Tavitas, J.
Case Summary
The Department of Child Services (“DCS”) filed a petition alleging that N.E., the child of C.E. (“Mother”) and S.E. (“Father”) (collectively, “Parents”), was a child in need of services (“CHINS”), and the trial court granted the petition. Parents appealed the trial court’s CHINS adjudication, and the adjudication was reversed on appeal. DCS then filed a second CHINS petition. The trial court again found that N.E. is a CHINS and also found Parents in contempt.
In this consolidated appeal, Mother argues that: (1) the second CHINS petition was barred by res judicata; (2) Mother’s due process rights were violated; (3) the trial court abused its discretion by considering child hearsay; and (4) the evidence does not support a finding that N.E. is a CHINS. Father argues: (1) the second CHINS petition was barred by res judicata; (2) the trial court committed fundamental error by admitting certain evidence; (3) the evidence does not support a finding that N.E. is a CHINS; and (4) the trial court erred by finding Father in contempt. We disagree with Parents’ arguments except for Father’s arguments regarding the contempt finding. Accordingly, we affirm in part and reverse in part.
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Next, Father argues that the trial court erred by finding him in contempt. Mother does not challenge the contempt finding on appeal. Father, however, argues that: (1) the trial court failed to follow the procedures outlined in Indiana Code Section 34-47-3-5 for indirect contempt; (2) Parents were held in contempt without prior notification or the opportunity to be heard; (3) the trial court relied upon information from the testing facility collected by its court reporter; and (4) Parents were not afforded a meaningful way to purge the contempt. DCS, however, argues that the contempt finding involved both direct and indirect contempt; the lack of strict compliance with the indirect contempt statute is excused; Father failed to object to the trial court’s reliance upon the court reporter’s unsworn statement;and Parents were given the opportunity to purge themselves of contempt.
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The trial court here found Father in contempt for two reasons—his failure to appear at the May 10, 2023 review hearing and his failure to submit a hair follicle drug test despite multiple court orders to do so. DCS argues that the failure to attend a hearing amounts to direct contempt. We have held, however that “a litigant’s failure to appear at a hearing (as opposed to an attorney’s failure to appear) constitutes indirect contempt that requires compliance with the procedural protections now found in Section 35-47-3-5, not direct contempt.” In re Paternity of J.T.I., 875 N.E.2d 447, 452 n.5 (Ind. Ct. App. 2007) (emphasis added); see also Rice v. State, 874 N.E.2d 988, 991 (Ind. Ct. App. 2007) (holding that, although an attorney can be found in direct contempt for failure to appear for a scheduled court hearing, a layperson litigant cannot be held in direct contempt for failure to appear); cf. Bellamy v. State, 952 N.E.2d 263 (Ind. Ct. App. 2011) (holding that, although the defendant was a layperson, the trial court’s finding that the defendant was in direct contempt for failure to appear was not an abuse of discretion where the defendant had been expressly warned that any subsequent failure to timely appear would result in a contempt finding), trans. denied. Accordingly, Father’s failure to appear at the review hearing does not constitute direct contempt, and we must determine whether the proper indirect contempt procedures were followed to find Father in contempt for his failure to appear at the review hearing and failure to obtain the hair follicle test.
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The statute, thus, requires the service of a rule to show cause on the defendant. The rule to show cause must specify the allegations against the defendant and set the matter for a hearing where the defendant must demonstrate why he should not be “attached and punished for such contempt.” Ind. Code § 34-47- 3-5(b)(3). If the trial court finds the defendant in contempt, the trial court may then “attach and punish the defendant for the contempt.” I.C. § 34-47-3-6(c).
The trial court here did not follow the procedures set forth in Indiana Code Chapter 34-47-3. The trial court stated at the May 10th hearing that it was setting the contempt matter for hearing. The May 11th order, however, stated: “The Court hereby holds [Parents] in contempt for violating Court Orders dated February 2nd and 27, 2023, instructing them to take hair follicle drug tests and for failing to appear for the hearing scheduled for May 10, 2023 . . . .” Appellants’ Amended Consol. Suppl. App. Vol. II p. 14 (emphasis added). The order then provided that the May 31st hearing was to impose sanctions.
At the rescheduled June 7th hearing, the trial court stated that the hearing was a “rule to show cause” hearing. Tr. Vol. VI p. 105 (emphasis added). Parents were then allowed to testify regarding their failure to appear at the May 10th hearing and their failure to comply with multiple orders to obtain the hair follicle drug testing. Also during the hearing, the trial court stated: “So, court having already found them in contempt they are found in contempt for their failure to appear at the review hearing on May tenth (10th).” Id. at 117 (emphasis added). The trial court’s order then stated: “In the May 11th Order, this Court found the parties in contempt for failing to appear at the May 10th hearing and for violating the Court Orders instructing them to take hair follicle drug screens.” Appellants’ Amended Consol. Suppl. App. Vol. II p. 18 (emphasis added).
Although under Indiana Code Chapter 34-47-3 the trial court should have issued a rule to show cause and set the matter for hearing to determine whether Parents were in contempt, the trial court appears to have found Parents in contempt and then held a rule to show cause hearing to impose sanctions. “Generally, a court’s authority to find a person in contempt rests on whether a trial court has strictly complied with the statutory requirements set forth in the rule to show cause statute.” [Footnote omitted.] Reynolds, 64 N.E.3d at 833. Because the trial court did not issue a rule to show cause prior to finding Parents in contempt, we conclude that the trial court erred by failing to follow the statutory procedures.
Father also argues that the trial court erred by relying upon information obtained from the testing facility by its court reporter. During the rule to show cause hearing, the trial court stated: “[P]rior to this hearing starting I had my court reporter call Right Choice D.A.T. to see if either party had taken a test or appeared and the response was no [Parents] had not appeared to take a test.” Tr. Vol. VI p. 117. In its order from the June 7th hearing, the trial court found: “Just minutes prior to the hearing on June 7, 2023, the Court Reporter contacted Right Choice DAT to see if the parties had appeared for a drug test and they had not.” Appellants’ Amended Consol. Suppl. App. Vol. II p. 118. Father contends that, because the court reporter did not testify, the court reporter was not subject to cross-examination. Father, however, did not object at the hearing to the trial court relying upon the information obtained by the court reporter.
The failure to object to the trial court “normally results in waiver and precludes appellate review.” Des.B., 2 N.E.3d at 834. Waiver notwithstanding, we agree that the trial court abused its discretion by using this procedure. “At all times the trial court must maintain an impartial manner and refrain from acting as an advocate for either party. A violation of due process occurs where a trial judge combines the roles of judge and advocate.” Chappey v. Storey, 204 N.E.3d 932, 939 (Ind. Ct. App. 2023) (internal quotes omitted), trans. denied. The evidence from the court reporter was obtained at the trial court’s request, and the court reporter did not testify under oath and was not subject to cross-examination. Because Parents were not given the opportunity to cross-examine this evidence, which the trial court sua sponte considered, we conclude that the trial court erred by considering this evidence.
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Although Father was given the opportunity to purge himself of contempt, the procedure used by the trial court did not comply with the statutory requirements. Further, the trial court abused its discretion by considering evidence obtained by the court reporter. Accordingly, we conclude that the trial court erred by finding Father in contempt.
Conclusion
We conclude that the Second Petition was not barred by res judicata; Mother’s due process rights were not violated; Parents have failed to establish an abuse of discretion in the admission of evidence at the fact-finding hearing; and the trial court’s grant of the Second Petition was not clearly erroneous. The trial court, however, abused its discretion by finding Father in contempt because the trial court failed to follow the statutory procedures and considered improper evidence. Accordingly, we affirm in part and reverse in part.
Affirmed in part and reversed in part.
Pyle, J., and Foley, J., concur.