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COA: rehearing petition another example of how DCS ‘dropped the ball’ in case

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The Indiana Court of Appeals granted the rehearing petitions of the Department of Child Services and a family who had a child removed from their care and re-examined the family’s federal civil rights claims and claims under the Indiana Tort Claims Act. The judges also chided DCS’ counsel for submitting a new document in the petition for rehearing that was not part of the record on appeal.

In D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and IN. Dept. of Child Svcs., 79A04-1202-CT-61, DCS petitioned for rehearing on the October 2012 decision in which the appellate court denied DCS quasi-judicial immunity. Glen Black and other family members sued DCS and several employees after the DCS appeared unannounced at Glen and Ann Black’s home and removed K.L. from their custody. The Blacks sought to adopt K.L., but DCS said it found a child abuse report against Glen Black from 20 years prior. DCS never investigated the report further and declined to place K.L. with her grandfather. She was instead returned to her biological father, D.L.

“DCS knew that quasi-judicial immunity was an issue on appeal — in fact DCS itself first supplied the notion of quasi-judicial immunity in its memo in support of the motion to dismiss — and yet failed to provide or even refer to this document to the trial court, or to us in its reply on appeal, at oral argument, or by a motion to supplement the record at any time during the appeal. It seems that this is one more example of the ball being dropped by DCS in this case, and DCS may not supplement the record now,” Chief Judge Margret Robb wrote.

Turning to the family’s petition for rehearing, the judges found that their interpretation of Indiana Code 31-25-2-2.5 does not conflict with the Indiana Tort Claims Act. Read together, a suit against DCS as an entity should be allowed to proceed even if vicarious and even if the suit against the employee is barred, but only for those claims that fall within the ITCA. All other vicarious liability against DCS would be extinguished under I.C. 31-25-2-2.5.

The Court of Appeals allowed tort claims against DCS to proceed under a theory of vicarious liability within the ITCA. It also allowed federal civil rights claims to proceed.

The judges affirmed that grandfather Steven Lucas does not have standing to assert a claim for DCS’ failure to consider him for home placement. DCS has no obligation to place K.L. with Lucas and it appears that DCS did consider him but felt he was not suitable to care for the child.

 

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  1. I was wondering about the 6 million put aside for common attorney fees?does that mean that if you are a plaintiff your attorney fees will be partially covered?

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  3. 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.

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