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AG: DCS out-of-state placements shouldn’t be reviewable by courts

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An Indiana Supreme Court decision upholding three statutes relating to juvenile judges’ authority on out-of-state placement cases created what the state attorney general’s office calls too much confusion, and the AG is asking the justices to revisit the ruling it made a little more than a month ago.

But in a far-reaching legal argument, the Office of the Indiana Attorney General wants the state’s highest court to find that the Indiana Department of Child Services has “unreviewable power” to decide when the state will pay for out-of-state placements, regardless of what a juvenile judge may think is best for a child in his or her courtroom.

The AG filed a rehearing petition Aug. 1 in the case In The Matter of A.B. v. State, No. 71S00-1002-JV-00156, in which St. Joseph Probate Judge Peter Nemeth declared unconstitutional a trio of state statutes involving child placements that pitted many within the state judiciary against the Department of Child Services in recent years. The juvenile court judge placed a troubled teenager in a treatment facility in Arizona after an escape from a South Bend facility, but the DCS objected and blocked the placement, leading to the judge’s declaration that the statutes were unconstitutional.

On June 29, the Indiana Supreme Court found the budget-focused laws constitutional and that the DCS has statutory power to take costs into account when considering placements. But while upholding the controversial law changes from 2009, the justices simultaneously held that the state agency acted “arbitrarily and capriciously” in A.B’s case specifically because the desision appears to only have been made on the basis that the placement was outside of Indiana and didn’t take into adequate account the overall costs and benefits to the juvenile. The high court also scolded the DCS and said its use of this statutory authority generally comes “dangerously close” to usurping the judiciary’s authority in dealing with the lives of children.

In asking for rehearing, the AG says the justices went too far in analyzing the specific case involving A.B. and the facts surrounding the DCS placement denial in that situation. Instead, the AG contends that the justices should have simply addressed the constitutionality of the statutes and stopped there, rather than finding the DCS refusal was “arbitrary and capricious.” The decision, written by Justice Steven David for a unanimous court, leaves open too many questions and warrants reconsideration or further explanation, the brief says.  

Echoing what the justices wrote in their A.B. ruling, the brief notes that state statute doesn’t give the DCS “final authority” over placements but rather it provides “complete discretion” over whether state payments for out-of-state placements should be made if that placement isn’t recommended or approved by the DCS director. That doesn’t affect the welfare of a child or stop the juvenile court from paying for the out-of-state placement with county funds, the AG contends.

“The court and the juvenile are not impacted or harmed because DCS’s decision does not interfere with the court’s ability to serve the best interests of the child,” the brief says. “Consistent with the clear intent of the General Assembly, DCS’s decision merely determines whether county or state funds will be used to pay for out-of-state placements, and this decision is not reviewable.”

Citing non-juvenile cases from the past three decades, the AG argues that Indiana appellate courts have held some state agency actions – such as Department of Correction decisions on restitution, loss of earned credit time, and inmate segregation – are not reviewable by the state judiciary. State statute doesn’t provide any criteria for the DCS to use in evaluating out-of-state placements and the Supreme Court didn’t outline any in its June decision, either.

“Without any statutory limits, there is no way for a reviewing court to determine whether an executive’s decision is reasoned or arbitrary,” the brief states. “The Indiana Constitution, notions of due process, and decisions of this court do not contemplate that every agency decision be subject to judicial review, and with the intent of the Legislature on this point being clear, courts are not free to infer a private right of action. The Court should grant the petition and strike those portions of the opinion creating a non-statutory right of judicial review of determinations.”

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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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