Vaidik, J.
Case Summary
J.O. (“Father”) appeals the trial court’s determination that his daughter is a child in need of services (CHINS). The fact-finding hearing that led to that determination was held virtually via Webex. Father, who was not yet represented by counsel, did not appear virtually but did go to the courthouse. Unfortunately, the bailiff did not notify the judge of Father’s presence until after the hearing had been adjourned, so the hearing happened without him. Father asked the court to hold a new fact-finding hearing, but the court refused. That was error. A parent who requests a contested CHINS fact-finding hearing has a constitutional right to that hearing, and while a parent can forfeit that right by failing to appear, that is not what happened here. We therefore reverse the CHINS determination and remand for a new fact-finding hearing.
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But that is not the end of our inquiry. Father also argues 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.” Appellant’s Br. p. 27. We conclude that no such evidentiary hearing is necessary. The record makes clear that the trial court should have granted Father a new fact-finding 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. 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 (“2451 N. Keystone Avenue”), 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.
Turning to Father’s attempt to attend the hearing in person, we first note that because a CHINS proceeding can interfere with the rights of parents in the upbringing of their children, a parent who requests a contested fact-finding hearing has a due-process right to that hearing, even if the other parent enters an admission. In re K.D., 962 N.E.2d 1249 (Ind. 2012). A parent can forfeit that right by failing to appear, id. at 1257, but that is not what happened here. 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.
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. 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.
For these reasons, the trial court should have granted Father’s request to hold a new fact-finding hearing. We therefore reverse the CHINS adjudication and remand this matter to the trial court for such a hearing.
Reversed and remanded.
Riley, J., and Bailey, J., concur