In the Matter of E.K. (Minor Child), A Child in Need of Services, and, J.M. (Mother), and T.K. (Father) v. The Indiana Department of Child Services

FILED
Sep 29 2017, 8:47 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald J. Frew Curtis T. Hill, Jr.
Gregory L. Fumarolo Attorney General of Indiana
Fort Wayne, Indiana
James D. Boyer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of E.K. (Minor September 29, 2017
Child), A Child in Need of Court of Appeals Case No.
Services, 02A04-1703-JC-684
Appeal from the Allen Superior
and, Court
The Honorable Charles F. Pratt,
J.M. (Mother), and T.K. Judge
(Father), The Honorable Sherry A. Hartzler,
Magistrate
Appellants-Respondents, Trial Court Cause No.
02D08-1610-JC-506
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
Barnes, Judge.
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Case Summary
[1] T.K. (“Father”) and J.K. (“Mother”) appeal the finding that their child, E.K., is
a child in need of services (“CHINS”). We reverse.
Issue
[2] The issue before us is whether there is sufficient evidence to sustain the trial
court’s CHINS finding.
Facts
[3] In October 2016, E.K. was three years old and still in diapers. On October 14,
2016, a daycare provider noticed bruising on E.K.’s buttocks when changing his
diaper and noticed that he was in discomfort when sitting down. The daycare
facility contacted the Allen County Office of the Department of Child Services
(“DCS”) to report the bruising. Case manager Keshona Fomby began
investigating the matter and photographed E.K.’s buttocks. E.K. had been
attending the daycare for approximately two years, and it had never previously
made any reports concerning E.K. to DCS, nor did it have any records of
anyone noticing similar bruising to E.K. before.
[4] Father admitted to Fomby that he had spanked E.K. on the evening of October
13, 2016. According to Father and Mother, E.K. frequently had temper
tantrums at bedtime and refused to go to sleep. On this evening, Father and
Mother attempted to put E.K. to bed at 9 p.m., but E.K. refused to calm down.
Father and Mother normally left E.K.’s door open at bedtime, but would close
it if he continued getting out of bed, and his door was closed on this evening.
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E.K. was kicking his door, tearing his window blinds, throwing himself on his
bed, and throwing toys around his room. Father attempted to talk to E.K. to
calm him down, progressed to removing toys from E.K.’s room, and then to
removing E.K.’s television. At about 10:45 p.m., Father spanked E.K. once
through his diaper. When E.K. still did not calm down, Father spanked E.K.
again through his diaper. Finally, Father spanked E.K. a third time on his bare
bottom, and E.K. went to sleep shortly thereafter. Each spanking consisted of a
single swat.1 Mother was aware of the spanking but did not witness it. Father
said he had used spanking as discipline for E.K. on about three occasions. On
this occasion, Father believed a spanking posed less threat of harm to E.K. than
his continued tantrum.
[5] On October 17, 2016, Father and Mother met with Fomby and signed a “safety
plan” that prohibited the parents from using physical discipline with E.K. Tr.
Factfinding Hr’g p. 48. E.K. was not removed from his parents’ care.
Afterwards, the parents and E.K. regularly participated in a home-based family
counseling program, which the parents believed was helping them better parent
E.K. and address his tantrums and in which they planned on continuing to
participate. There was one incident in December 2016 when E.K. injured his
ankle kicking his door during another bedtime temper tantrum, but there is no
evidence of either parent again using corporal punishment with E.K. Also,
1
Fomby alleged in her initial report that Father had admitted to swatting E.K. about nine to twelve times.
At the CHINS hearing, Father testified that Fomby had misunderstood what he said to her; the trial court
ultimately found Fomby’s allegation of nine to twelve swats to be unproven.
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Father readily completed a psychological examination, after which he was
diagnosed with bipolar disorder, obsessive compulsive disorder, post-traumatic
stress disorder, and attention deficit hyperactivity disorder. He was prescribed
medication for those conditions, which he takes regularly, but as of the date of
the CHINS hearing he had not been referred to therapy. Father also voluntarily
participated in an online support and therapy group for bipolar disorder.
[6] DCS requested that E.K. be found a CHINS. The trial court held a hearing on
that request on February 7, 2017. No evidence was presented that the parents
had been anything but cooperative with DCS since their first involvement with
E.K., nor that they had ever violated the “safety plan” they signed. During her
testimony, Fomby mentioned “suspicion[s]” of domestic violence between
Father and Mother based on interviews with other family members, but DCS
introduced no evidence substantiating such suspicions. Id. at 49. There was no
evidence that E.K. suffers from any psychological or physical problems, and no
evidence that the parents’ home was inadequate.
[7] On February 7, 2017, the trial court entered its order finding E.K. to be a
CHINS, accompanied by findings of fact and conclusions thereon. A
dispositional order was entered on March 10, 2017. Father and Mother now
appeal.
Analysis
[8] Father and Mother contend there is insufficient evidence to sustain the trial
court’s CHINS finding. When reviewing the sufficiency of the evidence for a
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trial court’s CHINS determination, “‘[w]e neither reweigh the evidence nor
judge the credibility of the witnesses.’” In re S.D., 2 N.E.3d 1283, 1286 (Ind.
2014) (quoting In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012)). We must
instead consider only that evidence supporting the trial court’s decision and any
reasonable inferences drawn therefrom. Id. at 1287.
[9] The trial court here entered sua sponte findings and conclusions supporting its
CHINS finding, although such findings and conclusions are not statutorily
required. See id. “As to the issues covered by the findings, we apply the two-
tiered standard of whether the evidence supports the findings, and whether the
findings support the judgment.” Id. We review any remaining issues not
covered by the findings under the general judgment standard, meaning we will
affirm a judgment if it can be sustained on any legal theory supported by the
evidence. Id. Also, as a general rule appellate courts grant latitude and
deference to trial courts in family law matters. Steele-Giri v. Steele, 51 N.E.3d
119, 124 (Ind. 2016). This deference recognizes a trial court’s unique ability to
see the witnesses, observe their demeanor, and scrutinize their testimony, as
opposed to this court’s only being able to review a cold transcript of the record.
Id.[10] There are several statutory circumstances under which a child may be a
CHINS. The trial court found E.K. was a CHINS under the following
provision:
A child is a child in need of services if before the child becomes
eighteen (18) years of age:
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(1) the child’s physical or mental condition is seriously impaired
or seriously endangered as a result of the inability, refusal, or
neglect of the child’s parent, guardian, or custodian to supply the
child with necessary food, clothing, shelter, medical care,
education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
Ind. Code § 31-34-1-1.2 DCS bears the burden of proving by a preponderance of
the evidence that a child is a CHINS. Matter of D.P., 72 N.E.3d 976, 980 (Ind.
Ct. App. 2017).
[11] A CHINS determination is based on the best interests of the child, not the
“‘guilt or innocence’” of either parent. Id. (quoting In re N.E., 919 N.E.2d 102,
106 (Ind. 2010)). “The purposes of a CHINS case are to help families in crisis
and to protect children, not punish parents.” Id. However, the government is
permitted to forcibly intervene in a family’s life only if the family cannot meet a
child’s needs without coercion—not merely if the family has difficulty meeting
the child’s needs. Id. (quoting In re S.D., 2 N.E.3d at 1286). In order for a child
2
DCS also alleged, but the trial court did not find, that E.K. was a CHINS under Indiana Code Section 31-
34-1-2. This statute provides that a child is a CHINS if his or her “physical or mental health is seriously
endangered due to injury by the act or omission of the child’s parent” and the child “needs care, treatment, or
rehabilitation that . . . is unlikely to be provided or accepted without the coercive intervention of the court.”
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to be a CHINS, DCS must prove not only that one or the other of the parents
suffers from shortcomings, but also that the parents are unlikely to meet a
child’s needs absent coercive court intervention.3 Id. Although a court need not
wait until a tragedy occurs before entering a CHINS finding, evidence that a
child is endangered is not enough by itself to warrant a CHINS finding. Id.
[12] Father and Mother first challenge the trial court’s finding that E.K. was in any
way endangered. That finding was based largely upon Father’s spanking of
E.K. with sufficient force to leave bruises on his buttocks. The parents direct us
to Indiana Code Section 31-34-1-15(1), which states that the CHINS statutes do
not “[l]imit the right of a parent, guardian, or custodian of a child to use
reasonable corporal punishment when disciplining the child.” They assert that
Father’s spanking of E.K. did not exceed reasonable bounds. Furthermore, “a
parent involved in a CHINS proceeding is not inherently required to repudiate
corporal punishment.” Lang v. Starke County Office of Family & Children, 861
N.E.2d 366, 371 (Ind. Ct. App. 2007), trans. denied.
3
DCS argues, “Once the juvenile court determines that a child has a CHINS condition, the court may infer
that such condition would continue in the absence of court intervention. In re M.R., 452 N.E.2d 1085, 1089
(Ind. Ct. App. 1996) . . . .” Appellee’s Br. p. 19. The correct year of the M.R. opinion is 1983. More
importantly, in two opinions issued earlier this year, this court unequivocally held that M.R. is no longer
valid authority for the proposition that a court may “infer” coercive court intervention is necessary if a
CHINS “condition” exists, as it directly conflicts with subsequent cases from the Indiana Supreme Court.
Matter of N.C., 72 N.E.3d 519, 525-26 (Ind. Ct. App. 2017); Matter of D.P., 72 N.E.3d at 985. We must insist
that DCS stop citing M.R. as valid authority. “[T]he question of whether coercive intervention is necessary is
a separate and distinct element of a CHINS action that DCS must prove.” Matter of D.P., 72 N.E.3d at 985.
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[13] We need not definitively resolve whether Father’s spanking of E.K. exceeded
reasonable limits. Even if it did, and even if E.K. was endangered thereby,
DCS failed to prove that the coercive intervention of the trial court was needed
to protect E.K. When determining whether a child is a CHINS, particularly in
weighing the “coercive intervention” element, courts “‘should consider the
family’s condition not just when the case was filed, but also when it is heard.’
Doing so avoids punishing parents for past mistakes when they have already
corrected them.” In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 580-81
(Ind. 2017) (quoting In re S.D., 2 N.E.3d at 1290). Parents who make positive
changes in their lives should be applauded, rather than being subjected to the
coercion of a CHINS finding. See In re R.S., 987 N.E.2d 155, 159 (Ind. Ct.
App. 2013). A CHINS finding cannot be entered if the “coercive intervention”
element is unproven, particularly in light of the potential negative collateral
consequences of such a finding, including relaxing the State’s burden for
eventually terminating parental rights. In re S.D., 2 N.E.3d at 1290.
[14] Here, DCS’s initial intervention was based upon one incident in which Father
spanked E.K. too hard in an effort to cease an ongoing temper tantrum. There
is no evidence Father previously had ever excessively disciplined E.K. In the
two years prior to that occasion, no one at the daycare where E.K. went had
ever noticed any inappropriate marks or bruises. After the incident, Father and
Mother fully cooperated with DCS. They signed a “safety plan,” which
included a prohibition on corporal punishment, which they never violated.
They voluntarily engaged with a home-based counseling program, which they
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believed was helping them better address E.K.’s temper tantrums. They
planned on continuing with that program. Father underwent a psychological
examination and was complying with treatment recommendations thereafter,
and voluntary participated in an online support group for persons with bipolar
disorder. There is no evidence E.K.’s basic needs, such as food, shelter, and
medical care, had ever been neglected or endangered. DCS never felt it was
necessary to remove E.K. from his parents’ care.
[15] DCS argues that despite this evidence, coercive court intervention still is needed
in this family’s life because of the December 2016 incident in which E.K.
injured himself during another bedtime temper tantrum. However, parents
under investigation by DCS are not obligated to absolutely guarantee that a
child never is hurt or endangered, or that the child never engages in
inappropriate behavior, lest the child be declared a CHINS. Rather, the
question is whether the parents must be coerced into providing or accepting
necessary treatment for their child. See In re S.D., 2 N.E.3d at 1289-90
(reversing CHINS determination where child had special medical needs and
mother had not completed necessary training to address those needs, but there
was a lack of evidence that mother would need to be coerced into completing
the training); In re V.H., 967 N.E.2d 1066, 1072-73 (Ind. Ct. App. 2012)
(reversing CHINS determination where child had ongoing, severe behavioral
problems but mother was obtaining treatment for child to address those
problems). Father and Mother were doing their best to learn methods to
address E.K.’s temper tantrums without resorting to corporal punishment; the
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fact that on one occasion E.K. managed to hurt himself during such a tantrum
may establish that he still is endangered, but not that the parents have to be
coerced to address that endangerment.
[16] DCS also contends that Father’s psychological problems warranted the CHINS
finding. However, the record shows that Father was doing all that was
recommended, and beyond, to address those problems. There is no evidence
that those problems as currently being addressed by Father pose a risk to E.K.
Also, to the extent Father may need more treatment to address his diagnoses,
there is no indication that he would need to be coerced into such treatment,
given his conduct since DCS’s intervention. We cannot say that Father’s
mental health supports a CHINS finding. See In re S.A., 15 N.E.3d 602, 612
(Ind. Ct. App. 2015) (holding father’s PTSD diagnosis did not support CHINS
finding where father had been voluntarily addressing it and there was no
evidence father would need to be coerced into obtaining additional treatment if
necessary), aff’d on r’hg, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied.
[17] Even if this family needed help to address E.K.’s behavior and Father’s mental
health, the parents were readily accepting that help and there is no evidence
that they needed to be coerced by a court into accepting such help. One lapse
in judgment by Father is not enough to warrant a CHINS finding for E.K.,
where the parents have been fully cooperative in addressing that lapse. Also,
we note the possibility of an informal adjustment program, which would be an
agreement between DCS and the family allowing the family to participate in
DCS services without E.K. being formally declared a CHINS. See K.B. v.
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Indiana Dep’t of Child Servs., 24 N.E.3d 997, 1005 (Ind. Ct. App. 2015) (citing
I.C. ch. 31-34-8). It is unclear from the record whether the parties here
discussed the possibility of such a program.
Conclusion
[18] There is insufficient evidence that the coercive intervention of a court is
necessary to protect E.K. As such, we must reverse the finding that E.K. is a
CHINS.
[19] Reversed.
May, J., and Bradford, J., concur.
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