dissenting.
I dissent from the Majority Opinion for these reasons:
*4441. Walker v. Chatfield (1990), Ind.App., 558 N.E.2d 490 is not correct. The Majority states: "We agree the court's decision in Walker is correct, and hold that in a custody modification proceeding arising out of a paternity action, the petitioning party must demonstrate a substantial and continuing change in circumstances so as to make the existing custody order unreasonable." The Majority is incorrect for two reasons: a) Walker refused to follow Griffith v. Webb (1984), Ind.App., 464 N.E.2d 384 which clearly holds that it is up to the Indiana Legislature to change the statutes here under consideration. b) Walker and the Majority ignores the plain meaning of IC 31-1-11.5-22 and IC 31-6-6.1-11 thereby adding words and meaning obviously not intended by the legislature. As Justice DeBruler so aptly cautioned in Grody v. State (1972), 257 Ind. 651, 278 N.E.2d 280 at 285: "It is not within the province of the Court to expand or contract the meaning of a statute by reading into it language which will, in the opinion of the Court, correct any supposed omissions or defects therein." (citation omitted)
2. Walker and the Majority Opinion are in conflict with the stated purpose and policy of the Indiana Legislature. IC 81-6-1-1(8) and (6) are particularly applicable. The Statute and these subsections provide: "It is the policy of this state and the purpose of this article: (8) To insure that children within the juvenile justice system are treated as persons in need of care, treatment, rehabilitation, or protection; (6) To remove children from their families only when it is in the child's best interest or in the best interest of public safety."
It is also interesting to note that the Indiana Legislature has provided that juvenile court has exclusive original jurisdiction of the paternity of a child. IC 31-6-2-1.1(a)(3).
8. I disagree that there are any "serious constitutional problems" that may arise by giving both statutes their plain meaning. Walker fails to enlighten us as to what those problems might be. The Majority refers us to Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551, and Levy v. Louisiana (1968), 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436. Neither Stanley or Levy stir a fear of constitutional confrontation. Stanley held that an Illinois law denied equal protection when it presumed that upon the death of the mother an unwed father was unfit to have custody of his children. The children were made dependents of the state without any hearing or evidence of the father's fitness to have custody. The Stanley Court made it quite clear that "The State's right-indeed, duty-to protect minor children through a judicial determination of their interests in a neglect proceeding is not challenged here." 405 U.S. at 649, 92 S.Ct. at 1211.
Levy involved a Louisiana statute which excluded illegitimate children from bringing a wrongful death action. The United States Supreme Court held that this statute constituted invidious discrimination. "Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother." 391 U.S. at 72, 88 S.Ct. at 1511. The Court treated the wrongful death right of action as a basic civil right. At the same time, the Court recognized that a "State has broad power when it comes to making classifications (Ferguson v. Skrupa, (1963) 372 U.S. 726, 732 [83 S.Ct. 1028, 1032, 10 L.Ed.2d 93]) . the end result is whether the line drawn is a rational one." Id. at 71, 88 S.Ct. at 1511. Here, the Indiana Legislature has clearly drawn a rational line as stated in its policy and purpose. With little imagination and experience, it is clear that a juvenile court must be granted broad standards (best interest) when dealing with the custody of a juvenile. The circumstances are too many and varied to enumerate here, but a "substantial and continuing change in circumstances" standard for adjusting the many and varied custody situations presented to a juvenile court would certainly destroy the legislative purpose and policy. As the Court pointed out in Cafeteria Workers v. McElroy 367 U.S. 886, 894, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situa*445tion ... what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government fune tion involved as well as of the private interest that has been affected by governmental action." Id., at 895, 81 S.Ct. at 1748-49.
4. Even if I were to concede which I do not that the "substantial and continuing change in circumstances" applied, I would hold that the trial court did not abuse its discretion. The Majority states in the last paragraph of its opinion: "We sincerely regret that our decision requires that Megan's life be disrupted once again. However, as we find that the trial court's judgment is an abuse of discretion, it must be reversed." I would affirm the judgment assuming arguendo the standard adopted by the Majority is applicable.
A complete lack of stability in the child's home life is exhibited in the findings of the juvenile court. Without notice to the father or the juvenile court, Eason took the two and a half year old child to North Dakota for a month; then to Missouri; and finally to her mother's home in Peoria, Illinois. Without any effort on Eason's part, the child was finally located by the father. Certainly, instability of the child's home life is a permissible finding by the juvenile court.
The best interest of the child would certainly be better served if custody were given to the father. The evidence before the juvenile court indicated that neither the father or Eason could care for the child without the assistance of other members of their family. Eason's mother is on welfare or "public assistance." Eason's other four year old daughter, a half sister and two half brothers ages nine, seven and five also reside in the same home with Eason's Mother. Too, the husband of Eason's mother is presently under a restraining order because of his violent conduct in the home. In contrast, the father is unmarried and has the assistance of his mother and sisters. The trial court found that his "... home, family relationship and general living conditions ... are excellent."
The Majority Opinion has stepped over the line which divides the judicial and legislative constitutional responsibilities. The Majority Opinion has re-drafted the juvenile statute and altered drastically the purpose and policy of the Indiana Legislature as it relates to juveniles. No violation of equal protection or invidious discrimination can be shown, nor is any violation of a basic civil right involved by the implementation of these statutes. The juvenile court judgment should be affirmed.