Riley, J.
STATEMENT OF THE CASE
Appellants-Plaintiffs, Megan Perry and Jonathon Perry (collectively, the Perrys), appeal the trial court’s dismissal of their Amended Complaint against Appellees-Defendants, Indiana Department of Child Services (DCS) and Linzy Derucki (Derucki), (collectively, the Defendants), for failure to state a claim upon which relief could be granted.
We affirm in part, reverse in part, and remand for further proceedings.
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The Perrys raised their § 1983 civil rights claim against Derucki in her individual capacity. Suits brought under § 1983 involve a claim of violation of some right guaranteed by the federal constitution. Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 664, 88 L.Ed. 662 (1986). In their Motion to Dismiss the Amended Complaint, the Defendants argued that the Perrys’ § 1983 claim was subject to dismissal because Derucki is entitled to qualified immunity and because the Perrys did not allege a protectable liberty interest in their Amended Complaint. On appeal, the Defendants suggest that we need not reach the constitutional dimensions of the Perrys’ § 1983 claim if we conclude that Derucki is entitled to qualified immunity. Therefore, we first address the issue of whether the Perrys’ § 1983 claim was subject to dismissal under a theory of qualified immunity.
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…In light of this authority, we conclude that the theory of qualified immunity was properly brought through DCS’s Motion to Dismiss the Amended Complaint which Durecki joined, and was, therefore, potentially a basis for the dismissal of the Perrys’ § 1983 claim.
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The doctrine of qualified immunity shields “federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”…
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In support of their argument that they have a protectable liberty interest in their foster-parent relationship with Children, the Perrys direct our attention to several Indiana statutes, including those that provide for the intervention of long-term foster parents in CHINS and termination proceedings, those that require DCS to follow certain procedures to establish a permanency plan for pre-adoptive children, and Indiana Code section 31-27-2-12, the enabling legislation for the Foster Parent Bill of Rights. However, none of these Indiana statutes expressly provide foster parents with a protectable liberty interest, and our own research has uncovered no Indiana legal authority holding as such. The Perrys also rely on Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), a case wherein the United States Supreme Court made observations about the foster-parent relationship but explicitly declined to address whether such relationships were a protectable liberty interest. Id. at 847. Lastly, the Perrys cite a decision from this court, D.L. v. Huck, 978 N.E.2d 429, 437-38 (Ind. Ct. App. 2012), clarified on reh’g, 984 N.E.2d 223 (2013), wherein we held that a certain foster family had a liberty interest sufficient to confer standing to bring state law claims. However, even if we were to assume, without deciding, that our analysis and holding in Huck relating to standing is applicable to the precise question before us, one decision from our state’s intermediate appellate court is not the type of “robust consensus of cases of persuasive authority” required to render a liberty interest ‘clearly established’. Wesby, 138 S.Ct. 589-90. Because the allegations of the Perrys’ Amended Complaint affirmatively showed that Durecki was entitled to qualified immunity as to their § 1983 claim, we conclude that it was properly dismissed. [Footnote omitted.]
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The Perrys also contend that the trial court erred when it dismissed their defamation claim against Derucki. The Defendants argued in their Motion to Dismiss the Amended Complaint that Derucki was entitled to absolute immunity under the DCS Immunity Statute, which provides in relevant part that DCS employees “are not personally liable, except to the state, for an official act done or omitted in connection with performance of duties under this title[.]” I.C. § 31-25-2-2.5(2). On appeal, the Perrys offer two arguments in support of their contention that dismissal was not merited: (1) that the affirmative defense of complete immunity under the DCS Immunity Statute was not available to Derucki because she did not plead it in her Answer to the Amended Complaint, and (2) the allegations of the Amended Complaint established that there were factual issues to be resolved regarding whether Derucki’s actions were official acts within the meaning of the DCS Immunity Statute. As part of this second argument, the Perrys request that we construe the meaning of ‘official act’ for purposes of application of the DCS Immunity Statute.
As to the Perrys’ argument that the DCS Immunity Statute was not available to Derucki in the dismissal proceedings, we resolve that contention in the same manner as we have the Perrys’ argument regarding the availability of the qualified immunity affirmative defense, namely, that the defense was available to Derucki as part of DCS’s 12(B)(6) motion that she joined. As this is the only argument offered by the Perrys regarding the procedural availability of immunity to Derucki on their defamation claim, we do not address the issue further.
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CONCLUSION
Based on the foregoing, we conclude that the Perrys’ federal civil rights violation and state law defamation claims against Derucki were properly dismissed for failure to state claims upon which relief could be granted. However, as DCS concedes, we further conclude that the Perrys’ state law negligence and defamation claims against DCS were improperly dismissed.
Affirmed in part, reversed in part, and remanded for further proceedings.
Bailey, J. and Vaidik, J. concur