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ADMINISTRATIVE POWER UNDER TITLE IV-D Newly Elected and Appointed Prosecuting Attorneys Training Seminar and Attorney General’s Winter Conference Indianapolis,

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Presentation on theme: "ADMINISTRATIVE POWER UNDER TITLE IV-D Newly Elected and Appointed Prosecuting Attorneys Training Seminar and Attorney General’s Winter Conference Indianapolis,"— Presentation transcript:

1 ADMINISTRATIVE POWER UNDER TITLE IV-D Newly Elected and Appointed Prosecuting Attorneys Training Seminar and Attorney General’s Winter Conference Indianapolis, Indiana, December 7-12, 2014 David L. Morris, Senior Deputy Prosecutor, Marion County Prosecutor’s Office

2 LEGISLATIVE DELEGATION – THE SOURCE OF ADMINISTRATIVE AUTHORITY

3 ‒Federal - Congress enacts legislation. U.S. Dept. of H.H.S. writes regulations. ‒State - Indiana Legislature creates the Department of Child Services. Child Support Bureau (CSB) administers IV-D plan. Indiana has agreed to follow the federal code and HHS regulations. LEGISLATIVE DELEGATION – THE SOURCE OF ADMINISTRATIVE AUTHORITY

4 ADMINISTRATIVE HEARINGS – SPECIFIED ACTIONS Income withholding License suspension FIDM State tax refund offset TANF arrearage allocation

5 ADMINISTRATIVE HEARINGS – SPECIFIED ACTIONS

6 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (1/9) Exhaustion of Administrative Remedies - Party must exhaust administrative remedies before seeking judicial review. Petition for judicial review must be verified. Petition must allege exhaustion. Failure to exhaust administrative remedies is jurisdictional.

7 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (2/9) Exceptions to Exhaustion Requirement – Petitioner must show: ‒Futility ‒Statute void on its face ‒Agency action is ultra vires (“beyond the powers”)

8 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (3/9) Procedure for Seeking Judicial Review – 1.Agency issues an appealable final order 2.Petitioner files verified petition Venue – usually in county where IV-D action took place Time limitations - w/in 30 days after notice of IV-D action 3.Petitioner submits agency record – w/in 30 days of filing the petition. Failure to submit record is jurisdictional

9 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (4/9) Stay of Administrative Action – ‒Petitioner may file for a stay of the administrative action. ‒The court may issue a stay if: Petitioner shows a reasonable probability of winning AND Petitioner posts a bond of at least $500.

10 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (5/9) The Hearing – ‒Limited to facts and issues raised before administrative agency ‒Court may remand back to agency if: agency failed to prepare / preserve an adequate record; agency improperly excluded or omitted evidence from the record; or a relevant law changed after the agency action.

11 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (6/9) Burden of Proof - ‒Petitioner must prove agency action was arbitrary and capricious. ‒An arbitrary and capricious decision is one which is: patently unreasonable; made without consideration of the facts and in total disregard of the circumstances; and lacks any basis which might lead a reasonable person to the same conclusion the agency reached.

12 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (7/9) Scope of Judicial Review – Court shall grant relief only if agency action is: ‒arbitrary, capricious, an abuse of discretion, or unlawful; ‒contrary to constitutional right, power, privilege, or immunity; ‒in excess of statutory jurisdiction or authority; ‒without observance of procedure required by law; or ‒unsupported by substantial evidence.

13 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (8/9) Standard of Judicial Review – ‒Questions of Fact – substantial evidence ‒Questions of Law – Interpretation of unambiguous statute = de novo Interpretation of ambiguous statute – defer to agency Whether undisputed facts lead to a certain conclusion = de novo. ‒Mixed Questions of Fact and Law - abuse of discretion

14 JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY ACTION (9/9) Disposition - If Petitioner is entitled to relief, the court may: remand the case to the agency for further proceedings; or compel agency action. Appeal of Decision - Decisions on petitions for review of agency action are appealable. Appellate court applies the same standard of review as did the trial court.

15

16 INDEPENDENT ADMINISTRATIVE AUTHORITY (1/3) Income Withholding - Court can’t prohibit IV-D income withholding. Court can’t limit amount of a IV-D income withholding order. License Suspension - ‒Court can’t reinstate license suspended by IV-D agency.

17 INDEPENDENT ADMINISTRATIVE AUTHORITY (2/3) Tax Refund Offset - Court can’t restrain IV-D tax offset. Tax offset OK despite income withholding on arrears. Passport Revocation - Court can’t order passport reinstatement. Financial Institution Data Matching - IV-D income withholding OK to seize bank account.

18 INDEPENDENT ADMINISTRATIVE AUTHORITY (3/3) Credit Reporting Lottery and Gambling Interception Gaming License / Alcohol Permit Suspension Liens against Vehicles and Other Property Paternity Establishment

19 Do we really want greater efficiency?

20 ADMINISTRATIVE PATERNITY ESTABLISHMENT

21 ADMINISTRATIVE PATERNITY ESTABLISHMENT (1/2) Administrative Paternity Establishment - ‒Federal requirements: State must have paternity affidavits, including a hospital-based program. Executed paternity affidavit establishes paternity, subject to rescission. After 60 days, may challenge only upon fraud, duress, or material mistake of fact.

22 ADMINISTRATIVE PATERNITY ESTABLISHMENT (2/2) State Paternity Affidavit Statutes – IC et seq. – Paternity Affidavit may be executed: At hospital - w/in 72 hours of child’s birth or At local health department before child’s emancipation. – Persons allowed to sign affidavit: Mother Man who reasonably appears to be the child's biological father

23 ADMINISTRATIVE PATERNITY DISESTABLISHMENT

24 Within 60 Days After Affidavit is Executed: ‒A man who signed affidavit may file request for DNA test ‒Filed in paternity court After 60 Days - Set Aside Only If: ‒Court finds fraud, duress or mistake of fact in execution; ‒Man requests DNA test – and court orders it; and ‒DNA test excludes man as biological father

25 BANKRUPTCY

26 BANKRUPTCY – MAIN CONCEPTS Child support is nondischargeable ‒Even if arrears owed to the state Ch. 7 vs. Ch. 13 ‒Ch. 7 = Liquidation ‒Ch. 13 = Reorganization (same for Ch. 11 and 13) Consider filing proof of claim

27 BANKRUPTCY – ALWAYS OK Establishing Paternity Establishing Support Modifying Support Initiating or Continuing with Criminal Proceedings

28 BANKRUPTCY – NEVER OK (Without bankruptcy court permission) Contempt actions Initiating liens on estate property Foreclosing on estate property Suspending or revoking passport Demand letters for pre-petition debt

29 BANKRUPTCY – SOMETIMES OK Income withholding License suspension Credit reporting Tax refund interception Enforcing medical support order

30 SOMETIMES OK --- DEPENDS ON: Ch. 7 – OK Ch. 13 – ‒Ok between filing of bankr. petition and confirmation ‒Probably NOT OK after confirmation ‒When in doubt - seek bankr. court permission

31 OTHER THINGS TO WATCH OUT FOR

32 Arrearage disputes ‒Tax offsets ‒Credit reporting ‒Overpayments Misallocated child support payments Social Security dependent benefits IV-D confidentiality rules FOIA requests

33 ISETS IS NO FRIEND

34 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS

35 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (1/6) Paternity Establishment Support Order Establishment Current Collections Arrearage Collections Cost-Effectiveness

36 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (2/6) Paternity Establishment Performance Establish paternity before moving the case on! Total # of children in IV-D caseload as of the end of the fiscal year who were born out-of-wedlock with paternity established or acknowledged ______________________________________ Total # of children in IV-D caseload as of the end of the preceding fiscal year who were born out-of-wedlock

37 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (3/6) Support Order Establishment Performance Establish an order before moving the case on! $0.00 orders count as an order. Modifications do not affect the count. Number of IV-D cases with support orders during the fiscal year Total number of IV-D cases during the fiscal year.

38 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (4/6) Current Collections Performance Includes money applied to current support. Does not include payment towards arrears. Computed monthly. Number of dollars collected for current support in IV-D cases Total dollars owed for current support in IV-D cases.

39 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (5/6) Arrearage Collection Performance Includes: ‒Payments disbursed to family; or at least in part to family ‒Payments made to State, if all money owed to State One dollar in a fiscal year counts! Total number of eligible IV-D cases paying toward arrears Total number of IV-D cases with arrears due (expressed as a percent).

40 IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS (6/6) Cost-Effectiveness Performance Interstate cases double-counted. Go government! Total IV-D dollars collected Total IV-D dollars expended

41 WHAT WE’VE LEARNED

42 Independent administrative authority of IV-D Agency Judicial Review - Procedure, burdens and standards Establishing / Disestablishing paternity Bankruptcy Things to watch out for IV-D Motivation – Federal performance factors


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