dissenting.
Although I recognize that my view in this matter is not shared by a number of my colleagues, I believe that the statute, Indiana Code Section 31-87-10-2, requires a juvenile court to make an affirmative finding that the filing of the petition is in the best interests of the child. I understand the utility of the arguments advanced by others in M.B. and this case. I simply do not agree that we can or should "waive" a statutory condition precedent to jurisdiction. It is, I might add, not solely a "form over substance" argument that drives my concern.
I adhere to the reasoning espoused in K.S. v. State, 807 N.E.2d 769 (Ind.Ct.App.2004), aff'd on rehearing, 816 N.E.2d 1164 (Ind.Ct.App.2004), trans. pending. To the extent my colleagues in M.B. and this case have relied on opinions issued in civil matters outside of the juvenile delinquency context to conclude that the failure to approve the filing of a delinquency petition merely impacts jurisdiction over the case and is a waivable error, I believe it is inappropriate to do so. The cases that have specifically addressed juvenile delinquency petitions overwhelmingly indicate that express court approval for the filing of a delinquency petition is absolutely necessary and non-waivable. As an intermediate appellate court, I do not believe we are free to change the law in this area.
I also observe that a juvenile court is a different animal than a superior or cireuit court with criminal jurisdiction. It fashions remedies and resolutions that are not, and should not be, available to those other entities. The presiding judge may very well exercise his or her discretion upon the filing of a juvenile petition and divert the child into a more informal adjustment situation, believe that a CHINS petition is a more appropriate path to follow, or do any number of things that are outside the seope of a formal juvenile charge.
I do not think it is either onerous or legally outrageous to require a presiding judge to review a juvenile petition and, in addition to the other statutory mandates, find that the filing of that petition is in the best interests of the child and to expressly note such finding on the record. I respectfully dissent and would reverse J.R.'s delinquency adjudication.