This is the seventh weekly installment of the Legislative Update for the 2012 legislative session. Below are the summaries of bills of interest to the judiciary heard this week in committee.
If you are interested in reading the text of any bill introduced this session, you may find the bill information at: http://www.in.gov/apps/lsa/session/billwatch/billinfo.
The House Judiciary Committee heard SB 156 on partition sponsored by Rep. Koch and Rep. Foley. This bill establishes a new procedure for partitioning real and personal property that requires a court to refer the matter to mediation, and requires the court to order that the property be sold at auction if the parties are not able to reach an agreement. This bill also repeals superseded provisions. The Indiana State Bar Association presented an amendment regarding the appraisal procedure, but the Committee agreed that the procedure needed additional work. The bill was held for amendment.
The Senate Judiciary Committee heard HB 1238 on finding of abandonment for mortgaged property. Sponsored Sen. Holdman explained that this legislation provides a procedure to shorten the length of a foreclosure action in cases where property is determined abandoned. The bill provides ten specified conditions that may exist with respect to mortgaged property to be considered abandoned. Tom Dinwiddie, representing the Indiana Mortgage Bankers Association testified in support of the bill, and the bill passed 7-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard SR 26 regarding a study committee on increased penalties for battery of a licensed security guard. Author Sen. Grooms introduced the resolution explaining that current law makes battery on a security guard a misdemeanor and requested that a study committee look at increasing the penalties for this offense as well as defining a licensed security guard. The resolution passed 9-0.
The House Judiciary Committee heard SB 26, Title 35 definitions, sponsored by Rep. Foley and Rep. Pierce. The Criminal Code Evaluation Commission prepared the introduced version of this bill. This bill organizes the definitions in Title 35 and makes technical corrections. The bill passed with a vote of 11-0.
The House Courts and Criminal Code Committee heard SB 234 on synthetic drugs (including “bath salts”) sponsored by Rep. M. Smith, Rep. Austin, Rep. Yarde, and Rep. Davisson. This bill mirrors HB 1196 passed by the House. It renames “synthetic cannabinoids” to “synthetic drugs,” adds additional chemical compounds (including some compounds sold as “bath salts”) to the definition of synthetic drugs, and expands the definition to encompass certain chemical compounds that are structurally related to listed synthetic drugs. Additionally, this bill authorizes the Board of Pharmacy to adopt emergency rules to define certain compounds as synthetic drugs if these compounds are scheduled by: (1) the DEA; or (2) another state. This bill provides that an emergency rule is effective 30 days after it is filed with the publisher, and expires on June 30 of the calendar year following its adoption. The Indiana State Police laboratory was available for technical questions and support, and the Convenience Stores Association testified in support. This bill passed with a vote of 11-0.
The House Courts and Criminal Code Committee heard SB 262 on IC 4 and IC 5 revision sponsored by Rep. Steuerwald and Rep. L. Lawson. This bill reorganizes certain crimes relating to state and local administration, repeals redundant provisions, and makes technical corrections. The bill passed with a vote of 10-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1033, Sentencing and Criminal History, pertaining to the conversion of Class D felony to Class A misdemeanor and sponsored by Sen. Steele. Author Rep. McMillin provided an overview of the bill describing it as “second chance legislation” intended to help individuals get back on their feet by allowing these individuals to petition the court for the conversion of a qualifying offense. An amendment was adopted specifying that certain offenses may not be converted and imposing requirements on the process for seeking conversion. Additional amendments were adopted to restrict the use of restricted or sealed criminal history records by a private criminal history provider and to impose penalties for violating these restrictions. The amended bill passed 9-0.
The Senate Corrections, Criminal, and Civil Matters Committee heard HB 1080 on sexual battery sponsored by Sen. Eckerty. Author Rep. Frye testified that the bill revises the sexual battery statute to cure a defect and make it a crime to touch another person in a sexual manner when that person was unaware of the touching. The Decatur County Prosecutor testified that the bill is being sought in response to a situation in Decatur County in which the victim was touched while she was sleeping and therefore the incident did not meet the statutory elements of the sexual battery offense. The Indiana Coalition Against Sexual Assault testified in support of the bill stating that the bill makes the sexual battery statute consistent with the rape and sexual deviant conduct statutes. Larry Landis, Public Defender Council, raised concerns regarding the unintended consequences of the language in the bill and suggested that the issue be referred to the Criminal Code Evaluation Commission for further review. The bill was held for further discussion at the next committee meeting.
The House Judiciary Committee heard SB 249 on record of marriage sponsored by Rep. Truitt and Rep. Klinker. This bill provides that a clerk of a circuit court may forward a record of marriage to the State Department of Health in a paper form or in an electronic form by using an automated system developed by the Judicial Technology and Automation Committee (JTAC) or another automated system approved by the State Department of Health. Testimony was heard in support by the Tippecanoe County Clerk. The bill passed with a vote of 11-0.
The House Family, Children and Human Affairs Committee heard SB 286 on the Department of Child Services. The bill was presented by its author, Sen. Lawson and its sponsor, Rep. McNamara. The bill repeals the statutes requiring a county to pay if the correct Title IV-E language is not used in court orders. It requires DCS to notify the Indiana Judicial Center if orders do not contain the statutory Title IV-E language. In addition, the legislation:
1) Creates a new collaborative youth program allowing Indiana to receive Title IV-E monies for providing services to older youth who are at least 18 years old but less than 20 years old. The juvenile court has jurisdiction over the cases;
2) Authorizes, but does not require, DCS to conduct criminal history checks on parents, relatives or others in the home when the permanency plan for a child is reunification and permits DCS to request a limited criminal history check on alleged perpetrator during an abuse and neglect assessment;
3) Permits youth over 18 to stay in a guardianship assistance program to the age of 20 and permits the juvenile court to oversee these cases;
4) Clarifies and amends the definition of child abuse and neglect;
5) Requires training for attorney GAL’s, in addition to other CASA and GAL’s, in the areas of early childhood, and child and adolescent development;
6) Creates Permanency Roundtables to review all permanency options for any child in a placement more than six months;
7) Creates Placement Review Committees to review residential placements for all CHINS and delinquency cases to provide expert review of cases recommended for residential placement;
8) Reduces the length of stay under the Emergency Shelter Care statute from 60 to 20 days;
9) Revises statutes on foster care licensure and bases payment to foster parents by level of need of the child (regular care or therapeutic care), not by license type;
10) Repeals the reporting requirement on the 21st Century Scholarship Program since DCS notifies each child over 14 years of age of this program;
11) Permits DCS to keep unsubstantiated reports of abuse or neglect for internal reference only when addressing later reports about the same family or alleged perpetrator;
12) Permits sharing the outcome of abuse and neglect assessments involving a teacher with the state superintendent of public instruction;
13) Makes the audio recordings of calls to the child abuse and neglect hotline confidential;
14) Repeals the reporting requirement of the management of child abuse and neglect cases to the Indiana General Assembly;
15) Creates regional child fatality review teams required to submit reports to DCS central office;
16) Permits DCS to stay an administrative appeal hearing on a DCS substantiation of a report of abuse or neglect when there is an informal adjustment or criminal proceeding pending;
17) Amends the law to indicate an initial hearing must be held within 10 days in all cases, whether or not DCS has removed the child from the home;
18) Provides for a dismissal without prejudice if the time frames in disposition hearings, adjudicatory hearings and TPR cases are not met;
19) Adds a presumption of CHINS if there is competent evidence of probative value that there was an injury to the child and the injury would not have been sustained except for the act or omission of the parent, guardian or custodian;
20) Permits the use of videotape testimony of a child in DCS administrative appeal hearings;
21) Permits rather than requires DCS to include reasons to dismiss a TPR case to be included in the petition for the Termination of Parental Rights;
22) Permits DCS to only make payments to group homes and residential facilities under contract with DCS unless the child services are recommended or approved by DCS or director’s designee in writing prior to the placement; and
23) Corrects a reference to the Interstate Compact on Juveniles to require DCS to pay for the return of runaways under both the old and new compacts.
Committee members adopted a technical amendment to permit the Marion County Health Department to remain on Marion County’s existing child fatality review team. The Committee also adopted an amendment by consensus to remove the provision in the bill which would repeal Ind. Code 31-34-1-6.
DCS Director James Payne testified in favor of this legislation. Judge Rush, Chair, Juvenile Justice Improvement Committee, testified in favor of the bill. JauNae Hanger, ISBA testified about the experience of the Civil Rights of Children Committee in connection with mental health issues for juveniles in detention, and Karen Leuck, Public Defender from Wayne County, testified in favor of retaining Ind. Code 31-34-1-6.
Cathy Graham, Executive Director, Indiana Association of Child Care Agencies, spoke in favor of retaining Ind. Code 31-34-1-6. She expressed concern about the use of 20 days for emergency shelter care, and concern about the lack of input from the Regional Service Councils in determining the number and type of beds DCS will be contracting for in the future. Ms. Graham also stated that the median length of stay in shelter care is 19 days, and the average length of stay is 32 days.
The Indiana Public Defender Council and another public defender supported the removal of the amendment which would repeal Ind. Code 31-34-1-6. Mike Ice, public defender, supports an amendment to permit a prosecutor to file a petition under Ind. Code 31-34-1-6 and expressed heartfelt concern about cases which DCS refused to file under Ind. Code 31-34-1-6.
The Committee discussed whether Ind. Code 31-34-1-6 needed further attention either in the form of an amendment or a summer study committee. Other Committee members called for a summer study committee to look at the hotline and payment for kinship care. Rep. Noe decided to hold the bill for a vote at the next meeting of the committee.
The House Family, Children and Human Affairs Committee was also scheduled to hear SB 287, also on the Department of Child Services, and SB 18, on duty to support a child, this week. The Committee indicated that these bills will be on next week’s schedule.
The House Courts and Criminal Code Committee heard SB 235 on pro bono legal services fee sponsored by Rep. Stemler, Rep. Davisson, and Rep. Koch. This bill imposes a pro bono legal services fee of $1 on parties who file certain civil actions, small claims actions, and probate actions until July 1, 2020. It requires the pro bono legal services fees to be transferred to the Indiana Bar Foundation. The State Board of Accounts can audit the Indiana Bar Foundation’s handling and expenditure of the pro bono legal services fees. The Indiana Bar Foundation testified in support. The bill passed with a vote of 12-0.
The Senate Judiciary Committee heard HB 1049 regarding problem solving courts, courts, and inspector general matters sponsored by Sen. Bray, Sen. Steele and Sen. Lanane. Author Rep. Koch introduced the bill. The Honorable John Surbeck of the Allen Superior Court testified in support of the problem-solving court provisions in the bill. Christine Kerl, Assistant Deputy Chief Probation Officer with the Marion Superior Court Probation Department, testified in support of the proposed amendment to the court alcohol and drug program statutes. Dhiann Kinsworthy representing the Office of the Inspector General testified in support of the inspector general provisions of the bill. Jane Seigel, Executive Director of the Indiana Judicial Center, testified in opposition to the language in the bill expanding the jurisdiction of the Wabash City Court. The Committee amended the bill to remove the language pertaining to the Wabash City Court. The amended bill passed 9-0.
The Senate Appropriations Committee heard HB 1092 sponsored by Sen. Bray adding a fourth Johnson superior court judge. An amendment was taken by consent that states that the additional judge will be added contingent on whether facilities are available for the judge to occupy. The bill passed with a vote of 10-0.
The Senate Judiciary heard HB 1273 regarding an administrative law judge study sponsored by Sen. Bray and Sen. C. Lawson. Sen. Bray introduced an amendment to urge the legislative council to study, during the 2012 legislative interim, the topic of creating a centralized department of administrative law judges within the office of the attorney general. The amended bill passed 7-0.
The House Judiciary Committee heard SB 237 on noncode statutes sponsored by Rep. Foley. The Code Revision Commission prepared the introduced version of this bill. This is a non-substantive bill that only makes technical corrections. The bill passed with a vote of 11-0.
The House Judiciary Committee heard SB 32 on guardianships sponsored by Rep. Foley. This bill allows a guardian of a minor who has not been adjudicated an incapacitated person to file a verified petition to extend the guardianship until the incapacitated person is 22 years old, and authorizes the court to grant the petition if it is in the best interests of the protected person. This bill also specifies that the extension of the guardianship does not place the person under a legal disability. The bill was amended in committee so that “the guardian and the protected person who is at least 17 years of age may jointly petition the court.” The amended bill passed with a vote of 11-0.
The House Judiciary Committee heard SB 157 regarding power of attorney and attorney in fact sponsored by Rep. Foley and Rep. Koch. This bill provides that a copy of the power of attorney has the same force and effect as the original power of attorney if the person granting the power of attorney certifies that the copy is a true and correct copy. It also specifies that a child of the principal may request an accounting with respect to transactions entered into by an attorney in fact. The bill passed with a vote of 11-0.
The Senate Judiciary Committee heard HB 1258 on various estate planning matters sponsored by Sen. Zakas, Sen. Glick and Sen. Broden. Author Rep. Foley introduced the bill, a product of the Probate Code Study Commission, highlighting areas of the bill providing remedies for individuals taken advantage of through bad estate practices. A representative of the Indiana State Bar Association testified in support of the bill. The bill passed 7-0.