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Justices weigh whether child abuse reporter can sue DCS for breach of confidentiality

November 16, 2016

A southern Indiana church van driver who suspected children to be in need of services due to dangerous living conditions in his small community followed the law requiring him to report his suspicions. He didn’t want to provide his name, but he did so after a Department of Child Services hotline worker assured him his identity would remain confidential, as the law also requires.

“He became concerned as time went on that there was drug activity, there was other criminal activity, other things like that that were putting the children in harm’s way,” the man’s attorney, Christopher Wyant, told the Indiana Supreme Court during oral arguments Nov. 3.

But the man’s identity was disclosed to the very parties he reported, after which he was confronted by one of them, a neighbor in the town of Oolitic. Another neighbor produced a DCS report with John Doe #1’s name and phone number unredacted. Doe claims since his neighbors found out he reported his suspicions, he, his wife and three children don’t feel safe, his family has been harassed and threatened, and they’re afraid to spend time outside their home.

“They do not have a happy, safe home like before June of 2013,” Doe claims in a brief filed with the justices, who have been asked to decide whether he has a private right of action or a common law claim of negligency against DCS for failing its duty to keep his identity confidential. The case is John Doe #1, et al. v. Indiana Department of Child Services, 49S02-1609-CT-00464.

A state attorney argued before the justices that Doe can’t sue DCS. That was the conclusion of a trial court that granted the agency summary judgment, but a divided Court of Appeals reversed, ruling Doe could sue DCS, prompting the justices to grant transfer when the state appealed.

“Plaintiffs do not have a private right of action,” Deputy Attorney General Frances Barrow told justices. “I’m not saying that’s fair. I’m not saying that’s good.”

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“So the recourse is zero? Tough luck, too bad, sorry Charlie?” Justice Geoffrey Slaughter asked.

Barrow said that’s not how she’d characterize it, but the Legislature has not provided a private right of action for breaching confidentiality in the Indiana statute that requires Hoosiers report suspected child abuse.

Wyant argued that without a private cause of action to protect people whose identity is disclosed, DCS’ confidentiality duty under I.C. 31-33-18-2 is hollow. “Either there’s confidentiality or not,” he said, noting a private cause of action is the key to enforcing the confidentiality requirement. Otherwise, he said, it’s “just a suggestion.”

In addition to Wyant’s claim that his client has a private right of action for violation of the statute, he argued Doe also has a common law negligence claim under a detrimental reliance analysis. Doe relied on assurances his identity would be held in confidence, but the promise was violated. Wyant cited Koher v. Dial, 653 N.E.2d 524 (Ind. Ct. App. 1995), which held a man suffering a heart attack whose wife called 911 and relied on the promise of an ambulance had a private cause of action after the emergency service wasn’t timely dispatched. He also cited the more recent case F.D., et. al v. Indiana Department of Child Services, 1 N.E.3d 131 (Ind. 2013), which found parents had a private right of action against the agency for withholding from them evidence that their child had been molested.

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But Chief Justice Loretta Rush suggested that the court ruling as Wyant asked could open the state to untold liability, and Justice Mark Massa said a body of caselaw supports the theory that there is no implied private right of action against state actors.

Barrow also argued that the court’s analysis should focus on who primarily benefits from the statute — children who are the victims of abuse and neglect. Rush expressed doubts about providing reporters of suspected abuse with a private right of action where the court has held that victims of child abuse have no private right of action under the reporting statute.

“If there’s no private right of action for a child who’s been abused and neglected, with regard to somebody failing to make a report, you understand you’re asking us to give more protection to sort of the social shunning that your client has than a child has who’s actually been abused,” Rush said to Wyant. “Why would we elevate the social shunning over the actual physical, sexual abuse and neglect?”

Wyant replied that the statute’s overall aim is to protect children, but the confidentiality promise is different. “When we get into the confidentiality, which we’re dealing with, this is a one-on-one thing. This is not a public benefit any longer, this is one person’s benefit — the reporting source — and that’s where the cases have shown we can infer private rights of action in that scenario: We’re talking about a private benefit for a private person.”

Wyant and some justices suggested that if reporters of suspected child abuse couldn’t reasonably rely on the promise of confidentiality that it could have a chilling effect on people reporting suspected abuse. Justice Steven David noted Hoosiers are required by law to report suspected child abuse and can face criminal penalties for failing to do so. One the other side, though, he said DCS has a duty to redact a reporter’s name, but no apparent consequences for failing to do so.

Barrow noted that a DCS worker who intentionally discloses confidential information can face criminal charges. In this case, attorneys on both sides said there is no indication the information was intentionally released, but nevertheless, Barrow said DCS employees who release information that should have been redacted can face professional consequences up to and including termination.

But she said no special relationship existed between Doe and the DCS hotline operator who took his name that was eventually disclosed. She said that because the statute doesn’t convey a private right of action, “that ends the inquiry. You don’t separately consider a possible negligence claim. … There is no common law action for confidentiality.”

Rush and David challenged Barrow on this assertion, with Rush asking her for authority for such a proposition. “I’m not aware of a case that says that,” Barrow said, while urging the court to adopt the dissent from Court of Appeals Chief Judge Nancy Vaidik.

“I think Judge Vaidik’s dissent articulated it very well, that the court might hold that the Legislature does not intend a private right of action, but then if a court says, well, but we find negligence under common law, then that’s an end run around the legislative intent,” Barrow said. “Once a court does the analysis under private right of action and finds none, then there should be no separate inquiry under any other theory.”•

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