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COA rules DCS has duty to protect caller’s identity

May 26, 2016

The Indiana Court of Appeals ruled in a 2-1 decision the Indiana Department of Child Services had a duty to protect a man’s identity after he called the DCS hotline and reported his neighbors’ children as children in need of services.

The man, who is referred to as John Doe in the COA decision, called DCS after he believed children in five homes on his street were children in need of services due to dangerous living conditions. When he was just about through with the call, a DCS representative asked for his name and phone number. Doe was at first hesitant, but then after being reassured his identity would not be revealed, gave the representative his information.

About a week later, Doe was confronted in his front yard by a neighbor who accused him of calling DCS. She had the unredacted copy of the report he had called in. Other neighbors found out and Doe became a pariah in the neighborhood. He sued DCS for damages arguing DCS was negligent in failing to protect his identity but the trial court granted summary judgment for DCS, ruling the code DCS violated, IC 31-33-18-2, did not include a private right of action.

Judge Robert Altice, writing for the majority and joined by James Kirsch, wrote that it didn’t need to be determined whether the code provides a right of action because Doe was owed a private duty based on common law. A special relationship was clearly established when Doe made the call to the DCS hotline and the DCS employee said his information would be kept confidential.

“The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and IC 31-33-18-2,” Altice wrote. “Ultimately the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.

Chief Judge Nancy Vaidik dissented, writing Indiana Code 31-33-18-2 does not create a private right of action, and thus no special relationship exists. She would affirm the judgment for DCS.

“Put differently, no special relationship was created when Doe called the DCS hotline and was told by the DCS employee that his information was confidential, because the DCS employee’s response was nothing more than a statement of what Section 31-31-18-2 requires,” Vaidik wrote.

The case is John Doe #1, et al. v. Indiana Department of Child Services, 49A02-1506-CT-682.

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