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. What Mr. Bir is paying is actually Undifferentiated Family Support, which is a mixture of child support and spousal maintenance. If the courts had labeled accurately labeled the transfer payment, I think that Mr. Bir would have fewer objections to paying it because both Spousal Maintenance and Undifferentiated Family Support are tax deductions for the paying party and taxable to the receiving party. I brought this issue up with my family court judge when my voluntarily unemployed ex-wife was using the 'child support' transfer payment to support both herself and out children. Said family court judge stated that I did not know what I was talking about because I did not have a Juris Doctorate, despite my having a printout with dictionary definitions of the legal terms that I was using for documentation.

  2. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  3. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  4. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  5. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?