IN RE: L.C. and S.E.-C. (2024)

MEMORANDUM DECISION

Case Summary

[1] T.C. (“Mother”) appeals the trial court's determination that her children are Children in Need of Services (CHINS). She argues that the trial court committed fundamental error by not letting her appear remotely at the fact-finding hearing. Finding no fundamental error, we affirm.

Facts and Procedural History

[2] Mother and M.E. (“Father”) have two children, S.E.-C. (born in 2008) and L.C. (born in 2012). In 2023, the children lived with Mother in Indianapolis, and Father lived in Arkansas. On December 4, the Indiana Department of Child Services (DCS) filed a petition alleging that the children were CHINS due to Mother's failure to provide them with a suitable home, S.E.-C.’s and Mother's untreated mental-health issues, and Mother's suspected drug use. A remote initial hearing was held that same day, and Mother appeared. Mother declined court-appointed counsel because “[t]his ain't that serious.” Supp. Tr. p. 7.

[3] On December 21, the trial court held a remote pretrial hearing, and Mother did not appear. DCS requested the children's removal because Mother refused to engage in services, and the court authorized their removal.

[4] On January 4, 2024, the trial court held a pretrial hearing that started remotely. Mother was “uncooperative” and wouldn't disclose the location of the children (DCS hadn't been able to remove them yet), so the court continued the matter for an in-person hearing later that day. Appellant's App. Vol. II p. 14. Mother appeared in person but continued to be “uncooperative” and to not disclose the location of the children. Id. The court found Mother in contempt of court and had her taken into custody.

[5] The next day, January 5, Mother was released from custody “after purging her contempt.” Appellant's Br. p. 5. In addition, the trial court vacated the December 21 removal order (DCS had since inspected the house where Mother and the children were staying and found it was suitable) and appointed an attorney for Mother.

[6] A pretrial hearing was held on January 11, and Mother appeared in person with her attorney. Mother declined to waive the requirement that her fact-finding hearing be held within 60 days, see Ind. Code § 31-34-11-1, and the trial court explained that February 2 was the 60th day. The court said the hearing was scheduled for 10 a.m. on February 1 “in person for two hours.” Supp. Tr. p. 22 (emphasis added). When Mother asked if her hearing could be held any sooner, the court said no and that it was keeping the hearing set for February 1 “here at the courthouse.” Id. at 23 (emphasis added). The court asked DCS if it had any witnesses who needed to appear “telephonically,” and DCS said it didn't think so. Id. The court then said:

Ok. We'll do it like this. So everybody's aware, it'll be a hybrid hearing. If anything like that happens, I want you to make sure you're prepared for that. Sometimes there are witnesses, if it's a professional witness, but it doesn't sound like that's gonna be an issue here.

Id. (cleaned up, emphasis added).

[7] The trial court then switched gears to discuss Father, whom DCS hadn't yet located in Arkansas. DCS requested a default hearing for him. When the court proposed a default-hearing date of April 4 for Father, Mother confirmed that this date didn't apply to her. The bailiff asked the court if the April 4 default hearing would be remote since Father lived out of state, and the court said yes and reminded Mother that what it just said did not apply to her. See id. at 29. The court ended the hearing by clarifying that its procedure for handling “default hearings” was to give a remote option. Id.; see also Appellant's App. Vol. II p. 23.

[8] On January 12, DCS removed S.E.-C. from Mother due to S.E.-C.’s mental-health issues. Six days later, it requested a detention hearing. A remote detention hearing was held on January 22. Mother appeared with her attorney and argued that S.E.-C. should be returned to her care since the detention hearing wasn't held within forty-eight hours of her removal. The trial court granted Mother's request and ordered S.E.-C. to be returned to her. After the hearing, the court issued an “Order on Hearing” that the fact-finding hearing was still set for 10 a.m. on February 1 and that the parties were to appear “in-person.” Appellant's App. Vol. II p. 117; see also id. at 21 (CCS entry showing “Order on Hearing” issued to parties).¹

[9] The fact-finding hearing was held as scheduled at 10 a.m. on February 1. Mother did not appear in person, but her attorney did. At 10:26 a.m., the trial court asked DCS if it was ready to proceed without Mother, and DCS responded:

We are ready to go forward today, but my understanding is that [Mother] asked to appear remotely, we objected to that and at this point, she's also not appeared either remotely or in person.

Tr. Vol. II pp. 37-38 (cleaned up, emphasis added). When the court confirmed with DCS that it wanted to proceed, the following exchange occurred between the trial court, DCS, and Mother's attorney:

[DCS]: We were ready to move forward your honor. [I]f [Mother] was to appear remotely, we'd like to request a full continuance to either have her full day because our goal was to have [her] testify first.

THE COURT: Let me be clear, I expect her to appear in person, not remote. The only reason for the remote is for somebody who lives out of state. In this particular situation, we've discussed extensively that she needed to appear in person for the trial. I don't like to preclude anybody's appearance for a trial. This is where we are today. [Mother's attorney], what is your request?

[MOTHER'S ATTORNEY]: Your Honor, I would respectfully request that the court continue the matter. My client is not here. [M]y client was under the impression that she could appear virtually. I did communicate with her and let her know that the court expected her to be in person, however, that conversation just occurred this morning and I don't know if once she received that information, if it gave her adequate time, if she were planning to be present remotely, to arrange for transportation. So that-

THE COURT: Where is she right now?

[MOTHER'S ATTORNEY]: I have no idea where she's at.

THE COURT: Does she know we're proceeding today?

[MOTHER'S ATTORNEY]: Yes, your honor.

THE COURT: With or without her here in person. I will not allow her to appear remotely. She will not have any opportunity to meaningfully consult with her lawyer in that fashion and then that merely puts her as an observer in a trial and we are all here in person so we cannot proceed with the trial as her an active participant remote.

[MOTHER'S ATTORNEY]: Understood, Your Honor, and I have communicated it to her that she needs to appear in person for today's trial. So I guess we're not asking as much that she appear remotely, [but] that the court continue the matter so that she can appear personally.

THE COURT: Is she willing to waive[ ] her sixty days?

[MOTHER'S ATTORNEY]: Uh no.

THE COURT: Then that's denied.

Id. at 38-39 (cleaned up, emphases added). After noting that its calendar was full the next day, which was the 60th day, the court said it was proceeding that day without Mother but with her attorney representing her.

[10] During the fifth witness's testimony, the trial court received a note from court staff that Mother thought the court was “calling her in” to the hearing. Id. at 97. The court reiterated that it wasn't calling Mother in and that she needed to appear in person. The court took a recess so Mother's attorney could call her. The court also noted that Mother was being “disrespectful” to court staff. Id. After the recess, the following exchange occurred:

THE COURT: Okay we are back on the record. I wanted to advise everybody. I did talk to the court staff and found out that she has been repeatedly calling them screaming at them to the point where other staff members in other courts sitting ten feet away could hear exactly what she was saying. So, [Mother's attorney], were you able to make contact with her?

[MOTHER'S ATTORNEY]: Yes I-

THE COURT: Oh, I also forgot she's gonna sue because she says that she believes that I authorized her to appear remotely. I have no idea why she believes that. I, we very explicitly had a conversation about her appearing in person for trial.

[MOTHER'S ATTORNEY]: Yes, your honor. I did explain to her what's happening. I explained to her that I am here representing her. [A]nd I'll do my best and ․ she should just calm down and you know-

THE COURT: Is she gonna continue calling the staff?

[MOTHER'S ATTORNEY]: I don't know, I don't think so․ I seem to have got[ten] her to the point where she has calmed down.

THE COURT: Thank you ․

[MOTHER'S ATTORNEY]: She is just waiting to see what is going to happen.

Id. at 97-98 (cleaned up). The court continued with the hearing. At the conclusion of the hearing, around 1:00 p.m., the court found the children to be CHINS and ordered their immediate removal from Mother. Before DCS could pick up L.C. from school, Mother picked him up and wouldn't disclose his location to DCS or the police. Around 3:45 p.m., DCS filed a motion for Mother to produce L.C. The court granted DCS's motion and ordered Mother to produce L.C. by 6:00 p.m. that day.

[11] Mother didn't comply with the trial court's order, so the next day, February 2, DCS filed a motion for rule to show cause. A hearing was held that day, and Mother appeared in person with her attorney. Mother told the court that she didn't appear in person the day before because she felt “physically unsafe” (she didn't elaborate) and wanted to “go ahead and opt into virtual.” Id. at 163-64. According to Mother, when the court staff told her on the phone that she needed to come in for the hearing, she assumed that a decision had already been made to remove the children from her, so she went to L.C.’s school to pick him up. The court found Mother in contempt and ordered her to spend seven days in jail. DCS located L.C. later that night. Later that month, the court entered a dispositional decree requiring Mother to participate in services and exercise therapeutic parenting time with the children.

[12] Mother now appeals.

Discussion and Decision

[13] Mother raises a single issue on appeal. That is, she contends the trial court violated her due-process right to be heard at a meaningful time and in a meaningful manner by not letting her appear remotely at the fact-finding hearing. Mother acknowledges that she waived this due-process argument by not raising it below and therefore must establish fundamental error on appeal. See Appellant's Br. p. 12. Fundamental-error review “is extremely narrow and available only when the record reveals a clearly blatant violation of basic and elementary principles, where the harm or potential for harm cannot be denied, and which violation is so prejudicial to the rights of the defendant as to make a fair trial impossible.” In re Eq.W., 124 N.E.3d 1201, 1214-15 (Ind. 2019) (quotation omitted).

[14] The basis of Mother's claim that the court should have allowed her to appear remotely is that “there is ambiguity in the record” as to whether she knew she needed to appear in person. Appellant's Br. p. 11. Specifically, Mother points to the January 11 pretrial hearing, where the court called Mother's fact-finding hearing “hybrid” and discussed a “remote” option for Father, who lived out of state. According to Mother's argument on appeal, she “could have heard this and believed that if she was absent and did not appear in person for the fact-finding hearing, she could appear remotely.” Id. While the court did say Father's default hearing was remote, which was its practice for default hearings, it clarified that this hearing did not apply to Mother. The court told Mother that her hearing was “in person” “here at the courthouse.” As for the court's “hybrid” comment, as detailed above, that was a reference to any “professional witnesses,” not Mother. The court's comments were not ambiguous about whether Mother needed to appear in person.

[15] But even assuming they were, the trial court issued an order eleven days after the January 11 pretrial hearing reiterating that the fact-finding hearing was set for 10 a.m. on February 1 “in-person.” This should have clarified any ambiguity. Moreover, on the morning of the fact-finding hearing, Mother's attorney told her that she needed to appear in person. And while Mother's attorney speculated that perhaps Mother didn't have enough time to arrange for transportation, that is not what Mother told the court the next day. Rather, she said she didn't appear in person because she felt “physically unsafe” and wanted to “go ahead and opt into virtual.” Rather than attend the hearing in person, she went to L.C.’s school and picked him up before DCS could. In other words, transportation didn't appear to be a problem for Mother. Because the record shows that Mother knew she was supposed to appear in person at the fact-finding hearing and gave no reason why she couldn't do so, we cannot say the trial court committed fundamental error in not allowing her to appear remotely.

[16] Affirmed.

FOOTNOTES

1.   Four days earlier, on January 18, the trial court issued an order vacating Father's April 4 default hearing and “remotely set[ting] [his] fact find[ing] alongside [Mother's] in person fact finding on February 1, 2024 at 10:00 a.m.” Appellant's App. Vol. II p. 104 (emphasis added). It does not appear this order was served on Mother or her attorney.

Vaidik, Judge.

Altice, C.J., and Crone, J., concur.