Indiana denied fees in foster care litigation

In denying Indiana’s request for an award of costs for successfully defending a lawsuit that had challenged the state’s foster care system, the 7^th Circuit Court of Appeals highlighted the appellate procedure rule that limits who can be held responsible for reimbursements.

The two-page ruling arose in Ashley W., et al. v. Eric Holcomb, et al., 21-3028, in which the 7^th Circuit dismissed the lawsuit on the grounds that a federal court could not provide the remedy the plaintiffs were seeking.

In their 2019 complaint, the plaintiffs — all children who had been removed from their homes by the Indiana Department of Child Services — asserted they were subjected to further harm and trauma when they were placed in foster care.

Indiana returned to the 7^th Circuit after the case’s dismissal to get reimbursed. However, the state sought the award for costs not from the children who were named as plaintiffs in the original complaint, but from their next friends who were representing the youngsters’ interests.

Easterbrook pointed to Rule 39(a) of the Federal Rules of Appellate Procedure, which allows for awards against losing litigants but not again their agents. That includes lawyers, guardians ad litem and next friends.

The judge noted some district judges outside of Indiana have relied on Federal Rule of Civil Procedure 54(d)(1) to award costs against next friends when those individuals were responsible for a child’s expenses generally.

Yet, Easterbrook noted Ashley is distinct from those cases.

“… (T)he next friends in this litigation are neither the children’s natural parents nor their foster parents,” Easterbrook wrote in his ruling. “That may explain why Indiana does not ask for an award of costs against the children, as the state may need to reimburse foster parents for the expenses of these children. Indiana does not want a circular award under which it pays with one hand what it receives with the other.”