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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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