Styck v. Karnes

¶1concurring in result.

¶2I concur in result.

¶3A guardianship proceeding is an improper action in which to litigate the issue of a natural parent’s performance as a parent. That issue may only be litigated under the juvenile law, because, by preemption, the juvenile law provides the exclusive vehicle for a determination of parental fitness.

¶4The juvenile law’s preemption of the issue of parental fitness is understandable and defensible when you consider the thrust of the juvenile law is to preserve family integrity if it is reasonably possible without endangering the welfare of the child. I.C. 31-6-1-1 (Burns Code Ed., Repl. 1980). This is especially so with the adoption of a substantially new code in 1978, Acts of 1978, P.L. 136, as amended. For example, under juvenile law, a deficient parent must be offered a multitude of services, assistance, counseling, etcetera to enable the faltering parent to perform parental duties. E.g., I.C. 31-6-4-16, I.C. 31 — 6— 5-4.

¶5Other provisions of the juvenile code serve to preserve family integrity where it is reasonably possible. For example, although removing a child from his parents and placing the child in another home or shelter care facility is a dispositional alternative in the juvenile law, this alternative must be as unrestrictive as possible so as to least interfere with family autonomy, disrupt family life, impose restraint on the child and parent and provide a reasonable opportunity for participation. I.C. 31-6-4-16. Further, if the dispositional decree removes a child from his parent the juvenile court must hold a formal “review” hearing every nine months to consider modification of the dispositional decree. I.C. 31-6-4-19. At this hearing the state has the burden of showing the child should not be returned to his parent. In addition, every eighteen months the juvenile court must hold a formal hearing on the question of its continued jurisdiction. Id. Here again, the state must show a basis for continued jurisdiction. If it cannot, the child must be discharged or a petition for termination filed, dependent on the particular deficiency in the state’s proof.

¶6The foregoing illustrates provisions of the juvenile law designed to fulfill its intended purpose of strengthening family life by assisting parents to fulfill their parental obligations. To allow circumvention of the juvenile law, either by the state or a private individual, by perpetuating the statutory guardianship proceeding as an alternative would result in a fatal undercutting of the juvenile law.

¶7Thus, an essential element of a statutory guardianship action which seeks the appointment of a permanent guardian of the person of a minor as against a natural parent is a prior determination in a juvenile proceeding that the natural parent is unfit, e.g., the minor is a child in need of services.1 However, in this case, Mother failed to attack the omission of this element, i.e., a juvenile law determination of her unfitness, at or prior to trial. Therefore, this issue is not presented for our consideration.

¶8Consequently, I agree with the majority’s result in this case based upon its application of the rationale of Hendrickson v. Binkley, (1974) 161 Ind.App. 388, 316 N.E.2d 376cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975).