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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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