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

LEGISLATIVE DELEGATION – THE SOURCE OF ADMINISTRATIVE AUTHORITY

‒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

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

ADMINISTRATIVE HEARINGS – SPECIFIED ACTIONS

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.

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”)

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

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.

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.

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.

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.

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

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.

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.

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.

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

Do we really want greater efficiency?

ADMINISTRATIVE PATERNITY ESTABLISHMENT

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.

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

ADMINISTRATIVE PATERNITY DISESTABLISHMENT

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

BANKRUPTCY

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

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

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

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

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

OTHER THINGS TO WATCH OUT FOR

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

ISETS IS NO FRIEND

IV-D MOTIVATION – FEDERAL PERFORMANCE FACTORS

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

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

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.

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.

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).

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

WHAT WE’VE LEARNED

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