Presentation on theme: "Child Support Enforcement IPAC New Prosecutor Training Ethan C. McKinney, St. Joseph County William Welch, IPAC."— Presentation transcript:
Child Support Enforcement IPAC New Prosecutor Training Ethan C. McKinney, St. Joseph County William Welch, IPAC
Federal Performance Measures Paternity Establishment Ratio Support Order Establishment Ratio Current Support Collections Cases Paying on Arrears
Current Support Collections The percentage of your cases that are paying full current support. What this tells you? How good of a job does your office do at collecting the support that is due. This is by far the toughest performance measure to improve.
Cases Paying on Arrears This is merely the percentage of all your cases that paid at least $1.00 towards their arrears in the fiscal year. What does this tell you? How well your office is doing to get people to address arrears owed. This stat can be quickly improved by working reports. 1 payment on the arrears of a minimum of $1.00 is enough to qualify. Arrears only cases are easy. Current support cases must pay the full monthly amount due plus $1.00 on arrears to count.
Enforcement Prosecutor has discretion to use either administrative or judicial enforcement tools. Administrative Enforcement Civil Judicial Enforcement Contempt Power Proceedings Supplemental Felony Non-Support Bill Welch
Administrative Enforcement Collection Calls Non-Payment Letters Driver’s License Suspension Vehicle Liens Property Liens Professional License Suspension Passport Suspension Federal and State Tax Offset Liens on proceeds of lawsuits In office review hearings – Administrative Hearings
Judicial Enforcement Civil Contempt: DPAs must remember we serve a dual role here, yes we are arguing for jail, but the goal is to get money paid for the children. Make sure all your child support DPAs have read: Marks v. Tolliver – IN Case: If NCP is indigent they are eligible for PD before Civil Contempt Hearing Turner v. Rogers – US Supreme Court Case: Attorney not always required if adequate safeguards in place.
Civil Contempt to Enforce Child Support Use of jail is to “coerce compliance” with the order, not to punish. Can be used on all current support cases. Can only be used on arrears only cases if child is still a minor and the money would go into the home for direct support during minority. This could be a zero dollar order case. Corbridge v. Corbridge, 230 Ind, 201 (1952 Ind.) Can not be used when case is arrears-only and no natural duty of support exists any longer.
Authority for Contempt Specific Child Support Contempt Statute: IC § 31-16-12-1 and 31-16-12-6 Alternatively you can file under IC § 34-47-3-1 General Civil Contempt.
Case Screening Federal Office of Child Support Enforcement issued AT-12-01 based on Turner Each case should be reviewed individually Individual review shall examine the actual and present ability to comply- is this realistic? Each office should develop their own plan for case screening prior to filing contempt. What is realistic for you? Caseload Size Staffing Limits Other duties
Administrative Review Hearing We created these prior to Turner and AT-12- 01 to address two main concerns: First: Limited Court Time for Contempt Hearings had us booking court 3-6 months out. Second: We speculated some cases may pay without need of Contempt if we let them know we were considering that step. Now this also serves as our “case screening.”
Admin Review Hearing (Cont) DPAs meet individually with NCP to assess and screen the case. Three Types: Early Intervention, Pre-Contempt and Arrears Only. Advise NCP that this is a voluntary process, we are attorneys for State and they can consult with an attorney prior to speaking with us. Some want attorney, vast majority comfortable talking with us. Questions about ability to pay, work history, criminal history, other cases, other court ordered obligations, etc. This info can then be used by DPAs for case review and case building in court.
Contempt Process Caseworkers create an enforcement checklist of all steps prior to filing for contempt. Document all communication with the NCP. Document all enforcement steps with the NCP. Prep the attorneys for court by reviewing the enforcement checklist. Our Caseworkers prepare a “Prep Sheet” for DPAs.
Information for Rule to Show Cause Information and Rule to Show Cause must include: The Contempt Allegations Failure to pay Child Support Allegations When the Court Issued the Order Party’s History of Child Support Payments Date and Time to appear to answer The Arrearage Owed Must be a “verified” pleading. DPA review prior to filing and put their name on it as the person who verifies information is correct.
Post Turner Safe-Guards Notice that “ability to pay” is a critical issue. Providing a form or the equivalent that can be used to elicit relevant financial information. Opportunity to respond to statements or questions about his/her financial status. An express finding by the court that the non- custodial parent has the ability to pay based upon the individual facts of the case.
Filing the Information Streamlined forms that comply with your local rules. Do they provide the obligor with notice the “Ability to Pay” is a critical issue? We use Quest so we have custom documents, however: ISETS Letter Genie has generic forms your staff can use. Accurate arrearage calculations. Confirm the support order is correct. Confirm the arrears are correct. In cases with private attorneys be sure to request court orders as private bar sometimes forgets to update the clerk. We also issue Notice of Hearing to custodial parent so he/she can appear if they want to. It is our hearing but they may participate in hearing.
Contempt Proceeding Attorney or PD? Information for the Court (Opening Statement) Questions of the NCP Argument for Sentence (Closing Statement) Sentence (Immediate or Suspended) If suspended, further hearing on imposition or right to request immediate execution.
Court Inquiry for Public Defender Court will have questions to justify appointing PD. The same as in a criminal case. DPA to note questions and answers for useful information. Is NCP working? Does NCP have property of value? Who is NCP living with? How is NCP paying rent? DPA use the answers against NCP during Contempt Hearing. Make sure DPA makes a clean record for the Court in case one of your contempt findings is appealed.
Information for the Court State must prove evidence of non-payment Use the ISETS payment records. This is rarely, if ever, disputed. When the prior order for support was entered. The amount of the arrearage. The amount of the support order. The number of children it is for. The last payment. The pattern of payments.
Defenses No Jurisdiction – Indiana Courts have general jurisdiction so this does not have to be alleged in your Information or Rule, but could be a defense. Once raised, the State bears the burden of proving jurisdiction. No Notice – Pennoyer v. Neff No Specific notice of allegations. Pleadings must allege “did not pay child support as ordered.”
Defenses Defendant must prove his non-payment was not willful. Any ability to pay and no payment is willful for contempt purposes so long as NCP knew of the order. Physically unable, SSI, limited resources, incarceration, mistaken identity, ambiguous order, coming out of paycheck but employer not paying it. NOT RELEVANT: visitation, attack on underlying order, requesting DNA at contempt hearing. If NCP has a valid defense consider Modification. Proof that defendant did not know about order can be a defense as contempt must be knowing. Review file and ISETS to see if NCP has ever communicated with the office about the order. Did NCP know about the default hearing and choose not to go, etc?
Argument for Contempt If your Court allows it, argue why you believe NCP should be found in contempt. Knew about the Order Didn’t pay when able to do so No defense that justifies non-payment Anecdote or statement of NCP’s you can use against him/her. Contempt is to “coerce” payments not punish.
How much Time? In Indiana until 1987, civil contempt could only be 3 months and/or $500.00 fine. Now- “reasonable”- Jones v. State 847, NE2d 190, 2006 Ind. App. Up to 6 months per contempt sentence has been found to be reasonable. Multiple sentences may be consecutive. No credit time on contempt.
Purge Bonds Obligor must hold “keys to the jail cell” – Purge Bond. (US v. US Mine Workers, 330 US 258 (1947) Any amount up to the amount of the total arrearage is reasonable. Prefer a purge they might reasonably post, it does you no good if they just sit in the jail for 6 months. Post Turner, purge bond should be something the obligor can reasonably pay.
Types of Sentences Some courts will do an immediate minimal sentence with a longer sentence suspended (partial execution). Some are fully suspended – term can be indefinite, but usually limited to specific duration (1 yr, etc). Some are executed immediately for full sentence term. May depend on non-case specific factors – i.e. judge’s preference and how hard you argue for one particular outcome. Various reasons State may favor suspended sentences, such as IWO Employment now so we can get payments and if he stops we can execute the sentence. Large lump sum payment on the case in return for sentence being suspended.
Suspended Sentence Make sure if the Court is suspending the sentence you have an order for NCP to: Make payments, do job search, community service, etc… Set a follow up date to review (if necessary). Statement that if even 1 payment is missed the State can: Request Attachment and Immediate Execution File for Imposition of Sentence
Imposition of Sentence St. Joseph County – we file Immediate Execution Requests with a certified payment record and the court issues the Writ of Attachment without needing a hearing. (In all but 1 court.) Once obligor is arrested we hold short hearing to simply determine if he has done anything to warrant court not executing the sentence. Imposition of Sentence – File Motion to impose sentence for failure follow order and set hearing.
Final Hearing Whether in response to Immediate Execution Attachment or Motion to Impose Sentence: Motion to Impose Sentence and Purge hearing are part of the original contempt. No attorney necessary as this is merely to see if NCP did what was ordered, all contempt issues already decided. Review of Turner: Due process does not require appointment of attorney here. See Liming v. Damos, 979 N.E. 2d 297 (Oct. 2012) Supreme Court of Ohio
Alternative Sentences Do you have Work Release available? Do you have someone who is working so you want them working M-F but still feel some jail time to coerce a lump sum payment is appropriate: Weekends a possibility.
Bond Reduction You may have a case where you’ve gotten NCP sentenced and Purge Amount is more than he can pay. If NCP or family contact you for a bond reduction, have DPAs consider all factors but remember our goal is to collect money for the family. A $3,000 bond that doesn’t get paid does us no good. It’s our case, you can ask for CPs input but ultimately decision is up to us in our role to best enforce the case. Factor in whether this NCP has bonded out before and the full history of case.
Hoosier Initiative for Re-Entry This is available in the entire state. DWD pre-screens at DOC and offers a curriculum. DWD meets with participants regularly for first year. DWD meets with participant employers regularly. Employers can get Federal Bonding and Work Opportunities Tax Credit There is a regional manager for this program throughout the state. If interested I can get you the contact information for your regional manager.
Community Service Have Pre-Screened Providers We’ve had people ask to do community service with a family friend, no way to verify they are really doing it. Order could say do 20 hours of community service every week you don’t make a full support payment until next court date. Confirm with the provider that NCP actually did the hours. We have had people doctor or photo copy sheets to try to trick the court.
Goodwill 2 nd Chance Program Specific Program for Felons Intensive job search assistance and referrals to employers willing to hire felons. Our MOU: No Court Enforcement while in the program. Goodwill Work Experience to build work history and pay support. Modify Support Orders based on income.
Job Searches Job Search Report 30 Job Spreadsheet Give NCP a time period to complete it or report new employment. Job Leads Membership on a business network of employers willing to hire felons. Career Fairs and other Leads
Post Emancipation In Indiana contempt or at least jail time is prohibited. Contempt is an extraordinary remedy. Constitutional issues. Seems at odds with the statutory authority. I.C. 31-16-12-6 Corbridge v. Corbridge, 230 Ind, 201 (1952 Ind.) Contempt is still possible for un-emancipated children, where the natural duty to support the child as a minor continues such as on zero dollar support orders with no payment being made on the arrearage.
Proceeding Supplemental These hearings to inquire if the obligor has any income or assets that could satisfy the debt. Ask about every possible avenue for collection: Income, bank account, real estate, vehicle, TV, gaming system, boat, motor cycle, law suits, people who owe them money, disability, annuity, etc. This is a chance to find assets you otherwise wouldn’t have known about. Can ask the Court to seize and sell assets. Possibility of using this as a collection court, set hearings every Friday if court will allow it, come to court or proof of making a payment. Proceeding Supplemental documents must also be “verified.”
Contact Information Ethan C. McKinney, DPA Child Support Director St. Joseph County Prosecuting Attorney’s Office 227 W Jefferson Blvd South Bend, IN 46601 email@example.com 574-235-5023 (Direct line) Please contact me if you have any questions, I am always willing to assist other offices.
Developing the Program Factors to Consider Office Size Number of Attorneys Criminal or Support Division Results of Contempt Jail or No Jail Follow-up
Developing the Program Goals of the Criminal Sanction Provide Options after Contempt Get the attention of the Obligor Force a change of lifestyle Provide for long term monitoring Probation can last beyond emancipation Probation Terms more detailed
Developing the Program Establish a Threshold Limit the number of cases – threshold level Establish guidelines to follow regardless of the Custodial Parent’s wishes Save the criminal sanction for the worst cases Establish a case screening system
Developing the Program Determine Case Processing Procedures How many will you file Victim Involvement and Assistance Determine a Standard Plea philosophy Punishment Probation “Giving Enough Rope” Monitoring Probation after Sentencing
Preparing the Nonsupport Case IC 35-46-1-5 - OLD Nonsupport of a dependent child Sec. 5. (a) A person who knowingly or intentionally fails to provide support to the person's dependent child commits nonsupport of a child, a Class D felony. However, the offense is a Class C felony if the total amount of unpaid support that is due and owing for one (1) or more children is at least fifteen thousand dollars ($15,000).
Preparing the Nonsupport Case IC 35-46-1-5 – NEW Nonsupport of a dependent child Sec. 5. (a) A person who knowingly or intentionally fails to provide support to the person's dependent child commits nonsupport of a child, a Level 6 felony. However, the offense is a Level 5 felony if the person has a previous conviction under this section.
Preparing the Nonsupport Case Differences New Felony Levels and Sentencing Rules Lower Penalties Possibility of Diversion More Serious Felony now dependant on prior conviction, rather than amount of arrearage. Avoids double jeopardy issues with prior felonies using same arrearage. Removes arguments about arrearage amount
Preparing the Nonsupport Case Filing Rules Can go back 5 years under the criminal statute of limitations (IC 35-41-4-2) Cannot Arbitrarily divide time periods Enhancement must be filed as a separate count, just like any other (OWI, Habitual, etc.)
Preparing the Nonsupport Case Things to Remember Inability to pay is a defense, not an element of the offense No dollar amount is required under the statute
Preparing the Nonsupport Case Things to Remember Under old statute establishing an arrearage for the C Felony when the arrearage arises prior to the statute of limitations is OK. However, C Felony Arrearage must arise after prior offense of Nonsupport, if any. Sanquenetti v. State, 917 N.E.2d 1287, Ind.App., December 17, 2009 (NO. 61A01-0907-CR-344) Maurice Porter v. State, 935 N.E.2d 1228, Ind.App., October 27, 2010 (NO. 20A03-0912-CR-570)
Things to Remember If you have a prior and; Can prove the underlying offense Proceed under the new statute. Avoid arrearage issues Avoid complicated calculation issues Either has a prior or not Or proceed under old to get conviction, and then the new Preparing the Nonsupport Case
INVESTIGATION HIGHLIGHTS Use your civil testimony Payment Histories - Look for large gaps Check Employment (actual and potential) Check for disability information Check for direct support ($$, food, clothing, shelter or medical Check Assets and Debts Custodial Parent Preparing the Nonsupport Case
Plea Agreements Establish a plea offer policy Punishment Incentives Monitoring Payment alternatives Probation when unable to pay Road Crew or Public Restitution Close probation monitoring
Plea Incentives Reduction under IC 35-50-2-6 for Nonsupport C felony down to D felony or Level 5 felony down to Level 6 felony Successful Probation Satisfied other obligations Paid support arrearages named in information* No more felony convictions No Criminal Charges
Problem with Reduction Statute Court finding: Paid support arrearages named in information* Nonsupport statute does not refer to money Information does not normally contain arrearage amount If nothing named in Information, then no requirement of payment of arrearage in order to get reduction Agree on arrears and amend information before plea?
Defendant’s Petition must allege that no further child support arrearage is due Defendant may allege and believe no arrearage is due Court finding of no arrearage due is not required Worst case: No arrearage paid and arrearage still due – could still get reduction. Prosecutor’s approval not required Problem with Reduction Statute
Expungement statute under IC 35-38-9 apply Time periods for filing differ depending on whether conviction is Level 5 or has been reduced to Level 6 or Misdemeanor Court must find person has “satisfied any restitution obligation” placed as part of sentence. NOTE: Make sure sentence characterizes arrearage as Restitution. Expungement
Felony Benefits Real threat of jail (compared to contempt action) Grapevine Effect Longer periods and higher level of monitoring Hoped for establishment of a “habit of payment”
For Further Information Come to the February New IV-D Prosecutor Conference Contact Information: William F. Welch IPAC, 302 W Washington St, Rm E205 Indianapolis, IN 46204 Phone: 317/232-1836 Email: firstname.lastname@example.org