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In re E.K.

Court of Appeals of Indiana

September 29, 2017

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

         Appeal from the Allen Superior Court The Honorable Charles F. Pratt, Judge The Honorable Sherry A. Hartzler, Magistrate Trial Court Cause No. 02D08-1610-JC-506

          ATTORNEYS FOR APPELLANT Donald J. Frew Gregory L. Fumarolo Fort Wayne, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana James D. Boyer Deputy Attorney General Indianapolis, Indiana.

          BARNES, JUDGE.

         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.


         [¶2] The issue before us is whether there is sufficient evidence to sustain the trial court's CHINS finding.


         [¶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. 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, 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 ...

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