In the Matter of A.B., Appellant (Respondent below), v. STATE of Indiana, Appellee (Petitioner below)
No. 71S00-1002-JV-156
Supreme Court of Indiana
June 29, 2011
944 N.E.2d 1204
James A. Masters, Elizabeth Hardtke, South Bend, IN, Attorneys for Appellee.
DAVID, Justice.
This is a direct appeal of an Order of Modification from the St. Joseph County Probate Court declaring three statutes—Indiana Code sections
We reverse the trial court‘s order and hold that the three statutes are constitutional. We further hold that the Department of Child Services (DCS) requirement that the child be placed in Indiana rather
Facts and Procedural History
The facts set forth are lengthy, but necessary for the opinion. The juvenile, A.B., was born on May 6, 1993. In November 2008, A.B. was apprehended by the South Bend Police Department and detained at the St. Joseph County Juvenile Justice Center (SJCJJC). Shortly thereafter, A.B. admitted to committing criminal mischief, a Class B misdemeanor. The juvenile court found A.B. to be a delinquent child and continued his detention at the SJCJJC. In February 2009, the juvenile court entered a dispositional order and the child was placed on strict and indefinite probation at the Madison Center Residential Facility at the SJCJJC. In November 2009, the juvenile court found that A.B. had fled from his placement and issued an order of apprehension. The following month, A.B. was apprehended and placed in secure detention. In January 2010, the juvenile court ordered that A.B. remain detained at the SJCJJC.
On February 2, 2010, the St. Joseph Probate Court conducted a hearing on the placement of A.B. The hearing was attended by A.B., his counsel Elizabeth Hardtke, his mother A.M., his custodian S.K., his probation officer Anita Wigfall, and Dr. William Bruinsma.1 Despite receiving notice, no DCS representative was present at this hearing.
Pursuant to statute, the probation department attended the hearing with a placement recommendation. It recommended that A.B. complete the Rite of Passage Program at Canyon State Academy in Arizona (ROP). DCS did not respond to the probation department‘s recommendations until February 1, 2010, and the probation department did not receive DCS‘s alternate recommendations until just before the February 2 court hearing. Thus, there was no opportunity for discussion of DCS‘s recommendations prior to the hearing.
The probation department noted several factors for its recommendation. The probation department indicated that A.B. was struggling in his placement at SJCJJC and was dealing with many issues, including new therapists and other staff turnovers. The probation department sought placement at ROP so that A.B. could learn vocational skills, complete his education, learn independent living skills, and transition to obtaining employment and exploring secondary education opportunities. The probation department reported that A.B. would not return to his mother and would take independent living classes. In making its recommendation, the probation department noted that although A.B.‘s custodian had participated in his treatment, A.B.‘s mother had not been participating. The probation department also stated that it did not have the current address information for the mother. The probation department further noted that after A.B. completed ROP, A.B. would transition to independent living, and that his participation in family therapy would be unnecessary. Nevertheless, A.B.‘s family could participate in video conferencing, and ROP would fly the family to Arizona at no cost to the family.
The record from the trial court reveals that the average stay at ROP is twelve months. The per diem for ROP is $171.70,
Although DCS did not appear at the hearing, and was not required to appear, it submitted alternate placement options for A.B. in Indiana: Christian Haven, Midwest Center for Youth and Families, White‘s Residential and Family Services, and Youth Opportunity Center.
The average stay at Christian Haven is between nine and fifteen months. Christian Haven has a per diem of $190.55, which does not include costs for transition from restrictive placement. Any warranty at Christian Haven is provided on a case-by-case basis. No aftercare is provided. Christian Haven provides a minimum of one hour of therapy per week and family therapy once per month, but does not offer video conferencing. Christian Haven allows visitation on Saturdays or Sundays from 1 p.m. to 5 p.m., but visitors are responsible for expenses of the visit. Christian Haven provides an on-ground, fully accredited public school, as well as educational opportunities in the Kankakee Valley School System. Christian Haven offers vocational programs and physical education classes along with some club sports.
Midwest Center for Youth and Families (Midwest) has an average stay of four to five months. Midwest has a per diem of $361 and offers no warranty. Midwest provides individual therapy and family therapy once per week and daily group therapy. Visitation is allowed on weekends from 2 p.m. to 5 p.m., and transportation assistance is assessed on a case-by-case basis. Midwest has an on-site, accredited school. Daily recreation is provided, but no vocational programs are offered. Midwest has a success rate of 85%.
White‘s Residential and Family Services (White‘s) has an average stay of ten to fourteen months. The per diem is $162.50 for the Open Residential Program and $196.50 per day for Intensive Substance Abuse Program and does not include the cost of aftercare. A warranty may be considered. Individual, family, and group counseling is provided as needed. Visitation occurs on the third weekend of every month. Also, financial assistance is available. White‘s has an accredited public high school and GED program. Vocational skills are taught, and athletics are offered.
Youth Opportunity Center (YOC) has an average stay of six to nine months. The per diem at YOC is $199.00. No warranty is offered. Aftercare is provided on site if appropriate. Individual therapy and family therapy are offered once per week, but is only offered on site. Visitation is offered two times per week. YOC provides an on-site school. YOC offers support groups and programs on an as needed basis. YOC offers some vocational skills
Testimony at the hearing was that although both the family and the child would prefer to stay closer, they supported the move to ROP. DCS submitted that the four Indiana facilities are comparable to ROP and can address the same issues as ROP. DCS believed the extreme distance to ROP would hinder A.B.‘s reunification with his family. Although Arizona and Indiana are separated by a great distance, a cursory review of the record reveals that reunification was not the goal for the probation department, but rather that A.B., who turns eighteen in May 2011, would learn to live independently. Furthermore, a review of the record reveals that the distance from ROP to Indiana may be beneficial: a new start in a new place may be the best scenario for A.B., who has a history of fleeing from previous placements.
The trial court entered its Order of Modification on February 8, 2010. In his order, Judge Nemeth found that Indiana Code sections
Jurisdiction
The Department of Child Services has appealed this matter under Indiana Rule of Appellate Procedure 4(A)(1)(b), which states that this Court shall have mandatory and exclusive jurisdiction over “appeals of Final Judgments declaring a state or federal statute unconstitutional in whole or in part.” The order being appealed is a final judgment declaring several state statutory provisions unconstitutional.
A.B. contends this matter was improperly appealed under Indiana Appellate Rule 4(A)(1)(b), and the only proper appeal was under Indiana Appellate Rule 14.1. Rule 14.1 is titled, “Expedited Appeal for Payment of Placement and/or Services” and governs ”
I. Single Subject Clause
We first address the trial court‘s ruling that Indiana Code section
The 2009 First Special Session of the 116th General Assembly passed P.L. 182-
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 is not recommended or approved by the director of the department or the director‘s designee.
The amendment to Indiana Code section
II. Separation of Powers
We next determine if the three statutes violate
A.B. argues the challenged statutes allow the director of DCS to supplant the juvenile court judge in making dispositional decrees affecting children under his jurisdiction. DCS responds that the challenged statutes did not take away power from the juvenile court judges and further argues that these statutes are not about child placement, but about who will pay for a child‘s placement.6 We believe these statutes do not violate the separation of powers provision of the Indiana Constitution. The statutes still provide an avenue for judicial review of placement and do not usurp the powers of the trial court or the judiciary, and they do not impermissibly shift those powers to the executive branch.
We first determine whether the law has the effect of a coercive influence on the perceived usurped branch of government. The purpose of the separation of powers provision is to rid each separate department of government from any influence or control by the other department. State ex rel. Black v. Burch, 226 Ind. 445, 463, 80 N.E.2d 294, 302 (1948). Upon review, the statutes in question do not allow DCS to control the duties of the judiciary. Instead, they determine assistance for payment of a juvenile placement and costs associated with rehabilitating children. In other words, the statutes in question do not limit a judge‘s power to
Each department of government possesses a legitimate, exclusive sphere of influence, and if any department “fails to perform its duty[,] the remedy is not to be found in the attempt of some other department to perform such duties.... Such attempt would be usurpation, more dangerous to free government than the evil sought to be corrected.”
Logansport State Hosp. v. W.S., 655 N.E.2d 588, 590 (Ind.Ct.App.1995) (quoting Hovey, Governor v. State ex rel. Schuck, 127 Ind. 588, 599, 27 N.E. 175, 178 (1891)).
However, we are mindful that “[i]f the separation of powers is to be maintained, it is essential that the judicial branch [of] government not be throttled by either the legislative or administrative branches, and that the courts be empowered to mandate what is reasonably necessary to discharge their duties.” McAfee v. State ex rel. Stodola, 258 Ind. 677, 681, 284 N.E.2d 778, 782 (1972). Webster‘s defines “throttle” as “to choke or strangle.” Webster‘s II New College Dictionary 1150 (2nd ed.1995). Although this law does not throttle the judiciary by way of the administrative branch, it comes dangerously close to stifling the inherent empowerment our juvenile courts have always enjoyed in making decisions in the best interest of juveniles.
It is acceptable that the legislature has established a process for the state to pay for placement and a process for the county to be ultimately responsible. However, justice demands that consideration be given not only to which entity is going to pay, but what the costs and per diem are for the various placement options, as well as all other relevant and pertinent factors focused on the best interest of the child. As the Court of Appeals eloquently wrote, “It is not within the scope of the powers granted to the executive branch of government that it should sit as a superjudiciary to decide which laws and judicial determinations it will obey and which it will not.” State ex rel. Mass Transp. Auth. of Greater Indianapolis v. Ind. Revenue Bd., 144 Ind.App. 63, 96, 253 N.E.2d 725, 736 (1969). To the extent that DCS can veto a juvenile court‘s out of state placement determination by withholding funds, DCS is moving very close to usurping the judiciary‘s authority when it comes to dealing with the lives of children.
Indiana Code section
Further, we find Indiana Code section
Indiana Code section
None of the language of Indiana Code section
Indiana Code section
Ultimately, we conclude that these statutes do not violate the “separation of powers” provision of the Indiana Constitution. The juvenile court judge still has and shall continue to have the final authority in making decisions for the juveniles.
III. Arbitrary and Capricious
Having determined that the laws as applied are constitutional, we turn to the
The 2009 amendment to section
It is well established that
Given that the General Assembly apparently intended that the DCS Director have the authority to override the determination of a juvenile court with respect to the costs of out-of-state placements and services, what standard of appellate review is appropriate? Without the legislature providing “any procedural machinery for an appeal or review,” Warren v. Indiana Telephone Co., 217 Ind. 93, 108, 26 N.E.2d 399, 405 (1940), how should we proceed to assure that our review of the DCS Director‘s decision here is guided by principled and clear standards? After all, “[u]niformity in the interpretation and application of the law is the keystone of our system of jurisprudence.” Id.
One possible approach would be to follow the methodology adopted for appellate review under Appellate Rule 14.1.
We begin with a CHINS action, In re T.S., 906 N.E.2d 801 (Ind.2009), to examine this present issue. T.S. was our first foray into Indiana Appellate Rule 14.1 and the review of juvenile court decisions about placement recommendations made by DCS. DCS requested the child T.S. be reunited with his parents, but the juvenile court decided it would be contrary to T.S.‘s best interests to follow the DCS recommendation, and T.S. remained in foster
T.S. considered the proper standard of review of an expedited appeal, and found that it was specifically delineated by Indiana Code section
Although we continue to adhere to this standard of review for appeals brought under Appellate Rule 14.1, we believe it gives insufficient deference to disapproving decisions made by the DCS Director under Indiana Code section
Rather than review a DCS Director‘s disapproving decision using the clearly erroneous standard of Appellate Rule 14.1, we believe the appropriate standard is provided by Indiana‘s Administrative Orders and Procedures Act (AOPA), Indiana Code section
We note that Indiana Code section
We do not believe it is necessary to hold that disapproving decisions made by the DCS Director under Indiana Code section
This Court has previously held that the judicial branch of government may only interfere with acts of the administrative branch whenever a judicial question is involved, as in arbitrary or capricious action by an administrative body. Pub. Serv. Comm‘n v. Ind. Bell Tel. Co., 232 Ind. 332, 347, 112 N.E.2d 751, 753 (1953). As this Court held as early as 1935, an arbitrary or capricious decision by an administrative body would call for judicial action, even if there is no statute authorizing an appeal. Peden v. Bd. of Review of Cass County, 208 Ind. 215, 224, 195 N.E. 87, 90 (1935).
Justice Shake wrote on these issues in this Court‘s decision in Warren v. Ind. Telephone Co., 217 Ind. 93, 26 N.E.2d 399 (1940), a workmen‘s compensation action that brought to light questions of when the judiciary continues to have control over an administrative agency. His words then are still relevant today, “The matters presented challenge us to consider some very serious and important questions, among which may be mentioned, the place of the Supreme Court in the judicial system of the state; the power of the General Assembly with respect to administrative agencies....” Warren, 217 Ind. 93, 100-101, 26 N.E.2d 399, 402 (1940). This Court wrote that an administrative agency is properly vested with power to determine facts and exercise their power under due process of law. Id. at 104, 26 N.E.2d at 404. “It is not necessary to the exercise of due process that the facts be determined by a court, so long as there is provided or exists an opportunity for a judicial review.” Id. The words of this Court then are prescient now:
[O]rders of an administrative body are subject to judicial review and ... they must be so to meet the requirements of
due process. Such review is necessary to the end that there may be an adjudication by a court of competent jurisdiction that the agency has acted within the scope of its powers; that substantial evidence supports the factual conclusions; and that its determination comports with the law applicable to the facts found.
If, however, it should be made to appear that the evidence upon which the agency acted was devoid of probative value; that the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis; or that the result of the hearing must have been substantially influenced by improper considerations, the order will be set aside, not because incompetent evidence was admitted, but rather because the proof, taken as a whole, does not support the conclusion reached. Id. at 118, 26 N.E.2d at 409.
We also find an apt analogy with the case of State ex rel. Smitherman v. Davis, 238 Ind. 563, 151 N.E.2d 495 (1958). In this action, the Superintendent of Schools twice denied the request for children to transfer schools to a different school in the district. Id. at 566, 151 N.E.2d at 496. Transfer of pupils was discretionary with the school officials. Id. at 568, 151 N.E.2d at 497. This Court found that the refusal to grant transfer to pupils, although discretionary, was still subject to judicial review. Id. at 569, 151 N.E.2d at 497. This Court cited Warren, supra, that it is well settled law that a decision of an administrative officer is not final in Indiana. Id. at 569, 151 N.E.2d at 497. This Court held that the law is well settled “that all discretionary acts of public officials, which directly and substantially affect the lives and property of the public, are subject to judicial review where the action of such official is ... arbitrary or capricious ...” Id. at 569, 151 N.E.2d at 498. The power that is vested in the public officer in making discretionary determinations is not for his benefit, but for the benefit of the public. Id. at 570, 151 N.E.2d at 498.
Similar to the Superintendent in Smitherman, the actions of the DCS director or his agent in recommending or approving the probation department‘s recommendation for placement is discretionary. The word “discretionary” is defined by Black‘s Law Dictionary as “(of an act or duty) involving an exercise of judgment and choice, not an implementation of a hard-and-fast rule.” Black‘s Law Dictionary, 534 (9th ed.2009). We find the statutes relating to juvenile delinquency placement void of any hard-and-fast rule that does not allow for out-of-state placement. Furthermore, as in Smitherman, we hold that the power of recommending or approving the probation department‘s recommendation for placement shall be done not for the benefit of DCS, but for the benefit of the child. Such recommendation shall be subject to judicial review where the recommendation of DCS is arbitrary or capricious.
Under Indiana Code section
“[t]he 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 is not recommended or approved by the director of the department or the director‘s designee.”
In reaching this conclusion, the juvenile court followed protocol under Indiana Code section
In this particular fact scenario, the agency action in denying out of state placement was arbitrary and capricious. The placement at ROP is more cost effective than any placement option in Indiana, and ROP was offering a scholarship to help defray the costs. The per diem for ROP is $171.70, while placement at Christian Haven is $190.55, Midwest is $189.30, White‘s is either $162.50 or $196.50 depending on the type of placement, and the cost of YOC is $199.00. Furthermore, the per diem of ROP included costs of transition out of the restrictive placement and costs of aftercare services, while none of the other placements either provided or could guarantee those same services would be provided. The only rationale for DCS opposing the recommendations appears to be based on the decision to keep A.B. in Indiana. While a significant factor, this was not deemed critical to the plan for A.B. by the juvenile probation officers. Instead, the juvenile probation officer believed placement out of state would help A.B. as he had absconded from previous placements in Indiana and independent living was the likely best outcome for A.B. now that he was approaching 18 years of age. Furthermore, for the members of A.B.‘s family who want to maintain a relationship with A.B., ROP offers video conferencing and even airplane flights and hotel rooms for family to visit ROP. ROP also allows for A.B. to learn vocational skills, complete his education, learn independent living skills, and transition to obtaining employment, and explore secondary education opportunities. From our review of the record, ROP could provide for all of these needs of A.B. better than the other recommendations. The probation department reported that the child was not going to return to his mother and
The crux of the matter is the final phrase of Indiana Code section
Conclusion
We conclude that Indiana Code section
If DCS wants to disapprove and thereby not pay for out-of-state placement pursuant to statute, such decision is subject to appellate review, but only upon an arbitrary and capricious showing. While perhaps very infrequently, scenarios can exist where the better placement for a juvenile is outside of Indiana. Our focus should be on what is best for the juvenile in light of all circumstances of a particular case, including consideration of the costs of placement. DCS will continue to make placement recommendations and either concur or not with the judicial officers placement decisions. However, DCS may not make these determinations in a manner that is arbitrary and capricious. Any party may take an appeal to the Court of Appeals, which will review the decision under an arbitrary and capricious standard as discussed above. If the Court of Appeals determines DCS arbitrarily and capriciously refused to approve the judicial officer‘s placement decisions, DCS will be responsible for payment as if it would have approved the recommendation.
SHEPARD, C.J. and RUCKER, J., concur.
DICKSON, J., concurs with separate opinion.
SULLIVAN, J., concurs in part with separate opinion.
Notes
(a) If the predispositional report includes a recommended placement, program, or services that would be payable by the department under
IC 31-40-1-2 , a probation officer shall refer the officer‘s completed predispositional report, except for the statement required under section 1(a)(4) of this chapter, to the department within a reasonable time before its required disclosure under section 6 of this chapter to allow the department time to: (1) review; and (2) either concur with or offer an alternative proposal to the recommendations in the predispositional report. (b) The department shall, after review of the predispositional report and any attachments necessary to verify the predispositional report, and within a reasonable time before the dispositional hearing, either: (1) concur with the predispositional report; or (2) communicate to the probation officer an alternative proposal regarding programs and services.
The juvenile court shall accompany the court‘s dispositional decree with written findings and conclusions upon the record concerning approval, modification, or rejection of the dispositional recommendations submitted in the predispositional report, including the following specific findings: (1) The needs of the child for care, treatment, rehabilitation, or placement. (2) The need for participation by the parent, guardian, or custodian in the plan of care for the child. (3) Efforts made, if the child is removed from the child‘s parent, guardian, or custodian, to: (A) prevent the child‘s removal from; or (B) reunite the child with; the child‘s parent, guardian, or custodian. (4) Family services that were offered and provided to: (A) the child; or (B) the child‘s parent, guardian, or custodian. (5) The court‘s reasons for the disposition.
If the department does not concur with the probation officer‘s recommendations in the predispositional report and the juvenile court does not follow the department‘s alternative recommendations, the juvenile court shall: (1) accompany the court‘s dispositional decree with written findings that the department‘s recommendations contained in the predispositional report are: (A) unreasonable based on the facts and circumstances of the case; or (B) contrary to the welfare and best interests of the child; and (2) incorporate all documents referenced in the report submitted to the probation officer or to the court by the department into the order so that the documents are part of the record for any appeal the department may pursue under subsection (d).
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 is not recommended or approved by the director of the department or the director‘s designee.