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Committee ponders DCS authority of juveniles

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An interim legislative committee is deciding what it should do about a last-minute, special session addition giving the Department of Child Services even more control over juvenile justice decisions that judges have historically been entrusted to make.

Hearing about an hour's worth of testimony from both sides Thursday afternoon, the Commission on Courts considered the issue of out-of-state placements of juvenile offenders. The topic was raised in recent appellate decisions and has been the subject of juvenile justice advocates since the 2009 legislative special session.

In the finalized budget bill, Indiana Code Section 31-37-19-3(f) was amended to read, "The [IDCS] is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement is not recommended or approved by the director of the department or the director's designee."

Judges were surprised and not happy with this last-minute addition, particularly because many were still reeling from the sweeping statutory changes entailed in H.E.A. 1001 from the 2008 session that gave the DCS more authority over juvenile justice decisions and shifted some funding from the local level to the state.

This out-of-state placement issue arose Aug. 10 in an Indiana Court of Appeals decision when the judges affirmed a Madison Superior judge's decision to place a juvenile in an Arizona facility over the DCS' objection. While finding that the new statute wasn't yet applicable to this case, the appellate court hinted that the same situation might have a different result if considered again.

With all of that building up in recent months, DCS Director James Payne attended the Commission on Courts meeting and spoke in favor of the change, while a handful of juvenile judges appeared to express their displeasure at how the changes were put in place quickly and without discussion from the judiciary.

Commission chair Sen. Linda Lawson, D-Gary, expressed concern that the issue was tacked into the special session budget that many lawmakers failed to fully review or understand because of the last-minute action.

"I trust my juvenile judges, and I think they do a good job," Lawson told Payne as he sat before the commission and explained his position.

During his testimony, Payne told members that the DCS' main priority is to keep children close to home and "engage families" as much as possible. Out-of-state placement is used as a last resort, and Payne said states throughout the country are reducing the number of juveniles placed out of state. Indiana should do the same because research shows the state has the capacity to keep virtually every child here and offer adequate services, he said.

"Frankly, in my time on the bench, I sent a lot of kids out of state," said Payne, who served for two decades as the Marion Superior juvenile judge. "But in the early 1990s, I concluded that it wasn't the best practice. Keeping children close to home is the best practice ... that's something the state can and should support."

Tippecanoe Superior Juvenile Judge Loretta Rush said judicial discretion being taken away and placed with an executive branch state agency sets Indiana's juvenile justice system backward. She agreed with her colleagues that juveniles should be placed within Indiana if that's possible; however, they disagreed that any out-of-state placement should be reduced to a money-based decision made by a state agency.

"They want to look at pieces of paper to make decisions. Is that the way we want justice to operate for our kids and their families?" St. Joseph Probate Judge Peter Nemeth asked the commission. "For them to sit back and throw darts at a dartboard without knowing the particulars of a juvenile or a family, if there's a family ... it's not the right thing to do. It certainly interferes with judges doing their job."

Court of Appeals Chief Judge John Baker, who was sitting on the commission in the place of Chief Justice Randall Shepard, indicated he hadn't heard any discussion with the judiciary about this being an issue prior to the special session budget bill changing. His observation is that a juvenile placement used to be a judicial decision, but now it's been turned into an executive department decision.

When asked by a senator whether the state agency's authority takes the decision-making function from the juvenile judges, Payne responded by saying that, "Some judges are more attentive to this than others. As a juvenile court judge for some time, I thought I knew a lot. But I've found I didn't know it all."

No decision has been made about how to proceed with this issue, or the other two issues discussed Thursday: potential probation department consolidations and issues pertaining to asbestos-related illnesses.

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  1. Don't we have bigger issues to concern ourselves with?

  2. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  3. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  4. Different rules for different folks....

  5. I would strongly suggest anyone seeking mediation check the experience of the mediator. There are retired judges who decide to become mediators. Their training and experience is in making rulings which is not the point of mediation.

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