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Thursday, May 26, 2016

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 5 NFP memorandum decision(s))

For publication opinions today (3):

In John Doe #1, et al. v. Indiana Department of Child Services, a 2-1, 18-page opinion, Judge Altice writes:

John Doe #1 (Doe) and his family, wife – Jane Doe #1, two young adult sons – John Doe #2 and John Doe #3, and minor daughter – Jane Doe #2, filed a civil action against the Indiana Department of Child Services (DCS) alleging negligence in failing to protect Doe’s identity as the reporting source of suspected child neglect. Although acknowledging that the disclosure violated Ind. Code § 31-33-18-2, DCS filed a motion for summary judgment arguing that the statue did not provide for a private right of action. The trial court granted summary judgment in favor of DCS and dismissed the action with prejudice. On appeal, the Does argue that summary judgment was improperly granted because DCS owed Doe a duty to maintain confidentiality under both the statute and common law. We reverse and remand. * * *

The parties present us with an issue of first impression: whether I.C. § 31-33-18-2 confers a private right of action for a violation of DCS’s statutory duty to protect a reporter’s identity. * * *

Thus, the statute requires redaction of DCS reports before they are provided to certain individuals, like Ditton. DCS does not dispute this and acknowledges that its own policy manual and written code of conduct require confidentiality. While the disclosure of Doe’s identity clearly violated the statute, DCS argues that the statute does not confer a private right of action. * * *

A special relationship was clearly established when Doe made the call to the DCS hotline and, after making his report, indicated his reluctance to give identifying information. Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise. * * *

Under the specific circumstances of this case, the Does have established the existence of a private duty owed to Doe by DCS. Accordingly, we reverse the entry of summary judgment and remand this action to the trial court for further proceedings. Judgment reversed and cause remanded.

Kirsch, J., concurs.
Vaidik, C.J., dissents with opinion. [that begins on p. 12] I respectfully dissent. Although the majority left “for another day” the issue of whether Indiana Code section 31-33-18-2 creates a private right of action when DCS fails to protect the identity of a person who reports child abuse or neglect, I believe that this issue must be addressed and that the legislature did not intend to create a private right of action. And because there is no private right of action under the statute, there is no special relationship between DCS and a person who reports child abuse or neglect when that DCS employee essentially reiterates the requirements of the statute to the reporter. Put differently, no special relationship was created when Doe called the DCS hotline and was told by the DCS employee that his information was confidential, because the DCS employee’s response was nothing more than a statement of what Section 31-38-18-2 requires. I would therefore affirm the trial court’s grant of summary judgment in favor of DCS. * * *

The purpose of the confidentiality requirement is to encourage reporting—not to protect against the harm that might occur when a reporter’s identity is revealed. Moreover, the statute contains no civil-enforcement provisions, and the legislature has provided that public employees or officials who disclose confidential information are subject to a Class A infraction. * * *

In addition, this Court has already determined that victims of child abuse or neglect do not have a private right of action against people who fail to report the child abuse or neglect. See Sprunger v. Egli, 44 N.E.3d 690, 693 (Ind. Ct. App. 2015); C.T. v. Gammon, 928 N.E.2d 847 (Ind. Ct. App. 2010). Accordingly, if victims of child abuse or neglect do not have a private right of action under this statutory scheme, then it logically follows that reporters of child abuse or neglect should not either. I therefore conclude that the legislature did not intend to create a private right of action when DCS violates Section 31-33-18-2’s confidentiality requirement.

Also, I disagree with the majority’s conclusion that “DCS owed Doe a private duty based on the common law.” * * * To allow a common-law claim in these circumstances would provide an end-run around the legislature’s intent that Section 31-38-18-2 does not create a private right of action when DCS fails to protect a reporter’s identity.

In In Re the Adoption of W.M. (Minor Child), D.M. and J.M. v. F.F., M.F., and The Indiana Department of Child Services, an 8-page opinion, Judge Baker writes:
J.M. (Grandfather) and D.M. (Grandmother) (collectively, Grandparents) appeal the order of the Greene Circuit Court transferring their adoption petition to the Monroe Circuit Court. Finding no error, we affirm. * * *

Grandparents have one argument on appeal: “[e]xclusive jurisdiction over the adoption proceeding pertaining to [Child] lies with the Greene Circuit Court.” Appellant’s Br. p. 3. They argue that, because they filed an adoption petition in Greene County before Aunt and Uncle filed an adoption petition in Monroe County, it was impermissible for the Greene Circuit Court to transfer the case to the Monroe Circuit Court. * * *

It is clear that Grandparents were allowed to file their adoption petition in Greene County, under Indiana Code section 31-19-2-2(a)(1), as that is their county of residence. But Aunt and Uncle were also allowed to file their adoption petition in Monroe County, under Indiana Code section 31-19-2-2(a)(2), as that is where Child’s wardship was located. Thus, both courts have “jurisdiction,” as either can hear adoption cases. The question becomes whether, as Grandparents contend, the Monroe Circuit Court was divested of jurisdiction when Grandparents filed their adoption petition in the Greene Circuit Court.

Grandparents’ argument that the Greene Circuit Court had “exclusive jurisdiction” is foreclosed by our decision in In re Adoption of Z.D., 878 N.E.2d 495 (Ind. Ct. App. 2007). * * *

Since the first adoption petition did not create “exclusive jurisdiction,” we went on to decide the case based on preferred venue: * * *

For precisely the same rationale, the Monroe Circuit Court was the preferred venue in this case. All of the following are pending in that court: (i) Child’s CHINS case; (ii) a termination of parental rights case; and (iii) Aunt and Uncle’s adoption petition. Moreover, Grandparents successfully intervened in the CHINS case before the Monroe Circuit Court. * * *

In essence, Grandparents are asking us to reverse the trial court for proactively and correctly solving the issue that arose in the Z.D. case. We decline to do so.

In Joseph Sidener v. State of Indiana , a 10-page opinion, Judge Baker writes:
Joseph Sidener appeals his conviction for Burglary, a Class C felony, as well as the finding that he is an habitual offender. Sidener argues that law enforcement’s use of a GPS tracking device to track the movements of a vehicle in which he was a passenger violated his rights under the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution. We find that Sidener may not challenge the constitutionality of the search, as he lacked a reasonable expectation of privacy in the vehicle. We also find Sidener’s challenges to the sufficiency of the evidence and to the State’s amendment of the charging information to be unavailing. Accordingly, we affirm the judgment of the trial court. * * *

Sidener makes three arguments on appeal. He first argues that any evidence relating to the GPS monitoring of the vehicle should have been suppressed because the search exceeded the scope of the warrant. He also argues that the evidence presented was insufficient to support his conviction. Finally, he argues that the State should not have been allowed to amend the charging information with regard to the habitual offender allegation so close to the start of trial. * * *

[GPS Search] However, Sidener’s case does not raise these concerns because the government had no interest in Sidener’s movements, nor did it seek to invade his privacy. In fact, the officers did not even know that Sidener was a passenger until they stopped the vehicle. Accordingly, Sidener has not shown that his personal interests were affected by the GPS monitoring of Green’s vehicle and, therefore, he cannot challenge the search of the vehicle under the U.S. or Indiana constitution.

NFP civil decisions today (0):

NFP criminal decisions today (5):

Cortez Jones v. State of Indiana (mem. dec.)

Eric Allen v. State of Indiana (mem. dec.)

Eric John Tulk v. State of Indiana (mem. dec.)

Loretta A. Manier v. State of Indiana (mem. dec.)

Nicholas G. Collins v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on May 26, 2016 11:15 AM
Posted to Ind. App.Ct. Decisions