The Indiana Court of Appeals affirmed the placement of a juvenile delinquent in an out-of-state shelter care facility over the objection of the Indiana Department of Child Services, finding the trial court complied with statutes that allow it to place the juvenile in a non-Indiana facility. A recent change to one of those statutes now shifts the burden of payment to out-of-state facilities from DCS to the counties.

In the case In the Matter of D.S., Indiana Dept. of Child Services v. D.S. and Madison County Superior Court, No. 48A02-0905-JV-428, the appellate court granted DCS' request for expedited review of the trial court's May 19, 2009, modified dispositional order that placed D.S. in a facility in Arizona contrary to the DCS' placement recommendation.

After considering the recommendations from DCS and the probation department, with other evidence, the Madison Superior Court rejected DCS' placement recommendations and followed the recommendation of the probation department to put D.S. in a facility in Arizona. The trial court made the decision based on D.S.' history of gun and gang-related offenses, that he is a significant risk to the safety of the community and himself, and that he needs to be taken out of the environment he is currently in to have a chance to better himself.

D.S.' probation officer testified the probation department couldn't find a placement in Indiana comparable to the one in Arizona, and the places in Indiana willing to admit D.S. were inappropriate. DCS recommended placing D.S. in facilities geared toward sexual predators or serious psychiatric disabilities - neither of which D.S. had a history of.

The appellate court found the dispositional order was consistent with Indiana Code dealing with placement contrary to DCS decisions and out-of-state placement. The trial court's findings support its placement decision, so the trial court didn't commit clear error in ordering D.S. be placed in the Arizona program.

Judge Melissa May noted in a footnote at the end of the opinion that changes were made to one of the statutes implicated in this case during the 2009 Special Session. I.C. Section 31-40-1-2(f) was amended to say that DCS 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 of Indiana, if the placement is not recommended or approved by the director of the department or the director's designee. Because this change didn't become effective until July 1, 2009, it's inapplicable to the instant case. Prior to the amendment, DCS would have to pay for the out-of-state facility even if it didn't recommend it as long as the placement complied with conditions stated in I.C. Section 31-34-20-1(b) or I.C. Section 31-37-19-3(b).