                                                                       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

      Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020        Page 2 of 11
      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.

      Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020                                 Page 3 of 11
       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




       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020             Page 4 of 11
       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




       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020             Page 6 of 11
       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.

       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020             Page 7 of 11
        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.



Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020             Page 8 of 11
               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.

       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020            Page 9 of 11
[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.

       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020                                  Page 10 of 11
[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.

       Court of Appeals of Indiana | Opinion 19A-CT-2635 | May 6, 2020                                   Page 11 of 11
