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Thursday, April 30, 2009

Ind. Decisions - Still more on: Supreme Court grants transfer with opinion, applying new Appellate Rule 14.1

The April 17th Indiana Supreme Court decision in the case of In Re: T.S.; Indiana Dept. of Child Services, LaPorte County v. LaPorte County CASA, et al, (ILB entry here, follow-up here), is the subject of a lengthy story today by Tim Evans of the Indianapolis Star. Here are some quotes:

The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations.

It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings.

The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state.

But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money.

A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect.

An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court.

But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.

"To say this decision was eagerly awaited would be an understatement," said Marion County juvenile court Judge Marilyn Moores. * * *

LaPorte Circuit Judge Thomas Alevizos, whose court issued the ruling that conflicted with the DCS recommendation, said he was pleased.

"I thought the process worked well," he said, "and I'm happy with the legal decision."

What also appeared to work was the expedited "rocket docket" appeals process that was put in place to handle such cases.

Alevizos said it took a little more than a month for the appeals court to issue a ruling -- much faster than usual. The Supreme Court handed down its decision in about the same amount of time. * * *

Alevizos also said "the courts interpreted the law the only way it could have been interpreted, in my opinion.

"To interpret it any other way," he said, "would violate any semblance of separation of powers. If the courts had ruled the way DCS wanted, it would have been unconstitutional, in my opinion -- basically, it would put them on the judge's bench."

That was a concern some critics had when the change was being deliberated last year in the legislature. Many judges were initially upset by the change because the legislation looks like it "assumed we are the problem," Alevizos said.

St. Joseph County Probate Judge Peter Nemeth is among those who don't like the practice that requires judges to defend their decisions if DCS disagrees. He calls it "fiscal intimidation."

Nemeth said the approach puts at least some degree of pressure on judges to follow DCS recommendations. Nemeth said he fears some judges may be reluctant to go ahead with alternative plans because they know that if they lose, they must go to their counties -- which no longer budget for child services -- for funding.

Posted by Marcia Oddi on April 30, 2009 08:34 AM
Posted to Ind. Sup.Ct. Decisions