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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. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  2. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  3. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  4. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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