RILEY, J.
Appellant-Respondent, N.E.’s father (Father), appeals the trial court’s determination that N.E. is a child in need of services (CHINS).
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. . . [T]he DCS made no allegation that Father knew of the acts or omissions by Mother which resulted in the CHINS proceeding. Even considering the Pre-Dispositional Report as a part of the trial court’s findings, there are no findings directed at Father. The DCS did bring concerns about the suitability of Father’s home for a placement of N.E. while the CHINS proceedings were taking place; however, none of the juvenile court’s findings addressed these concerns previously brought to light by the DCS. As such we agree with Father, in that the juvenile court has failed to make sufficient findings. Still, other errors preclude us from simply remanding for findings without further discussion.
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The record is laced with evidence that Father was a primary caregiver, but the DCS put on evidence attempting to refute that fact, and it is not for us to weigh the evidence. J.Q., 836 N.E.2d at 966. Furthermore, the juvenile court held a hearing and permitted Father to present evidence, but DCS made no allegations impugning Father’s parenting directly and the juvenile court made no findings with respect to Father. Normally, a juvenile court would determine that a child is either a CHINS or is not a CHINS when presented with a CHINS petition. However, before the juvenile court, Father articulated the argument that although N.E. was a CHINS with respect to Mother, she was not a CHINS with respect to him. This is an interesting perspective which we feel deserves further consideration.
Based on the allegations before the juvenile court, the requirements of either Indiana Code sections 31-34-1-1 or 2 could have been used to pursue a CHINS determination of N.E. and her siblings. However, both require a finding that there is “care, treatment, or rehabilitation that . . . is unlikely to be provided or accepted without the coercive intervention of the court.” I.C. §§ 31-34-1-1, 2. At first blush, it seems that if a child was not a CHINS with respect to either of its parents, the coercive intervention of the court would not be necessary because that parent would be providing or accepting the necessary care, treatment, or rehabilitation on the child’s behalf. However, we have recently addressed a CHINS disposition as it relates to each parent as separate issues. See In re C.S., 863 N.E.2d 413, 418 (Ind. Ct. App. 2007), trans. denied (holding that a child was not a CHINS with respect to its father where the child had been found to be a CHINS with respect to mother but there was no allegation and no evidence that the father was responsible for the circumstance which led to the CHINS determination). We did so without discussion of how or why we could split our analysis, looking at each parent individually. We believe that certain principles and considerations may make such a split analysis appropriate in some instances.
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Further, although a CHINS proceeding is distinct from a termination of parental rights proceeding, our legislature has enacted an interlocking statutory scheme linking those two processes. A.P., 734 N.E.2d at 1112. Therefore, we have noted that procedural irregularities “in a CHINS proceeding may be of such import that they deprive a parent of procedural due process with respect to a potential subsequent termination of parental rights.” J.Q., 836 N.E.2d at 967 (citing A.P., 734 N.E.2d at 1112-1113). However, by providing parents a right to representation of counsel in termination proceedings, but not in CHINS proceedings, our legislature has juxtaposed due process rights owed in those proceedings, giving more protection due in termination proceedings. See I.C. §§ 31-32-2-3 and 5. This is all consistent with the very nature of due process, which negates any concept of inflexible procedures universally applicable to every imaginable situation; what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action. Stanley, 405 U.S. at 650-51, 92 S. Ct. at 1212.
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Moving on to our situation here, Indiana Code section 31-34-9-7 provides that “The (1) child; (2) child’s parents, guardian, or custodian; (3) department; and (4) guardian ad litem or court appointed special advocate; are parties to the proceedings described in the juvenile law and have all rights of parties under the Indiana Rules of Trial Procedure.” Thus, although Father did not know he had been established legally as the parent of N.E. at the early stages of the CHINS proceedings, once the trial court was presented with the court order which established paternity, Father was a party to the proceeding. As such, when the juvenile court determined that N.E. was a CHINS, the juvenile court impugned the parenting abilities of Father without specific allegations or specific findings of fact. In all CHINS proceedings, the DCS must present specific allegations in a CHINS petition including a concise statement of the facts upon which the allegations are based and the date and location at which the alleged facts occurred. I.C. § 31-34-9-3. Further, the DCS bears the burden of proving that a child is a CHINS by a preponderance of the evidence. I.C. § 31-34-12-3; E.M., 581 N.E.2d at 952.
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. . . Where the DCS has alleged specific facts that would require removal of a child from the care of a custodial parent, it would be irresponsible of the juvenile court to release the child alleged to be a CHINS to a non-custodial parent without making a preliminary determination that the parent is willing and able to appropriately parent the child. However, this should be a flexible determination keeping in mind the constitutional protection against the State’s undue intrusion into the parent child relationship. E.M., 581 N.E.2d at 952. Father has appeared before the court seeking to demonstrate his ability and willingness to appropriately parent N.E. Without allegations from the DCS alleging that Father has been negligent, deficient, or worse in his duties as a parent, the trial court’s findings with respect to Father should be directed solely at his willingness and ability to appropriately parent N.E. This the trial court has not yet done.
Once a non-custodial parent demonstrates that he or she is willing and able to parent to the child alleged to be a CHINS, due process requires that the DCS present allegations directed at that parent, which, if proved, would meet the requirements for a CHINS determination under Indiana Code chapter 31-34-1 if the DCS thinks it is appropriate for the court to intervene in that parent child relationship. This would require an amendment of the existing petition or the filing of a new petition. Thereafter, the DCS must prove those allegations by a preponderance of the evidence and the trial court must make specific findings based on the record concluding that the child is a CHINS.
Based on the foregoing, we conclude that the DCS has not alleged N.E. to be a CHINS with respect to Father. Therefore, we remand for the juvenile court to determine whether Father is willing and able to appropriately parent N.E. since N.E. is a CHINS with respect to mother.
Reversed and remanded with instructions.
DARDEN, J., concurs. VAIDIK, J., dissents with separate opinion.
VAIDIK, J., dissenting.
I respectfully disagree with the majority’s conclusion that N.E. is a CHINS as to Mother only. Rather, I believe that a child is either a CHINS or is not a CHINS and that the DCS has met its burden of proving that N.E. is a CHINS. However, because I believe that the juvenile court’s dispositional order falls short of the statutory requirements and therefore we do not know the court’s reason for its disposition, I would remand this case for a new dispositional order in accordance with Indiana Code § 31-34-19-10. Because the majority is remanding for a different purpose, I dissent.