By Tim Evans
A Madison County judge thought it was best for a troubled teen to be sent to Arizona. Best for the teen because of the type of program being offered and best for taxpayers because it was going to cost half as much as the proposed in-state options.
But the Indiana Department of Child Services objected and appealed, first to the state appeals court and then to the Indiana Supreme Court.
Both courts agreed with the judge — evidence some say that an independent voice such as the court is a valuable check on DCS.
But it’s also a check that might soon go away.
A last-minute change to Indiana law enacted during the legislature’s special session in June essentially has shifted all future decisions on out-of-state placements to the DCS director.
The change in state law came after DCS lost a Supreme Court decision in April that gave more deference to judges in making placement decisions when there is a dispute about who should pay.
Whether the new approach is good or bad for Hoosier children — about 150 are sent to out-of-state programs each year — is a matter of debate.
Opponents say it could lead to costly decisions not always in the best interest of the child, but others believe it’s generally a bad idea to move children far away from home. DCS is less likely than the court to ship children out of state.
DCS Director James Payne acknowledged the Supreme Court ruling in April was a factor in seeking the new law. Because the state now is paying for services, he said, “it was anticipated a DCS recommendation would carry extra consideration.”
But, Payne emphasized, the change was driven more by what’s best for Hoosier children — keeping them closer to home, their caseworkers and family connections — and the importance of supporting Indiana businesses during tough economic times.
Payne said looking only at initial costs can be misleading. He explained an out-of-state facility might have a lower daily rate, but the overall cost could still be higher because of travel, the length of stay and the need for additional services when the child returns to Indiana.
Economic considerations, he acknowledged, also must be factored into decisions.
“Why would we be sending Indiana tax dollars to other states if we have the appropriate services here?” Payne said, adding that the array of programs available in Indiana is adequate.
Technically, judges can still over-rule DCS and send a youth to another state for treatment, but without the agency’s approval, the child’s home county must bear the cost. And since the $600 million cost of child-welfare services was shifted from counties to the state this year, most counties no longer have budgets to pay those costs.
Indiana is not alone in giving the authority over placement decisions to a state agency rather than the courts, said Richard Wexler, executive director of the National Coalition for Child Protection Reform. Vermont, Massachusetts, Georgia and Florida, for instance, generally leave such decision to their child welfare agencies. Other states, including New York and California, place the decision with judges.
A frequent and vocal critic of DCS, Wexler said he applauds the agency in this instance. It’s not so much about who is making the decision, he explained, but rather the importance of keeping kids closer to their homes and families if at all possible — something he said DCS is more likely to recommend.
“The new Indiana policy clearly is in keeping with best practices in child welfare,” said Wexler, a proponent of keeping troubled families together while they are working through their problems.
“In the overwhelming majority of cases, the farther a child is taken from his or her parents, the worse the trauma for that child. Often, it dooms the child to lose all connection with family and emerge years later unable to love or trust anyone.”
St. Joseph County Probate Judge Peter Nemeth thinks that’s an over-generalization.
Nemeth said he sometimes uses out-of-state placements expressly to get children away from negative family and community ties, such as gang involvement. Other times, the judge said, he uses facilities in other states because comparable services with proven track records are not available in Indiana.
Nemeth also has a gripe with how the change was made. He said such a critical issue should not be decided in a late-night meeting of a legislative committee without debate or public input — and it might have been based on bad information.
“One of the driving factors for the change, as I understand it, was that for some reason, legislators had the idea judges were driving the increase in expenditures for children’s services, which I don’t think is true,” he said.
Nemeth said he believes most judges are being fiscally responsible while also watching out for the best interests of children.
That’s what he was doing, he believes, when he recently decided to send a teen to a specialized drug-treatment facility in Iowa.
DCS disagreed, but the Indiana Court of Appeals last week agreed with Nemeth, who had found the DCS recommendation was more costly and “contrary to the welfare and best interest of the child.”
That case and the Madison County one that went before the Supreme Court were initiated before the new law took effect July 1.
