F.D. v. Ind. Dep't of Child Servs.

• Decision Date: 26 November 2013
• Docket Number: No. 82S01–1301–CT–19.,82S01–1301–CT–19.
• Citation: 1 N.E.3d 131
• Parties: F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually, Appellants (Plaintiffs), v. INDIANA DEPARTMENT OF CHILD SERVICES, Evansville Police Department, and Vanderburgh County Prosecutor's Office, Appellees (Defendants).
• Court: Indiana Supreme Court

1 N.E.3d 131

F.D., G.D., and T.D. b/n/f J.D. and M.D.; and J.D. and M.D., individually, Appellants (Plaintiffs),

v.INDIANA DEPARTMENT OF CHILD SERVICES, Evansville Police Department, and Vanderburgh County Prosecutor's Office, Appellees (Defendants).

No. 82S01–1301–CT–19.

Supreme Court of Indiana.

Nov. 26, 2013.

Adam J. Sedia, Rubino, Ruman, Crosmer & Polen, Dyer, IN, Attorneys for Appellants.

Gregory F. Zoeller, Attorney General of Indiana, Elizabeth C. Rogers, David Steiner, Deputy Attorneys General, Indianapolis, IN, David L. Jones, Robert W. Rock, Jones Wallace, LLC, Evansville, IN, Attorneys for Appellees.

On Transfer from the Indiana Court of Appeals, No. 82A01–1109–CT–432

DICKSON, Chief Justice.

In this action for damages, the plaintiffs (parents J.D. and M.D., individually and on behalf of their children, F.D., G.D., and T.D.) allege mishandling of child abuse reports by the Indiana Department of Child Services (DCS), the Evansville Police Department (EPD), and the Vanderburgh County Prosecutor's Office (VCPO). The trial court granted summary judgment to all defendants on grounds of immunity, and the plaintiffs have appealed the grant of summary judgment in favor of DCS and EPD, but not as to VCPO. As explained below, we affirm summary judgment in favor of EPD, but we reverse the summary judgment entered in favor of DCS.

In June of 2007, M.D. (“Mother”) informed DCS that her then four-year-old son, T.D. (“Son”), had been molested by her then twelve-year-old nephew, L.C. (“Nephew”). DCS initiated an investigation and interviewed Son and his then two-year-old twin sisters, F.D. and G.D. Son disclosed that he had been inappropriately touched by Nephew. Both two-year-old twin daughters denied being inappropriately touched by Nephew. DCS then referred the matter to the EPD for a delinquency investigation. In July of 2007, Detective Jeff Minto of EPD interviewed Nephew. During the interview, Nephew admitted to inappropriately touching four of his cousins, including Son and one of the twin daughters, F.D. Detective Minto informed DCS of Nephew's admissions, including the touching of F.D., and DCS chronicled Nephew's admissions in a “Contact Log Report.” Neither DCS nor EPD informed Mother or Father of Nephew's admission to inappropriately touching their daughter, F.D. EPD then referred Nephew's case to the Vanderburgh Juvenile Court for delinquency proceedings.

On July 26, 2007, Juvenile Probation Officer Bernie Faraone conducted an intake interview with Nephew. During this interview, Officer Faraone read an account of Nephew's alleged offenses, including Nephew's admission to touching F.D. Mother was present for at least a portion of this interview, but was not informed of Nephew's molestation of her daughter, F.D.¹ On August 27, 2007, Nephew was adjudicated delinquent and placed on probation for nine months. Mother was not informed of Nephew's adjudication. On July 31, 2008, Mother learned of Nephew's admission to the molestation of her daughter from a third party, and on August 8, 2008, this fact was confirmed by DCS.²

The plaintiffs filed suit alleging negligence. Specifically, the plaintiffs contend that DCS was negligent in failing to perform its statutory duty, pursuant to Indiana Code section 31–33–18–4, to notify the plaintiffs of Nephew's alleged molestation of F.D. Additionally, plaintiffs argue that EPD was similarly negligent in failing to notify the plaintiffs and for not pursuing separate charges against Nephew for the molestation of F.D. On the defendants' motion, the trial court granted summary judgment in favor of all defendants,³ concluding that DCS and EPD were each immune under both Indiana Code section 31–33–6–1 (immunity from civil and criminal liability for reporting alleged child abuse) and Indiana Code section 34–13–3–3 (immunity of a governmental entity or employee, a provision of the Indiana Tort Claims Act). Plaintiffs appealed the trial court's ruling as to DCS and EPD, and a divided panel of the Court of Appeals affirmed the trial court. ⁴F.D. v. Ind. Dep't of Family Servs., 973 N.E.2d 1186 (Ind.Ct.App.2012).⁵ We granted transfer and now affirm the trial court's grant of summary judgment in favor of EPD, but reverse summary judgment with respect to DCS.

On appeal, the plaintiffs contend that the trial court erred in granting summary judgment in favor of DCS and EPD. Specifically, plaintiffs argue that because of the “role” and the “conduct” of DCS and EPD in the events surrounding the adjudication of Nephew, that the Indiana Tort Claims Act does not confer immunity in this case. Appellants' Br. at 8. The plaintiffs further urge that the immunity granted by the child abuse reporting statute is inapplicable because “the claims against [DCS and EPD] do not arise out of [their] ‘participation”’ in the delinquency proceedings against Nephew. Id. at 16.

On appeal of the grant or denial of a motion for summary judgment, we apply the same standard applicable to the trial court. Presbytery of Ohio Valley, Inc. v. OPC, Inc., 973 N.E.2d 1099, 1110 (Ind.2012) (citing Wilson v. Isaacs, 929 N.E.2d 200, 202 (Ind.2010)). The moving party “bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.” Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind.2012). If the moving party meets this burden, then the non-moving party must designate evidence demonstrating a genuine issue of material fact. Id. Review is limited to those facts designated to the trial court, Ind. Trial Rule 56(H), and summary judgment is appropriate where the designated evidence “shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law,” id. 56(C). In applying the facts to the law, “[a]ll facts and reasonable inferences drawn from those facts are construed in favor of the non-moving party.” Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind.2001). “We must carefully review a decision on a summary judgment motion to ensure that a party was not improperly denied its day in court.” Id. at 974.

1. Applicability of the Indiana Tort Claims Act

More than forty years ago, a series of judicial decisions almost entirely abolished common law immunity for government entities and activities in this state. Campbell v. State, 259 Ind. 55, 63, 284 N.E.2d 733, 737–38 (1972) (abrogating immunity for the state); Klepinger v. Bd. of Comm'rs of Miami Cnty., 143 Ind.App. 178, 198–202, 239 N.E.2d 160, 172–73 (1968) (abrogating immunity for counties), trans. denied; Brinkman v. City of Indianapolis, 141 Ind.App. 662, 666–69, 231 N.E.2d 169, 172–73 (1967) (abrogating immunity for municipalities), trans. denied. Under Indiana common law, with very limited exception, governmental entities are thus subject to liability under traditional tort theories. See Benton v. City of Oakland City, 721 N.E.2d 224, 227 (Ind.1999) (noting the three limited circumstances in which common law sovereign immunity still exists: crime prevention, appointments to public office, and judicial decision-making). In apparent response to Campbell,Klepinger, and Brinkman, the Indiana General Assembly passed the Indiana Tort Claims Act (“ITCA”). Gary Cmty. Sch. Corp. v. Roach–Walker, 917 N.E.2d 1224, 1227 (Ind.2009). “This statute granted absolute immunity to governmental entities in a number of specific circumstances, and codified rules of liability for other areas of governmental activity.” Id. Whether immunity applies is a question of law for the court, and the party seeking immunity bears the burden of demonstrating that its conduct is within the protection afforded by the ITCA. Mangold ex rel. Mangold, 756 N.E.2d at 975. The negligence of a defendant “is not relevant if it is immune. Immunity assumes negligence but denies liability.” Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 5 (Ind.2002). We explained:

[T]he issues of duty, breach and causation are not before the court in deciding whether the government entity is immune. If the court finds the government is not immune, the case may yet be decided on the basis of failure of any element of negligence. This should not be confused with the threshold determination of immunity.

Id. at 6 (quoting Peavler v. Bd. of Comm'rs of Monroe Cnty., 528 N.E.2d 40, 46–47 (Ind.1988)). This appeal involves only the issue of immunity, and thus we do not address any question regarding whether or not the plaintiffs have a valid cause of action against the defendants.

In interpreting statutes, such as the ITCA, we seek to give effect to the intent of the legislature. Clark v. Clark, 971 N.E.2d 58, 61 (Ind.2012). We thus look first to the statutory language and “presume that the words of an enactment were selected and employed to express their common and ordinary meanings.” Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind.2007). “Where the statute is unambiguous, the Court will read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings.” Id. “Because the ITCA is in derogation of the common law, we construe it narrowly against the grant of immunity.” Mangold ex rel. Mangold, 756 N.E.2d at 975.

The plaintiffs claim that DCS was negligent in failing to fulfill its statutory duty, pursuant to Indiana Code section 31–33–18–4,⁶ to notify the plaintiffs of Nephew's alleged molestation of their daughter, F.D. In seeking summary judgment, DCS contends that it is immune under Indiana Code section 34–13–3–3(6), “A governmental entity or an employee acting within the scope of the employee's employment is not liable if a loss results from the following: .... (6) The initiation of a judicial or an administrative proceeding.” Ind.Code § 34–13–3–3(6).⁷ The provision of the ITCA upon which DCS relies is most commonly...