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Damages in DCS abuse cases piling up

July 26, 2017

Indiana officials expect to settle a federal damages lawsuit in a second case where a court has found a Department of Child Services case manager violated the constitutional rights of a parent.

Indianapolis veterinarian Beth Breitweiser and DCS filed a joint notice of tentative settlement July 17, six days after a judge ruled for Breitweiser. Judge Tanya Walton Pratt gave the parties 90 days to finalize a settlement in the U.S. District Court for the Southern District of Indiana in Indianapolis.

Pratt granted Breitweiser summary judgment on her complaint that a DCS case manager violated her Fourth Amendment rights by conducting an unreasonable search of an apartment where she and her children had been temporarily staying. The case manager also violated Breitweiser’s 14th Amendment rights for denying her due process, Pratt ruled.

The tentative settlement notice does not indicate potential terms, and Breitweiser’s attorney, E. Scott Treadway, did not reply to a request for comment about them. It’s expected that the settlement will include the second payout in tax dollars that the state will make this year in a case involving abuses by DCS case managers.

In May, the state agreed to pay a record $25 million settlement to the Finnegan family in northern Indiana to resolve a case in which a jury had awarded the family $31 million. The jury’s verdict included damages for conduct by DCS agents that the jury found “shocked the conscience.”

The Finnegan settlement ended the family’s decade-long fight to clear their names after DCS falsified abuse substantiations to seek convictions against parents Roman and Lynette Finnegan and take their children from their Francesville home after one of the children died. The child’s death was later found to be due to a prescription error.

No criminal charges were ever brought against DCS workers in the Finnegan case, nor have any been brought against Nola Hunt, the case manager whose conduct led to the ruling in Breitweiser’s favor. None of the DCS employees in either the Finnegan or the Breitweiser cases were terminated by the agency.

DCS spokesman James B. Wide denied repeated requests for comment about whether the Finnegan and now Breitweiser judgments have led to changes in policies, procedures or staff training at the agency. He instead forwarded links to DCS’s policies and procedures pages and wrote in an email, “Fortunately, we are one of the most transparent state agencies.”

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Indiana University Robert H. McKinney School of Law professor Margaret Ryznar teaches family and juvenile law courses and said DCS faces difficult challenges. The agency is understaffed as caseloads spike largely due to increasing drug abuse endangering children across the state. There are also many gray areas within the agency’s mandate to protect children from abuse and neglect.

“I think it’s always been a tough balance for them to strike between over-interference in Indiana families and under-interference,” Ryznar said. She said the judgments, though, should prompt the agency to act.

“I think DCS is going to have to review its procedures in response in order to avoid future lawsuits,” she said. The suits serve as third-party mechanisms to make sure the agency is functioning properly. “They have an incentive to change their behaviors behind the scenes,” she said.

Breitweiser and her two children were living temporarily in an apartment attached to her Indianapolis practice, All Things Wild Exotic Animal Hospital. Her suit alleges Hunt, responding to an anonymous tip of suspected abuse or neglect, searched the premises without a warrant, took photographs that she used to try to substantiate a meritless children in need of services case, made false claims and threated to take Breitweiser’s two children from her.

Pratt granted Breitweiser’s motion for summary judgment on her substantive and due process claims against Hunt, but the judge ruled Breitweiser had not overcome Hunt’s qualified immunity defense on her due process claims regarding Hunt’s alleged threat to remove Breitweiser’s children. The ruling had set a damages trial for August, which Pratt vacated after the joint notice of tentative settlement was filed.

Pratt’s order adopted a magistrate’s report and recommendations that found there was no question based on the facts of the case that Hunt had conducted an unwarranted search, and that Breitweiser was entitled to judgment on that question because there were no exigent circumstances that would have warranted a search. Breitweiser and her children were not in the apartment at the time of Hunt’s search.

According to the record, Hunt and another DCS worker came to Breitweiser’s office, refused to identify themselves, and demanded to interrogate her. Breitweiser said in her complaint that she feared for her safety and left with her children. Hunt later searched the clinic and apartment and took photos without permission or a warrant. Hunt is accused of later going to the family’s primary home where she posted a notice that said, “Your child(ren) have been taken into custody,” and that court proceedings had been initiated. Neither was true.

A short time later, DCS opened CHINS proceedings that involved home inspections and interviews, but no evidence of abuse or neglect was found. Nevertheless, Breitweiser claims DCS continued to insist she relinquish custody of her children and pressed its CHINS case despite a lack of evidence.

About a month after the CHINS case opened, Hunt admitted in a deposition at least part of her report was inaccurate and false, according to the record. Still, DCS continued to press its CHINS petition until the day before a scheduled evidentiary hearing in the matter, after which Breitweiser filed a tort claim notice with the state. Two months later, DCS filed a substantiation against her, placing her on the Child Protection Index. Another month later, after Breitweiser petitioned for administrative review, DCS reversed itself and the accusations against her were unsubstantiated.

Before the notice of joint settlement was filed, Treadway said Breitweiser was intent on pursuing a civil rights lawsuit against DCS in the hope of triggering reforms at the agency.

“I think that’s a real concern of our client — the impact on similarly situated folks who may not have the ability to hire lawyers and protect their rights,” Treadway said. “Her genuine concern is that this kind of thing is happening to folks and parents who don’t have the resources and wherewithal” to mount a legal challenge when agency workers overstep.

Asked prior to the entry of the tentative settlement petition whether it appeared DCS has taken any remedial steps in light of Breitweiser’s case or the Finnegan case, Treadway said, “From what I can see, it does not appear so.”•

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