Can parents sue DCS? Yes, divided justices rule

A sharply divided Indiana Supreme Court decision that a family may sue the state’s child protection agency for negligence is sure to resonate within the Department of Child Services, attorneys familiar with the case said.

“The whole purpose of this appeal was to try to hold the Department of Child Services accountable for its failure to abide by statutory requirements,” said Adam Sedia of Rubino Ruman Crosmer & Polen LLC of Dyer, who successfully argued the case decided in a 3-2 opinion Nov. 26.

Sedia will continue to represent the family in the case that’s been remanded to Vanderburgh Superior Court, where a status conference is scheduled for Jan. 7. At issue is DCS’ failure to disclose to parents allegations of sexual abuse of their 2-year-old daughter by a 12-year-old relative. The parents knew of allegations that the relative had abused a 4-year-old son, but they weren’t informed by DCS that the juvenile who was adjudicated delinquent also said he inappropriately touched their daughter.

Evansville police learned of the allegations regarding the daughter and reported them to DCS as required under the child abuse reporting statute, I.C. 31-33-6-1. But DCS didn’t notify the parents about the abuse allegations. Sedia said the mother learned of those allegations more than a year later during an email exchange unrelated to DCS.

Chief Justice Brent Dickson, writing for the majority joined by Justices Steven David and Robert Rucker, said that the failure of DCS to disclose the abuse allegations to the parents gave them a private right of action against the agency under the Tort Claim Act.

The plaintiffs “contend that DCS’s inaction with respect to the separate report of abuse to Daughter hindered their ability to obtain proper treatment. The facts, which we must construe in favor of the plaintiffs as the non-moving party on summary judgment, do not fall within the circumstances granting immunity under the plain words of the statute. … Accordingly, summary judgment is not proper,” Dickson wrote.

“Because plaintiffs’ claims against DCS do not result from the ‘initiation of a judicial or an administrative proceeding,’ DCS is not immune under Indiana Code Section 34-13-3-3(6), and summary judgment in favor of DCS is therefore improper,” the majority held.

While reversing the Vanderburgh County court’s grant of summary judgment for the agency, justices affirmed summary judgment in favor of Evansville police and the Vanderburgh County Prosecutor’s Office in F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually v. Indiana Dept. of Child Services, Evansville Police Dept., and Vanderburgh County Prosecutor’s Office, 82S01-1301-CT-19.

Sedia believes the majority applied strict construction to determine DCS had an affirmative duty under I.C. 31-33-6-1 to notify the parents about the abuse allegations. “Based on the plain language, DCS isn’t afforded immunity,” he said. “I think the Legislature imposed this duty on DCS for a reason.”

But Justice Loretta Rush wrote a dissent joined by Justice Mark Massa that didn’t find anything of the sort.

“In the absence of immunity, Indiana law requires us to analyze whether the Legislature intended the violation of the Notice Statute to give rise to a negligence action. Applying that analysis, I can find no such legislative intent here,” Rush wrote.

“I do not condone DCS’s egregious conduct of allegedly not notifying parents of their child’s abuse, but not every breach of a statutory duty provides plaintiffs with a negligence action. … I conclude DCS is immune from liability, and even if it weren’t, the Notice Statute would not provide plaintiffs with a private right of action,” she wrote.

The decision split the court’s experienced juvenile court jurists – David and Rush. Supreme Court spokeswoman Kathryn Dolan said neither would comment on the ruling beyond the written opinions.

Attorney General Greg Zoeller’s office defended the suit, and Zoeller said in a statement that under the immunity principle behind Indiana’s Tort Claim Act, “taxpayers who did nothing to cause a situation ought not be held financially responsible without limit for actions of government employees.

“We respectfully disagree with the narrow scope of the Indiana Supreme Court majority’s opinion as to the State and immunity. Whether liability exists is a separate question that will be determined by the trial court. The Office of the Indiana Attorney General supports the prompt reporting of and prompt investigation of allegations of child abuse and neglect so that children are not subjected to further victimization, consistent with statutes the Legislature has passed,” Zoeller said.

Kaarin M. Lueck, a public defender in Richmond who writes the Indiana Juvenile Justice blog, said the impact of the decision remains to be seen, but the facts of this case appear to be narrow. “It’s a tragedy, and hopefully it doesn’t happen often,” she said.

“This case is another aspect of increased scrutiny of DCS processes and the expectation of no mistakes given what is at risk,” Lueck said, noting reforms within the agency in the last couple of years.

“In the world of all (Child in Need of Services) and delinquency cases, this scenario is going to play out in a small amount of cases,” Lueck said. “Usually, when there is an allegation of sex abuse, the child-victim is interviewed, and the parent is aware of the CPS assessment.

“By statute, DCS’ investigation can and usually will be shared with the prosecutor’s office for possible criminal or delinquency allegations,” she explained. “If the alleged perpetrator is adjudicated to be a delinquent, he or she is generally put into rehabilitative services that usually involve revealing any other potential victims. The delinquent child may be given a diagnostic polygraph to aid in this process. If any other victims are revealed, the therapist is required to notify DCS of new child abuse allegations. The assigned Child Protection Services worker will conduct their investigation. That is the point where the notification statute – I.C. 31-33-18-4 – requires that the parent, guardian or custodian be notified of the assessment in this scenario.”  

Sedia said there was deposition testimony in this case that the failure to notify was characterized as, “It just fell through the cracks.” He’s uncertain whether the high court’s decision may result in other similar claims against DCS.

“There’s always the freak case, and I hope this is it,” Sedia said. “I don’t know how many similar situations there are and have been, but it certainly presents something for the Department of Child Services to take caution of in the future.”

Lueck said the decision will force DCS “to figure out how to deal with these problems without opening up the floodgates of civil litigation.”

“As big a machine as DCS has become, how do you ensure this kind of thing doesn’t happen again?” Lueck said. “This cannot be the only time there’s been a mistake.”•