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Indiana’s Legislature and governor have failed to provide resources to ensure sufficient case managers to protect children and families, a lawyer representing the Department of Child Services told the Indiana Court of Appeals Wednesday. But she argued a caseworker’s lawsuit against the agency was the wrong way to enforce state law requiring those workers have no more than 17 cases each.

DCS case manager Mary Price was handling 43 cases when she sued the agency seeking enforcement of the law. A Marion Superior Court judge dismissed her suit that sought a class action, and deputy attorney general Frances Barrow urged the appellate panel to affirm the ruling.

“The fact is, we want a remedy. We want a remedy at law,” Barrow replied.

“Then why aren’t you sitting on that side with them?” Judge Margret Robb quipped, nodding to plaintiff counsel’s table.

Barrow said that while the agency has added about 100 case managers since the suit was filed, more help is needed. Nevertheless, she argued that Price had no standing to sue, and a requested court mandate would be “without regard with what the agency may have to do to comply, and without regard of possible consequences of strict compliance with the statute.” She later said those consequences could be simply telling caseworkers to drop cases.

American Civil Liberties Union of Indiana Legal Director Ken Falk argued for Price and said the trial court wrongly dismissed her case. He cited Indiana Code § 31-25-2-5, which establishes, “A child protection caseworker or a child welfare case manager may not be assigned work that exceeds” 17 children per caseworker.

“It’s hard to think of a more mandatory-sounding statute than that,” Falk told the court. “… It’s mandatory as mandatory can be. … It’s uncontested they’re not in compliance.”

Robb challenged Barrow on the argument that Price had no private remedy. She noted other laws restrict an employer from firing a worker who refuses to break the law. “What is the real remedy if DCS is never going to be able to comply? Get fired?” Robb asked, after which the terminated caseworker would have a cause of action.

“This is a case where the plaintiffs and defendants want the same thing,” Barrow replied, arguing the statute is “directory” rather than mandatory. “We want case workers to have reasonable caseloads. … The Legislature itself at the same time it establishes these limits, it has also developed a system of its own oversight of compliance.

“Even the appropriation of additional funds proves to be inadequate to the extent there’s no control anyone has over additional cases coming in,” she said.

“This is not a proper case for mandate, and it’s not a case where the Legislature has shown plaintiffs have a private right of action,” Barrow told the panel.

Falk also brushed aside DCS’ concerns about its limited ability to enact changes to meet a court mandate. He also said Price wouldn’t be asking DCS to do anything immediately, but rather would force the agency to adequately fund workers as the law demands.

“We can go back to court, we can have our trial, and the court can say, ‘look DCS, you shall comply with the statute on this date,’ not tomorrow, but a year from now,” Falk said. “Time for you to go back to the Legislature, time for you to confront the people who wrote the statute.

“An order recognizing that there has to be legislative input here, and giving everyone time would be perfectly appropriate and would be a perfectly valid mandate order — you must comply by this date,” he said.

The case is Mary Price, et al. v. Indiana Department of Child Services, et al., 49A05-1602-PL-00380. Wednesday’s oral arguments may be viewed here.

Read more about this case in the July 27 edition of Indiana Lawyer.