Indiana Department of Child Services v. Justin Morgan ( 2020 )

FILED
May 06 2020, 9:56 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr. Oliver S. Younge
Attorney General of Indiana Younge Law Group
Indianapolis, Indiana
Benjamin M. L. Jones
Deputy Attorney General Terry Noffsinger
Indianapolis, Indiana Of Counsel, Kooi Law
Carmel, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Indiana Department of Child May 6, 2020
Services, Court of Appeals Case No.
Appellant-Defendant, 19A-CT-2635
Appeal from the Morgan Circuit
v. Court
The Honorable Matthew G.
Justin Morgan, Hanson, Judge
Appellee-Plaintiff. Trial Court Cause No.
55C01-1805-CT-850
Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020 Page 1 of 11
[1] The Indiana Department of Child Services (“DCS”) appeals the denial of its
motion for summary judgment. We reverse.
Facts and Procedural History
[2] On June 23, 2011, Justin Morgan and Meghan Price had a son, Brayson. At
the end of 2015, Morgan moved to New Mexico because of financial pressure
and fear of Price and Price’s boyfriend, Steven Ingalls. Morgan made efforts to
spend time with Brayson and attempted to obtain custody and parenting time.
Morgan did not see Brayson “during much of 2013 or all of 2014 and quite a bit
of 2015.” Appellant’s Appendix Volume II at 71.
[3] Between July 18, 2014, and November 22, 2016, DCS received twelve
preliminary reports of physical abuse and/or neglect regarding Brayson through
its Child Abuse and Neglect Hotline. DCS screened out three reports due to
credibility, relevancy, and/or timeliness issues and screened nine preliminary
reports. DCS conducted six assessments which concluded that allegations of
physical abuse and/or neglect were unsubstantiated.
[4] On November 23, 2016, Brayson died. On November 25 and 28, 2016,
Mooresville Police Detective Chad Richhart interviewed Morgan and his
parents who expressed the concerns they had with Price and Ingalls. They also
expressed frustration with DCS. On June 23, 2017, the State filed charges
against Price and Ingalls related to Brayson’s death.
[5] On December 13, 2017, Morgan filed a tort claims notice alleging that DCS
knowingly and negligently placed Brayson in a situation that endangered his
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life and health and was responsible for his bodily injuries and death. On May
17, 2018, Morgan filed a complaint against DCS and Price for damages for the
wrongful death of his son. 1
[6] On August 16, 2019, DCS filed a motion for summary judgment and argued in
part that Morgan’s failure to timely file a notice of tort claim precluded him
from asserting a wrongful death action. On October 5, 2019, the court denied
DCS’s motion in a one-page order stating “there are genuine issues of material
fact in this case.” Appellant’s Appendix Volume II at 18. On October 8, 2019,
DCS filed a motion to certify the court’s order for interlocutory appeal, and the
court later granted the motion.
Discussion
[7] We review an order for summary judgment de novo, applying the same standard
as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). 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. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary
judgment is improper if the moving party fails to carry its burden, but if it
succeeds, then the nonmoving party must come forward with evidence
1
On July 16, 2019, Morgan filed a motion asking the trial court to “make a preliminary determination of law
as to what interest the individual defendant, Meghan Price, has in the proceedings being litigated . . . and
enter judgment on the pleadings, dismissing Meghan Price as a party from said proceedings.” Appellant’s
Appendix Volume II at 49. On July 21, 2019, the court granted Morgan’s motion and dismissed Price as a
party.
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establishing the existence of a genuine issue of material fact. Id. We construe
all factual inferences in favor of the nonmoving party and resolve all doubts as
to the existence of a material issue against the moving party. Id.[8] Our review of a summary judgment motion is limited to those materials
designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res.,
756 N.E.2d 970, 973 (Ind. 2001). In reviewing a trial court’s ruling on a motion
for summary judgment, we may affirm on any grounds supported by the
Indiana Trial Rule 56 materials. Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E.2d
1, 3 (Ind. 2002). The interpretation of a statute is a legal question that we
review de novo. Young v. Hood’s Gardens, Inc., 24 N.E.3d 421, 424 (Ind. 2015).
[9] DCS argues in part that Morgan’s claim is barred because he failed to file a
timely notice of tort claim within 270 days of the November 28, 2016 interview.
It argues that a person of common knowledge and experience would have been
on notice of the possibility that some claim against DCS might exist no later
than November 28, 2016. It asserts Morgan knew on November 28, 2016, that
Brayson had died in the Price household, DCS had received and assessed
multiple reports of abuse or neglect involving Price and/or Ingalls, and DCS
had not intervened to protect Brayson from Price and/or Ingalls by removing
him.
[10] Morgan argues that only law enforcement and DCS knew the cause of death in
November 2016 and that information was deliberately and actively kept secret
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until June 23, 2017, when criminal charges were filed. He asserts that he had
270 days from that date to file his notice of tort claim.
[11] The Indiana Tort Claims Act (“ITCA”) provides that “a claim against the state
is barred unless notice is filed with the attorney general or the state agency
involved within two hundred seventy (270) days after the loss occurs.” Ind.
Code § 34-13-3-6. Loss is defined as “injury to or death of a person or damage
to property.” Ind. Code § 34-6-2-75(a). A loss occurs for purposes of ITCA
“‘when the plaintiff knew or, in the exercise of ordinary diligence, could have
discovered that an injury had been sustained as a result of the tortious act of
another.’” Reed v. City of Evansville, 956 N.E.2d 684, 691 (Ind. Ct. App. 2011)
(quoting Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840, 843 (Ind. 1992)), trans.
denied. “The purpose of the notice requirement is to inform state officials with
reasonable certainty of the accident or incident and surrounding circumstances
and to advise of the injured party’s intent to assert a tort claim so that the state
may investigate, determine its possible liability, and prepare a defense to the
claim.” Ind. Dep’t of Transp. v. Shelly & Sands, Inc., 756 N.E.2d 1063, 1076 (Ind.
Ct. App. 2001), trans. denied.
[12] A “cause of action of a tort claim accrues and the statute of limitations begins to
run when the plaintiff knew or, in the exercise of ordinary diligence, could have
discovered that an injury had been sustained as a result of the tortious act of
another.” Wehling, 586 N.E.2d at 843. The determination of when a cause of
action accrues is generally a question of law. Cooper Indus., LLC v. City of S.
Bend, 899 N.E.2d 1274, 1280 (Ind. 2009). For an action to accrue, it is not
Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020 Page 5 of 11
necessary that the full extent of the damage be known or even ascertainable, but
that only some ascertainable damage has occurred. Id.[13] In the November 25, 2016 interview between Detective Richhart and Morgan
and his parents, Lee and Debbie, Morgan stated, “I just wish the State of
Indiana would have taken this seriously before.” DCS Exhibit 3A at 2:08-2:13.
Lee stated he was concerned with respect to DCS having reports in three or four
different counties, whether communication occurred, and whether that delayed
DCS in taking any action or seeing there was a situation requiring action. Id. at
4:20-4:50. Morgan and Debbie discussed Brayson’s injuries including a broken
leg and arm. Debbie stated:
There was all these little things that happened over time that
started from when he was born. And I told my nurse friend, I
said, I said at the rate this is going with the stuff going on he is
going to die. I felt it in my heart that he was. And I told her that
more than once but I didn’t know what I could do. I trusted the
State of Indiana that was supposedly investigating all this stuff to
do something.
Id. at 50:27-50:57. Detective Richhart stated that he had a search warrant for
Price’s phone and Ingalls’s phone. He stated that “we don’t know why this
happened” and that he would not go into detail but he did have some “red
flags.” Id. at 1:11:28-1:11:45. Morgan stated: “When she first called me, it was
the day that he passed . . . her first words . . . the first words out of her mouth
was I just want to let you know I had nothing to do with this. She said I did all
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I could. She said the police said that I did all I could. But that first sentence,
the first thing out of her mouth is haunting me.” Id. at 1:25:56-1:26:43.
[14] In the November 28, 2016 interview, Morgan indicated that Price discussed
cremation during the first phone call and Debbie stated that she “wanted it
done before we got out here.” DCS Exhibit 3B at 7:00-7:07. Detective
Richhart stated that he would talk with Price again because there were “some
things since all this that have come up that don’t sit right with me, that don’t
make sense to me, but uh, just stuff like this, ya know, talking about cremation,
I mean the day of.” Id. at 8:03-8:19. Lee stated: “It’s like it was all planned.”
Id. at 8:19-8:21. Detective Richhart replied, “Right, and that’s my concern like
if you’re wanting this cremation right away, are you trying . . . to hide
something.” Id. at 8:22-8:30. Morgan stated that Price tried to talk him out of
seeing Brayson during the second phone call. Id. at 8:30-8:37. Detective
Richhart stated DCS was “going to go try and take the younger one,” and
Morgan stated, “Thank God. Thank God.” Id. at 9:05-9:17. At one point, Lee
asked Detective Richhart if he had the impression Price “was going to clam
up.” Id. at 11:10-11:14.
[15] During the interview, the following exchange occurred:
Debbie: It’s amazing how many times she was reported.
Detective Richhart: Right.
Morgan: I tried so hard to protect that boy.
Detective Richhart: Yeah.
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Debbie: It just blows my mind that somebody could be called on
that many times.
*****
Detective Richhart: I don’t know DCS’s protocols none of that,
they’re their own separate entity from us. I don’t know why this
has never hit our radar. I’ve been called out two three ‘o clock in
the morning on much, much less so I don’t know why. I mean I
have six DCS reports from 2014 to current so I don’t understand
why one of those six hasn’t hit our radar as hey maybe this
should be looked into.
Morgan: I wish I knew to call you guys.
Detective Richhart: No, I mean people do the right thing and
they call them and I’m not knocking them. I’m not . . . I don’t
want to come across like that. But uh.
Lee: Well, it’s just interesting the number of calls that have been
made to them.
Detective Richhart: Right.
Lee: And the different reports that that’s not being merged into
one document.
Detective Richhart: Right. I mean they can . . . pull them all up
and there were six of them . . . . And I don’t understand why. I
don’t know. I don’t get it.
Lee: But were each one of them enough that should have called
for some action in your . . . .
Detective Richhart: . . . I think the leg one did in my opinion
because . . . there are certain injuries you expect with a kid. A
broke or fractured femur, that’s the strongest bone you’ve got ya
know.
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Debbie: Well, and when I worked in an emergency room some
kid came like that, and that was immediate thought, and they
immediately called, because that is just like almost always.
Id. at 18:10-20:24. Debbie also stated that Price told three different stories
regarding Brayson’s broken femur.
[16] Lee asked Detective Richhart if he had seen a report indicating that Ingalls was
required to stay away from Brayson, and Detective Richhart indicated he had
not seen a report and that DCS could implement a safety plan. Detective
Richhart stated he had the information from the cell phones that showed
“major red flags.” Id. at 23:54-23:58. Detective Richhart indicated that Ingalls
was going to be interviewed again. Lee stated that it sounded like Ingalls had
quite a history with the system, and Detective Richhart agreed. At some point,
Detective Richhart stated there was nothing Brayson did that caused this and
that the doctors were confident that, even if Brayson somehow hurt himself, he
did nothing to cause his death. Morgan responded that Price was a monster.
[17] Morgan stated: “Nothing against you but I hate this state.” Id. at 42:27-42:30.
He also said: “I just hate the fact that they didn’t do anything. There were signs
everywhere.” Id. at 42:37-42:42. Detective Richhart stated: “I don’t know why
. . . DCS never contacted us.” Id. at 42:47-42:55. Lee stated: “Well they never
even followed up with [Morgan] to ask him any questions.” Id. at 42:58-43:03.
Morgan indicated “that’s how they miss things” during a discussion of
caseloads of DCS workers. Id. at 43:42:43:45. Morgan also stated he was
going to “get things changed in this state.” Id. at 44:02-44:05.
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[18] As noted, the Indiana Supreme Court has held that, for an action to accrue, it is
not necessary that the full extent of the damage be known or even ascertainable,
but only that some ascertainable damage has occurred. Cooper Indus., LLC, 899
N.E.2d at 1280. Based upon our review of the interviews, we conclude that
Morgan had serious concerns with Price and Ingalls and knew that Brayson had
been injured on multiple occasions and ultimately died, and DCS had been
informed on multiple occasions and had not removed him from the home.
Further, Morgan and his parents expressed concerns about DCS’s
investigations and inactions. We conclude that a notice of tort claim would
have to be filed within 270 days of November 28, 2016, or by August 25, 2017,
and that Morgan’s December 13, 2017 ITCA notice was untimely. 2 Under
these circumstances, we conclude the trial court erred in denying DCS’s motion
for summary judgment.
2
To the extent Morgan cites Garnelis v. Ind. State Dep’t of Health, 806 N.E.2d 365 (Ind. Ct. App. 2004), we
note that the plaintiff in that case had been diagnosed as being HIV positive and was informed on September
27, 1991, that the diagnosis was definitive and he was not instructed that he needed to undergo repeat testing.
806 N.E.2d at 366. Several years later, the plaintiff underwent HIV testing in Greece in order to receive
treatment and learned that the test results were negative for HIV on July 5, 1999. Id. at 367. On appeal from
a grant of the defendant’s motion for summary judgment, this court reversed and held that September 27,
1991, the date of the erroneous diagnosis, was not the date on which the plaintiff’s loss occurred. Id. at 371.
Rather, the court concluded that the plaintiff “did not know or, in the exercise of ordinary diligence, could
not have discovered the alleged negligence and resulting injury until July 5, 1999,” when the plaintiff
discovered that he was not HIV positive. Id. Morgan had serious concerns with Price and Ingalls and knew,
on November 28, 2016, that Brayson had been injured on multiple occasions and ultimately died and that
DCS had been informed on multiple occasions and had not removed Brayson. We find Garnelis
distinguishable.
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[19] For the foregoing reasons, we reverse the trial court’s denial of DCS’s motion
for summary judgment. 3
[20] Reversed.
Najam, J., and Kirsch, J., concur.
3
Because we reverse on this basis, we need not address DCS’s arguments that it does not have a duty to
protect a child from his parent enforceable through a private right of action or that it was not the proximate
cause of Brayson’s death.
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