COA affirms termination despite issues with Zoom hearing

A mother whose parental rights were terminated following a hearing held virtually due to the COVID-19 pandemic has lost her appeal of the termination, with the Indiana Court of Appeals finding the technological issues that arose during the virtual hearing were not tantamount to a due process violation.

Mother S.T. appealed the termination of her parental rights to O.L., I.L., M.P.N. and V.N., who range in age from 3 to 10 years old. The children had previously been found to be children in need of services due to S.T.’s substance abuse.

The Department of Child Services created a case plan, but S.T. only partially complied, attending therapy but getting discharged and regularly missing or failing drug screenings. There was also domestic violence in the home.

The children were removed in April 2019 and were placed in foster care, where they have remained ever since. While she did make some progress in the case plan, S.T. continued to fail or miss drug screens and failed to complete various counseling programs. She also pleaded guilty to misdemeanor operating while intoxicated in an incident involving her teenage son.

DCS moved to terminate S.T.’s parental rights in November 2019, and the final hearing in January 2021 was held remotely due to the ongoing pandemic. The Monroe Circuit Court used Zoom, permitted under the Indiana Supreme Court’s May 13, 2020, emergency order.

But S.T. objected to the remote hearing, arguing she could not fully exercise her constitutional rights over Zoom and that other logistical issues could occur in a remote setting. The trial court overruled her objection, finding that the courtroom would not allow for proper social distancing.

But logistical issues did arise during the proceeding. First, one of S.T.’s counselors answered three questions before the court realized that he was appearing from a car with another person in it. Other witnesses admitted they looked at personal notes during their testimony.

Technological issues also arose, with the state struggling to timely make an objection because the lawyer was muted. Also, the video froze at one point, cutting out part of S.T.’s testimony.

The trial court addressed each issue as it arose, then terminated S.T.’s rights, as well as the rights of the children’s fathers, who are not parties to the appeal.

On appeal, S.T. argued the remote hearing violated her due process rights.

“We disagree and affirm, concluding that the minor errors, which were all quickly addressed by the trial court, do not amount to a due-process violation … ,” COA Judge Nancy Vaidik wrote in In re the Termination of the Parent-Child Relationship of I.L., O.L., V.N., and M.P.N. (Minor Children) and S.T. (Mother) v. Indiana Department of Child Services, 21A-JT-418.

Specifically, the court rejected S.T.’s argument that portions of her testimony were not heard, noting that there was only one instance where she could not be heard. When this happened, Vaidik wrote, the trial court noted the issue and asked S.T. to resume her testimony from the moment when she had been cut off.

Similarly, the trial court admonished witnesses not to use notes during their testimony and instructed other witnesses not to testify until they were alone. When witnesses were in violation, the court quickly addressed and corrected the issue, Vaidik said.

And finally, while the state’s counsel struggled to raise an objection, the trial court saw the issue and enabled the lawyer to speak. There was no argument that S.T.’s counsel had the same issue.

“We do not doubt that conducting a termination hearing by remote technology could — in some situations — violate a parent’s due-process rights,” Vaidik wrote. “… Here, however, Mother was afforded substantially similar procedures as would have been available to her at an in-person hearing.”

S.T. also challenged the sufficiency of the evidence to support the termination, arguing the state did not prove that she would not remedy the conditions that led to the children’s removal, or that termination was in their best interests.

The appellate court initially noted that S.T. waived her argument as to the conditions that led to removal but opted to resolve the case on the merits. It then rejected her argument on that issue.

“While Mother showed ‘periods of growth’ on some issues throughout the case, these were followed by ‘periods of regression,’” Vaidik wrote. “And despite being involved in DCS services since 2017, Mother never completed any of the services recommended to address substance abuse and domestic violence due to her lack of regular participation. All of this supports the trial court’s conclusion that the conditions leading to the children’s removal will not be remedied.”

The court likewise rejected S.T.’s argument as to the children’s best interests, noting they had been in foster care for two years and needed “stability and permanency.”