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Justices: Child placement statutes are constitutional

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In a much-anticipated ruling, the Indiana Supreme Court has ruled three statutes relating to juvenile judges’ authority on out-of-state placement cases are constitutional and that the Department of Child Services has statutory power to consider costs when considering those placements.

While upholding the controversial budget-focused law changes from 2009, the justices simultaneously ruled the state agency acted “arbitrarily and capriciously” in a specific St. Joseph County juvenile’s case and comes “dangerously close” to usurping the judiciary’s authority in dealing with the lives of children.

The 33-page ruling is in The Matter of A.B. v. State, No. 71S00-1002-JV-00156. Previously, St. Joseph Probate Judge Peter Nemeth declared unconstitutional the three statutes involving child placements that pitted many within the state judiciary against the Indiana Department of Child Services in recent years.

Specifically, the justices were brought into the debate that surfaced with last-minute legislative changes during the General Assembly’s special session in 2009. Lawmakers amended Indiana Code 31-37-19-3(f) to require DCS recommendation or approval for any out-of-state placement, or the county would be required to pay for that placement.

The change came after the Indiana Supreme Court in April 2009 ruled against the state agency and gave more deference to juvenile judges in making placement decisions when there’s a dispute about who should pay. Taking its case directly to the General Assembly, the DCS asked lawmakers to tweak state statute and give it more control. Juvenile judges and many lawmakers were surprised about the change that came without public discussion, although attempts to repeal those statutes failed in the years since.

But Judge Nemeth – an outspoken advocate against the policy change – ruled in a juvenile delinquent case that the statutes were unconstitutional. The case involved a teenager who was originally placed in a South Bend facility, but escaped and was subsequently ordered for placement in Arizona. The DCS objected to that out-of-state placement decision by Judge Nemeth, and filed an appeal that fell under Appellate Rule 4(A)(1)(b) giving the high court exclusive jurisdiction over cases where statutes are deemed unconstitutional.

Specifically, the questions raised are: Does Article 3, Section 1 of the Indiana Constitution permit the General Assembly to require that courts get approval from the DCS for out-of-state placements?; whether the single-subject requirement of Article 4, Section 19 permits lawmakers from including the juvenile placement decision-making changes in a massive budget bill; and whether the DCS in-state placement recommendation in this case of A.B. was unreasonable based on the facts.

Finding that the legislative changes focused specifically on finances in the state budget and this provision related to DCS financial decisions, the court disposed of that single-subject argument. But both Justices Brent Dickson and Frank Sullivan wrote concurring opinions that delved into that subject more. Justice Dickson flushed out his agreement with the other justices, but indicated it might be time for the court to begin a “robust” review of that requirement’s enforcement. Justice Sullivan disagreed and wrote that no change is warranted because the court has faithfully followed precedent for more than a century.

Most significantly, the court found no separation of powers violation and held these laws don’t limit a judge’s power to place a child where he or she determines is in the best interest. Instead, they deal with how the state through the DCS funds each placement and allow for judicial review.

“Although this law does not throttle the judiciary by way of the administrative branch, it comes dangerously close to stifling the inherent empowerment our juvenile courts have always enjoyed in making decisions in the best interest of juveniles,” Justice Steven David wrote for the court, noting it’s acceptable for the Legislature to establish this kind of payment process for placements. “However, justice demands that consideration be given not only to which entity is going to pay, but what the costs and per diem are for the various placement options, as well as other relevant and pertinent factors focused on the best interest of the child.”

The court analyzed how much judicial authority should exist in these types of situations, since the General Assembly didn’t outline that guidance. Justices decided that authority shouldn’t fall under the “rocket docket” procedure established in Appellate Rule 14.1, but rather they applied the standards of Indiana’s Administrative Orders and Procedures Act.

Although they upheld the statutes, the justices found this DCS decision in A.B.’s case was arbitrary and capricious because it appears to only have been made on the basis that the placement was outside of Indiana.

“DCS cannot be the final arbitrator of all placement decisions,” Justice David wrote, noting that the state must pay for the out-of-state placement in this case because it’s more cost effective than in-state options. “In this particular fact scenario, the agency action in denying out of state placement was arbitrary and capricious.”

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  1. I can understand a 10 yr suspension for drinking and driving and not following the rules,but don't you think the people who compleate their sentences and are trying to be good people of their community,and are on the right path should be able to obtain a drivers license to do as they please.We as a state should encourage good behavior instead of saying well you did all your time but we can't give you a license come on.When is a persons time served than cause from where I'm standing,its still a punishment,when u can't have the freedom to go where ever you want to in car,truck ,motorcycle,maybe their should be better programs for people instead of just throwing them away like daily trash,then expecting them to change because they we in jail or prison for x amount of yrs.Everyone should look around because we all pay each others bills,and keep each other in business..better knowledge equals better community equals better people...just my 2 cents

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  4. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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