INDIANAPOLIS – After administration officials slipped an eleventh-hour provision into last years 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 doesnt 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 shouldnt 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 judges 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 years contentious special budget session.
The provision that was added said the state wont 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.
There are 85 children – from Lake, St. Joseph, Madison, Marion and Morgan counties – now placed out of state. The states where they are placed include Nevada, Arizona, Pennsylvania, Minnesota, Iowa and Nebraska.
According to a fiscal impact statement, the department spent $4.2 million in 2009 for out-of-state placements, or about $52,000 per child, per year.
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.
Allen Superior Court Judge Charles F. Pratt said he has not approved any out-of-state placements for juveniles. But he said there is a wealth of services available in Allen County. Other judges are not as lucky, and Pratt supports their right to make the final call on placement.
There is a concern among many of us in the judiciary that our discretion is being diminished, he said. We are a separate but equal branch of government. To begin limiting our discretion ties our hands.
St. Joseph County Probate Court Judge Peter Nemeth has been at the center of the matter after finding a program in Arizona that focuses on conduct disorder. That program has a 78 percent success rate.
But Payne keeps challenging his placements there.
Its a ridiculous system, and its not working, Nemeth told the committee.
Payne argues that kids should not be separated from their community and family, saying the vacancy rate of Indiana programs that serve delinquent kids is at 36 percent.
Only on rare occasions should we look at out-of-state programs, he said. We believe in our providers.
Payne said if Indiana doesnt have the exact program needed, his office will work with private companies to bring them to Indiana.
Since the new system was implemented in July, Payne has approved two out-of-state placement requests, and one is pending.
He also said these are challenging economic times and it is an economic development issue for the state to keep state tax dollars.
Nemeth scoffed at this argument, saying, I dont think child services is a place to emphasize economic development. We need to focus on the best interest of the child.
He said a teen in the Arizona program asked him for a recommendation because the teen had decided to stay in the state and attend junior college.
He decided he wasnt coming back to the crack-cocaine neighborhood, Nemeth said. Isnt that what its all about? Giving kids a fresh start?