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Talia v. Christopher

United States District Court, S.D. Indiana, Indianapolis Division

March 28, 2018

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.

          ORDER ON PENDING MOTIONS

          SARAH EVANS BARKER, JUDGE

         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]

         Factual Background

         I. General Background

         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 (“S. Justice Dep.”) at 13.

         II. February 2012 Abuse Report and Investigation

         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:

Q: How can a substantiation occur when DCS doesn't know who performed the wrong act?
A: Well, I thought that the substantiation was the act itself, that there was abuse going on. It shouldn't-I mean, if you know who the perpetrator is, then that makes it, of course, better because then you can take more steps to keep that person from hurting the child again. But … the abuse itself should be substantiated at the very least.
Q: But what good would come from that?
A: You know, honestly, I can't answer that for everyone ….

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 (“S. Justice Decl.”) ¶ 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. Connel.

         III. July 2012 Abuse Report and Investigation

         On July 3, 2012, another report of sexual abuse involving A.J. was made, this time to the Indiana DCS Central Intake line.[4] A.J., who was five years old at the time, was identified as the victim and the perpetrator was unknown. Declaration of Monique Roberts (“Roberts Decl.”) ¶ 3; Exh. 1 to Roberts Decl. (“July 2012 Form 311”). Defendant Roberts, who was then a Family Case Manager for the Indiana DCS, was assigned to investigate and conduct an assessment of the allegation. Id. Defendant Norris was Ms. Roberts's supervisor at the time she received this assignment. Declaration of Jennifer Norris (“Norris Decl.”) ¶ 2.

         The preliminary report indicated that A.J. was autistic and non-verbal, but able to sign “more” and “all done” and use other words to request certain things. Roberts Decl. ¶ 4; Norris Decl. ¶ 4. The reporting individual recounted that while A.J. was attending speech therapy, she continually lifted up her shirt and twisted her nipple. After her session, she went into the waiting room and put pressure on her vaginal area and sang very loudly. Id. The report also indicated that A.J. had been touching herself and masturbating in the past and had drawn a picture of her grandfather with two legs and what appeared to be a penis. Id.

         On July 5, 2012, Ms. Roberts spoke with Shirley on the telephone. Shirley confirmed that she was aware of the allegations and stated that she believed that A.J.'s step-grandfather, Mr. Thornton, was molesting her. Shirley told Ms. Roberts that she had to work the week of July 5th, but could meet with Ms. Roberts the following week. Roberts Decl. ¶ 7; July 2012 Form 311. On July 12, 2012, Shirley came to the DCS office and met with Ms. Roberts. During that meeting, Shirley reported that law enforcement had declined to accept the case. She also described past physical abuse that she had suffered when she was still married to Christopher, when he pulled out her hair, threw her down the stairs, and put a gun to her head and made her sit in the corner. With regard to her beliefs about Mr. Thornton, Shirley explained that she noticed that A.J. would pull away from him and showed a strong dislike for him. Shirley reiterated her previously made allegation that, when A.J. drew a picture of her family, she drew Mr. Thornton with what appeared to be a penis. Roberts Decl. ¶ 9; July 2012 Form 311.

         Ms. Roberts observed A.J. at the DCS office on July 17, 2012. During that observation, A.J. did not indicated that she had been touched in an inappropriate or sexual way. Roberts Decl. ¶ 13; July 2012 Form 311. On July 18, 2012, Ms. Roberts spoke with Christopher who stated that he had never observed A.J. exhibiting the behaviors alleged. Christopher told Ms. Roberts that A.J. stays with his mother, Kathy Thornton, when A.J. is under his care and he is at work. Christopher also stated that he had no concerns with his step-father, Mr. Thornton, being around A.J. and observed that Shirley exposed A.J. to “random people.” Id.

         On August 21, 2012, Ms. Roberts spoke with Mr. Napier, a speech-language pathologist who had been treating A.J. for eleven months. Mr. Napier stated that A.J. had drawn a picture of a man with three legs and what appeared to be a penis, but that A.J. could not name any body parts. Mr. Napier further stated that A.J. had never named or identified a person who could be responsible because she is almost entirely non-verbal. Roberts Decl. ¶ 14; July 2012 Form 311. Ms. Roberts visited Shirley's home on August 24, 2012, when Shirley told Ms. Roberts that she had never left A.J. alone with any male other than her teachers. According to Shirley, she had been informed by the Applied Behavior Center for Autism (“ABC”) staff that A.J.'s behaviors were learned behaviors. Shirley also informed Ms. Roberts that A.J. had two physical examinations and cultures taken, but there was no evidence of trauma found. Roberts Decl. ¶ 15; July 2012 Form 311.

         On September 7, 2012, Ms. Roberts spoke with Kathy Thornton, Christopher's mother. Mrs. Thornton told Ms. Roberts that because Christopher and Shirley had longstanding difficulties in their relationship, she had only begun seeing A.J. over the summer, and that prior to that she had not seen A.J. since 2011. Because of the conflicts between Christopher and Shirley, Mrs. Thornton was court-ordered to assist with pickups and drop-offs with respect to A.J. Mrs. Thornton expressed concern regarding the people Shirley allowed to be around A.J. and referenced Shirley's having moved a lot from one house to another. According to Mrs. Thornton, A.J. and Mr. Thornton had a good relationship and A.J. never appeared to be frightened of him. Mrs. Thornton indicated that she had never witnessed anyone touching A.J. inappropriately nor had she witnessed A.J. engage in the complained of behaviors, though she noted that A.J. scratched herself frequently because she had sensitive skin. Roberts Decl. ¶ 19; July 2012 Form 311. Ms. Roberts spoke with Mr. Thornton on September 10, 2012, who stated that, when A.J. visited their home, Mrs. Thornton was the primary caregiver and that he had never noticed any sexual behaviors by A.J. Roberts Decl. ¶ 20; July 2012 Form 311.

         On September 14, 2012, Ms. Roberts recommended that the allegation of sexual abuse be ruled unsubstantiated because there was a lack of evidence to establish that the allegation was true. Ultimately, Ms. Roberts concluded that, although people connected with the ABC Center for Autism and Easter Seals Crossroads had indicated concerns, there was insufficient evidence to show that A.J. was sexually abused, particularly because, since A.J. is non-verbal, she could not identify a perpetrator or even report whether sexual abuse had in fact occurred. Roberts Decl. ¶ 21; July 21 Form 311.

         IV. 2012 Contact with Government Officials

         According to Shirley, she made several attempts in July 2012 to contact government officials, including former Governor Mitch Daniels, former Lieutenant Governor Becky Skillman, and various other state legislators, regarding the need to amend the statute defining what constitutes a preponderance of evidence standard sufficient to support abuse allegations when such evidence pertains to children with special needs and persons with no autonomy. S. Justice Decl. ¶ 11; Exh. A to S. Justice Decl. Shirley alleges that she also had contacted Dan Ward at the Indiana Protection and Advocacy Services Center seeking their assistance in filing a complaint against the DCS for discrimination as well as against DCS Director James Payne and other supervisors at DCS regarding A.J.'s case and imploring them for help. Am. Compl. ¶¶ 23, 29-31. According to Shirley, on August 9, 2012, she received a voicemail message from Austin Highbaugh, Division Manager at DCS, and again, on August 22, 2012, when Mr. Highbaugh informed her that he was having a meeting that day with Shirley's case manager and her supervisor. However, Shirley is not aware whether Ms. Lulich, Ms. Roberts, and Ms. Norris were made aware of these communications. S. Justice Dep. at 62, 79, 88-89.

         V. September 6, 2012 Abuse Report and Investigation

         On September 6, 2012, Indiana DCS Central Intake received another allegation of sexual abuse involving five-year-old A.J. after she tested positive for chlamydia in both her vaginal and anal areas. The perpetrator was identified in the report as “unknown grandfather.” Roberts Decl. ¶¶ 24-25; Exh. 3 to Roberts Decl. (“September 2012 Form 311”); Norris Decl. ¶¶ 10-11.

         Ms. Roberts spoke with Shirley on the telephone that same day, when Shirley stated that she was informed by A.J.'s school that A.J. had been holding and rubbing her abdomen and walking with her legs apart. Shirley repeatedly told Ms. Roberts that the only men she allowed around A.J. were Christopher and Mr. Thornton. Roberts Decl. ¶ 25; September 2012 Form 311. Ms. Roberts spoke with Shirley by telephone again on September 10, 2012, informing her that she would be coming to Shirley's home the following day and needed to speak to a man named Marcell Tishner with whom Ms. Roberts had seen Shirley on two prior occasions. Shirley said that Mr. Tishner would be there. Shirley also told Ms. Roberts that, on September 6, 2012, she had taken A.J. to the hospital and A.J. had to be sedated so that doctors could examine her, but nothing was found at that time. Roberts Decl. ¶ 27; September 2012 Form 311. That same day, Ms. Roberts observed A.J. and A.L. in their home, who reported that A.J. appeared healthy, but non-expressive because she is non-verbal. Roberts Decl. ¶ 28; September 2012 Form 311.

         On that same day, September 10, 2012, Ms. Roberts spoke with Christopher, who stated that he was very concerned for A.J. when she was in Shirley's care. He agreed to be present at a child and family team meeting scheduled for ...


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