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The parents of a Johnson County juvenile accused of child molestation owed a duty to the “foreseeable victim of a foreseeable harm” that was allegedly molested in the case, the Court of Appeals of Indiana ruled in reversing a trial court’s grant of summary judgment on a negligent parental supervision claim.
The appellate court affirmed the trial court’s grant of summary judgment on a premises liability claim and the court’s decision to strike portions of an expert’s affidavit in the case.
According to court records, K.D.W. is not the biological son of K.M.W. and K.J.W.
He was surrendered to the Department of Child Services by his biological mother in 2011.
In May 2013, when K.D.W. was eight years old, K.M.W. and K.J.W. began fostering him, and they adopted him in December 2014.
They were aware that K.D.W.’s biological mother was a prostitute and a drug addict and there had been incidents of domestic violence between K.D.W.’s biological parents. They also knew that K.D.W. was diagnosed with ADHD.
K.M.W. arranged for K.D.W. to attend psychological therapy to address issues with anxiety, attention deficit disorder, and past trauma.
Over time, the parents noticed that K.D.W. exhibited oppositional defiant behaviors such as lying, stealing, and arguing.
When K.D.W. was 12, he was sent to a summer camp at Purdue University, in 2017.
At Camp DASH, he was housed on campus with other participants whose ages ranged from 11 to 15.
K.M.W. received a call that complaints had been made against K.D.W. and that he needed to be picked up immediately.
K.D.W. was dismissed from Camp DASH and later charged by the Tippecanoe County Prosecutor with sexual battery after being accused of groping similarly aged female participants over their clothes.
The probable cause affidavit detailed K.D.W.’s unwanted groping or touching of female campers’ thighs, buttocks, and breasts, along with aggressive hugging.
Purdue University police officers interviewed K.D.W. in his parents’ presence in August 2017, and K.D.W. made several admissions about his alleged behavior.
K.M.W. then arranged for K.D.W. to see his long-time therapist, who had experience with sexual maladaptive behavior counseling, and gave the therapist a copy of the probable cause affidavit.
Through therapy sessions, the parents learned that K.D.W.’s biological father had shown him pornography when he was younger.
K.J.W. noticed after the Camp DASH incident that K.D.W. had a preoccupation with sexual behaviors and was trying to access electronics more frequently than he had in the past.
For example, K.D.W. accessed pornography on electronic devices and created a profile on a dating website where he represented himself as a 25-year-old Romanian man.
K.D.W.’s therapist determined he needed a safety plan and recommended that he not be alone with other children.
The therapist further recommended that the parents limit his access to electronic devices or supervise his access.
The parties disputed whether K.M.W. and K.J.W. informed other family members about the specific allegations and K.D.W.’s expulsion from Camp DASH.
John Doe, who is K.M.W.’s brother, did not recall being told the substance of the allegations against K.D.W.
At the Tippecanoe County Prosecutor’s request, K.D.W. underwent a psychosexual evaluation by Dr. Sean Samuels in May 2018.
K.D.W. was determined to be at low risk of engaging in the charged behavior toward younger children, similarly aged peers and older individuals.
K.M.W. agreed during his deposition that low risk did not mean no risk and the safety plan remained in place.
Samuels recommended that K.D.W. see a therapist who specializes in sexual maladaptive behaviors.
K.D.W. did receive specialized therapy for such behaviors beginning in July 2018 at Reach for Youth.
K.M.W. expressed several concerns to the therapist in the initial joint session, including that K.D.W. will take flyers from the newspaper, as well as lingerie, and/or cheerleader magazines and she has found “naked barbie dolls in his room and hidden in various places in the house.”
In August 2018, K.M.W. and K.J.W. hosted a birthday party at their home. John, Jane and Jill Doe were among the 28 people there, including other family members. K.D.W.’s safety plan was in place at this time.
K.M.W. and K.J.W. did not supervise K.D.W. because they were hosting the party and did not ask other adults to help supervise.
Additionally, they did not tell the adults at the party about the allegations against K.D.W. for his behavior at Camp DASH.
At the party, several cousins ranging in age from two to 22, played games throughout the house. Some of the children, including K.D.W. and five-year-old Jill Doe went upstairs to play hide and seek and ping pong. Adults, including K.M.W., would go upstairs periodically to check on the children.
According to the probable cause affidavit, John Doe received a text message from his sister K.M.W., informing him that his daughter Jill Doe and K.D.W. were involved in an incident during the family gathering the day before.
John Doe learned from K.M.W. and Jill Doe that during the game of hide and seek, when K.D.W. and Jill Doe were alone in his room, K.D.W. locked the door and pulled down his pants and Jill Doe’s pants.
Jill later told her father that K.D.W. instructed her to touch him and when she said no, he made her. She said that K.D.W. also touched her.
On August 31, 2018, Greenwood Police Department Detective Doug Wood conducted a Child’s First Finding Words interview with Jill Doe.
Jill Doe corroborated the information John Doe had learned from his sister.
Wood spoke with John Doe confirming the fact that during the birthday party, Jill Doe, her sister and K.D.W. were observed playing hide and seek.
John Doe also informed the officer that Jill Doe disclosed the inappropriate touching to her sister, who then disclosed the incident when she went to school the next day.
During K.D.W.’s interview with police officers, he verified he was playing hide and seek with Jill Doe at the party. However, K.D.W. explained that “his pants were partially down and [Jill Doe] had her hand under his” on him for a few seconds.
He said he told Jill Doe that “if she didn’t stop trying to touch him, he would stop playing with her.”
His parents acknowledged that K.D.W. was in treatment for his sexual maladaptive problems in part to prevent him from being a risk to others, and that it was their responsibility to arrange for that treatment.
Probable cause was found to support a charge of Level 4 felony child molestation if committed by an adult.
Jill Doe has had to undergo mental health therapy because of the molestation.
John and Jane Doe filed a complaint for damages against K.M.W. and K.J.W., asserting claims for both premises liability and negligent parental supervision.
K.M.W. and K.J.W. filed a motion for summary judgment, arguing they owed no duty to Jill under either theory.
In July 2022, the court granted the motion for summary judgment and also struck portions of the Does’ medical expert affidavit.
The Does appealed the trial court’s order.
The Court of Appeals affirmed the trial court’s grant of summary judgment on the premises liability claim and also the court’s decision to strike portions of the expert’s affidavit.
However, the appellate court reversed the trial court’s grant of summary judgment on the negligent parental supervision claim and remanded the matter for further proceedings.
The issue before the appellate court was whether its duty analysis in Wells v. Hickman, 657 N.E.2d 172 (Ind. Ct. App. 1995), a negligent parental supervision case, was implicitly overruled by a pair of Supreme Court decisions.
The court concluded that the duty analysis in Wells had not been implicitly overruled.
Senior Judge Randall Shepard wrote for the court and first addressed the negligence claims.
He disagreed with the trial court that the incident with Jill Doe was not foreseeable.
“K.D.W.’s behavior not only suggests a habit of engaging in unwanted touching in a sexual manner, but also a course of conduct of unwanted touching of females especially while unsupervised,” Shepard wrote. “Moreover, the record shows that K.D.W.’s parents were aware of his behavior at Camp DASH. Thus, regardless of the impact of the decisions in Goodwin, Rogers, Cavanaugh’s, and Pennington, under the Wells analysis, Jill Doe was a foreseeable victim of a foreseeable harm.”
Next, addressing the premises liability claim, Shepard found that hosts of family gatherings don’t routinely contemplate that one family member or guest might sexually molest another.
“We conclude that they do not and affirm the trial court’s decision to grant summary judgment in favor of K.M.W. and K.J.W. on the premises liability claim of the Does’ complaint.,” Shepard wrote.
The appellate court then addressed the evidentiary ruling. The court supported the trial court’s determination to strike portions of the Does’ medical expert affidavit.
“The statements here violate the evidentiary rules, particularly Rule 704(b), because they offer legal conclusions not to be decided by the trier of fact, but by the trial court, and were properly stricken,” Shepard wrote. “We affirm the trial court’s decision to strike those statements for purposes of its summary judgment determination. However, we offer no opinion as to the admissibility of the affidavit or any portions thereof in further proceedings.”
Judges Patricia Riley and Elizabeth Tavitas concurred in John Doe and Jane Doe, as parents and legal guardians of Jill Doe, a minor v. K.M.W. and K.J.W., 22A-CT-2922.
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