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Friday, October 16, 2009

Ind. Courts - More on the DCS and the courts re who has authority relating to the placement of children in out-of-state rehabilitation and treatment programs

First, some background:

The Indianapolis Star had an editorial Sept. 14th that included the following:

Even given the wacky nature of this year's installment of the Indiana General Assembly, there can be no excuse for changing child-placement law via last-minute insertion in a budget bill.

Authority over out-of-state care for troubled youngsters is an ongoing issue with passionate involvement by many parties. It deserved full-blown debate.

Instead, the state Department of Child Services sought and got what it wanted. Having lost an appeal to the Indiana Supreme Court, resulting in enhanced discretion for local judges in out-of-state placements, DCS Director James Payne went to the legislature and won for himself the final say. Now, local courts can order out-of-state placements in defiance of DCS; but they have to pay the cost out of their own stressed budgets, making the option pretty much moot. * * *

What is lost with the law change is a third-party referee -- the appeals courts -- that can untangle disputes between counties and the state, such as the one that arose over a Madison County teenager and resulted in the Supreme Court loss for DCS. Even if DCS pays the bills and deems itself the proper determiner of children's best interests, most citizens would prefer to have a check on any state agency's power.

Tim Evans of the Star wrote a long story Sept. 8th that gives a good overview of the entire issue, which also involves 2008 legislative changes and several court decisions.

See this ILB entry from Sept. 8th, and its links, and this one from Aug. 30th, which looks at some of the court cases.

Also of interest are the minutes of the interim Commission on Courts' Oct. 1, 2009 meeting.

Now, the point of all this:

Professor Joel Schumm of IU-Indy Law School has prepared a brief challenging the ability of DCS to intervene in placement decisions on two grounds:

(1) a violation of separation of powers in the original 2008 bill that first authorized any DCS involvement and

(2) a violation of the one subject requirement of Article 1, Section 19 by the last-minute addition of a DCS provision in the June 30 special session budget.

The motion was filed in a case in Marion County Juvenile Court last Friday. DCS then reconsidered and approved the out-of-state placement earlier this week.

The issue is likely to surface again in juvenile courts whenever DCS refuses to authorize an out-of-state placement.

The ILB is pleased to post a generic copy of Prof. Schumm's "Memorandum of law in support of ordered DCS to pay for out-of-state placement based on violations of the separation of powers and one subject provisions of the Indiana Constitution." Access it here.

Expect the one-subject challenge to arise in other appeals on other issues in the coming months.

Posted by Marcia Oddi on October 16, 2009 09:07 AM
Posted to Indiana Courts