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

ADMINISTRATIVE POWER UNDER TITLE IV-D

Newly Elected and Appointed Prosecuting Attorneys Training Seminar

andAttorney 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

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 16-37-2-1 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

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

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

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