dissenting.
I dissent.
The appellant, Betty Jeanne Nahrwold, asks this Court to review the following issue:
Did the juvenile court err in refusing to permit Nahrwold to present witnesses and introduce evidence at the detention hearing required by IC 1976, 31-6-3-6(e) (Burns Code Ed., 1980 Repl.)?
The majority of this Court concludes that Nahrwold was not entitled to present witnesses and introduce evidence at the hearing because the “hearing was not intended to be adjudicatory in nature,” and it was merely “a preliminary proceeding for the purpose of determining whether probable cause existed for the detention of the child and for the filing of the petition [alleging that the child was a ‘child in need of services’].” A close examination of the facts stated in the majority opinion reveals that the hearing held on March 12, 1980, was much more than a mere “probable cause” hearing. What transpired at the so-called “probable cause” hearing is best stated in the majority opinion:
“Following the caseworkers’ recommendation]]] the [juvenile court] referee stated that the child would be released into Nahrwold’s custody at that point in the proceedings if she consented to the program of informal adjustment [under IC 1976, 31-6-4^12 (Bums Code Ed., 1980 Repl.)]. After consultation with her counsel and with the knowledge that compliance was the only way to regain immediate custody of her child, Nahrwold consented to the informal adjustment program. The child was then released subject to the supervisory functions of the Welfare Department.” (brackets added)
It is evident that the juvenile court, by requiring Nahrwold to participate in a program of informal adjustment under IC 31— 6-4-12, conditioned parental custody upon Nahrwold’s participation in a program of care, treatment, and rehabilitation of her child. Under such circumstances, the juvenile court was required to afford Nahrwold her rights that are enumerated in IC 1976, 31-6-3-2 (Burns Code Ed., 1980 Repl.), which the majority has chosen to cite only in part. IC 31-6-3-2 provides in full:
“(a) A parent, guardian, or custodian is entitled:
“(1) To cross-examine witnesses;
“(2) To obtain witnesses or tangible evidence by compulsory process; and
“(3) To introduce evidence in his own behalf;
“in the proceedings listed in subsection
(b).
“(b) Subsection (a) applies to proceedings:
“(1) To determine whether his child is a child in need of services;
“(2) To determine whether he should participate in a program of care, treatment, or rehabilitation for his child;
“(3) To determine whether the parent or guardian of the estate should be held financially responsible for any services provided to himself or his child;
“and
“(4) To terminate the parent-child relationship.
“(c) A parent is entitled to representation by counsel in proceedings to terminate the parent-child relationship.”
While the hearing held on March 12, 1980, may have been intended to be merely a “probable cause” hearing, it evolved into a proceeding “to determine whether [Nahrwold] should participate in a program of care, treatment, or rehabilitation for [her] child.” IC 31-6-3-2(b)(2). As such, Nahrwold was entitled “to obtain witnesses” and “to introduce evidence” on her own behalf as provided by IC 31-6-3-2(aX2) and (3). The juvenile court deprived Nahrwold of these rights.
A program of informal adjustment is intended to operate as a vehicle to promote
*482the best interests of a child who the caseworker believes is a “child in need of services.” Such a program is intended to be implemented without the coercive intervention of the juvenile court. A parent’s voluntary consent to the implementation of an informal adjustment program is a prerequisite to the juvenile court’s approval of such a program. IC 31-6-4-12(b). However, the facts of the present case reveal that Nahrwold’s consent to the program came after the juvenile court approved the caseworker’s recommendation and after the court informed Nahrwold that her consent to the program was the only way to regain custody of her child. When a juvenile court informs a parent that continued parental custody of a child is conditioned upon the parent’s participation in a supervised program, the role of the informal adjustment program is altered significantly. The program is transformed from a consensual arrangement between the caseworker and the parent to a court-ordered condition of regaining custody of a child. I am sure that the drafters of the Juvenile Code did not intend the program of informal adjustment to be used by a juvenile court as a sword of Damocles over a parent who seeks to regain custody of his or her child.
By agreeing to participate in a program of informal adjustment, a parent is in effect admitting that the child is a “child in need of services.” Such an admission may prove to be devastating in any later proceedings, such as a proceeding to terminate parental rights. Before a juvenile court conditions regaining custody upon participation in an informal adjustment program, the juvenile court must hear the evidence that the parent has to present, particularly where the parent consents to participate in such a program solely to regain custody. The sole motivation of regaining custody vitiates the voluntariness of the parent’s decision to participate in the program. It is difficult to understand how a juvenile court may force a parent to concede that his or her child is a “child in need of services” without hearing all relevant evidence.
The majority itself recognizes that an adjudication of Nahrwold’s parental rights occurred at the March 12, 1980, hearing without giving Nahrwold the opportunity to present her case. The majority observes:
“If parents acquiesce in the conditions for release of the child stipulated by the court, as Nahrwold did in the present case, their rights are affected before they have an opportunity to be heard.”
Despite the extensive effect of the hearing on Nahrwold’s parental rights, the majority rejects Nahrwold’s contention that she was entitled to protect those rights at the hearing by presenting witnesses and introducing evidence. Rather, the majority chose to afford Nahrwold and similarly situated parents with an alternate remedy that would require them to forgo custody of their children:
“If the parents desire a fact-finding hearing where they are entitled to present additional evidence[,] they may refuse to consent to an informal adjustment program prior to the authorization of a petition.” (brackets added)
Such a remedy hardly presents a valid alternative for a parent who is in danger of being deprived of custody of his or her child. This is particularly true when the juvenile court referee, without permitting the parent to present any evidence relevant to the needs of the child, gives a parent the ultimatum of acquiescing in the program or forgoing custody.
The majority fears that by permitting Nahrwold to present evidence on her behalf, this Court would “unduly formalize” the informal proceedings that were intended by the legislature. Had Nahrwold consented to an informal adjustment program before the juvenile court informed Nahrwold that participation was the only means of regaining custody of her child, then I would be in complete agreement with the majority’s interpretation of the legislative intent. However, the majority’s expressed consternation would have some basis in fact if the informal adjustment program would have been implemented as the legislature had intended. The legislature did not enact IC 31-6 — 4-12 for the purpose of empowering a juvenile court to coerce a parent into participating in an informal adjustment program solely for the purpose of regaining custody. The intend*483ed consensual nature of such a program would be eradicated if such a power was vested in the juvenile court. Thus, it is not the extension of the right to present evidence that would, as the majority puts it, “impede the amicable processes intended by the legislature,” rather, the so-called “amicable processes” are thwarted when the provisions of IC 31-6-4-12 are misused.
A program of informal adjustment must be the product of a consensual agreement between the caseworker and the parent before the program is presented to the juvenile court. If a parent refuses to participate in such a program because that parent believes his or her child is not a “child in need of services,” then the juvenile court must conduct the hearing under IC 31-6-4-6(e) as a probable cause hearing, and the court must refrain from ordering “consensual agreements.” In the present case, the juvenile court, without hearing Nahrwold’s evidence, ordered such a “consensual agreement” under IC 31-6-4-12. I must therefore dissent to the majority opinion.