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Statute granting DCS immunity applies to nearly all of family’s claims

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A case involving the Department of Child Services before the Indiana Court of Appeals Wednesday provided the court with two issues of first impression – the interpretation of a statute relating to the agency, and the liberty interests that may reside with extended family members involved in the lawsuit.

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 Indiana Dept. of Child Svcs., 79A04-1202-CT-61, family members of K.L., born in 2008, sued the Department of Child Services and several employees after the DCS appeared unannounced at Glen and Ann Black’s home and removed K.L. from their custody. A CHINS case had been opened regarding K.L., and K.L.’s biological parents, D.L. and T.L., terminated their parental rights so that K.L. could be adopted by D.L.’s sister, Ann, and her husband.

Before placing K.L. with the Blacks, the agency completed a home study and background check of the couple. The background check turned up no issues; the agency later found a 20-year-old child abuse report against Glen Black, in which his then 16-year-old sister accused him of sexually abusing her as a child. DCS never performed a comprehensive investigation into the report, interviewed the Blacks, or provided a copy of the report to the Blacks. The Blacks didn’t even know of the allegations until K.L. was removed. DCS removed the child without a court order.

K.L. was eventually returned to her biological father’s custody.

The family filed suit alleging eight claims, including negligence and fraud, but Tippecanoe Superior Judge Thomas J. Busch dismissed seven of counts, holding they were barred by quasi-judicial immunity because they were based on allegations that DCS acted wrongly in the course of duties within a CHINS proceeding for K.L. The judge also found that the Blacks, including Steven Black, K.L.’s grandfather, did not have standing to sue because they didn’t have a custodial relationship with K.L. before the CHINS proceedings.

“DCS’s handling of this case was extremely sloppy, careless, and regrettable. Based on a twenty-year-old report and with no investigation, they independently decided to remove K.L. from the Blacks’ home,” Chief Judge Margret Robb wrote. “Because there was no court oversight of DCS’s actions and decisions, and they were not implementing a court order, DCS is not entitled to quasi-judicial immunity for any of the actions underlying the Family’s complaint. DCS may not choose to side-step the judicial process and then hide behind that same process.”

The judges for the first time had to interpret Ind. Code 31-25-2-2.5, which the DCS claimed also granted it immunity. That statute states with regard to DCS that “[t]he following are not personally liable, except to the state, for an official act done or omitted in connection with performance of duties under this title: (1) The director of the department. (2) Other officers and employees of the department.”

This statute does appear to apply to most of the family’s claims, Robb pointed out, except for the fraud claim. That claim is based on alleged acts that would not be within the duties of the department.

The COA also was unable to find any cases to provide guidance as to the liberty interests that may reside with the Blacks in this case. The judges found the family made a convincing argument for finding a liberty interest in favor of Ann and Glen Black, citing cases from other courts, including Rivera v. Marcus, 696 F.2d 1016, 1024-25 (2d Cir. 1982). There is no caselaw to support that the grandfather has a liberty interest, and the judges found Busch correctly determined Steven Black did not have standing to bring suit.

They remanded for further proceedings on the fraud claim.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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