                                                                                   FILED
                                                                              Sep 08 2016, 9:47 am
      OPINION ON REHEARING
                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Nancy A. McCaslin                                          Gregory F. Zoeller
      McCaslin & McCaslin                                        Attorney General of Indiana
      Elkart, Indiana
                                                                 Robert J. Henke
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of J.B. and L.B.:                            September 8, 2016
                                                                 Court of Appeals Case No.
                                                                 20A05-1510-JC-1612
      J.J. (Mother),
                                                                 Appeal from the Elkhart Circuit
      Appellant-Respondent,                                      Court
                                                                 The Honorable Deborah Domine,
              v.
                                                                 Magistrate
                                                                 The Honorable Terry C.
      The Indiana Department of                                  Shewmaker, Judge
      Child Services,
                                                                 Trial Court Cause No.
      Appellee-Petitioner.                                       20C01-1507-JC-82
                                                                 20C01-1507-JC-83



      Vaidik, Chief Judge.


[1]   The Indiana Department of Child Services petitions for rehearing following our

      June 8, 2016 opinion in which we held that the CHINS court lost jurisdiction as

      soon as it discharged the parties, at which point the issue of custody reverted to

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016         Page 1 of 10
      the paternity court. DCS argues that the CHINS court’s custody-modification

      order survived the termination of the CHINS proceeding.

[2]   Father and Mother shared custody of their children pursuant to an order of a

      paternity court. After a car accident in which Mother was under the influence

      of drugs and the children were not properly restrained, DCS filed a petition in

      juvenile court alleging that the children were CHINS. Mother and Father each

      admitted that the children were CHINS. The juvenile court found that the

      children were CHINS and scheduled a dispositional hearing. But before the

      dispositional hearing, DCS filed a motion to change custody to Father. The

      juvenile court held a hearing, following which it awarded Father sole custody

      and Mother supervised parenting time and then closed the CHINS case,

      without entering a dispositional decree that would have ordered services for

      Mother.

[3]   DCS argues, among other things, that according to Indiana Code section 31-30-

      1-13(d), the CHINS court’s custody-modification order survived the

      termination of the CHINS proceeding. Section 31-30-1-13 addresses concurrent

      jurisdiction of paternity and CHINS courts.1 It provides, in full:

               (a) Subject to subsection (b), a court having jurisdiction under IC
               31-14 of a child custody proceeding in a paternity proceeding has
               concurrent original jurisdiction with another juvenile court for



      1
        A juvenile court has exclusive original jurisdiction in both CHINS and paternity cases, except as provided
      in Indiana Code sections 31-30-1-9, -10, -12, and -13. Ind. Code § 31-30-1-1. Sections 9, 10, 12, and 13
      address times when there is concurrent jurisdiction.

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016         Page 2 of 10
        the purpose of modifying custody of a child who is under the
        jurisdiction of the other juvenile court because:


                 (1) the child is the subject of a child in need of services
                 proceeding; or


                 (2) the child is the subject of a juvenile delinquency
                 proceeding that does not involve an act described under IC
                 31-37-1-2.


        (b) Whenever the court having child custody jurisdiction under
        IC 31-14 in a paternity proceeding modifies child custody as
        provided by this section, the modification is effective only when
        the juvenile court with jurisdiction over the child in need of
        services proceeding or juvenile delinquency proceeding:


                 (1) enters an order approving the child custody
                 modification; or


                 (2) terminates the child in need of services proceeding or
                 the juvenile delinquency proceeding.


        (c) If a juvenile court:


                 (1) establishes or modifies paternity of a child; and


                 (2) terminates a child in need of services proceeding or a
                 juvenile delinquency proceeding regarding the child;


        the court having concurrent original jurisdiction under subsection
        (a) shall assume or reassume primary jurisdiction of the case to
        address all other issues.


Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016   Page 3 of 10
              (d) An order establishing or modifying paternity of a child by a
              juvenile court survives the termination of the child in need of
              services proceeding or the juvenile delinquency proceeding.


      Section 31-30-1-13 went into effect July 1, 1999. P.L. 164-1999, § 3.

      Subsections (c) and (d) were added effective July 1, 2011. P.L. 162-2011, § 42.

      Despite being on the books for nearly two decades, Section 31-30-1-13 has been

      addressed only a handful of times in our case law, while subsection (d) has

      never been addressed. Thus, we are working with a very clean slate. DCS

      argues that although subsection (d) says “[a]n order establishing or modifying

      paternity of a child by a juvenile court survives the termination of the [CHINS]

      proceeding,” “paternity” must be read to include custody modifications because

      “the clear intent of the statute addresses custody modifications.” Appellee’s

      Reh’g Br. p. 14.

[4]   The goal of statutory construction is to discern and further the intent of the

      legislature. Andy Mohr West v. Office of Ind. Sec’y of State, 54 N.E.3d 349, 353

      (Ind. 2016). To do so, we start with the plain language of the statute, giving its

      words their ordinary meaning and considering the structure of the statute as a

      whole. Id. No word or part should be rendered meaningless if it can be

      reconciled with the rest. Id. It is just as important to recognize what a statute

      does not say as it is to recognize what it does say. Davis v. Edgewater Sys. For

      Balanced Living, Inc., 42 N.E.3d 524, 528 (Ind. Ct. App. 2015).


[5]   Subsection (d) provides that “[a]n order establishing or modifying paternity of a

      child by a juvenile court survives the termination of the [CHINS] proceeding.”

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016   Page 4 of 10
      There are two ways to read what “[a]n order establishing or modifying

      paternity of a child” means. One way is read “paternity” to mean establishing

      or modifying who a child’s father is. The other way is to read “paternity” like

      DCS suggests, that is, establishing or modifying “paternity” includes custody

      modifications. There are problems with both approaches.

[6]   The problem with giving “[a]n order establishing or modifying paternity of a

      child” its plain meaning is that it presumes that a juvenile court in a CHINS

      case can establish paternity. But Indiana Code section 31-14-2-1 provides that a

      man’s paternity may be established in only one of two ways: (1) in an action

      under Article 14 or (2) by executing a paternity affidavit at the hospital or local

      health department under Indiana Code section 16-37-2-2.1.2 Article 34, which

      governs CHINS cases, does not provide for the establishment of paternity.

      Indeed, Indiana Code section 31-34-15-6 provides that whenever a child born

      out of wedlock is alleged to be a CHINS and is under the supervision of DCS,

      DCS “shall refer [the] child’s case to the local prosecuting attorney’s office for

      the filing of a paternity action,” which, according to Section 31-14-2-1, must be

      filed under Article 14 (emphasis added). Thus, it does not appear that a

      juvenile court in a CHINS case can “establish paternity.” In addition, the

      phrase “modify paternity” is unclear, given that “[t]he Indiana Code has no




      2
       In dissolution cases, the trial court may make “the legal equivalent of a paternity determination.” Russell v.
      Russell, 682 N.E.2d 513, 518 (Ind. 1997).

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016           Page 5 of 10
      provision for the filing of an action to disestablish paternity.” 3 In re Paternity of

      T.H., 22 N.E.3d 804, 807 (Ind. Ct. App. 2014).


[7]   The other way is to read “paternity” to include custody modifications, as the

      article governing the establishment of paternity also addresses determining and

      modifying custody. See Ind. Code ch. 31-14-13. However, Section 31-30-1-13

      uses “child custody” five times and some variant of “modify” four times in

      subsections (a) and (b). This is evidence that the legislature uses that language,

      as opposed to “paternity,” when it wants to. In addition, Section 31-30-1-12,

      which addresses concurrent jurisdiction of marriage-dissolution and CHINS

      courts (as opposed to concurrent jurisdiction of paternity and CHINS courts),

      contains a provision nearly identical to Section 31-30-1-13(d) that uses the

      language “modifying child custody”:

              (e) An order modifying child custody, child support, or parenting time
              issued under this section survives the termination of the child in
              need of services proceeding or the juvenile delinquency
              proceeding until the court having concurrent or original
              jurisdiction assumes primary jurisdiction and modifies the order.


      Ind. Code § 31-30-1-12 (emphasis added). Thus, the legislature used “an order

      establishing or modifying paternity” in Section 31-30-1-13(d) while it used “an

      order modifying child custody, child support, and parenting time” in Section




      3
       However, in rare cases a legally established father may challenge a paternity determination under Indiana
      Trial Rule 60(B). See 14 J. Eric Smithburn & Ann Carol Nash, Indiana Practice, Family Law, § 4:46 (2d ed.
      Supp. 2015-16).

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016        Page 6 of 10
      31-30-1-12(e). Notably, these subsections were added at the same time. See

      P.L. 162-2011, § 42. Generally, when the legislature uses particular language in

      one section of the statute but omits it in another section, we presume that it is

      intentional. See, e.g., Andrianova v. Ind. Family & Social Servs. Admin., 799

      N.E.2d 5, 15 (Ind. Ct. App. 2003).

[8]   Furthermore, if the legislature meant that a CHINS court can modify custody

      and that the CHINS court’s custody-modification order survives the

      termination of the CHINS proceeding, there is another problem. Section 31-30-

      1-13(b) provides that if a paternity court modifies child custody when there is a

      CHINS case open for the same child, the paternity court’s modification only

      becomes effective when the CHINS court (1) enters an order approving the

      modification or (2) terminates the CHINS proceeding. So, under DCS’s

      reading of Section 31-30-1-13(d), if a CHINS court in one county does not

      approve a custody modification from a paternity court in another county and

      then modifies custody to a different parent, once the CHINS court terminates

      the CHINS proceeding, both orders would be in effect (with different parents

      receiving custody).

[9]   Given that there are problems with each reading of subsection (d), we will not

      guess what the legislature meant when it said “[a]n order establishing or

      modifying paternity of a child by a juvenile court survives the termination of the

      [CHINS] proceeding.” We therefore ask the legislature to take a deeper look at

      Sections 31-30-1-12 and -13 in light of these issues. As a result, we reach the

      same result as our original opinion but for different reasons by looking beyond

      Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016   Page 7 of 10
       the language of Section 31-30-1-13 and turning our attention to the policy and

       purpose of the CHINS statutory scheme.

[10]   The policy of this state and the purpose of Title 31 is to “strengthen family life

       by assisting parents to fulfill their parental obligations” and to “provide a

       continuum of services developed in a cooperative effort by local governments

       and the state.” Ind. Code § 31-10-2-1; see also In re N.E., 919 N.E.2d 102, 108

       (Ind. 2010) (“[U]nder the policy pronouncements inherent in the entire scheme

       of CHINS procedures, a primary purpose and function of the [State] is to

       encourage and support the integrity and stability of an existing family

       environment and relationship.” (quotation omitted)). The purpose of a CHINS

       inquiry is to determine whether a child’s circumstances necessitate services that

       are unlikely to be provided without the coercive intervention of the court. N.E.,

       919 N.E.2d at 106; see also id. at 105 (“[T]he truth of the matter is that a CHINS

       adjudication is simply that—a determination that a child is in need of

       services.”).

[11]   Here, at the July 27 detention hearing, DCS recommended supervised visitation

       for Mother and a family conference, and the juvenile court adopted DCS’s

       recommendation. Tr. p. 7-8, 11. In its August 3 order finding the children to

       be CHINS, the CHINS court accepted DCS’s recommendation regarding

       “placement, services, and programs.”4 Appellant’s App. p. 39. The CHINS




       4
        It is not clear what these services and programs were. In its August 24 petition for parental participation,
       DCS recommended that the CHINS court order specific services for Mother, such as therapy and an

       Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016           Page 8 of 10
court then set a dispositional hearing for September 3. But before the

dispositional hearing, DCS filed a “Motion for Change of Custody” under the

paternity statutes, asking the CHINS court to give Father sole legal and

physical custody of the children and Mother parenting time. See id. at 57-58

(DCS’s August 28 motion alleging “a substantial and continuing change of

circumstances”). DCS also asked for the CHINS case to be closed, keeping the

CHINS finding intact. Tr. p. 32. DCS did this before a dispositional decree

was entered5 and before Mother could participate in services. See id. at 33

(defense counsel arguing at the “motion for change of custody” hearing: “the

problem I have . . . is it’s in essence trying to turn, with regard to the two

children, this into a custody case and not allow for [Mother] to be able to

participate in services and work towards reunification. They’re trying to cut

that out at the beginning and not offer her an opportunity to enhance her

parenting and to have services.”). The CHINS court awarded Father sole

custody and Mother supervised parenting time.6 It then closed the CHINS

case, without ever entering a dispositional decree, which, by statute, would




addictions assessment, see Appellant’s App. p. 43-46; however, the CHINS case was closed before any of
these services were ordered by the court, see Appellee’s Br. p. 17 (DCS acknowledging that the CHINS court
“did not order Mother’s participation in any services as part of a parental participation order or dispositional
decree”). The predispositional report recommended similar services for Mother. See Appellant’s App. p. 55.
5
  After a child is found to be a CHINS, the juvenile court must hold a dispositional hearing within thirty days
to consider, among other things, “placement of the child.” Ind. Code § 31-34-19-1(a). The court then enters
a dispositional decree. DCS argues that a dispositional decree was not required in this case because by virtue
of Father being awarded sole custody, “Children no longer needed services.” Appellee’s Br. p. 16. This
circular reasoning conflicts with the core purpose of the CHINS system to preserve and reunify families.
6
  Ironically, the CHINS court ordered that Mother’s parenting time was to remain supervised until she
received services, i.e., drug treatment and negative drug screens. See Appellant’s App. p. 9.

Court of Appeals of Indiana | Opinion on Rehearing 20A05-1510-JC-1612| September 8, 2016            Page 9 of 10
       have required that Mother have a reasonable opportunity for participation. See

       Ind. Code § 31-34-19-6; see also Ind. Code § 31-34-20-1(a)(6) (noting that the

       dispositional decree may order the parent to complete services as recommended

       by DCS and as ordered by the court).


[12]   It is clear that the policy and purpose of the CHINS statutory scheme is not to

       remove children from their parents without giving the parents a reasonable

       opportunity to participate. But this goal was not furthered in this case. That is,

       DCS used the coercive power of the State to insert itself into a family

       relationship by obtaining a CHINS finding and then had the CHINS court

       modify sole custody to Father and close the CHINS case thirty days later—

       without entering a dispositional decree and giving Mother a meaningful

       opportunity to participate in services that DCS itself had recommended in both

       the petition for parental participation and the predispositional report. This is

       particularly troublesome given that a CHINS adjudication has adverse

       consequences for parents. See Ind. Code § 31-35-2-4(b)(2)(B)(iii) (providing that

       two separate CHINS adjudications can be the basis for a petition to terminate

       parental rights). We therefore reverse that part of the CHINS court’s order that

       discharged the parties and terminated the CHINS case and remand this case for

       further proceedings consistent with the CHINS statutes, including any

       appropriate services for Mother.

       Barnes, J., and Mathias, J., concur.




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