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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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