F.D. v. Ind. Dep't of Family Servs.
| Citation | 973 N.E.2d 1186 |
| Decision Date | 30 August 2012 |
| Docket Number | No. 82A01–1109–CT–432.,82A01–1109–CT–432. |
| Parties | F.D., G.D., and T.D. b/n/f J.D. and M.D.; J.D. and M.D., Individually, Appellants–Plaintiffs, v. INDIANA DEPARTMENT OF FAMILY SERVICES, Vanderburgh County Office of Family and Social Services, Evansville Police Department and Vanderburgh County Prosecutor's Office, Appellees–Defendants. |
| Court | Court of Appeals of Indiana |
OPINION TEXT STARTS HERE
Adam J. Sedia, Rubino, Ruman, Crosmer, Smith, Sersic & Polen, Dyer, IN, Attorney for Appellants.
David L. Jones, Robert W. Rock, Evansville, IN, Attorneys for Appellee, Evansville Police Department.
Gregory F. Zoeller, Attorney General of Indiana, Elizabeth Rogers, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee Department of Child Services.
M.D. (Mother) and J.D. (collectively, “the parents”) appeal the trial court's decision to grant summary judgment in favor of the Department of Child Services (Child Services) 1 and the Evansville Police Department (the Police Department) for Child Services' and the Police Department's failure to inform them of their daughter's molestation. The trial court based its decision on the grounds of immunity under both the Indiana Tort Claims Act and Indiana Code section 31–33–6–1, one of Indiana's child abuse reporting statutes. However, we find that the Police Department is not a proper party to this case. We also hold that Indiana Code section 31–33–18–4, the statute the parents say gives rise to Child Services' duty to notify them of their daughter's molestation, does not confer a private right of action. We therefore affirm the trial court.
On June 17, 2007, four-year-old T.D. (Son) informed the parents that L.C. (Juvenile), his twelve-year-old cousin, had touched his penis. Mother reported the abuse to Child Services, and Child Services compiled a preliminary report of alleged child abuse or neglect. Melissa Cage was the caseworker assigned to the file. Cage initiated an investigation and conducted an interview with Son. She also conducted interviews with G.D. and F.D. (Daughter), Son's two-year-old twin sisters. Neither sister indicated during their interviews with Cage that they had been touched inappropriately.
Child Services referred the matter to the Police Department for investigation, and Detective Jeffrey Minto interviewed Juvenile. During this interview, Juvenile admitted touching Son, along with three other cousins, M.H., B.H., and Daughter. Detective Minto informed Child Services of Juvenile's admission. Cage told Detective Minto that she would contact the newly named victims and let him know if one of those victims indicated being molested by Juvenile. Detective Minto took no further action with respect to the other victims.
On July 11, 2007, the Police Department referred Juvenile's case to the Vanderburgh County Juvenile Court in an action entitled In re L.C. with the cause number 82D01–0707–JV–751. On July 26, 2007, Juvenile Probation Officer Bernie Faraone conducted an interview with Juvenile who was accompanied by his mother. Mother—Juvenile's aunt and mother of Son and Daughter—showed up later to the interview and was only present for the portion of the proceedings in which she was asked to give her thoughts on the proper disposition of Juvenile's case. Mother was not informed that Juvenile had admitted molesting Daughter.
On August 2, 2007, Child Services interviewed two of Juvenile's other alleged victims, M.H. and B.H. Cage informed M.H. and B.H.'s mother about the alleged contact with Juvenile.
On August 27, 2007, Juvenile was adjudicated a delinquent and placed on probation for nine months. Neither Child Services nor the Vanderburgh County Prosecutor's Office (the Prosecutor's Office) informed Mother about the adjudication. Mother did not become aware that Juvenile had admitted molesting Daughter until nearly a year later on July 31, 2008. A week later, Cage confirmed to Mother that Juvenile had in fact admitted molesting Daughter.
Mother asked the Police Department for the documents regarding the case. She was informed that the records were with the Prosecutor's Office and the case had been disposed. The parents filed suit against Child Services, the Police Department, and the Prosecutor's Office for failing to notify them of the alleged molestation of Daughter. The trial court granted summary judgment in favor of all three governmental entities, finding that Child Services and the Police Department were immune under the Indiana Tort Claims Act (ITCA) and Indiana Code section 31–33–6–1 and the parents failed to designate any genuine issue of material fact in their claims against the Prosecutor's Office.
The parents now appeal the trial court's decision as to Child Services and the Police Department only.
The parents contend that the trial court erred in granting summary judgment in favor of Child Services and the Police Department, finding that they were immune for their actions under both the ITCA, specifically Indiana Code sections 34–13–3–3(6)–(8), and Indiana's child abuse reporting statute, Indiana Code section 31–33–6–1. The parents also contend that the underlying facts of this case present genuine issues of material fact. Although the trial court did not discuss the underlying negligence claim because it found immunity, the parents argue we should reverse summary judgment on this ground. However, we find that the Police Department is not a proper party to this suit and Indiana Code Section 31–33–18–4, the child abuse notice statute that the parents say gives rise to Child Services' duty to notify them of Daughter's molestation, does not provide a private right of action.
When reviewing the entry or denial of summary judgment, our standard of review is the same as that of the trial court: summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269 (Ind.2009). All facts established by the designated evidence, and all reasonable inferences from them, are to be construed in favor of the nonmoving party. Naugle v. Beech Grove City Sch., 864 N.E.2d 1058, 1062 (Ind.2007).
The Police Department argues that it is not a proper party to this litigation because it is “merely a vehicle through which the city government of Evansville fulfills its policy functions and public safety functions.” Appellee Police Department's Br. p. 9. The parents do not dispute the merits of this argument, instead arguing that the trial court
Made no findings or conclusions that [the Police Department] was an improper party to the suit, and instead operated under the presumption that the party to the suit was “the city of Evansville, acting by and through the [Police Department].” It could not have reached its determination of immunity otherwise. Rather than cross-appealing the [trial court] on this issue, [the Police Department] asserts waiver where there is no error to be waived. Accordingly, the issue is not properly before the Court.
However, “[w]e may affirm the trial court's grant of summary judgment upon any basis supported by the record.” Boushehry v. City of Indianapolis, 931 N.E.2d 892, 895 (Ind.Ct.App.2010). It is undisputed that the Police Department “ ‘is merely a vehicle through which the city government fulfills its policy functions and is not a proper party defendant.’ ” Slay v. Marion Cnty. Sheriff's Dept., 603 N.E.2d 877, 887 (Ind.Ct.App.1992) (quoting Jones v. Bowman, 694 F.Supp. 538, 544 (N.D.Ind.1988)), trans. denied. Since a non-existent legal entity “cannot be sued or brought into court by summons or otherwise,” Rich v. Fidelity Trust Co. of Indianapolis, 137 Ind.App. 619, 632, 207 N.E.2d 850, 858 (1965), we affirm the trial court's grant of summary judgment in favor of the Police Department on this ground.
The parties do not make arguments about the existence of a private right of action in this case. However, because the issue is supported by the record, it is appropriate for our review since “[w]e may affirm the trial court's grant of summary judgment upon any basis supported by the record.” Boushehry, 931 N.E.2d at 895. The parents claim that Child Services was negligent because it failed to comply with Indiana Code section 31–33–18–4 by not notifying them of their daughter's molestation.
Indiana Code section 31–33–18–4 states in relevant part:
(a) Whenever a child abuse or neglect assessment is conducted under this article, the department[ 2] shall give verbal and written notice to each parent, guardian or custodian that:
(1) the reports and information described under section 1 of this chapter relating to the child abuse or neglect assessment; and
(2) if the child abuse or neglect allegations are pursued in juvenile court, the juvenile court's records described under IC 31–39;
are available upon the request of the parent, guardian, or custodian except as prohibited by federal law.
But Child Services can be liable for failure to comply with this statute only if the statute confers a private right of action on the parents. Accordingly, “the question to be determined is whether the statute confers a private right of action.” C.T. v. Gammon, 928 N.E.2d 847, 852 (Ind.Ct.App.2010). A private right of action can be explicit, “providing that persons with appropriate standing are entitled to go to court and ask for enforcement of a statute's provisions,” or the court can find that the legislature intended that a private right of action is implied. Blanck v. Ind. Dep't of Corr., 829 N.E.2d 505, 509 (Ind.2005).
Since there is no explicit private right of action in this statute, we must discern whether the legislature intended that there be one. Certain rules have been developed...
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