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Indiana Department of Child Services Director Eric Miller’s email was not part of a batch of documents produced in a case involving a child who was killed after the department placed him in his parents’ home, but the director repeated at a contempt hearing Monday that discovery production is complete.
DCS is a nonparty to the civil case — Estate of Judah Morgan, by Jenna Hullett, Personal Representative v. Alan Morgan, 32D01-2301-CT-000004 — that involves a father who was sentenced to 70 years in prison for the torture death of his 4-year-old son.
The Hendricks Superior Court had ordered DCS to produce documents requested by the plaintiff, Jenna Hullett, who is a second cousin to the 4-year-old, Judah Morgan.
Mishawaka attorney Charlie Rice, who’s representing Hullett, asked the judge to hold DCS in contempt for failing to obey court orders to produce documents.
He also requested the judge find DCS has acted in bad faith, citing the potential need to fend off a statute of limitations defense in connection to the killing, which he said could include civil rights claims against individual employees.
Judge Robert Freese did not make a ruling.
But counsel for DCS said it completed production of the requested documents Friday. A notice filed ahead of the hearing says the department has produced 130,316 pages of records.
The notice includes a list of search terms used and people whose emails were searched.
Missing from the list of names is Miller, who was appointed to his role in May, as well as former DCS Director Terry Stigdon.
“My name is not there, sir,” Miller responded to Rice from the witness stand inside the Superior Court 1 courtroom.
At the very least, Rice said he would expect the department’s annual fatalities report to be responsive to the production request, which included “all documents (including emails and text messages)” regarding the investigation and parties.
Rice asked Miller if he ever invited the department to search his emails for records that might be responsive to the request.
“What I said is I wanted to make sure that all discovery was provided,” Miller said, “because that’s what we’re required to do. And that’s why we have a staff of attorneys and non-attorneys who work on court-related issues, including discovery, and they’re supposed to do those things. I would not be aware of my email being searched, but I would expect my email to be searched if I had documents.”
Rice also accused DCS of not providing all documents related to drug screenings for Judah’s parents, but Miller reiterated that discovery production is complete.
Miller also repeated that he isn’t involved in all aspects of DCS, saying it’s a “very large, complex” organization with more than 11,000 child in need of services cases open around the state.
“There’s no way that I can be involved in every day-to-day detail of any case,” he said.
Judge Freese asked Miller if any documents related to Judah were destroyed or disposed of after the child’s death in October 2021.
“Not to my knowledge, sir,” Miller said.
Also at issue was the possible existence of records from employee cell phones, including text messages.
DCS Internal Affairs Officer Christine MacDonald, the other witness called during the hearing, said DCS doesn’t have a server that stores text messages or voicemails.
MacDonald said she’s attempted to obtain texts from the Indiana Office of Technology before but that the office advised her the only way to get texts or voicemails is to subpoena the carriers directly.
But MacDonald also said it would be possible to request from individual employees that they search their phones and other devices for responsive records. She said she didn’t make those requests because it wasn’t part of her responsibility, saying that would fall to the department’s litigation director.
DCS has argued the plaintiff should subpoena the cellphone carrier.
Rice also complained that some documents produced aren’t in their “native format,” meaning there could be metadata missing. But MacDonald said she downloaded documents from the department’s case management system in the same format in which they were originally uploaded.
The contempt hearing was originally scheduled for Sept. 6 but was rescheduled for Monday. DCS tried unsuccessfully to vacate the hearing.
The agency previously said it has “worked diligently” to produce documents and emails.
Freese opined that he may find DCS acted in bad faith if the plaintiff can demonstrate the agency has records related to Judah’s case that it hasn’t produced. Freese agreed with DCS that the plaintiff’s “best course of action” for text messages would be to subpoena the carrier.
The judge also said he was “extremely concerned” that the email accounts for Miller and Stigdon weren’t searched.
“This is the death of a child,” he said. “I don’t care if there’s 10 million CHINS cases out there. There’s not 10 million child deaths in a year. If the department is such that the director doesn’t have one email regarding the death of a child, that’s suspect.
“But I’m taking his testimony for what it’s worth.”
Freese directed both parties to submit proposed orders by Monday.
Speaking to media after the hearing, Rice said he thought it was important to get DCS on the record.
“We know there’s more,” he said, “or there should be more.”
Rice also said he hasn’t decided on a subpoena for the cellphone carrier, adding there are sometimes problems with a state court subpoena on an interstate carrier.
“We may do that once we have a federal court involved,” he said.
The statute of limitations for claims against those responsible for Judah’s death is up on Oct. 11, according to plaintiff court filings.
Miller and MacDonald declined to answer questions from media.
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