State Agrees To Pay Family $25M To Settle DCS Case

Indiana will pay $25 million to conclude a northern Indiana family’s decade-long legal fight to clear their names after the Department of Child Services falsely prosecuted them for their daughter’s death.

Roman and Lynnette Finnegan and their three children – Johnathon Abair, Tabitha Abair, and Katelynn Salyer – will share in the settlement confirmed Wednesday by their Indianapolis attorney, Ron Waicukauski of Price Waicukauski Joven & Catlin, LLC.

“It’s fair to say we’re very pleased this is finally resolved after so many years,” Waicukauski said. “The family has received a significant measure of justice,” he said, from “parties who were responsible for causing enormous suffering.”

A federal jury in 2015 awarded the Finnegans $31.3 million against Pulaski County DCS agents and an Indiana State Police detective. The verdict included $12 million for conduct by state actors that jurors found shocked the conscience. Last year, the state appealed the verdictto the 7th Circuit Court of Appeals. The case was dismissed Wednesday after parties filed a joint motion noting settlement had been reached. The Chicago appeals court earlier this year ordered mediation in the long-running matter.

A spokesman for the Indiana Department of Child Services did not immediately respond to a message seeking comment.

The Indiana Attorney General’s Office, which represented DCS in the litigation, released a copy of the settlement agreement Thursday afternoon.

Among the settlement terms, Chief Counsel of Appeals Stephen Creason said in a statement, “The parties agree and understand that in reaching this agreement, the state defendants have denied and continue to deny any fault, wrongdoing or liability on their respective parts with respect to all of the claims made against them and as part of this lawsuit. This settlement has been reached solely to avoid the uncertainties of litigation and the expenses, which have been and will be incurred in the prosecution and/or defense of this matter.”

According to the settlement, the $25 million will be paid from the Indiana Tort Claims Fund.

The jury’s verdict came after a 15-day trial before District Judge Rudy Lozano in the District Court for the Northern District of Indiana. Lozano later affirmed the jury verdict after the state petitioned that it be reduced, ruling there was no reason to conclude it was excessive or unreasonable. The state subsequently appealed.

The Finnegans’ daughter, Jessica, died in the family’s Francesville home in 2005, and DCS investigators suspected abuse. But even after an investigation showed the girl died due to prescribed medication that caused a fatal drug interaction with another medication she took to treat a lifelong heart condition, DCS continued to pursue false neglect substantiations against the parents.

A Pulaski County judge found investigators had falsified official records to justify the false substantiations that he ruled were arbitrary and capricious. DCS’ intervention also resulted in the removal of the Finnegans’ other children, who were placed in foster care.

The jury awarded compensatory damages on 22 violations of First, Fourth and 14th Amendment violations involving the Finnegans and their children. In nearly each of those, the jury found former Pulaski County DCS director Laurel Myers most liable.

Jurors awarded lesser damages against Regina McAninch, a former DCS investigator and caseworker; Reba James, a regional DCS director under former director James Payne; and Jennifer McDonald, an Indiana State Police detective.

Waicukauski said the $25 million settlement includes legal fees but declined to say how much of the sum will be paid to attorneys who’ve handled the matter. In 2016, four lawyers petitioned the Northern District for fees of $2.8 million. Lozano stayed the petition until the case was resolved on appeal.

Reversal: Trial Court Ordered To Revisit CHINS Petition

Olivia Covington for www.theindianalawyer.com

An Indiana trial court imposed an “inappropriately high” burden on the Department of Child Services to prove a presumption of a child in need of services situation, the Indiana Court of Appeals held Friday in an opinion ordering the trial court to revisit the CHINS petition.

In Indiana Department of Child Services v. J.D., R.B., et al, 71A03-1611-JC-2627, DCS received a report that M.B., a child, had been seen in the emergency room for multiple fractures, including several rib fractures. DCS Family Case Manager Bridget Murray spoke with R.B., the mother, and doctors at the hospital, where she learned M.B. began exhibiting symptoms of a fractured rib the after being removed from his car seat the previous day.

A physician, however, told Murray it was not feasible for M.B.’s injuries to have been caused simply by removal from his car seat, but that the pattern of the rib fractures showed signs of the child being squeezed. Murray concluded it was necessary to remove M.B. from R.B.’s care, so he was placed in foster care immediately upon his release from the hospital.

DCS then filed a petition alleging M.B. was a Child in Need of Services, and a fact-finding hearing was held in August 2016. Murray testified to the events leading up to M.B.’s removal, and three physicians testified his injuries were very likely non-accidental and had occurred during at least two separate incidents of trauma. R.B., J.D., the child’s father, and L.M., the mother’s boyfriend, also testified at the hearing and each denied observing any injuries or odd behaviors in M.B. before he was taken out of the car seat.

DCS argued it had presented sufficient evidence to trigger presumption under Indiana Code section 31-34-12-4, or the Presumption Statute, that M.B. was a CHINS, but the St. Joseph Probate Court disagreed and ordered the child returned to R.B.’s care. After the denial of its motion to correct error, DCS appealed, arguing the trial court had committed reversible legal error “by failing to give effect to the presumption set forth in I.C. section 31-34-13-4” and by rejecting the physicians’ testimonies to the non-accidental nature of M.B.’s injuries.

The Indiana Court of Appeals agreed with DCS, with Judge Robert Altice writing in a unanimous Friday opinion the trial court’s statements, such as the sentiment that it was “absurd” for the doctors to determine the injuries were non-accidental, were “problematic.”

For example, Altice wrote the question of whether the injuries were non-accidental was a question of fact, not law, as the trial court presumed, an error that “effectively required the court to disregard the physicians’ testimony that Child’s injuries were non-accidental.” Further, the court’s conclusion the physicians were unqualified to opine as to the nature of the injuries was the wrong approach, Altice said.

Additionally, the trial court “imposed an inappropriately high evidentiary burden on DCS to trigger the Presumption Statute,” the appellate panel said. That statute merely requires “competent evidence of probative value,” which DCS provided in the form of the evidence and testimony at the fact-finding hearing, the court said.

Thus, because the evidence was sufficient to trigger the Presumption Statute, the appellate panel reversed the trial court’s denial of the CHINS petition and remanded the case with instructions to conduct further proceedings.

SMALL GESTURES KEY TO HONORING THEIR SACRIFICE

By Tom Purcell

“Parades, mattress sales and burgers on the grill are all nice, but I feel we should do more to honor those who made the ultimate sacrifice for our country.”

“Ah, yes, you speak of the Memorial Day holiday, a day intended to honor the men and women who gave their lives to protect the freedoms too many Americans take for granted.”

“That’s right. Look, there should be debate about the wars we have been fighting, but there should be no debate about honoring the men and women who died serving our country — or the men and women who continue to serve.”

“I couldn’t agree more. Millions of service people have sacrificed plenty over the years. According to the Department of Veterans Affairs, nearly 42 million American men and women have served during wartime. Nearly 1.5 million were wounded. Nearly 1.2 million died.”

“Honoring these people with annual parades is a nice gesture, but we can all do more to support our troops.”

“What do you have in mind?”

“The Veterans of Foreign Wars says we can write to people who are serving overseas or recuperating in military hospitals. These individuals love receiving emails, letters and care packages.”

“A wonderful start. What else can we do to better support the troops?”

“Donate time. The local VFW, the American Legion and other legitimate organizations are always in need of volunteers to support a variety of fundraising and recognition events. Simply contact your local VFW or American Legion office to learn how you may help.”

“Surely we can donate money, too?”

“Anyone can help fund a variety of needed services for military members — or support the Red Cross to provide basic necessities to service members in military hospitals. Just be sure you are funding a legitimate organization. Regrettably, there are some charlatans out there. Before giving money, check out the organization at a respectable validation service, such as charitywatch.org.”

“That’s sound advice. What else can we do?”

“Lori Felix, an Army veteran and founder of More with Less Today, offers simple and inexpensive ways we can serve the military and its families at Military.com. She suggests that even small gestures of kindness, such as volunteering to place flags at gravesites, are more than welcome.”

“Great!”

“Offering assistance to the families of service members who have been deployed is helpful, too. Life can be tough for a husband or wife left behind as his or her spouse serves overseas. Felix writes that we can ‘Extend a hand in friendship to a military family. Invite them over for a meal, bring them a meal or invite them out for dinner. Something as simple as running an errand or taking a walk together can forge a friendship.’”

“What can we do to help the older men and women who have served?”

“Felix suggests we contact a nursing home or a veterans hospital: ‘A visit can brighten a day and help veterans to know they are not forgotten. The Walter Reed National Military Center has a Facebook page that provides inspiration and ideas.’”

“I have another idea that is near and dear to my own heart. There are war memorials in many aging communities that are being neglected. It takes a few volunteers, basic lawn equipment and some elbow grease to bring them back to life. Cleaning them up for Memorial Day is one of the most rewarding projects I ever participated in!”

“So we have a plan: If we want to especially enjoy the Memorial Day weekend, first offer up a small gesture of kindness in honor or those who served and are still serving!”

DEMOCRATS HAVE AN OBSCENE NEW MANTRA

By Rick Jensen

Has anyone noticed the moral and organizational collapse of the Democratic Party?

While the president’s tweets and his lack of command over the English language earn him nationwide “Trump Derangement Syndrome,” the Democratic Party itself is in a stunning meltdown that threatens to dissolve whatever sense of decency and morality its members once strove to maintain.

Perhaps being on the front lines of fighting against rights to life and religious freedoms has some bearing upon the issue, but it’s gone far beyond that.

In some dystopian left-wing fantasy, a CPAC convention in which the president of the NRA leads a multitude of conservatives in chants of “F@&* Obama! F@&* Obama!” would be front page news in the New York Times and Washington Post.

Liberal icon Rachel Maddow would host guest after guest, psychologists, historians and Democratic Party leadership in dissertations explaining why Republicans would be so callous as to expose their children to such profane behavior.

And yet, it is the Democrats who did just that.

On May 20th, the California Democratic Party’s State Convention showed the current soul of the party.

Outgoing chair John Burton called upon the packed Sacramento Convention Center crowd to chant the new Democratic Platform slogan, “F@&* Donald Trump.”

Burton signaled the generally unfaithful using the official Democratic Party gesture, both middle fingers held high, and led a gleeful throng in a chant of “F@&* Donald Trump.”

This is what now passes as Democratic Party messaging.

We’re not talking about some small group of liberal recalcitrants. These are thousands of Democratic Party leaders and activists. California party leaders were actually onstage proudly “giving the finger” to the President.

House Minority Leader Nancy Pelosi and Obama’s Former Secretary of Labor Hilda Solis looked on, laughing it up in the background, totally in support of this profane meltdown.

Were children in attendance?Was Children’s Caucus Director Judy Jacobs onstage shouting obscenities?

Hey, kids!Show Mommy and Daddy what you learned from the California Democratic Convention!

Perhaps the California Department of Family Services should consider children of Democrats to be living in unsafe households.

Even if kids weren’t at the convention, they got the message.

The message is that as long as you’re a Democrat, language forbidden by the FCC is a perfectly acceptable form of intellectual debate.

California is an excellent example of the Democratic Party’s self-destruction in a couple more events.

When Bernie Sanders supporters expressed their support for single-payer government health care, they were shouted down by the party chair, using the convention’s most popular word, the “F” word, in such a way as to instruct the liberals to perform a most difficult physical contortion upon themselves.

If you want your kids to be “good Democrats,” it’s going to take more than a few yoga lessons to abide by these new rules of the party’s leadership.

And in keeping with the party’s respect for elections, Democratic organizer Kimberly Ellis, who lost the race for party chair to Eric Bauman, demanded a recount.

She and her supporters doubt all the votes came from credentialed party delegates.

Recalling how Hillary and the DNC shut out Bernie delegates at the Nevada State Convention, it seems a reasonable suspicion.

Nearly 3,000 party delegates voted in the election and Ellis lost by 60 votes, the kind of margin California political veterans will recall cost Republican Tom McClintock the State Controller race (0.03 percent) after some “missing” absentee ballots miraculously appeared just in time to keep the Democrat from losing.

She knows how her party plays the game, so, of course, she doesn’t believe the outcome.

To their credit, the liberals chose not to riot or commit the violence seen so often in Berkeley and D.C.

The foul language, delighted displays of obscene gestures and dishonest electioneering isn’t just a California version of the Democratic Party.

It’s a nationwide dysfunction.

Add to this the angry soft-porn “comedy” stylings of an unapologetic Stephen Colbert and you get the idea of just how toxic this new, unhinged Democratic Party is to families and reason.