Foster parents can sue DCS, but not case manager, COA rules

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Foster parents whose efforts to adopt two foster children fell through can proceed with their negligence and defamation claims against the Indiana Department of Child Services, but their federal and state-law claims against a DCS caseworker were properly dismissed, the Court of Appeals of Indiana has ruled.

The case of Megan Perry and Jonathon Perry v. Indiana Department of Child Services and Linzy Derucki, 22A-CT-605, began in March 2017, when Megan and Jonathon Perry became foster parents to 3-month-old S.F. Later that same year, the Perrys also became foster parents to S.F.’s sister, I.F.

At some point, the Perrys filed a petition to adopt S.F. However, in August 2019, the Indiana Department of Child Services informed the couple that both children would be removed from their care.

The Perrys responded by attempting to intervene in the underlying child-in-need-of-services proceedings, but the Marion Superior Court determined that motion was premature because DCS had not formally filed its motion to change the children’s placement. That same day, however, DCS filed the motion to change placement, and the children were subsequently returned to their biological mother.

Meanwhile, the Perrys amended their petition to adopt S.F. and also filed a petition to adopt I.F., but DCS withheld its consent to the adoptions. Ultimately, their adoption efforts failed.

Thus, in July 2021, the Perrys filed a complaint against DCS and Linzy Derucki, the case manager for S.F. and I.F.’s CHINS proceedings. The complaint raised a 42 U.S.C. § 1983 civil rights violation claim against Derucki for alleged violations of the Perrys’ rights to family integrity and due process; a negligence claim against DCS; and a defamation claim against both defendants for allegedly making false statements about the couple to third parties.

The trial ultimately dismissed the complaint as to both defendants, but the Court of Appeals reinstated the state-law claims against DCS in a Wednesday opinion.

On appeal, DCS conceded that the DCS Immunity Statute, Indiana Code, 31-25-2-2.5, does not block tort claims brought against the agency as an entity under D.L. v. Huck, 978 N.E.2d 429 (Ind. Ct. App. 2012), clarified on reh’g, 948 N.E.2d 223 (2013). Thus, the appellate panel reversed the dismissal of the defamation and negligence claims against DCS and remanded for further proceedings.

But as to the dismissal of the federal and state claims against Derucki, the COA affirmed in full.

Looking specifically at the federal civil rights claim, the appellate court determined a qualified immunity claim was a proper potential basis for dismissal.

“… (T)he Perrys identified their fundamental right to family integrity under the Fourteenth Amendment and their federal due process rights as the federal constitutional rights forming the basis of their § 1983 claim,” Judge Patricia Riley wrote. “In support of their argument that they have a protectable liberty interest in their foster-parent relationship with Children, the Perrys direct our attention to several Indiana statutes, including those that provide for the intervention of long-term foster parents in CHINS and termination proceedings, those that require DCS to follow certain procedures to establish a permanency plan for pre-adoptive children, and Indiana Code section 31-27-2-12, the enabling legislation for the Foster Parent Bill of Rights.

“However, none of these Indiana statutes expressly provide foster parents with a protectable liberty interest, and our own research has uncovered no Indiana legal authority holding as such,” Riley continued. She also rejected the Perrys’ reliance on Huck and the U.S. Supreme Court decision in Smith v. Organization of Foster Families for Equality and Reform.

“Because the allegations of the Perrys’ Amended Complaint affirmatively showed that Durecki was entitled to qualified immunity as to their § 1983 claim, we conclude that it was properly dismissed.”

Likewise, turning to the state-law defamation claim, “As to the Perrys’ argument that the DCS Immunity Statute was not available to Derucki in the dismissal proceedings, we resolve that contention in the same manner as we have the Perrys’ argument regarding the availability of the qualified immunity affirmative defense, namely, that the defense was available to Derucki as part of DCS’s 12(B)(6) motion that she joined,” Riley wrote.

She continued, “Regarding the Perrys’ argument that they alleged facts in the Amended Complaint which created factual issues about whether Derucki’s actions constituted official acts within the meaning of the DCS Immunity Statute, our review of the Perrys’ responses to both the Defendants’ dismissal motions and our review of the transcript of the January 24, 2022, hearing revealed that the Perrys never raised this issue in the trial court. … It is well-settled that arguments raised for the first time on appeal are waived for our consideration.”