC (Indianapolis)

smcgowan@fbtlaw.com

23a

Diana Lynn Moers

INDIANA ATTORNEY GENERAL

diana.moers@atg.in.gov

Anthony W. Overholt

FROST BROWN TODD LLC (Indianapolis)

aoverholt@fbtlaw.com

Andrea Elizabeth Rahman

OFFICE OF THE INDIANA ATTORNEY GENERAL

andrea.rahman@atg.in.gov

Robert Austin Rowlett

INDIANA ATTORNEY GENERAL

Robert.Rowlett@atg.in.gov

Mark C. Zebrowski

MORRISON 85 FOERSTER LLP

mzebrowski@mofo.com

24a

APPENDIX C

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

April 26, 2021

Before

FRANK H. EASTERBROOK, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

DIANE P. WOOD, Circuit Judge

No. 20-1525

NICOLE K., by next

friend LINDA R., et al.,

Plaintiffs-Appellants,

v.

TERRY J. STIGDON, Director

of the Indiana Department

of Child Services, et al.,

Defendants-Appellees.

) Appeal from the

) United States District

) Court for the Southern

) District of Indiana,

) Indianapolis Division.

)

) No. 1:19-cv-01521) JPH-MJD

) James Patrick

) Hanlon, Judge.

Order

(Filed Apr. 26, 2021)

Plaintiffs-Appellants filed a petition for rehearing

and rehearing en banc on April 9, 2021. No judge in

regular active service has requested a vote on the petition for rehearing en banc, and all of the judges on the

panel have voted to deny rehearing. The petition for

rehearing is therefore DENIED.

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APPENDIX D

U.S. CONST. amend. XIV

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any state deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers,

counting the whole number of persons in each state,

excluding Indians not taxed. But when the right to vote

at any election for the choice of electors for President

and Vice President of the United States, Representatives in Congress, the executive and judicial officers of

a state, or the members of the legislature thereof, is

denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United

States, or in any way abridged, except for participation

in rebellion, or other crime, the basis of representation

therein shall be reduced in the proportion which the

number of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in

such state.

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Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or

hold any office, civil or military, under the United

States, or under any state, who, having previously

taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state

legislature, or as an executive or judicial officer of any

state, to support the Constitution of the United States,

shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies

thereof. But Congress may by a vote of two-thirds of

each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment

of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But

neither the United States nor any state shall assume

or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any

claim for the loss or emancipation of any slave; but all

such debts, obligations and claims shall be held illegal

and void.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

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Ind. Code § 31-32-2-1 “Rights of child”

Sec. 1. Except when a child may be excluded from a

hearing under IC 31-32-6, a child is entitled to:

(1)

cross-examine witnesses;

(2) obtain witnesses or tangible evidence by compulsory process; and

(3)

introduce evidence on the child’s own behalf.

Ind. Code § 31-32-2-2 “Additional rights of child

charged with delinquent act”

Sec. 2. In addition to the rights described in section 1

of this chapter, a child charged with a delinquent act is

also entitled to:

(1)

be represented by counsel under IC 31-32-4;

(2)

refrain from testifying against the child; and

(3)

confront witnesses.

Ind. Code § 31-32-2-5 “Parent’s right to representation by counsel”

Sec. 5. A parent is entitled to representation by counsel

in proceedings to terminate the parent-child relationship.

Ind. Code § 31-32-4-1 “Persons entitled to representation by counsel”

Sec. 1. The following persons are entitled to be represented by counsel:

(1) A child charged with a delinquent act, as provided by IC 31-32-2-2.

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(2) A parent, in a proceeding to terminate the

parent-child relationship, as provided by IC 31-322-5.

(3)

Any other person designated by law.

Ind. Code § 31-32-4-2 “Court appointment of

counsel to represent child”

Sec. 2. (a) If:

(1) a child alleged to be a delinquent child does

not have an attorney who may represent the child

without a conflict of interest; and

(2) the child has not lawfully waived the child’s

right to counsel under IC 31-32-5 (or IC 31-6-7-3

before its repeal);

the juvenile court shall appoint counsel for the child at

the detention hearing or at the initial hearing, whichever occurs first, or at any earlier time.

(b) The court may appoint counsel to represent

any child in any other proceeding.