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Sunday, January 31, 2010

Ind. Law - "Judges hope bill restores say in placing juveniles"

Niki Kelly of the Fort Wayne Journal Gazette reports today at length on House Bill 1167, aimed at reversing one of the many "surprises" in the 2009 special session budget. Here are some quotes from Kelly's story:

INDIANAPOLIS – After administration officials slipped an eleventh-hour provision into last year’s budget bill that eliminated a negotiated compromise on juvenile placements, judges are fighting back this year with a bill to restore their discretion.

It is the latest strike in a turf battle two years in the making between the judicial and the executive branches of government over sending delinquent kids to out-of-state programs.

“This doesn’t affect a lot of people, but for those it does, it affects them deeply,” said Rep. Win Moses, D-Fort Wayne. “Traditionally, we should keep kids with their families. But sometimes there are bad families and the kids shouldn’t be in those communities.”

The number of juvenile placements in question is relatively small – at present, 85 children have been placed out of state. The bigger issue seems to be the public-policy question of who controls the final decision – a judge or a state administrator.

The tug of war goes back to 2008 when lawmakers passed property tax reform in which the state took over all child welfare costs. This includes delinquency cases and children found in need of services, such as those abused or neglected.

Gov. Mitch Daniels’ administration made clear at the time if the state was to be responsible for the bills, there would have to be checks and balances.

So legislators, administration members and judges reached a compromise regarding these placements that involved an expedited appeal to the Court of Appeals if the Department of Child Services disagreed with a juvenile judge’s decision.

The state agency lost several appeals under the new system. In fact, when the Indiana Supreme Court refused to hear a case, Chief Justice Randall T. Shepard attached this proviso to the order:

“The Department has urged that the judge be commanded to place the child in one of several Indiana facilities, the cheapest of which will cost 50 percent more per day than the one in Arizona which all the remaining players, including the prosecuting attorney, think can provide the best chance to divert the juvenile from delinquency to a more successful life. That is, after all, the point of government intervention.

“I stand fully ready to smack down anything that even sniffs of judicial overreaching or overspending. But if the appeals we have seen so far represent the worst instances of attacks on the public fisc (treasury), it suggests to me that judges, prosecutors, probation departments, and guardians are acting very responsibly.”

Ultimately, Department of Child Services Director Jim Payne, a former juvenile judge, sought a legislative remedy in last year’s contentious special budget session.

The provision that was added said the state won’t pay for the services if the placement is not recommended or approved by Payne – ultimately throwing out the appeals process agreement that had been reached.

“We can provide a place for these children rather than send them out of state,” Payne told a legislative committee last week. “Keeping the child close to home and in the state is the best practice.” * * *

Moses filed House Bill 1167 to revert to the previous appeals process. It was amended before advancing from committee last week to include a provision saying the state is responsible for the costs of services and housing if the proposed placement is no more expensive than similar services provided within the state.

“I believe a judge that sits in the court and listens to the testimony and talks to the child is in a much better place to make a decision on the placement of a child than some bureaucrat in Indianapolis reading a file,” said Rep. Dennis Avery, D-Evansville.

A number of Republicans also supported the bill because of concerns about separation of powers.

For background, start with this ILB entry from Sept. 8, 2009, headed: "Certainly we haven't heard the last of: 'Apparently there are all sorts of surprises in the special session budget.'"

Posted by Marcia Oddi on January 31, 2010 08:33 AM
Posted to Indiana Law