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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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

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