A father who sued the Indiana Department of Child Services after his son died in the custody of his mother and her boyfriend was barred from continuing with his lawsuit Wednesday by the Indiana Court of Appeals. A panel of judges ruled for DCS, finding the father had not timely given the agency tort claim notice.
The appellate panel reversed a Morgan Circuit Court order denying summary judgment to DCS in Indiana Department of Child Services v. Justin Morgan, 19A-CT-2635.
Justin Morgan was the father of Brayson Price, who died Nov. 23, 2016. His mother, Meghan Price, and her boyfriend, Steven Ingalls Jr. of Mooresville, were charged in connection with Brayson’s death on June 23, 2017. Both were ultimately convicted and sentenced.
In the roughly year-and-half before Brayson died, Morgan alleged in this lawsuit against DCS that the agency had received at least 11 reports of suspected child abuse from at least seven adults, including himself. The suit said that despite Brayson suffering numerous broken bones, burns and bruises during that time, the agency never substantiated any allegation of abuse.
Morgan filed a tort claim notice Dec. 13, 2017, alleging DCS knowingly and negligently placed Brayson in a situation that endangered his life and health and was responsible for his bodily injuries and death. The suit was filed May 17, 2018, and in October 2019, Morgan Circuit Judge Matthew G. Hanson denied DCS’s motion to dismiss, writing in a one-page order, “there are genuine issues of material fact in this case.”
But the COA reversed on interlocutory appeal, finding the plaintiff’s delinquent tort-claim notice dispositive in this case.
“… (W)e conclude that Morgan had serious concerns with Price and Ingalls and knew that Brayson had been injured on multiple occasions and ultimately died, and DCS had been informed on multiple occasions and had not removed him from the home. Further, Morgan and his parents expressed concerns about DCS’s investigations and inactions,” Judge Elaine Brown wrote for the panel. “We conclude that a notice of tort claim would have to be filed within 270 days of November 28, 2016, or by August 25, 2017, and that Morgan’s December 13, 2017 (Indiana Tort Claim Act) notice was untimely. Under these circumstances, we conclude the trial court erred in denying DCS’s motion for summary judgment.”
In a footnote, the panel wrote that because the matter was decided on this procedural ground, “we need not address DCS’s arguments that it does not have a duty to protect a child from his parent enforceable through a private right of action or that it was not the proximate cause of Brayson’s death.”