Out-of-state placement bill goes to House

A legislative committee has given its OK to a bill that would repeal a last-minute 2009 special session provision, which gave the Indiana Department of Child Services key control in deciding whether juveniles can be placed outside the state.

At the House Judiciary Committee meeting Tuesday, lawmakers voted HB 1167 out of committee and on to the full House for consideration by a vote of 9-2. Reps. Ralph Foley, R-Martinsville, and Dennis Avery, D-Evansville, opposed the bill and favored keeping that decision-making authority with the DCS, while Rep. Dan Leonard, R-Huntington, didn't vote. Voting for the measure were Reps. Erich Koch, R-Bedford; Wes Culver, R-Goshen; Phyllis Pond, R-New Haven; Cherrish Pryor, D-Indianapolis; Jeb Bardon, D-Indianapolis; Ed DeLaney, D-Indianapolis; Ryan Dvorak, D-South Bend; Trent Van Haaften, D-Mt. Vernon; and Linda Lawson, D-Hammond.

The last-minute change came during the special session that ended June 30. In October, Commission on Courts members expressed frustration that this provision was inserted into a massive budget bill and said many lawmakers likely didn't know about or fully understand the measure. Committee members voted to recommend that the Indiana General Assembly repeal that key provision, and this legislation is the result. DCS Director James Payne, a former Marion Superior juvenile judge, testified at the hearing and said there's no reason to send children out of state because Indiana offers adequate programs and facilities for judges to place children.

He said 64 percent of the in-state options are filled to capacity, meaning there's a 36 percent vacancy rate. "Only on a rare occasion should we look at that," he said, adding that three requests have been made since this law took effect July 1, 2009 – two have been approved, one is still being considered.
Payne also pointed out that despite the placement inside or out of the state, many juveniles return to the communities they came from and get into trouble.

St. Joseph Juvenile Judge Peter Nemeth testified in support of the bill, advocating for a return to local juvenile judges making decisions on placements.

"One of the most important things I do is place children, and it's important that we get it right. But I'm not the only one who has to hear it now … 'superjudge' has to hear it and approve it. That's a ridiculous system," he said.

Reading a letter from a child he sent to an Arizona facility, Judge Nemeth said that juvenile is going on to college now, something that might not have been possible with an in-state placement. He considers that placement a lifesaver for that juvenile.

"Isn't that what we're supposed to do?" he asked lawmakers. "If you don't approve this, I won't be able to do this in the future. If we have a one size fits all, then what do you need a judge for? Why not just feed the information about a case into a computer to make the decision? That's basically what 'superjudge' is doing."

Lawmakers didn't seem to keen on the idea of taking away judges' decision-making power on the out-of-state placement issue. Several noted that they hadn't heard of massive out-of-state placements or any judicial abuse happening at the local level on this, and that local judges who actually heard the evidence on a case is in a much better position to decide that instead of "a bureaucrat" in Indianapolis who hasn't been involved in the case.

Payne told them that judges and local caseworkers continue having a voice in the process, and this just provides oversight to make sure those judges are using reasonable efforts to find an in-state placement. He also said he regularly communicated with the DCS director during his time on the bench about the issue of out-of-state placements.

Additionally, Payne told lawmakers that the issue was about economic viability – that tax money and services are being sent out of state rather than being kept internally. If those out-of-state-service providers offer something that Indiana doesn't currently have, he'd rather see those services come to Indiana rather than shipping kids there.

But Van Haaften told the agency director that he seemed to be cheerleading for service providers in-state and tiptoeing around the core issue of what that last-minute change is all about: the executive branch, through the DCS, treading into the judicial branch's scope of authority. Foley, one of the two voting against the repeal bill, said he wasn't opposed to the idea of the DCS authority here because the agency has broader access to resource information than a local judge might have, and he thinks a child is more likely to be put in the right place if all options are being looked at. Pryor pointed out the stark difference in testimony between Payne and Judge Nemeth – one saying that placement doesn't make much difference because juveniles typically return to those home communities, while the judge talked about reforming kids and keeping them out of the system.

The bill now moves on to the full House for consideration. It must be passed on third reading by Wednesday in order to move on to the Senate for consideration.