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Lawyers challenge imbalance of power

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Juvenile Justice

Court records refer to the juvenile only as M.L.B.

A real name isn’t publicly available, but the initials reflect the case of a 15-year-old transgender youth who is not only part of Indiana’s juvenile justice system but also represents what her attorney says is wrong with how it now operates.

The Marion County youth, someone born male who’s transitioning to the female gender, stayed in juvenile detention while a state agency opposed the juvenile judge’s recommendation for out-of-state placement, making M.L.B. the first to navigate a new expedited appeal process that took effect in January. That month-long appeal process ended in the teenager’s favor, but M.L.B’s attorney argues it highlights what is wrong with the system that now gives the Department of Child Services oversight of judicial decision-making - a potential separation of powers issue.

JoelIndianapolis attorney and law school professor Joel Schumm wrote a challenge to the whole procedure and other public defenders have been filing it statewide, an effort that will eventually have to be addressed in some fashion by the state’s appellate courts.

“This is not an act to do what’s best for kids in Indiana. It’s a budget bill that is hundreds of pages of budget and funding, but ends up affecting juvenile code,” Schumm said. “Thrusting DCS, an executive-branch agency, into the judicial branch violates the separation-of-powers provision of the Indiana Constitution with regard to predisposition services or placements, plea agreements, and dispositions.”

Essentially, HEA 1001 shifts juvenile detention costs from the counties to the state and gives the DCS more oversight authority of juvenile delinquency, status, and child welfare cases. Key points of the new provisions are that a juvenile court can’t place a child in a home or facility outside Indiana without the agency’s approval and without written findings “based on clear and convincing evidence;” that juvenile courts must submit juvenile delinquency case recommendations to the DCS before ordering placements, services, or programs; and that the DCS isn’t required to pay the costs of anything not eligible for federal funding or not recommended or approved by the state agency.

PayneJuvenile judges, attorneys, and advocates worried in the months before HEA 1001 took effect Jan. 1, 2009, what the new law would mean for children in the system, even as proponents emphasized how this will expand Indiana’s ability to collect federal reimbursements for a $440 million system and make the process more efficiently centralized through the state.

Schumm’s challenge asks the court to declare those three portions of the statutes unconstitutional.

Citing cases that span more than a century and date to the late 1880s, the challenge states that any recommendation for placement must be suspect when it could be based on financial considerations and not what’s in the best interest of the juvenile. It also gives the state two voices in the process - the prosecutor and DCS - creating an imbalance.

DCS Director James Payne, who was a Marion County juvenile judge for 22 years before being tapped to lead the state agency, did not return telephone calls or e-mails from Indiana Lawyer seeking comment for this story. Robert Henke in the agency’s legal division also couldn’t be reached.

But M.L.B’s case illustrates what will likely become a more common occurrence as more juvenile cases are decided and go through the expedited appeals process, Schumm said.

He’s pleased with the result of the case but dismayed with a process he and colleagues say allows the DCS to prolong a case needlessly.

In the system on charges of felony battery and misdemeanor criminal mischief, M.L.B. had been in the Marion County Juvenile Detention Center since September 2008, according to a dispositional order. M.L.B. dresses and lives as a female at home, school, and in public. He had taken street-bought hormones to change his primary and secondary sex characteristics, and wanted to have surgery to change his gender to female, the order says. The juvenile’s mother had been incarcerated and unable to care for and supervise her son, and the father didn’t want M.L.B. to return home. M.L.B. also has an emotional handicap and a learning disability.

According to the trial judge’s dispositional order, previous counseling hadn’t worked for the teenager, and Indianapolis and Indiana-based facilities either wouldn’t accept or weren’t capable of offering the services M.L.B. needs. But the DCS made those recommendations anyway, despite the facilities’ previous rejections or inexperience. Juvenile Judge Marilyn Moores ordered the juvenile be sent to a New York City facility equipped to deal with his specific needs and rehabilitate him. That placement was based on “clear and convincing evidence” that it was the most appropriate option, she wrote.

Placement was to take effect Jan. 30, but the DCS appealed and filed the first expedited appeal under Trial Procedure Rule 59 and Appellate Procedure Rule 14.1, which took effect in January to specifically address those cases where state funding decisions for placement services are at issue. The whole process is aimed at completing an appeal’s procedural aspects within 30 days, without factoring in time for any court decision.

The DCS filed a notice of appeal Feb. 5. Briefing was completed within two weeks and the case appeared to be heading for a hearing, but Schumm said he was puzzled to learn the agency asked to dismiss the appeal Feb. 25. No reasons were given, but Schumm said he wonders if it was because no other viable option was presented and it might have lost.

At the hearings, the DCS didn’t send anyone to represent the agency, Schumm said. No one attended to testify. The agency didn’t complete referral forms or even follow up on its recommendations to learn if the juvenile would be accepted there.

“I’m elated with what the judge did and this final turnout, but this all could have been done in January,” Schumm said. “That’s the frustration with the whole process, that it’s not complete, and I’m dismayed with it all. Why is the DCS even involved here?”

As of March 10, Schumm’s case was one of only three expedited juvenile appeals filed under the new provisions. Two Marion County cases had been dismissed at the DCS’s request, and a LaPorte Superior CHINS case remained pending.

Schumm’s challenge hasn’t made it to the appeal process, and his plan to file it in M.L.B.’s case was changed because of the dismissal.

“At some point the appellate courts will have to grapple with it,” he said. “These are decisions the judges should be exercising, not a state agency. This can’t be right; it just doesn’t seem right.”

Judges and juvenile advocates statewide remain optimistic about the changes, and several say it’s still too early to tell what the financial impacts might be, but some say they are already observing changes in how services and placements are offered.

Vanderburgh Juvenile Judge Brett Niemeier said he’s yet to see if his or any other judges’ hands are tied by the changes, but it remains a concern.

“I haven’t changed my philosophy on what’s best for children, but has this affected the judgments I issue? Unfortunately, yes. I’ve had to take a second look at whether it’s a viable option because of funding,” he said, noting that it’s going to take at least 6 more months to know the reality of these changes.

Judge Niemeier said he’s making fewer short-term placements through the DCS, such as placements outside of home to try and stabilize a juvenile and determine whether the underlying issue is defiance, medication, sleep deprivation, or something else. But those are drying up because of the need to take a second look and try to keep that juvenile locally, he said.

Marion County public defender Bethany Williams, who represents juveniles and has filed several challenges to HEA 1001 at the trial level, said the process hasn’t exactly been the fight she and colleagues were expecting.

“We’ve been pleasantly surprised at this point because we thought every day would be a court battle over this,” she said. “But even if we’re OK with the recommendations, that doesn’t change our stance that the DCS doesn’t have any place in these decisions. It’s improper meddling and has a chilling effect on judicial discretion.”

A major part of the problem is the DCS is outside looking in, Williams said. Everyone else - the defense attorney, prosecutor, judge, probation - are familiar with the juvenile’s situation, but the DCS isn’t and only performs a paper review. That isn’t adequate, Williams and others say.

“Our biggest concern is that the purpose of the juvenile justice system is supposed to be focused on rehabilitation, on having other options that aren’t found in adult court  Yes, that’s obviously expensive,” Williams said. “We’re worried that the DCS holding the purse strings could impact judges’ decisions and limit our options. If we can’t provide children the resources they need now, then it’s going to be a real problem down the road.”

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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