concurring in result.
I agree that the Juvenile Court's orders must be vacated, but only because the Juvenile Court did not base its exercise of jurisdiction on the emergency provision of the UCCJA, and because the Department did not argue on appeal that the emergency provision authorized exercise of jurisdiction. I emphasize that it is possible that a CHINS proceeding may be brought within the framework of the UCCJA. In re Le-mond (1980), 274 Ind. 505, 418 N.E.2d 228.
I wish to emphasize also that there is nothing in this record to support an inference that the CHINS proceedings were a sham in order for Mother to engage in forum shopping. While it is stated that an implication should not be drawn that the CHINS proceedings were a sham, it is emphasized that Mother was the "motivating and guiding force and influence in the Indiana litigation." (180, n. 6) A CHINS petition can only be filed by the Department. The fact that a parent cooperates with the Department does not allow an inference that the parent is using the Department to forum shop, as is alluded to on page 188.
Further, the fact that Mother is cooperating with the Department does not mean that there is only a "formalistic" difference between Mother as the party to the Texas proceedings and the Department as a party to the Indiana proceedings, as is stated on page 187. Thus, I do not agree that "to the extent that the CHINS determination might be premised upon an emergency which could only be established by events which were the subject of the Texas litigation, the Indiana judgment is invalid." (187) The parties involved in the Texas litigation and the Indiana litigation are not the same.
However, because the Juvenile Court did not base its exercise of jurisdiction on the emergency provision of Ind.Code 31-1, 11.6-38(a)(8), and because the Department did not argue that section's applicability on appeal, I agree that the judgment must be reversed.