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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

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