VAIDIK, Chief Judge.
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 the paternity court. DCS argues that the CHINS court's custody-modification order survived the termination of the CHINS proceeding.
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
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.
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.
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." 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.
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.
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":
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 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).
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).
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 the language of Section 31-30-1-13 and turning our attention to the policy and purpose of the CHINS statutory scheme.
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.").
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,
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
BARNES, J., and MATHIAS, J., concur.