DCS caseworker must face damages trial in illegal search suit

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Dave Stafford for www.theindianalawyer.com

A federal judge ruled against a Department of Child Services case manager who illegally searched an Indianapolis veterinarian’s apartment after receiving a report of suspected child abuse or neglect. The case manager now must face a damages trial in the vet’s civil suit against her.

DCS case manager Nola Hunt conducted a warrantless search of an apartment attached to Beth Breitweiser’s Indianapolis practice, All Things Wild Exotic Animal Hospital near Broad Ripple. She and her two children were living temporarily in an apartment in the basement of the office while the family’s home was being renovated.

Breitweiser sued Hunt, the DCS and state entities. Her suit alleges Hunt conducted a search of the premises without a warrant, took photographs that she used to try to substantiate a meritless children in need of services case, made false claims, and threated to take Breitweiser’s two children from her.

District Judge Tanya Walton in December dismissed DCS supervisors from the case but ruled that Breitweiser’s suit against Hunt would proceed. Tuesday, Pratt granted Breitweiser’s motion for summary judgment on her substantive and due process claims against Hunt, but ruled she had not overcome Hunt’s qualified immunity defense on her due process claims regarding Hunt’s alleged threat to remove Breitweiser’s children.

“This matter will proceed to trial on the issue of damages on the Fourth Amendment unreasonable search claim and the Fourteenth Amendment procedural due process claim based on the warrantless search of Brietweiser’s apartment,” Pratt wrote in the order.

Pratt’s order adopted a magistrate’s report and recommendations that found there was no question based on the facts of the case that Hunt had conducted an unwarranted search, and the Breitweiser was entitled to judgment on that question because there were no exigent circumstances that would have warranted a search. Breitweiser and the children were not in the apartment at the time of Hunt’s search.

“Breitweiser asserts persuasively, that ‘Hunt failed to make a specific objection to a portion of the report and recommendation related to qualified immunity. Rather, Hunt merely repackaged her twice rejected argument’ and the objection ‘is a mere restatement of her failed summary judgment argument,’” Pratt wrote. “The Court agrees with Breitweiser’s assessment.”

DCS spokesman James B. Wide confirmed Wednesday that Hunt is still employed by DCS. “Our legal team is working with the Attorney General to discuss next steps as it pertains to the decision rendered,” Wide said in an email. Attorneys involved in the litigation and spokespeople from the AG’s office did not immediately respond to messages seeking comment on the ruling.

According to the record, after receiving a report of suspected child abuse or neglect, Hunt and another DCS worker came to the Breitweiser’s office, refused to identify themselves, and demanded to interrogate Breitweiser.

In her complaint, Breitweiser said she feared for her safety and left with her children. Hunt later searched the clinic and apartment and took photos without permission or a warrant. Hunt is accused of later going to the family’s primary home where she posted a notice that said, “Your child(ren) have been taken into custody,” and that court proceedings had been initiated. Neither was true.

A short time later, DCS opened children in need of services proceedings that involved home inspections and interviews, but no evidence of abuse or neglect was found. Nevertheless, Breitweiser claims DCS continued to insist she relinquish custody of her children and continued to press its CHINS case despite a lack of evidence.

About a month after the CHINS case opened, Hunt admitted in a deposition at least part of her report was inaccurate and false, according to the record.

Still, DCS continued to press its CHINS petition until the day before a scheduled evidentiary hearing in the matter, after which Breitweiser filed a tort claim notice with the state. Two months later, DCS filed a substantiation against her, placing her on the Child Protection Index. Another month later, after Breitweiser petitioned for administrative review, DCS reversed itself and the accusations against Breitweiser were unsubstantiated.

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