dl-glen-black-ann-black-steven-lucas-and-kl-by-her-next-friend ( 2013 )

FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL A. WILKINS GREGORY F. ZOELLER
Broyles Kight & Ricafort, P.C. Attorney General of Indiana
Indianapolis, Indiana
ELIZABETH ROGERS
Deputy Attorney General
Indianapolis, Indiana
FILED
Jan 23 2013, 8:48 am
IN THE
CLERK
COURT OF APPEALS OF INDIANA of the supreme court,
court of appeals and
tax court
D.L., GLEN BLACK, ANN BLACK, )
STEVEN LUCAS, and K.L., by her )
Next Friend, D.L., )
)
Appellants-Plaintiffs, )
)
vs. ) No. 79A04-1202-CT-61
)
CHRISTINE HUCK, LAURA ZIMMERMAN, )
ANGELA SMITH GROSSMAN, RHONDA )
FRIEND, ANGYL MCCLAINE, and )
INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellees-Defendants. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Thomas J. Busch, Judge
Cause No. 79D02-1103-CT-11
January 23, 2013
OPINION ON REHEARING - FOR PUBLICATION
ROBB, Chief Judge
Both D.L. (the “Family”) and the Department of Child Services (“DCS”) have
petitioned for rehearing in our decision dated October 17, 2012. In our opinion, we held
that DCS and its workers were not entitled to quasi-judicial immunity for their removal of
a child from the home of relatives in whose care she had been placed and who were in the
process of adopting her. D.L. v. Huck, 978 N.E.2d 429, 435 (Ind. Ct. App. 2012). We
held that the workers and DCS were, however, entitled to statutory immunity under
Indiana Code section 31-25-2-2.5. Id. at 436-36. We grant DCS’s petition only to clarify
the purpose of rehearing, and otherwise affirm our opinion as to DCS in all other
respects. We grant the Family’s petition in order to re-examine their federal civil rights
claims and claims under the Indiana Tort Claims Act.
I. DCS’s Petition
DCS argues that in denying DCS quasi-judicial immunity, we mistakenly assumed
that there was no court order authorizing the removal, and DCS now attempts to
supplement the record.1 The new document submitted with the petition for rehearing was
not in the record on appeal, nor was it referred to by either of the parties, and it is
inappropriate to try to add it now. DCS claims that it is not adding new evidence by
adding this document, but that under the proper standard of review we should have
affirmed the trial court’s dismissal because the Family failed to allege facts that defeat
quasi-judicial immunity. In fact, the Family did allege that there was no court order for
1
DCS additionally argues that we mistakenly believed that J.A.W. v. State, 650 N.E.2d 1142 (Ind. Ct. App.
1995), trans. granted, was vacated. Our opinion in J.A.W. was in fact vacated when the supreme court granted
transfer; DCS is correct though that the supreme court affirmed our disposition as to all matters other than the one
that the supreme court addressed. J.A.W. v. State, 687 N.E.2d 1202, 1203 n.3 (Ind. 1997). However, that does not
change our opinion in this case, as we distinguished J.A.W. in our opinion even though transfer had been granted.
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K.L.’s removal (both in the complaint and in the appeal), implying that there was no
court order before or after the fact—even before they explicitly, at oral argument, alleged
that DCS never sought retrospective approval. Moreover, the Family notes in their
response that upon a motion to dismiss, the burden was on DCS to prove that it was
entitled to dismissal, not on the Family to rebut the motion.
DCS knew that quasi-judicial immunity was an issue on appeal—in fact DCS
itself first supplied the notion of quasi-judicial immunity in its memo in support of the
motion to dismiss—and yet failed to provide or even refer to this document to the trial
court, or to us in its reply on appeal, at oral argument, or by a motion to supplement the
record at any time during the appeal. It seems that this is one more example of the ball
being dropped by DCS in this case, and DCS may not supplement the record now. A
petition for rehearing is not a pathway for re-litigating the case. See Daviess-Martin
Cnty. Rural Tel. Corp. v. Pub. Serv. Comm’n, 132 Ind. App. 610, 625 (1961) (“A petition
for rehearing should ask for a rehearing only on points which were originally properly
presented that were overlooked or improperly decided.”). We affirm our original opinion
as to DCS in all respects.
II. The Family’s Petition
A. Statutory Immunity
The Family also petitions for rehearing and first argues that our interpretation of
Indiana Code section 31-25-2-2.5 was overly broad and should not have been used to
provide immunity to DCS as an entity. However, we specifically noted in our opinion
that the statute does not directly apply to DCS and only extended immunity to it in this
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case because its liability was entirely vicarious. Our opinion did not broaden the
immunity granted by the statute, and we take this opportunity to clarify that under other
circumstances—i.e. where DCS was directly liable—the statute would not render the
entity immune.
The Family also argues that our interpretation of the above statute conflicts with
the Indiana Tort Claims Act (“ITCA”), which requires an entity to pay a judgment
resulting from an employee’s employment, even if the employee is not personally liable.
Ind. Code § 34-13-3-5(d). After examining the ITCA, we believe that our interpretation
of Indiana Code section 31-25-2-2.5 is not in conflict. However, our overall disposition
was not written with the ITCA in mind, and we now revise our opinion to allow the
Family to move forward with the portions of their suit that are viable under the ITCA.
It appears that Indiana Code section 31-25-2-2.5 and the ITCA are two separate
but related statutes. Section 31-25-2-2.5 would by extension grant immunity to DCS
where its only liability was vicarious, if the employee were granted immunity; but as
clarified above, it would not grant the entity immunity where the entity was directly
liable. The ITCA provides certain immunities and limits as well, but it explicitly allows
vicarious liability even where suit against an employee is barred. Read together, a suit
against DCS as an entity should be allowed to proceed even if vicarious and even if suit
against the employee is barred, but only for those claims that fall within the ITCA; all
other vicarious liability against DCS would be extinguished under section 31-25-2-2.5.
We therefore grant the Family’s petition to proceed with claims that fall under the ITCA.
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B. Federal Civil Rights Claims
The Family next argues that their federal civil rights claims should not have been
dismissed. They point to a statute that requires entities to pay for judgments resulting
from the violation of civil rights by their employees, Indiana Code section 34-13-4-1.
However, that statute applies to employees who are “or could be subject to personal civil
liability” for the loss. Id. Because the employees here are immune from personal
liability, this statute is not relevant. However, under the supremacy clause, any state-
granted immunity would not provide protection for § 1983 claims, and so we grant the
Family’s petition to proceed with their federal civil rights claims.
C. The Grandfather’s Standing
Finally, the Family argues that the grandfather, Steven, should have standing to
assert a claim for DCS’s failure to comply with a statute that requires DCS to consider
blood relatives for out of home placement before placing a child with non-relatives. Ind.
Code § 31-34-15-4. We mentioned the statute in our opinion but nonetheless determined
that Steven did not have standing because he did not have a liberty interest in maintaining
his relationship with the child. In their petition, the Family argues that because the
statute is in derogation of the common law, the legislature has given blood relatives a
right they do not normally have and therefore Steven should be able to “seek redress for
violation of a right created by the legislature.” Appellants’ Petition for Rehearing at 6.
While it is true that in general one should have standing to claim a violation of a
right that the legislature has created, it is not clear here what either the remedy would be
or the injuries are, where DCS should have considered him for placement, but was under
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no obligation to actually place the child with Steven. Further, the statute says that DCS
“shall consider whether a child in need of services should be placed with the child’s
suitable and willing blood or adoptive relative caretaker,” and so there is the question of
who is suitable, and whether, assuming DCS did not consider Steven, it was because they
felt he was not suitable. Ind. Code § 31-34-15-4(3) (emphasis added). Despite the
“shall” language, the relevant sub-section of the statute reads more as a guideline than a
concrete rule under which a relative who had no other standing could bring suit.
Additionally, in their complaint the Family alleges that, shortly after the child was
removed, Steven asked DCS if he could take custody of her, and was told that he would
not be considered for an adoptive placement because he was naïve to believe that the
uncle had not abused his daughter. That suggests that DCS did consider Steven, but did
not find him to be suitable. Therefore, it appears that the grant of the motion to dismiss
was appropriate for this issue because under the facts as alleged, DCS must have
“considered” Steven for placement in the sense that it thought about whether it would be
appropriate to place the child with him. We decline to revise our opinion with regard to
Steven’s standing.
Conclusion
We grant DCS’s petition for rehearing for the limited purpose of reminding
counsel that relevant documents must be made a part of the record on appeal, and the
record may not be supplemented on rehearing.
We grant the Family’s petition for rehearing in order to clarify our reading of
Indiana Code section 31-25-2-2.5; to allow tort claims against DCS to proceed under a
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theory of vicarious liability, within the ITCA; and to allow federal civil rights claims to
proceed.
We affirm our original opinion as to all matters not revised here.
BRADFORD, J. and PYLE, J., concur.
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