F.D. v. Indiana Department of Family Services

973 N.E.2d 1186, 2012 WL 3756274, 2012 Ind. App. LEXIS 422

• Court: Indiana Court of Appeals
• Decided: August 30, 2012
• Docket: No. 82A01-1109-CT-432
• Status: Published

Opinions

OPINION

VAIDIK, Judge.

Case Summary

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.

Facts and Procedural History

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 Vander-burgh 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.

Discussion and Decision

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).

I. Police Department Not a Proper Party

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.

Appellant’s Br. p. 4 (citations to appendix omitted).

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.

II. Private Right of Action

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 31-33-18^1 states in relevant part:

(a) Whenever a child abuse or neglect assessment is conducted under this article, the department²] 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. Blanch 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 for attempting to determine legislative intent in these situations; “[a] broad formulation of these rules is that a private cause of action generally will be inferred where a statute imposes a duty for a particular individual’s benefit but will not be where the Legislature imposes a duty for the public’s benefit.” Id. (citing Americanos v. State, 728 N.E.2d 895 (Ind.Ct.App.2000), trams, denied). The purpose of Article 38 is to:

(1) encourage effective reporting of suspected or known incidents of child abuse or neglect;

(2) provide effective child services to quickly investigate reports of child abuse or neglect;

(3) provide protection for an abused or a neglected child from further abuse or neglect;

(4) provide rehabilitative services for an abused or a neglected child and the child’s parent, guardian, or custodian; and

(5) establish a centralized statewide child abuse registry and an automated child protection system.

Ind.Code § 31-33-1-1. As was held by this Court, “A review of the twenty-one sections of the act reveals the primary thrust as establishing child protection services and community protection teams, the contents and handling of their investigations and written reports, and the provision of necessary services to affected children and their families (including removal from a home and/or criminal prosecutions where warranted).”³ Borne by Borne v. Nw. Allen Cnty. Sch. Corp., 532 N.E.2d 1196, 1203 (Ind.Ct.App.1989), trans. denied. The legislature’s aim, therefore, is to create a more effective, efficient, and accessible system to deal with the issue of child abuse and neglect for the public’s benefit as a whole, not just for a particular individual’s benefit.

Additionally, in Americanos, we specifically held that “when the legislative purpose is general in nature, the mere fact that statutory language refers to a class of people does not create a private cause of action.” 728 N.E.2d at 898. Therefore, despite the fact that the statute refers to a class of people, specifically abused or neglected children, that does not mean that the statute is for an individual’s benefit. Citing to Borne, this Court in Americanos also noted that we had “declined to find a private cause of action in similar circumstances. For example, in Borne v. N.W. Allen County School Corp., ... the court held that the statute did not create a private cause of action. Rather, the statute was designed to encourage effective reporting of child abuse and establish child protective services.” As a result, given that the legislature did not explicitly create a private cause of action and the intent of the statute is to benefit the public generally, we again refuse to create a private right of action where one does not exist.

Further, while this particular statute has not been examined to determine if it confers a private right of action, this Court has previously held that the legislature did not intend to confer a private right of action for any breach of the duty to report child abuse created by the reporting statutes also found under Indiana Code article 31-33. C.T., 928 N.E.2d at 853; Borne, 532 N.E.2d at 1203. In C.T., a father sued his child’s doctor for medical malpractice because the doctor failed to report the child’s mother to the proper authorities for exposing their respiratory-challenged child to second-hand smoke. The father argued that the child’s exposure to the secondhand smoke was child abuse or neglect and the doctor’s failure to report was a violation of Indiana Code section 31-33-5-1, which requires an individual who has reason to believe a child is a victim of child abuse or neglect to make a report to either Child Services or the local law enforcement agency. Finding there is no explicit private right of action in Indiana Code section 31-33-5-1, and after a review of relevant case law from Indiana and other states, we held that the legislature did not intend there to be a private right of action under the child abuse reporting statute. C.T., 928 N.E.2d at 854. We held that “[a]bsent codification, we are not convinced that extending a civil remedy to a victim of abuse or neglect against all persons who know of child abuse and fail to report child abuse is a good public policy.” Id.

Therefore, since the statutory duty imposed under Indiana Code section 31 — 33— 18-4 is for the public’s benefit, we have explicitly held that there is no private right of action for failure to report child abuse, and we have expressed a reluctance to create a private right of action absent codification in this area, we hold that the parents do not have a private right of action and that the trial court therefore did not err in granting summary judgment in favor of Child Services.

However, this is not meant to suggest that we condone the way that this matter was handled by Child Services and the Police Department. We sympathize with the parents and understand their frustration that they were not informed that their daughter had been molested until a year after the fact. However, our legislature has not afforded a private right of action in these situations, so we must hold accordingly.

III. Indiana Tort Claims Act

Nevertheless, if the parents did have a private right of action under Indiana Code section 31-33-18^4, Child Services is still immune under the ITCA because its actions in this case constitute the initiation of a judicial proceeding. Therefore, the trial court’s grant of summary judgment should be affirmed on the grounds of governmental immunity as well.

After the abrogation of common-law governmental immunity that was completed with the decision in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972), the Indiana General Assembly enacted the ITCA, which “established extensive immunity provisions which shield governmental units from liability even in those cases where a common law duty of care exists.” Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind.1999). The ITCA applies to “governmental entities,” which the parties do not dispute that Child Services and the Police Department are. Appellant’s Br. p. 7. The trial court granted summary judgment for Child Services, finding three subsections of the ITCA applicable to its actions. If Child Services is immune under any subsection of the ITCA, then it may not be held liable to the parents. The issue of immunity under the ITCA is a question of law that is reviewed de novo. Chenoweth v. Estate of Wilson, 827 N.E.2d 44, 48 (Ind.Ct.App.2005).

Child Services is immune under Indiana Code section 34-13-3-3(6) of the ITCA. Section 34-13-3-3(6) states: “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.” In the context of the ITCA, a judicial proceeding is defined as “a proceeding ‘for the purpose of obtaining such a remedy as the law allows.’ ” Clifford v. Marion Cnty. Prosecuting Attorney, 654 N.E.2d 805, 808 (Ind.Ct.App.1995) (quoting Bd. of Comm'rs of Hendricks Cnty. v. King, 481 N.E.2d 1327, 1330 (Ind.App.1985)).

The parents argue that this subsection is only intended to confer prosecutorial immunity, rendering it inapplicable to Child Services. However, while “the majority of decisions focusing upon subsection [(6)] have considered immunity as it relates to allegations of malicious prosecution,” that is not the only situation in which it is applicable. Ind. Dep’t of Fin. Inst. v. Worthington Bancshares, Inc., 728 N.E.2d 899, 902 (Ind.Ct.App.2000), reh’g denied, trans. denied. For example, in Worthing-ton Bancshares, we found this subsection to be applicable to the Department of Financial Institution when it closed down a bank it deemed to be operating in an unsound and unsafe manner. Id. Based on the plain language of the statute and its past application to proceedings outside of criminal prosecutions, it is applicable to situations other than malicious prosecutions.

In this case, Juvenile was adjudicated a delinquent for child molesting, Appellant’s App. p. 67, and child delinquency actions are judicial proceedings. Ind.Code § 31-30-1-1(1). Child Services, the Police Department, the Probation Department, and the Prosecutor’s Office all initiated this proceeding. Child Services, through Cage, as part of its duties to protect children, began the investigation by interviewing the victims of the molestations. Child Services then properly referred this matter to the Police Department for further investigation. In turn, the Police Department referred the matter to the Probation Department before the Prosecutor’s Office filed a delinquency petition. While it was the Prosecutor’s Office that finally filed the paperwork that initiated the legal proceedings against Juvenile, all agencies in the chain worked together before the filing of the paperwork to reach this result. Without the contributions of all these agencies, there could have been no legal action taken. Cage’s actions were therefore part of the initiation of the delinquency proceeding, placing them directly under Section 34-13-3-3(6).

Additionally, Indiana Code section 31-33-14-1 states:

If the ... department determines that the best interests of the child require action in the juvenile or criminal court, the department shall:

(1) refer the case to the juvenile court under IC 31-34-7; or

(2) make a referral to the prosecuting attorney if criminal prosecution is desired.

This statute mandates that Child Services must refer a case to the juvenile court or make a referral to the prosecutor if it is in the best interest of the harmed child to do so. Therefore, Child Services has a statutorily mandated role in the initiation of judicial proceedings in the context of child abuse and neglect. As a result, the trial court did not err in finding that Child Services was immune for its actions under this subsection (6) of the ITCA.

Affirmed.

CRONE, J., concurring in part and dissenting in part with separate opinion. BRADFORD, J., concurring in part, dissenting in part, and concurring in result with separate opinion.

1 . The parents initially brought suit against the Indiana Department of Family Services and the Vanderburgh County Office of Family and Social Services. Both parties were later substituted by the Indiana Department of Child Services by amendment, but the caption never reflected this change.

2 . "Department” refers only to Child Services, Ind.Code § 31-25-2-1, so the Police Department had no statutory duty to notify parents of child abuse or neglect. We do note, however, that while there was no such statutory duty for the Police Department at the time of these events, a statutory requirement that reasonable efforts be made by a police department to notify the parents when their child has been named as the victim in a written report of a crime was put into effect on July 1, 2011. Ind.Code § 5-2-18-3.

3 . The act referred to in Borne was codified at Indiana Code sections 31-6-11-1 et seq. This article has since been recodified at Indiana Code article 31-33. 1997 Ind. Legis. Serv. P.L. 1-1997 (West).