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,
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
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.
The issue before us is whether there is sufficient evidence
to sustain the trial court's CHINS finding.
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.
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. 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.
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.
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.
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 ...