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Thursday, August 13, 2009

Ind. Decisions - More on "Apparently there are all sorts of surprises in the special session budget"

Picking up on this ILB entry from August 10th, where a Court of Appeals opinion pointed out that during the 2009 Special Session of the Indiana General Assembly, IC 31-40-1-2(f) was amended as follows:

(f) The department is not responsible for payment of any costs or expenses for housing or services provided to or for the benefit of a child placed by a juvenile court in a home or facility located outside Indiana, if the placement does not comply with the conditions stated in IC 31-34-20-1(b) or IC 31-37-19-3(b). is not recommended or approved by the director of the department or the director's designee.
The Fort Wayne Journal Gazette has an editorial today that provides more information about the import of this change:
DCS has come under fire from a St. Joseph County juvenile court judge for an 11th-hour addition to the state budget that gives [Director James] Payne alone the authority to approve out-of-state placements of children and teenagers. Previously, judges could order placement out of state if they determined that was the most appropriate setting.

“This effectively blocks the out-of-state placement of children,” wrote Probate Court Judge Peter J. Nemeth in a letter sent to Indiana newspapers. “It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch.”

Judge Charles Pratt of the Allen Superior Court’s Family Relations Division said he and Judge Steven Sims don’t typically make out-of-state placements, instead favoring treatment centers that are close to a young person’s home. But he acknowledged that the issue is one that should have been debated before it was approved.

“It’s further evidence of a trend of reducing judicial discretion,” Pratt said. “The less we’re able to weigh the best options and make a ruling, the less chance that kids are being well-served. That’s disturbing.”

In an interview, Payne defended the change, noting that 85 percent of out-of-state placements were made by judges in two counties. Those counties are Lake and St. Joseph, and while both are border counties, Payne said the placements were not just across state lines but to far-flung states. * * *

Nemeth, however, argues that one of his out-of-state placement orders, at a cost of $170 a day, was opposed by DCS in favor of an in-state placement at $325 a day.

Payne, in fact, admitted that in his 20 years as a juvenile court judge in Marion County, there were occasions when an out-of-state placement was the only option.

Given his years of experience on the court, it’s likely the current DCS director would authorize an out-of-state placement in such a case, but a subsequent director without that background might be driven more by budget concerns. Taking the discretion away from a local judge and placing authority with the DCS director is an issue that should have been allowed time for study and public debate.

It’s inevitable that shifting the total cost of child welfare programs to the state would result in more centralized authority, as it likely will with school general fund expenses. But issues involving children demand close attention. That’s more likely to come from a local juvenile court judge than from the head of a state agency.

The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.

St. Joseph County Probate Court Judge Peter J. Nemeth's letter was published in the Indianapolis Star on August 3rd. Some quotes:
As a judge, I am entrusted with ensuring that our citizens receive due process of law, including the opportunity to be heard. Unfortunately, it does not appear that the state's director of Child Services (himself a former juvenile judge) has any concern for the opportunity to be heard as he accomplished a fait accompli (with the acquiescence of the General Assembly) by inserting a last-minute, late-night addition to the budget bill that changes Indiana law so that a juvenile judge cannot do what is in the best interest of a child if that means sending the child to an out-of-state placement.

Out-of-state placements of children will not be paid for without the express consent of the director of Child Services. This effectively blocks the out-of-state placement of children. It is unfortunate that the General Assembly has seen fit to remove this important decision from the hands of judges at the local level and place it in the sole hands of a bureaucrat in the executive branch. * * *

A decision of this magnitude should not be decided in a late-night meeting of a conference committee. It should be discussed openly and decided on its own merits rather than on page 415 of an emergency budget bill. * * *

I call upon the General Assembly to sponsor an open discussion on this issue and then to vote either to keep this decision in the hands of an ivory tower bureaucrat in the executive branch or to restore it to the hands of the elected judicial officers of this state who are in the trenches dealing with families and children on a daily basis.

The ILB had an entry about a related aspect of this conflict between the courts and the IDCS on April 30th. It quotes an excellent story by Tim Evans of the Star that begins: "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."

Posted by Marcia Oddi on August 13, 2009 09:01 AM
Posted to Indiana Courts | Indiana Decisions | Indiana Government