ILNews

Justices: Child placement statutes are constitutional

Back to TopCommentsE-mailPrintBookmark and Share

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.”

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  2. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  3. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  4. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

  5. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

ADVERTISEMENT