United States District Court, S.D. Indiana, Indianapolis Division
A. T. by next friend, Christopher Tewell, father, Plaintiff,
MARION COUNTY DEPT. OF CHILD SERVICES, VIRGINIA HICKS Assessment Manager, in official and individual capacities, JAMICA TUCKER Assessment Manager, in official and individual capacities, VIVIAN TODD-SCOTT Family Manager, in official and individual capacities, ROCHEENA WRIGHT Family Manager Supervisor, in official and individual capacities, BETH DICKERSON Branch Director, in official and individual capacities, TERRY STIGDON Director Indiana Dept of Child Services, in official and individual capacities, WILBERT L. WALTON Family Manager, in official and individual capacities, IAN MULLER Lead MCDCS attorney, in official and individual capacities, Defendants.
R. SWEENEY II, JUDGE
A.T. by her next friend Christopher Tewell, father, commenced
this action by filing a complaint against the Marion County
Department of Child Services, alleging violation of rights
under the U.S. Constitution and other federal laws. (ECF
No. 1.) The complaint claims that the Department of
Child Services by Family Case Manager Jamica Tucker
unlawfully entered the Tewell home and wrongfully removed
A.T. Exhibits attached to the complaint indicate that on
November 13, 2018, the Indiana Department of Child Service
(“DCS”) received a report that A.T., E.W., and
J.F., were minor victims of neglect due to domestic violence.
Mr. Tewell, A.T.’s father, was identified as the
alleged perpetrator. The exhibits include a Summons and Notice
of Rights from the Marion Superior Court in Cause Number
49D09-1812-JC-003120, dated December 27, 2018, which states
that a Verified Petition in the case claims A.T. is a child
in need of services (“CHINS”). (Complaint, Ex. C,
ECF No. 1-1 at 18.) A.W. was placed in in-home CHINS
with her mother. (Complaint, Ex. E, ECF No. 1-1 at
25.) Also included as exhibits are several filings by
Mr. Tewell and orders issued in the Marion Superior Court
case, challenging actions taken in the CHINS proceedings.
(Complaint Ex. F, ECF No. 1-1 at 35, 37–60.)
The most recent order of which was issued on March 8, 2019,
and set a hearing for March 20, 2019. (ECF No. 1-1 at
40.) Mr. Tewell takes issue with DCS’s compliance
with state law and its own policies governing CHINS
proceedings. He has moved to dismiss the CHINS proceedings;
his motion was denied by the Marion Superior Court.
(Id.) This action was filed in this federal court on
March 28, 2019.
Tewell has filed several motions: Emergency Petition for Writ
of Habeas Corpus and Temporary Restraining Order (ECF No.
3), Plaintiff’s Motion Requesting Counsel for
Minor Child (ECF No. 5), Plaintiff’s Emergency
Motion for Hearing (ECF No. 7), and Motion for Leave
to File Amended Complaint (ECF No. 9).
jurisdiction is the first question in every case, and if the
court concludes that it lacks jurisdiction, it must proceed
no further.” State of Illinois v. City of
Chicago, 137 F.3d 474, 478 (7th Cir. 1998). Under the
Younger abstention doctrine, see Younger v.
Harris, 401 U.S. 37 (1971), federal courts are required
“to refrain from exercising jurisdiction over federal
constitutional claims that seek to interfere with or
interrupt ongoing state proceedings.” Courthouse
News Serv. v. Brown, 908 F.3d 1063, 1071 (7th Cir.
2018), petition for cert. filed (U.S. Mar. 13,
2019). The doctrine originally required abstention in cases
in which a criminal defendant sought a federal injunction to
stay or enjoin state court proceedings. See401 U.S.
at 40–41; Courthouse News Serv., 908 F.3d at
1071. However, the Supreme Court extended the doctrine to
civil proceedings “in which the state’s interests
are so important that exercise of federal judicial power over
those proceedings would disregard the comity between the
states and federal government.” Courthouse News
Serv., 908 F.3d at 1071.
the case here. In CHINS proceedings, “the law
recognizes the state’s interest in protection of
children . . . .” Millspaugh v. Wabash Cty.
Dep’t of Pub. Welfare, 746 F. Supp. 832, 848 (N.D.
Ind. 1990), aff’d, 937 F.2d 1172 (7th Cir.
1991). The complaint seeks review in this federal court of
decisions made in an Indiana state court CHINS proceeding to
which A.T. and Mr. Tewell are parties. This Court does not
have jurisdiction to review those state court proceedings,
even though it is alleged that the proceedings deprived Mr.
Tewell of his federal rights. See, e.g., Ritter
v. Ross, 992 F.2d 750 (7th Cir. 1993).
Court concludes that it lacks subject-matter jurisdiction
over this action and this action therefore should be
DISMISSED under 28 U.S.C. §
would be reason enough to require denial of all of Mr.
Tewell’s other motions. However, because Mr. Tewell is
proceeding pro se and will be given an opportunity
to cure the deficiencies in his pleading if he can do so, the
Court will address his other motions. Because the Emergency
Petition for Writ of Habeas Corpus and Temporary Restraining
Order (ECF No. 3) also seeks to interfere with
ongoing state proceedings, it must be
denied. No hearing on that motion is
necessary, so the Emergency Motion for Hearing (ECF No.
7) is denied.
individual may appear in the federal courts only pro
se or through counsel.” Lewis v. Lenc-Smith
Mfg. Co., 784 F.2d 829, 830 (7th Cir. 1986) (citing 28
U.S.C. § 1654). Thus, as a general rule, “a next
friend may not, without the assistance of counsel, bring suit
on behalf of a minor party.” Elustra v. Mineo,
595 F.3d 699, 705 (7th Cir. 2010). Mr. Tewell does not have
the authority to litigate pro se on behalf of his
minor children. Therefore, his Motion Requesting Counsel for
Minor Child (ECF No. 5) must be
denied. Besides, he has not demonstrated
that he has made a reasonable effort to secure counsel on his
own-another reason to deny the motion. See Farmer v.
Haas, 990 F.2d 319, 321 (7th Cir. 1993).
Tewell seeks leave to file an amended complaint, but the
proposed amended complaint suffers from several fatal flaws
and leave to amend may be denied where the amendment fails to
state a cognizable claim. See Adams v. City of
Indianapolis, 742 F.3d 720, 734 (7th Cir. 2014). For
example, Mr. Tewell seeks to add his other minor children as
plaintiffs; as explained, he lacks authority to do so unless
they are represented by counsel. Moreover, the amended
complaint, like the original complaint, seeks to interfere
with the ongoing state court CHINS proceedings, and the Court
lacks subject matter jurisdiction over such claims.
the reasons stated, the Emergency Petition for Writ of Habeas
Corpus and Temporary Restraining Order (ECF No. 3)
is denied, the Motion Requesting Counsel for
Minor Child (ECF No. 5) is denied,
the Emergency Motion for Hearing (ECF No. 7) is
denied, and the Motion for Leave to File
Amended Complaint (ECF No. 9) is
Mr. Tewell shall have through April 30,
2019, to file an amended complaint that corrects the
deficiencies noted above or otherwise show cause why this
action should not be dismissed for lack of subject matter
jurisdiction. In doing so, he must clearly identify the
federal constitutional or statutory provision(s) giving rise
to his claims. Failure to do so in the time allowed will
result in the dismissal of this action without further notice
or opportunity to show cause.