                                                                          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.



Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017                   Page 1 of 11
                                              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.
      Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 2 of 11
      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.

      Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017                      Page 3 of 11
      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

      Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 4 of 11
       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:
       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 5 of 11
                (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.”

       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017                         Page 6 of 11
       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.

       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017                       Page 7 of 11
[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


       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 8 of 11
       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


       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 9 of 11
       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.

       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 10 of 11
       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.




       Court of Appeals of Indiana |Opinion 02A04-1703-JC-684 | September 29, 2017   Page 11 of 11
