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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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