Ashley W. v. Eric Holcomb, Governor of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3028
ASHLEY W., et al.,
Plaintiffs-Appellees,
v.
ERIC HOLCOMB, GOVERNOR OF INDIANA, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:19-cv-00129-RLY-MPB — Richard L. Young, Judge.
____________________
ARGUED MARCH 30, 2022 — DECIDED MAY 16, 2022
____________________
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 maUers, which
the state calls CHINS (for Children in Need of Services).
When the state’s Department of Child Services identifies a sit-
uation that appears to involve the neglect or abuse of a child,
it files a petition and asks a judge for relief, which may include

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2 No. 21-3028
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 De-
partment of Child Services initiates an assessment of the allega-
tion. See Ind. Code §§ 31-33-7-1 et seq., 31-33-8-1 et seq. If the De-
partment is able to substantiate the allegation of abuse or neglect,
it may then initiate a CHINS proceeding by filing a CHINS peti-
tion 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 in-
itial hearing, the parents are asked to admit or deny the allega-
tions 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 deter-
mines that the child is a CHINS, it must then schedule a disposi-
tional hearing to occur within 30 days of the CHINS determina-
tion. Ind. Code §§ 31-34-11-2, 31-34-19-1(a). But if the parents ad-
mit 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 disposi-
tional 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 ser-
vices in which the parent must engage to remedy the conditions

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No. 21-3028 3
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 cir-
cumstances under which services are not required).
After the court enters the dispositional decree, it periodically re-
views 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, in-
cluding whether the child requires additional services or counsel-
ing and the extent to which the child’s parent, guardian, or custo-
dian 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 disposi-
tional decree have been met,” Ind. Code §31-34-21-11, which can
mean several things, such as reunification or termination of pa-
rental 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 perma-
nency, 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 par-
ents to counsel as a macer 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 ap-
point 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 disre-
garded. 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

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4 No. 21-3028
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 ne-
glected 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 war-
ranted. Ind. Code §31-34-10-3. State law requires the court to ap-
point 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. Po?er, 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 de-
tailed regulatory injunction specifying beUer 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 De-
partment 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 princi-
ples laid out in Younger v. Harris, 401 U.S. 37 (1971). We know
from Moore v. Sims, 442 U.S. 415 (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 manda-
tory. But the district court denied the request to abstain and

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No. 21-3028 5
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 re-
quires abstention. Plaintiffs concede that the Rooker-Feldman
issue is reviewable on appeal but maintain that other argu-
ments are not, because Indiana did not adequately (in plain-
tiffs’ eyes) flag them for the district judge’s aUention 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 re-
view, 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 or-
der’s propriety is open on appeal. Yamaha Motor Corp. v. Cal-
houn, 516 U.S. 199 (1996). The order that the district court cer-
tified 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 dis-
trict 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

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6 No. 21-3028
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 disa-
gree with that view in the abstract—but also hard to accept
that standing should be resolved in the abstract. The question
is whether issues such as the ones we have mentioned (plain-
tiffs and the district court identify many more) maUer to these
plaintiffs in a way that a court could redress. And the answer
to that question depends on whether Younger channels some
or all of plaintiffs’ contentions into the CHINS proceedings.
When this suit began there were ten plaintiffs, all of them
parties to CHINS proceedings. Today only two remain—at
least, only two plaintiffs have live claims. Six of the ten have
been adopted, so their CHINS proceedings have been closed
and the Department no longer supervises their care. Two of
the ten have turned 18, and as adults they are no longer sub-
ject to the Department’s supervision. That leaves only two
plaintiffs. We need to figure out which, if any, of their requests
should be submiUed to the CHINS court under Younger and
which remain for federal adjudication.
The district judge concluded that “none” is the answer for
which claims are subject to Younger. He gave two reasons. 467
F. Supp. 3d at 650–52. First, he pointed to the scope of relief
that plaintiffs are seeking, including “an injunction requiring
[the Department] to maintain caseloads and accepted profes-
sional standards for all workers providing direct supervision
and planning for children as well as an order requiring [the
Department] to periodically verify and report that it is meet-
ing those standards.” Id. at 651. The judge thought that relief
of this kind could not be provided in a CHINS proceeding.
Second, he observed that a CHINS court does not

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No. 21-3028 7
automatically appoint a lawyer for every child (though it does
appoint counsel for parents who can’t afford lawyers). The
judge stated that the absence of counsel for children renders
every CHINS proceeding constitutionally inadequate and jus-
tifies federal disregard of the state’s process.
Neither of these reasons suffices. Take the first. That plain-
tiffs have sought some relief (potentially) unavailable in a
CHINS case may establish standing, but it does not demon-
strate that a federal court may adjudicate all of plaintiffs’
claims. Disputes that can be resolved in a CHINS case must
be resolved there. It is essential to determine which is which.
We were reluctant in Nicole K. to resolve Younger arguments
about CHINS proceedings as an all-or-none maUer; the scope
and complexity of CHINS proceedings makes a one-size-fits-
all solution inapt. For the same reason, however, the existence
of some issues outside the ambit of a CHINS proceeding does
not mean that Younger drops out of the picture.
As for the absence of automatic counsel at public expense:
the district court’s opinion predates Nicole K., which held that
the Constitution does not entitle every child in a CHINS pro-
ceeding to the appointment of counsel. It is enough, Nicole K.
concludes, that every child has an adult representative (such
as a guardian ad litem) and an opportunity to seek the ap-
pointment of counsel if specialized legal aid would be helpful.
Parents automatically receive counsel, and that plus adult
representation for children (many guardians ad litem are
themselves lawyers, and all are experienced in child-welfare
proceedings) meets constitutional standards. It follows from
Nicole K. that the absence of automatic counsel at public ex-
pense for every child in a CHINS proceeding does not permit

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8 No. 21-3028
a federal court to deem all CHINS proceedings defective and
bypass the state judiciary.
So it becomes important to know just what relief the two
children with live claims want that could not be provided by
the judge in a CHINS proceeding. Much of the oral argument
of this appeal was devoted to that subject, and counsel for the
plaintiffs could not identify any. Counsel observed, for exam-
ple, that many children could benefit from hearings at inter-
vals shorter than six months, but counsel conceded that the
judge hearing the CHINS case has authority to reduce the
time between hearings if that seems appropriate. And so it
went for many other possible subjects.
Much of the relief proposed by plaintiffs’ complaint and
briefs concerns how child-welfare investigations are handled
before CHINS proceedings begin. Yet both of the remaining
plaintiffs (indeed, all ten original plaintiffs) were already in
CHINS proceedings when the case began. They do not have
any current interest in how pre-litigation investigations are
conducted. (Counsel did not contend that their CHINS pro-
ceedings are likely to be dismissed, re-investigated, and re-
filed. Cf. Los Angeles v. Lyons, 461 U.S. 95 (1983); Weinstein v.
Bradford, 423 U.S. 147 (1975).) All that maUers to plaintiffs to-
day is what happens during their CHINS proceedings.
Counsel contended at argument that many placements are
too slow—in part because there aren’t enough people willing
to serve as foster parents—or are made less than optimally.
Counsel asserted that the bureaucracy moves sluggishly and
makes too many mistakes. But what can a federal court do
about these things that a CHINS judge could not? Counsel did
not have an answer. We could imagine, as a potential re-
sponse, a contention that the state must increase the payments

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No. 21-3028 9
offered to people willing to be foster parents, or that the De-
partment needs money to hire more social workers so that the
caseload of each may be reduced, but counsel for the plaintiffs
disclaimed any argument that a federal court could or should
increase the agency’s budget. Cf. Will v. Michigan Department
of State Police, 491 U.S. 58 (1989) (state or state official is not a
“person” for the purpose of monetary relief under 42 U.S.C.
§1983). Yet, short of ordering the state to come up with more
money, it is hard to see what options are open to a federal
court but closed to a CHINS court.
Counsel also contended that a federal court could insist
that some provisions in state law, which counsel thinks un-
derenforced, be fully enforced. This sounds like a problem
that CHINS judges can fix, if the state laws and regulations
are pointed out to them. But whether or not a CHINS judge
would step in, a federal court cannot. It is improper for a fed-
eral court to issue an injunction requiring a state official to
comply with state law. See Pennhurst State School and Hospital
v. Halderman, 465 U.S. 89, 97–124 (1984).
For the reasons we have given, the live contentions in this
litigation all may be resolved by judges in CHINS proceed-
ings. It follows that Younger and Moore v. Sims require the fed-
eral judge to abstain. The sort of questions that lie outside the
scope of CHINS proceedings, such as how the Department
handles investigations before filing a CHINS petition, do not
affect the status of the two remaining plaintiffs. Any conten-
tions that rest on state law also are outside the province of the
federal court. It follows that this suit must be dismissed.
REVERSED

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