In re K.B.

¶1dissenting. I respectfully dissent. I believe an important legal tenet is at stake here: who will decide what evidence and under what theory a juvenile court will hear and decide a CHINS petition? As a zealous guardian of the discretion of the party charged with going forward with the burden of proof, I emphatically come down on the side of the OFC under this set of facts.

¶2The Office of Family and Children ("OFC") attorney attempted to amend or dismiss the petition in question before any admission was made by mother's attorney. See Tr. p. 6. It is clear to me that the OFC was wary of a possible arrangement between the service provider, Madison Center, and the child's family, specifically K.B.'s mother, because the "arrangement" would obligate LaPorte County to pay for the obviously extensive and in-depth services that were needed. This is a dispute in which the "principle" at stake translates into "who will pay?"

¶3It is obvious from the transcript that Madison Center and K.B.'s mother reached an arrangement whereby the child's interests were to be served by a path of treatment exclusively administered by Madison Center. Certainly, there is no question that the child and family needed and deserved help. Just as certainly, I believe that the OFC attorney, as an officer of the court, was ethically compelled to advise the juvenile court he could not meet his burden of proof under Indiana Code Section 31-84-1-1, which was the statute cited to in the OFC's petition. Instead, the attorney for the OFC believed it more appropriate to proceed under Indiana Code Section 31-34-1-68 and asked the juvenile court for permission to either dismiss the petition or give time to amend it. See Tr. p. 6.

¶4Mother's attorney, sensing that the earth was about to move from under his feet, quickly made an "admission" on behalf of the mother. One could fairly infer that this admission was made to keep the arrangement with Madison Center in tact. I do not believe that the OFC should or ought to be hamstrung in a situation like this.

¶5I think it is important to note that the majority relies on Indiana Code Section 31-34-10-8 9 to conclude that the juvenile court properly considered mother's attorney's admission and entered judgment accordingly. Before the admission was made, however, the OFC attorney clearly indicated the OFC's intention to either amend the petition and proceed under Indiana Code Section 31-84-1-6 or dismiss the petition and, presumably, refile it under 31-34-1-6. See Tr. p. 6. I emphasize this point because another code section specifically bars a parent from admitting the allegation in a CHINS petition when the petition is filed under Indiana Code Section 31-34-1-6. See I.C. § 31-34-10-6 ("Except if a petition is filed under IC 31-34-1-6, the juvenile court shall determine whether a parent ... admits or denies the *1203allegations of the petition...."). In other words, because Indiana Code Section 31-34-10-6 prohibits a parent from admitting allegations in a CHINS petition when the petition is filed under Indiana Code Seetion 31-84-1-6 and the OFC indicated its intention to proceed under that section, mother's attorney should not have been able to admit the allegations alleged in the petition.

¶6Further, Indiana Code Section 31-34-9-8 provides: "Upon motion by the person representing the interests of the state, the juvenile court shall dismiss any petition has filed." (Emphasis added). I believe that this statute vests with the OFC the discretion to pursue CHINS proceedings in the manner it sees fit onee a petition has been filed. Because the OFC represented the State's interests, filed the petition, requested the dismissal of the petition, and later filed a written motion to dismiss, it is my opinion that the juvenile court should have granted the OFC's motion to dismiss. See Ind.Code § 31-34-9-8.

¶7Unlike the majority, I do not believe it is necessary to engage in statutory interpretation here because when a statute is clear and unambiguous on its face, as this statute is, we may not interpret it. See Conseco Finance Servicing Corp. v. Friendly Village of Indian Oaks, 774 N.E.2d 87, 93 (Ind.Ct.App.2002), trans. denied; Poehlman v. Feferman, 717 N.E.2d 578, 581 (Ind.1999) ("When a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Clear and unambiguous statutory meaning leaves no room for judicial construction." (citation omitted)). In my opinion, Indiana Code Section 31-34-9-8 is clear and unambiguous on its face.

¶8I believe that in enacting Indiana Code Section 31-34-9-8, the legislature vested the OFC with the discretion to dismiss petitions to more effectively handle cases in which pursuing the petition is no longer in the child's bests interests and/or allow the OFC the flexibility to proceed under what it believes the evidence would prove. I think it is axiomatic that the party who has the burden of proof also has the ability to dismiss proceedings when it sees fit. See, e.g., Kibbey v. State, 733 N.E.2d 991, 996 (Ind.Ct.App.2000) (" ''Whether to prosecute and what charges to file or bring ... are decisions that generally rest in the prosecutor's discretion."" (citation omitted); Ind. Trial R. 41(A) (providing for the dismissal of an action by a plaintiff). This basic principle should not be altered here simply because this case involves a CHINS proceeding. I acknowledge the desperate need for help for this child. However, I do not believe that discretion should be usurped from the OFC. In many instances, the juvenile court is not and should not be aware of the evidentiary difficulties, witness reluctance, ethical dilemmas, and various other considerations that ethically, legally, and practically compel dismissal or amendment of a charging instrument, in this case a CHINS petition.