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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. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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