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Divided Supreme Court reinstates claim DCS mishandled abuse case

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Claims that the Department of Child Services was negligent in its handling of child-molestation allegations were reinstated Tuesday, when a divided Indiana Supreme Court in a 3-2 opinion reversed in part a trial court grant of summary judgment.

The parents of three children sued DCS and other public-agency defendants after an investigation into allegations that a 12-year-old relative had molested one of their much younger children. DCS investigated and discovered the relative also had admitted to molesting another of the children and had been adjudicated delinquent – facts that the mother learned from a third party and which later were confirmed to her when she contacted the agency.

The trial court granted summary judgment to the public-agency defendants on the basis of immunity, but justices reversed as it pertained to DCS 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.

Chief Justice Brent Dickson wrote for a majority joined by Justices Steven David and Robert Rucker that the trial court grant of summary judgment was appropriate under the Tort Claims Act as it pertained to the Evansville Police Department. “However, 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," he wrote.

Likewise, summary judgment is improper under the child-abuse reporting statute, I.C. 31-33-6-1.

Justices Loretta Rush and Mark Massa dissented and would have affirmed immunity in part  because the claim arose from DCS’s participation in the initiation of a judicial proceeding.

"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. 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,” Rush wrote in dissent.

“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.

 


 

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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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