United States District Court, S.D. Indiana, Indianapolis Division
SHIRLEY TALIA JUSTICE Individually, and on behalf of A.J., and A.L., her minor children, Plaintiff,
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
EVANS BARKER, JUDGE
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.
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.
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.
February 2012 Abuse Report and Investigation
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. 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.
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.
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.
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.
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.
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.
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.
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,  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.
July 2012 Abuse Report and Investigation
3, 2012, another report of sexual abuse involving A.J. was
made, this time to the Indiana DCS Central Intake
line. 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.
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.
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.
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.
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.
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.
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
2012 Contact with Government Officials
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.
September 6, 2012 Abuse Report and Investigation
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.
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.
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 ...