ILNews

Can parents sue DCS? Yes, divided justices rule

Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

A sharply divided Indiana Supreme Court decision that a family may sue the state’s child protection agency for negligence is sure to resonate within the Department of Child Services, attorneys familiar with the case said.

“The whole purpose of this appeal was to try to hold the Department of Child Services accountable for its failure to abide by statutory requirements,” said Adam Sedia of Rubino Ruman Crosmer & Polen LLC of Dyer, who successfully argued the case decided in a 3-2 opinion Nov. 26.

Sedia will continue to represent the family in the case that’s been remanded to Vanderburgh Superior Court, where a status conference is scheduled for Jan. 7. At issue is DCS’ failure to disclose to parents allegations of sexual abuse of their 2-year-old daughter by a 12-year-old relative. The parents knew of allegations that the relative had abused a 4-year-old son, but they weren’t informed by DCS that the juvenile who was adjudicated delinquent also said he inappropriately touched their daughter.

Evansville police learned of the allegations regarding the daughter and reported them to DCS as required under the child abuse reporting statute, I.C. 31-33-6-1. But DCS didn’t notify the parents about the abuse allegations. Sedia said the mother learned of those allegations more than a year later during an email exchange unrelated to DCS.

Chief Justice Brent Dickson, writing for the majority joined by Justices Steven David and Robert Rucker, said that the failure of DCS to disclose the abuse allegations to the parents gave them a private right of action against the agency under the Tort Claim Act.

The plaintiffs “contend that DCS’s inaction with respect to the separate report of abuse to Daughter hindered their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party on summary judgment, do not fall within the circumstances granting immunity under the plain words of the statute. … Accordingly, summary judgment is not proper,” Dickson wrote.

“Because plaintiffs’ claims against DCS do not result from the ‘initiation of a judicial or an administrative proceeding,’ DCS is not immune under Indiana Code Section 34-13-3-3(6), and summary judgment in favor of DCS is therefore improper,” the majority held.

While reversing the Vanderburgh County court’s grant of summary judgment for the agency, justices affirmed summary judgment in favor of Evansville police and the Vanderburgh County Prosecutor’s Office in F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor’s Office, 82S01-1301-CT-19.

Sedia believes the majority applied strict construction to determine DCS had an affirmative duty under I.C. 31-33-6-1 to notify the parents about the abuse allegations. “Based on the plain language, DCS isn’t afforded immunity,” he said. “I think the Legislature imposed this duty on DCS for a reason.”

But Justice Loretta Rush wrote a dissent joined by Justice Mark Massa that didn’t find anything of the sort.

“In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here,” Rush wrote.

“I do not condone DCS’s egregious conduct of allegedly not notifying parents of their child’s abuse, but not every breach of a statutory duty provides plaintiffs with a negligence action. … I conclude DCS is immune from liability, and even if it weren’t, the Notice Statute would not provide plaintiffs with a private right of action,” she wrote.

The decision split the court’s experienced juvenile court jurists – David and Rush. Supreme Court spokeswoman Kathryn Dolan said neither would comment on the ruling beyond the written opinions.

Attorney General Greg Zoeller’s office defended the suit, and Zoeller said in a statement that under the immunity principle behind Indiana’s Tort Claim Act, “taxpayers who did nothing to cause a situation ought not be held financially responsible without limit for actions of government employees.

“We respectfully disagree with the narrow scope of the Indiana Supreme Court majority’s opinion as to the State and immunity. Whether liability exists is a separate question that will be determined by the trial court. The Office of the Indiana Attorney General supports the prompt reporting of and prompt investigation of allegations of child abuse and neglect so that children are not subjected to further victimization, consistent with statutes the Legislature has passed,” Zoeller said.

Kaarin M. Lueck, a public defender in Richmond who writes the Indiana Juvenile Justice blog, said the impact of the decision remains to be seen, but the facts of this case appear to be narrow. “It’s a tragedy, and hopefully it doesn’t happen often,” she said.

“This case is another aspect of increased scrutiny of DCS processes and the expectation of no mistakes given what is at risk,” Lueck said, noting reforms within the agency in the last couple of years.

“In the world of all (Child in Need of Services) and delinquency cases, this scenario is going to play out in a small amount of cases,” Lueck said. “Usually, when there is an allegation of sex abuse, the child-victim is interviewed, and the parent is aware of the CPS assessment.

“By statute, DCS’ investigation can and usually will be shared with the prosecutor’s office for possible criminal or delinquency allegations,” she explained. “If the alleged perpetrator is adjudicated to be a delinquent, he or she is generally put into rehabilitative services that usually involve revealing any other potential victims. The delinquent child may be given a diagnostic polygraph to aid in this process. If any other victims are revealed, the therapist is required to notify DCS of new child abuse allegations. The assigned Child Protection Services worker will conduct their investigation. That is the point where the notification statute – I.C. 31-33-18-4 – requires that the parent, guardian or custodian be notified of the assessment in this scenario.”  

Sedia said there was deposition testimony in this case that the failure to notify was characterized as, “It just fell through the cracks.” He’s uncertain whether the high court’s decision may result in other similar claims against DCS.

“There’s always the freak case, and I hope this is it,” Sedia said. “I don’t know how many similar situations there are and have been, but it certainly presents something for the Department of Child Services to take caution of in the future.”

Lueck said the decision will force DCS “to figure out how to deal with these problems without opening up the floodgates of civil litigation.”

“As big a machine as DCS has become, how do you ensure this kind of thing doesn’t happen again?” Lueck said. “This cannot be the only time there’s been a mistake.”•
 

ADVERTISEMENT

  • Let's stand together against DCS
    Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers
  • TIME IS RUNNING OUT FOR ME! IM IN DESPERATE NEED!!!!
    My children were taken away a year ago due to drugs, and u struggled to get things on track, and now that I have been passing drug screens for almost 6 months now and not missing visits they have already filed to take my rights away. I need help.....I can't loose my babies. Plz feel free to call if u can help. Sarah at 765-865-7589
  • I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability
    I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.
  • PEOPLE ALWAYS WANT TO REPORT US FOR WHATEVER REASON ON FAKE CLAIMS TO DCS
    YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.
  • help
    I had my kids taken away over my sister and husband Dcs has lien over and over again I had been taken meds which had cause me to have false positive test and my Dcs worker won't take my paperwork from my doctor that said that so they keep saying I have drugs in my body my three little kids are in Foster home my four year old has had his mouth cut open and had to have stiches bruise all over his body which I have pictures of my two old has had a big black eye with a cut down his face my one year old has mark's on her face cut mouth and Dcs doesn't do anything about it my 15 year old is with his dad and my 16 year was with his dad their dad is his wife steal from Walmart sear and other place they do drugs and Dcs doesn't care they let them they now go to Doctor hospital anywhere else to get pain pills my son gets a check every on-the-job of 721 and his dad doesn't use any of it foe my son I had to go buy my son food cause they didn't have any my two son dad wife hit my 17 and lefted marks on him and Dcs didn't do anything about it they was going to put a lock on the food so my kids couldn't eat without asking and are now living with his wife dad cause they said they couldn't pay the Rent which is only 500 answer he works and make 9 an hour and work's 12 hour a day six days a week I need help I can give you my number There is slot more going on it's just easier if we talk over the phone or I'm person (317)628-3922 please help keep these are my kids and I Love them more than anything
  • help
    I had my kids taken away over my sister and husband Dcs has lien over and over again I had been taken meds which had cause me to have false positive test and my Dcs worker won't take my paperwork from my doctor that said that so they keep saying I have drugs in my body my three little kids are in Foster home my four year old has had his mouth cut open and had to have stiches bruise all over his body which I have pictures of my two old has had a big black eye with a cut down his face my one year old has mark's on her face cut mouth and Dcs doesn't do anything about it my 15 year old is with his dad and my 16 year was with his dad their dad is his wife steal from Walmart sear and other place they do drugs and Dcs doesn't care they let them they now go to Doctor hospital anywhere else to get pain pills my son gets a check every on-the-job of 721 and his dad doesn't use any of it foe my son I had to go buy my son food cause they didn't have any my two son dad wife hit my 17 and lefted marks on him and Dcs didn't do anything about it they was going to put a lock on the food so my kids couldn't eat without asking and are now living with his wife dad cause they said they couldn't pay the Rent which is only 500 answer he works and make 9 an hour and work's 12 hour a day six days a week I need help I can give you my number There is slot more going on it's just easier if we talk over the phone or I'm person (317)628-3922 please help keep these are my kids and I Love them more than anything
  • DCS FILED ABUSE/ NEGLECT
    DCS TOOK MY 17 YEAR OLD SON AWAY STATING I NEGLECTED HIM BECAUSE I DIDN'T PICK HIM UP FROM JUVENILE AFTER THREE HOURS. I CALLED THE POLICE TO HELP ME BECAUSE HE WAS FLIPPING OUT PUNCHING WALLS, CURSING AND I COULDNT calm him down. The police came and my son acted as if he had a gun or something so they locked him up. I explained to the juvenile that my son needs help; mental help and they thought that I just didn't want to be responsible for my child but the fact is that my son is A WARD OF THE STATE BECAUSE I WAS SUPPOSED TO HAVE NEGLECTED HIM AND NOW HE IS AT THE FOSTER PARENTS HOUSE DISPLAYING THE SAME ACTS THAT I TRIED NUMEROUS TIMES TO GET HIM HELP FOR. Bottom line is the FOSTER DAD doesn't want my child and now DCS want to just send him home without any counseling nor psychiatric evaluation. I told DCS that my child is doing drugs and so did his foster dad. I now have a abuse/neglect charge against me that is hindering me gaining employment and I was never notified by DCS.
  • NEED HELP WITH ATTORNEY IN SOUTHERN INDIANA
    Please contact me @812-283-7246 Thanks Mrs.Houglin
  • NEED HELP WITH ATTORNEY IN SOUTHERN INDIANA
    CLARK CO DCS INTENTIALLY MISLED COURTS AND NEGLECTED MY CHILDREN THEMSELVES BY PLACING THEM IN WORSE SITUATION AND NOT FOLLOWING THERE GUIDLINES AND LAWS FABRICATED EVIDENCE AND VIOLATING MY PARENTIAL RIGHTS 4 and 14 AMENDMENT OF THE US CONSTITUTION. FAILED TO CONDUCT PROPER BACK GROUND CHECKS PLACED MY GIRLS WITH INDUVIDUAL THAT HAD ALREADY LOST HER 3 KIDS DUE TO DCS. I NEED SOME HELP IVE CONTACTED THE OMBUDSMAN FOR INDIANA AND MADE COMPLAINT I NEED HELP SEEKING LEGAL REPRISENTATION IN GETTING MY BABIES BACK AND TO STOP THIS ABUSE THAT DCS IS CAUSING TO OUR CHILDREN. HELP PLEASE
    • Sueing the state as well dcs
      Please so we can discuss about my issues and concerns that have on suing the state my contact information is 260 387 9942
    • this just happend to me
      my step daughter has been beaten by her father..who with holds visits from us. she was finally taken from his home. we were made aware of all of this when my wife was made aware of a bench warrent and turned herself in. she was shown pictures of her daughter beaten black and blue and hand prints up and down her legs. DCS claims they tried to contact us and even had our number but there is no record of them contacting us...what can we do in this case. they wont give her daughter to us because they couldnt contact us...or rather didnt contact us.
    • DCS IS PULLING SHADY THING WITH US
      Our son was taken at 4monthes old they said he was taken because of neglect and abuse and not being cared for but this is not the situation they keep changing things on the papers and tricked us into signing a CHINS paper we Need HELP we want our son back its been almost 10months and still the same crap

    Post a comment to this story

    COMMENTS POLICY
    We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
     
    You are legally responsible for what you post and your anonymity is not guaranteed.
     
    Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
     
    No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
     
    We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
     

    Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

    Sponsored by
    ADVERTISEMENT
    Subscribe to Indiana Lawyer
    1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

    2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

    3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

    4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

    5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

    ADVERTISEMENT