Justice v. Justice
| Decision Date | 28 March 2018 |
| Docket Number | No. 1:16–cv–00584–SEB–TAB,1:16–cv–00584–SEB–TAB |
| Citation | 303 F.Supp.3d 923 |
| Parties | Shirley Talia JUSTICE, Individually, and on behalf of A.J., and A.L., her minor children, Plaintiff, v. Christopher JUSTICE, Kristen Lulich, Jennifer Higgins, Jennifer Norris, Monique Roberts, Diane Elliott LCSW, Jennifer Bays Beinhart, John Does 1–20, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Davina Louise Curry, The Curry Law Firm, LLC, Greenwood, IN, for Plaintiff.
Kelly Suzanne Thompson, Robert C. Allega, Indiana Attorney General, Matthew Keith Phillips, Rocap Law Firm LLC, Kyle Blake Wong, Michael E. Brown, Kightlinger & Gray LLP, Eric John Olson, Indianapolis, IN, for Defendants.
This cause is before the Court on the Motion for Summary Judgment [Docket No. 64] filed on March 3, 2017, by Defendants Kristin Lulich, Jennifer Norris, and Monique Roberts (collectively "the DCS Defendants"), all of whom worked for the Department of Child Services ("DCS") during the time period relevant to this litigation. This litigation arises from events related to a long-standing custody dispute between Plaintiff Shirley Justice ("Shirley") and Christopher Justice ("Christopher") with respect to Shirley and Christopher's daughter A.J., who is autistic and non-verbal, and Shirley's daughter, A.L. Christopher and Shirley divorced in 2009 following several incidents of domestic violence. For six years, from 2008 to 2014, DCS was involved with the Justice family and investigated numerous allegations of neglect and abuse against both Shirley and Christopher during this time period. Ultimately, in 2012, A.J. and A.L. were removed from Shirley's primary custody, pursuant to a Child in Need of Services ("CHINS") proceeding. Shirley's and Christopher's child custody battles continued through 2012 and 2013. Finally, tragically, on February 18, 2014, Christopher waited for Shirley outside of A.J. and A.L.'s daycare facility, and, when Shirley returned to the parking lot after dropping off her daughters, Christopher shot her multiple times, inflicting serious injuries.
Shirley claims in this lawsuit that, but for the actions taken by the DCS Defendants during their investigations of the abuse and neglect allegations involving A.J., Christopher would not have shot her. She has brought this action individually and on behalf of A.J. and A.L. against the DCS Defendants, pursuant to 42 U.S.C. § 1983 for alleged First Amendment, Fourth Amendment, Sixth Amendment, and Fourteenth Amendment violations as well as a claim on behalf of A.J. alleging a violation of the Americans with Disabilities Act ("ADA"), and unidentified civil rights violations under state law. For the reasons detailed below, we GRANT the DCS Defendants' Motion for Summary Judgment and REMAND to Marion Superior Court the state law claims brought against Defendants Jennifer Bays Beinart and Christopher Justice.1
Shirley and Christopher are the parents of A.J., who was born in 2007. A.J. is a non-verbal child who was diagnosed in 2009 with a form of autism. Shirley and Christopher divorced that same year, on March 13, 2009. Am. Compl. ¶ 15. After their divorce, Shirley and Christopher were granted joint legal custody of A.J.; Shirley was granted primary physical custody of their daughter. Deposition of Shirley Justice ( ) at 13.
On February 12, 2012, the Marion County DCS Central Intake received a report of sexual abuse that identified A.J., who was then four years old, as the victim and indicated that the perpetrator was unknown.2 Kristin Lulich Declaration ("Lulich Decl.") ¶ 3; Exh. 1 to Lulich Decl. ("February 2012 Form 311") at 1. Defendant Lulich, who was then employed by DCS as a Family Case Manager, was assigned to investigate the allegations and conduct an assessment. Id.
The report received by DCS alleged that A.J. had been "trying to put her hands down the pants of strange men and attempt[ing] to touch their genitals." Lulich Decl. ¶ 5; February 2012 Form 311 at 3. Additionally, it was reported that A.J. had been "masturbating ... at day care ...." Id. The report further stated that Shirley had taken A.J. for an examination by the child's primary care physician and that, while there was no sign of trauma to the vaginal area, there was a bruise on A.J.'s right inner thigh. Id. Because of A.J.'s special needs related to her autism, it was difficult to perform any type of physical examination; thus, the report concluded that it was possible that the bruise that had been observed could have resulted from prior attempts to examine A.J. Id.
On the same day DCS received the report of sexual abuse, Ms. Lulich traveled to the address listed on the report to investigate the allegations, but she found no one at home. Ms. Lulich left a note with her contact information, and, on February 20, 2012, she spoke with Shirley to schedule an interview. Also on February 20, Ms. Lulich attempted to contact one of A.J.'s medical providers, but the office was closed and no message could be left. Lulich Decl. ¶¶ 6–8; February 2012 Form 311 at 4.
On February 22, 2012, Ms. Lulich spoke with forensic interviewer Jill Carr and learned that, because A.J. was non-verbal, a forensic interview could not be conducted. Lulich Decl. ¶ 9; February 2012 Form 311 at 4. Ms. Lulich spoke with Shirley the next day, on February 23, 2012, when Shirley stated that A.J.'s sexual behavior had begun only recently. Shirley indicated that she believed that Christopher's step-father, Charles Thornton, was responsible for A.J.'s behavior because A.J. would cry and run away whenever she would come in contact with him. Lulich Decl. ¶ 10; February 2012 Form 311 at 4. Later that day, Ms. Lulich observed A.L. and A.J., but could not interview either of the girls because A.L. was too young and A.J. does not speak. Lulich Decl. ¶ 11; February 2012 Form 311 at 4.
A few days later, on February 28, 2012, Ms. Lulich met with Sgt. Kinder of the Indianapolis Metropolitan Police Department ("IMPD"), who declined to accept the case. Lulich Decl. ¶ 12; February 2012 311 Form at 4. On March 5, 2012, Ms. Lulich again tried to contact one of A.J.'s medical providers and the next day was able to speak with A.J.'s doctor. Lulich Decl. ¶ 13; February 2012 Form 311 at 4. That same day, March 6, 2012, Ms. Lulich spoke with Shirley for a second time. In that conversation, Shirley stated that A.J. had drawn a picture of her family and that the individual in the drawing believed to be Mr. Thornton had been drawn with a penis. Lulich Decl. ¶ 14; February 2012 Form 311 at 4. Shirley also recounted that, although A.J. was found upon examination by her doctor to have a bruise, the bruising may have occurred as a result of A.J. being held down while the exam was completed. Shirley also stated that A.J. had been tested and was found not to have any sexually transmitted diseases or other medical conditions associated with sexual abuse. Id.
Ms. Lulich contacted Christopher on March 12, 2012, who indicated that he had not seen A.J. since 2011. Lulich Decl. ¶ 16; February 2012 Form 311 at 3. On March 14, 2012, Ms. Lulich spoke with Tyler Napier, A.J.'s speech-language pathologist, who indicated that A.J. had been in his office and drew what he believed to be a picture of her step-grandfather with a penis. Lulich Decl. ¶ 15; February 2012 Form 311 at 3. Ms. Lulich attempted to contact Mr. Thornton on March 14 and March 15, 2012, but was unable to speak with him until March 19, 2012, during which conversation, Mr. Thornton stated that he had very little contact with A.J. and in fact had not had any contact with her since Christmas Eve of 2011. He further denied having engaged in any inappropriate activity with her. Lulich Decl. ¶ 17; February 2012 Form 311 at 3.
At the conclusion of her investigation, Ms. Lulich recommended that the allegation of sexual abuse be resolved as unsubstantiated because there was a lack of evidence to support its truth. Ms. Lulich's supervisor, Kathryn Connel, approved this recommendation on March 21, 2012. Lulich Decl. ¶ 18; February 2012 Form 311 at 3, 5. It was recognized that because A.J. is non-verbal, she could neither identify the perpetrator(s) nor indicate whether sexual abuse had ever occurred. Additionally, Ms. Lulich noted that both A.J. and A.L. appeared free from any marks or bruises upon examination. Id. Following Ms. Lulich's investigation, both Christopher and Shirley signed a Family Safety/Community Safety plan. Lulich Decl. ¶ 18.
Shirley testified by deposition that in her view the February 2012 report should have been substantiated despite the fact that a perpetrator could not be identified. S. Justice Dep. at 52–54. Specifically, Shirley testified as follows:
Id. at 52–53. Shirley alleges that,3 although Ms. Lulich stated on more than one occasion that the allegation of sexual abuse would be substantiated, it ultimately was not substantiated because DCS has a "no perp, no case" agency policy, which apparently means that if there is no identified perpetrator, the allegation will not be substantiated. Declaration of Shirley Justice ( ) ¶ 7. Despite her disagreement with the Marion County DCS decision, Shirley did not appeal the unsubstantiation finding that was recommended by Ms. Lulich and approved by Ms....
To continue reading
Request your trial
-
Williams v. Ind. Dep't of Child Servs.
...preclusive effect and the Plaintiffs are not entitled to relitigate that determination in this forum. See, e.g., Justice v. Justice, 303 F. Supp. 3d 923, 940 (S.D. Ind. 2018). Accordingly, the Plaintiffs' Fourth and Fourteenth Amendment claims as they relate to the removal of the Williams c......