Father who tried to attend online CHINS hearing in person secures COA reversal

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A Marion County father who mistakenly tried to attend a child in need of services hearing in person instead of online shouldn’t have been denied a new factfinding hearing, the Court of Appeals of Indiana has ruled.

Father J.O. and mother K.D. are the parents of child Z.D., who was born in May 2017. In November 2021, when Z.D. and her half-siblings were living with their mother, the Department of Child Services filed a petition alleging the children were CHINS.

DCS claimed that K.D. was abusing drugs and that “[J.O’s] whereabouts are currently unknown.” It also alleged J.O. “cannot keep his child safe while in the care and custody of Mother.”

An initial hearing was held on Nov. 4. K.D. was present, but J.O. had not been served with a summons and was not present, so the hearing was continued until Dec. 2. On that date, the father still had not been served and was not present, so the hearing was continued until Dec. 9.

J.O. was finally served on Dec. 3, but he did not appear on Dec. 9. The Marion Superior Court set another hearing for Dec. 16 and J.O. again failed to appear, so the court set the factfinding hearing for Feb. 24, 2022.

On Dec. 22, a DCS attorney sent J.O. a letter about the upcoming hearing saying they had requested that the father be defaulted if he didn’t show up. The letter gave the address of the courthouse but also stated at the end that the hearing would occur virtually.

Eight days before the hearing, DCS’s attorney sent J.O. the letter again.

The hearing was held as scheduled. K.D. appeared via Webex and admitted that her daughter is a CHINS. Father did not appear via Webex, and the court proceeded without him, ultimately determining K.D. was a CHINS.

After the hearing ended, “the bailiff notified the Court that [Father] had appeared in person.” The court then set another hearing for March 3 “to address [Father’s] portion of this matter.”

At that hearing, J.O. explained that he had received the letter about the hearing but went to the courthouse instead of appearing virtually because he read only the first part of the letter.

The court confirmed its CHINS finding but appointed J.O. an attorney for the dispositional hearing. At that hearing, the court declined to hold an evidentiary hearing, denied J.O.’s request for a contested fact finding hearing, reaffirmed the CHINS adjudication and ordered the father to participate in the “Father’s Engagement” program.

On appeal, J.O. argued that DCS did not present sufficient evidence about him at the factfinding hearing to support the CHINS adjudication and that after the hearing — once the trial court learned he had appeared at the courthouse — it erred by not “conducting an evidentiary hearing on Father’s attendance at the fact-finding hearing to determine if Father was entitled to a contested CHINS fact-finding hearing.”

While the COA found the trial court didn’t err in the CHINS determination given the lack of information it had about the father, the appellate court also concluded the record makes clear the trial court should’ve granted J.O. a new factfinding hearing.

“As an initial matter, we disagree with DCS that Father invited any error by failing to read the pre-hearing letter in its entirety. It is true that the letter said the hearing would ‘occur’ virtually via Webex and provided instructions on how to appear virtually. But nothing in the letter indicated that Father was required to appear virtually or was prohibited from appearing in person,” Judge Nancy Vaidik wrote. “To the contrary, the first paragraph of the letter — the part Father read — said Father would be defaulted if he failed to ‘appear at the next court hearing’ and then gave the physical location of the hearing … without mentioning virtual proceedings. There was no reason to include the physical address of the court if appearing in person wasn’t at least an option.

“… A parent can forfeit that right by failing to appear, but that is not what happened here,” Vaidik continued. “Father testified that he arrived at the courthouse at 10:38 a.m. on February 24 — a few minutes late but while the fact-finding hearing was still in progress — and neither the trial court nor DCS disputed that assertion. The court emphasized that it was not told about Father’s presence until after the hearing ended, but that fact should not be held against Father.

“Nothing in the record suggests that Father was not present at the courthouse while the fact-finding hearing was being held. On this record, Father’s in-person appearance at the courthouse was sufficient to preserve his constitutional right to a contested fact-finding hearing.”

Vaidik further noted that if a “lay person” tries to attend a virtual conference in-person, courts should be careful in concluding it was intentional.

“Courts and lawyers are well aware that many proceedings that used to be held in person are now being held remotely. Not all lay people are,” she wrote. “There may come a time when that changes, but we aren’t there yet. Until then, when a party’s first appearance in a case is made in person when it should have been virtual, the court should be hesitant to treat that appearance as defiant or otherwise improper.”

The case is In the Matter of Z.D., a Child Alleged to be in Need of Services J.O. (Father) v. Indiana Department of Child Services, 22A-JC-875.

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