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Can parents sue DCS? Yes, divided justices rule

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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.”•
 

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  • what did you find out
    What did you find out about who is above DCS. I to have proof that DCS made up a fraudulent case against me that resulted in a ten year conviction against me but can't get anyone to look at the proof.
  • Who is above cps?
    Who makes sure the cps does their job right? I've got proof that the caseworker is a liar and don't listen to the truth, from the accuser. Who is above them? County senator or state senator? 812-607-0088
  • Similar stats
    We have some common issues dealing with curupt cps, eight one two six zero seven zero zero eight eight. Thank
  • dcs falsified drug screen
    how did things work out? i am in very similar situation need help desperately
  • Tongue planted in cheek
    Say, I say boy, that was just satire my boy, mere parody. Hyperbole, it was, merely satirical hyperbole cast as a parody. The federal courts do care, and do seem to scratch their heads at times as to that which passes for "Hoosier justice". Seek and you will find them believing even the most outlandish claims of corruption out of Hoosierland: http://caselaw.findlaw.com/us-7th-circuit/1353347.html Yep, Maria Loubser could be reporting accurately, would not surprise many who study the issue. More on point, try this link: http://www.theindianalawyer.com/dcs-became-the-abusers/PARAMS/article/38504
  • Pleading error 101
    I am sorry, but you have pled nothing that an Indiana court can take notice of. The Hoosier State uber alles. Assume the position and end the practice of questioning your overlords or you will be thrown to the psych examines next.
    • similar case
      I am currently dealing with similar issues regarding dcs! They lied in order to obtain permission to remove my children whom have never been harmed or neglected, and then claimed that if I passed a drug screen they could come home. Mind you, I'd never failed one in the first place! I took their drug screen certain I would pass, however, they are claiming I failed for methamphetamines- a drug I don't and haven't done! I've also caught them in numerous other lies that I have since proven but when it comes to the initial removal of my children and the absurd drug screen results I am stuck with my hands tied and no way to prove....can you help or recommend anything please?
      • expectations
        Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.
      • Dcs falsified drug screens
        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.
        • please help
          my two children were takin from our home, i had a stroke and four anyrisms which led to two brain surgerys,, the judge let me stand in fromt of him when my brain wasnt right he knew i wasnt.. he stopped all visits without getting my medical records i have passed all drug screens,, they have loving fathers,, no abuse and no neglect. what do i do please help. email me i will give you my phone number, i have had the surgerys my brain is working better then it has in years, i raised three other boys one is a machinist, one is in his second year of college at perdue, my daughter just graduated and is going to be a pharmacist, i have a great support system but have never been in the system please HELP
        • bullshit
          My case has been open for almost 2 years and everytime are bout to get them back they add somethin else for is to do I bee thru 2 drug programs and my kids were not taken for drugs got a job and a place they said it was fine bout to get them back they said the house wasn't suitable for them but they had been comin to visit and even let them stay over night now they are bout to make me sigh my rights away I have had 4 case workers now
        • 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
          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

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          1. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

          2. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

          3. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

          4. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

          5. Mr. Foltz: Your comment that the ACLU is "one of the most wicked and evil organizations in existence today" clearly shows you have no real understanding of what the ACLU does for Americans. The fact that the state is paying out so much in legal fees to the ACLU is clear evidence the ACLU is doing something right, defending all of us from laws that are unconstitutional. The ACLU is the single largest advocacy group for the US Constitution. Every single citizen of the United States owes some level of debt to the ACLU for defending our rights.

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