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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. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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