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ATTORNEYS FOR APPELLANT Gregory F. Zoeller Attorney General of Indiana Thomas M. Fisher Solicitor General of Indiana Heather L. Hagan Ashley Tatman Harwel Deputy Attorney Generals Indianapolis, Indiana

ATTORNEYS FOR APPELLEE James A. Masters South Bend, Indiana Elizabeth Hardtke South Bend, Indiana

FILED
Indiana Supreme Court
_________________________________ No. 71S00-1002-JV-156

Jun 29 2011, 10:28 am ______________________________________________________________________________

In the

of the supreme court, court of appeals and tax court

CLERK

IN THE MATTER OF: A.B., Appellant (Respondent below),
V.

STATE OF INDIANA, Appellee (Petitioner below). _________________________________ Appeal from the St. Joseph County Probate Court, No. 71J01-0811-JD-000826 The Honorable Peter Nemeth, Judge _________________________________ On Direct Appeal _________________________________ June 29, 2011 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 31-37-17-1.4, 31-37-18-9(a)-(b), and 31-

40-1-2(f)--unconstitutional as violating the separation of powers principle under Article 3, Section 1 of the Indiana Constitution and the one subject rule under Article 4, Section 19. 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 than being placed out of state at Canyon State Academy was arbitrary and capricious, and we uphold Judge Nemeth`s placement of the child at Canyon State Academy. Finally, we hold that DCS shall pay for the placement of the child at Canyon State Academy. 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 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 Despite

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The record did not state who Mr. Bruinsma is; however, a brief internet search finds Mr. Bruinsma to be the director of the St. Joseph Juvenile Justice Center.

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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, which includes $20 per day for transition from restrictive placement. The per diem also includes a warranty period during which they provide aftercare services. ROP provides individual therapy twice a month, family therapy twice a month via videoconferencing, aftercare family therapy twice a month, and aftercare individual therapy twice a month. ROP pays for four parent/guardian flights and lodging every twelve months. Additionally, the school is accredited by the Arizona Department of Education and by the North Central Association Commission on Schools, and the child attends school on-site, year round, and receives 242 days of instruction. All students are given a full assessment and have an individualized, prescriptive treatment plan to help their specific needs. ROP offers several vocational programs and Arizona Interscholastic Association sanctioned varsity, junior varsity, and club sports. As of 2008, ROP had an 88% success rate.

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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 4

groups and programs on an as needed basis. YOC offers some vocational skills programs and requires everyone to participate in daily recreation. 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 31-37-17-1.4,2 31-37-18-9(a)3 and (b),4 and 31-40-12

Indiana Code section 31-37-17-1.4 (2008) states as follows: (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. 3 Indiana Code section 31-37-18-9(a) (2010 Supp.) states as follows: 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

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2(f),5 violate the separation of powers between the executive and administrative branch and the courts, and are unconstitutional infringements on the judicial power and authority of a juvenile court to make decisions concerning the out-of-state placement of children under the jurisdiction of the court. Judge Nemeth further found Indiana Code section 31-40-1-2(f) unconstitutional under Article 4, Section 19 of the Indiana Constitution, which limits legislative acts to one subject. 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.C.

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