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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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