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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. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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