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Case arising out of molestation not reported by DCS divides court

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A lawsuit brought by parents against the Department of Child Services and Evansville Police Department for not informing them of their daughter’s molestation led each judge on the Court of Appeals panel to write his or her own opinion. The only thing the judges agreed on is that the police department is not a proper party to the case.

The parents of 2-year-old F.D. sued DCS, the police department and the Vanderburgh County Prosecutor’s Office for failing to notify them of the alleged molestation of their daughter by 12-year-old cousin L.C. During an investigation of alleged molestation of their 4-year-old son by L.C., DCS caseworker Melissa Cage and police learned that L.C. admitted to molesting other victims, including F.D.

According to the court records, a detective told Cage of L.C.’s admission, to which she said she would contact the newly named victims and let the detective know if any indicated being molested. The detective and Cage never informed the parents of F.D. The mother did not find out her daughter had been molested until nearly a year later.

In F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually v. Indiana Dept. of Family Services, Vanderburgh Co. Office of Family & Social Services, Evansville Police Dept., et al., 82A01-1109-CT-432, Judges Nancy Vaidik, Terry Crone, and Cale Bradford agreed that the police department wasn’t a property party to the litigation and is “merely a vehicle through which the city government fulfils its policy functions.” Regarding whether Indiana Code 31-33-18-4 creates a private right of action against DCS is where the judges split. Vaidik and Bradford found that the parents don’t have a private right of action.

“Therefore, since the statutory duty imposed under Indiana Code section 31-33-18-4 is for the public’s benefit, we have explicitly held that there is no private right of action for failure to report child abuse, and we have expressed a reluctance to create a private right of action absent codification in this area, we hold that the parents do not have a private right of action …” Vaidik wrote in the majority opinion to which Bradford concurred.

“However, this is not meant to suggest that we condone the way that this matter was handled by Child Services and the Police Department,” she continued. “We sympathize with the parents and understand their frustration that they were not informed that their daughter had been molested until a year after the fact. However, our legislature has not afforded a private right of action in these situations, so we must hold accordingly.”

Vaidik then ruled that even if the parents did have a private right of action, DCS would still be immune under the Indiana Tort Claims Act because its actions in this case constitute the initiation of a judicial proceeding. Bradford dissented on this point, and agreed with Crone that DCS doesn’t have immunity under I.C. 34-13-3-3(6).

Crone believed the statute implicitly creates a private right of action, or at very least, that the issue is an inappropriate basis for affirming summary judgment in favor of DCS. Also, DCS has no authority to initiate juvenile proceedings, only the prosecutor does, he wrote. He also felt there were genuine issues of material fact regarding whether the detective told Cage about L.C.’s admission to molesting F.D.

 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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