7th Circuit upholds qualified immunity for DCS workers

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Although sympathetic to a couple whose child was temporarily removed from the family’s home on child abuse concerns – a removal that was subsequently found not to be supported by probable cause – the 7th Circuit Court of Appeals affirmed summary judgment for Department of Child Services employees on qualified immunity grounds.

In Mark Siliven, et al. v. Indiana Department of Child Services, et al., No. 10-2701, parents Mark and Teresa Siliven sued the Indiana Department of Child Services, case manager Amber Luedike, and Terry Suttle, director of the Wayne County DCS, claiming the defendants committed federal constitutional and state law violations. Teresa brought her son home from daycare and discovered bruises on his arm. The Silivens filed a child abuse report, suspecting their daycare provider of abuse.

During the investigation by DCS, Luedike found a DCS file from five years earlier indicating that Mark had been accused of abusing his then-15-year-old stepdaughter. That same day, which was a Friday, she and Suttle decided to remove C.S. from the home but did not have a court order. They arranged for Teresa to take C.S. to his grandmother’s house in Ohio. At a hearing held on the following Monday, the judge held that no probable cause existed to believe that C.S. was in physical danger. C.S. returned home and the investigation was eventually closed.

This appeal concerns summary judgment on qualified immunity grounds granted to Luedike and Suttle on the federal constitution claims. The District judge used the second prong of the two-part analysis set forth in Saucier v. Katz, 533 U.S. 194 (2001), and didn’t decide whether the defendants’ conduct violated the Silivens’ constitutional rights. Instead, the court concluded that the constitutional rights allegedly violated weren’t “clearly established” at the time of the initial investigation and removal.

The 7th Circuit focused on the first prong of the test in its review. It held that probable cause existed to remove C.S. from his father’s custody, so there was no violation of the Fourth Amendment. The defendants knew there was physical evidence of abuse, that Mark had access to his son during the timeframe in which the injuries could have occurred, and there was a prior substantiated report of child abuse against him.

“We conclude that those facts were sufficient to warrant a prudent caseworker in believing that C.S. was in danger,” wrote Judge Joel Flaum. “Our determination of reasonableness is influenced, in large part, by the fact that C.S. remained with his mother at all relevant times.”

The judge also pointed out that the defendants, instead of putting C.S. in foster care, allowed his mother to take him to his grandmother’s home in Ohio.

“We do not intend to characterize the degree of interference as minimal, far from it. But we believe the state’s legitimate interest in protecting children warranted that lesser degree of intrusion in this case,” the opinion states.

The fact that C.S. remained with his mother during the weekend in Ohio influenced the judges to hold there was no substantive due process violation. They also rejected the Silivens’ claim that C.S.’s removal without a hearing violated the due process clause of the 14th Amendment.

“We are not unsympathetic to the Silivens. One can only imagine their frustration when, after reporting potential abuse of their child by a third party, the investigation came to focus on them. However, for the reasons stated above, we conclude that the particular interference with the Silivens’ constitutional rights that occurred here was reasonable in view of the facts known by defendants and the state’s strong interest in protecting children from abuse,” wrote the judge.


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  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.