COA rules for DCS in negligence complaint after dad wasn’t notified of injury reports

An Indiana father who wasn’t notified that the Indiana Department of Child Services assessed allegations of abuse and neglect until two years after his twins were injured couldn’t convince the Court of Appeals of Indiana that the agency should be found negligent.

Twins D.G. Jr. and Do.G. were born in 2006 to Alexandra Snyder and Donnell Goston Sr. The two were not married, and Snyder held primary physical custody while Goston had parenting time with the children.

Two allegations of abuse occurred within months of the twins’ birth, with both children showing signs of nonaccidental head trauma. In one instance, D.G. Jr. needed surgery that required removal of part of his skull to alleviate pressure building on his brain.

DCS thus removed the children from Snyder’s care and opened a child in need of services case.

The children had regular interactions with hospitals, law enforcement agencies, and DCS and its county agencies throughout their infancy. Even so, DCS did not contact Goston about either of the children’s injuries that were previously reported until June 4, 2008.

Goston filed a complaint alleging negligence in 2009 against several agencies and individuals. The only remaining defendants at this point in the case are the state, DCS and the Hendricks County Department of Child Services.

In 2010, the city of Indianapolis, which was initially named as a defendant, filed a motion for summary judgement in which DCS joined as a co-defendant. The city’s motion argued Indiana Code Chapter 31-33-8 did not establish a private cause of action.

The Marion Superior Court granted the city’s motion but vacated summary judgment a month later.

In 2015, DCS filed another motion for summary judgment, arguing that I.C. 31-33-8 did not confer a private right of action and that it was immune under the third-party provision of the Indiana Torts Claims Act. However, the trial court again denied summary judgment.

In February 2021, DCS filed a third motion for summary judgment, this time alleging four grounds: immunity under the discretionary immunity, third-party immunity and judicial proceeding immunity of the ITCA; immunity pursuant to I.C. 31-33-6-1 for its investigation of the claims of child abuse; satisfaction of its duty to Goston and the children; and a claim that there was no private cause of action pursuant to I.C. 31-33-8.

This time, the trial court granted DCS’ motion.

Recognizing DCS’ previously filed motions for summary judgment, the trial court only “addresse[d] the issues not previously brought” and concluded DCS was immune from liability pursuant to the discretionary function immunity of the ITCA, as well as judicial proceeding immunity for creating a report of child abuse and because it participated in the CHINS proceeding.

Goston argued on appeal that the trial court abused its discretion by allowing DCS to file its third successive motion for summary judgment. He also raised the issue of whether I.C. 31-33-18-4 confers a private right of action.

The Court of Appeals of Indiana affirmed in full.

“Our own analysis of DCS’ successive motions and the trial court’s current order confirms that the trial court granted summary judgment to DCS on grounds not previously raised by DCS,” Judge Patricia Riley wrote for the court. “Accordingly, DCS’ third motion for summary judgment was timely and properly before the trial court.”

As to the private right of action, the appellate court said it sympathized with Goston and understood his frustration at not being timely notified of the injury reports. However, the COA concluded the Legislature “has not afforded a private right of action in these situations, so we must hold accordingly.”

“Given that the Legislature did not explicitly create a private cause of action and the intent of the Notice Statute is to benefit the public generally by protecting alleged victims of abuse, we again refuse to create a private right of action where one does not exist,” Riley wrote. “Therefore, the trial court did not err in granting summary judgment to DCS.”

The case is Donnell Goston, Sr., et. al v. State of Indiana, et al., 21A-CT-2484.

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