COA reverses CHINS finding for lack of evidence

An Allen County child will no longer be considered in need of services after the Indiana Court of Appeals determined Friday the Department of Child Services failed to provide sufficient evidence to support a CHINS finding.

In October 2016, a day care provider who was looking after 3-year-old E.K. contacted the Allen County Office of the Department of Child Services to reporting bruising on E.K.’s buttocks. T.K., E.K.’s father, admitted to Keshona Fomby, a case manager, that he had spanked E.K. when he refused to calm down and go to bed.

According to the father, E.K. was kicking his door, tearing his blinds and throwing himself and his toys around his room, so T.K. began to spank him three times, once on his bare bottom.  T.K. and J.M., E.K.’s mother, agreed to sign a safety plan that prohibited them from using physical discipline and regularly began participating in home-based family counseling. T.K. was also diagnosed with bipolar disorder, ADHD and post-traumatic stress disorder and was prescribed medications, though he was not referred to therapy.

DCS then filed a request for E.K. to be found a CHINS, but at a subsequent hearing on that request, no evidence was presented that the parents had not been cooperative, had violated their safety plan or had placed E.K. in physical or psychological danger. Fomby did mention “suspicions” of domestic violence between the parents, but there was also no evidence to substantiate that claim.

Despite that lack of evidence, the Allen Superior Court found E.K. to be a CHINS. The parents appealed in the case of 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, 02A04-1703-JC-684, and the Indiana Court of Appeals reversed on Friday.

Specifically, Judge Michael Barnes wrote DCS failed to prove “that the coercive intervention of the trial court was needed to protect E.K.” Although DCS was initially called in to investigate the bruising on E.K., there were no similar reports filed either before or after that specific incident that raised concerns about E.K.’s safety, Barnes wrote.

DCS, however, pointed to an incident after the parents signed the safety pledge in which E.K. injured himself while throwing a similar bedtime temper tantrum. Because that incident occurred after the safety pledge, DCS argued court intervention was still necessary. But Barnes disagreed, noting that the parents “are not obligated to absolutely guarantee that a child never is hurt or endangered, or that the child never engages in inappropriate behavior, lest that child be declared a CHINS.”

“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,” Barnes continued. “One lapse in judgment by Father is not enough to warrant a CHINS finding for E.K., where the parents have been fully cooperating in addressing that lapse.”