IN RE: the Termination of the Parent-Child Relationship of J.B.; (2025)

MEMORANDUM DECISION

Case Summary

[1] X.B. (“Father”) appeals the termination of his parental rights to J.B. (“Child”). Father argues that: (1) his due process rights were violated by his removal from the courtroom during the fact-finding hearing; and (2) the evidence is insufficient to support the termination of Father's parental rights. We conclude that Father's due process rights were not violated and that the termination of Father's parental rights is not clearly erroneous. Accordingly, we affirm.

Issues

[2] Father raises two issues, which we restate as:

I.  Whether Father's due process rights were violated by his removal from the courtroom during the fact-finding hearing due to his disruptive behavior.

II. Whether the trial court's termination of Father's parental rights is clearly erroneous.

Facts

[3] Child was born in October 2021 to Father and C.B. (“Mother”). In February 2022, Mother went missing, and she has not been heard from since that time. Law enforcement has been investigating her disappearance.

[4] As part of the investigation, law enforcement searched Father's and Mother's residence in Indiana, including the garage, on February 27, 2022. The following day, law enforcement responded to a report of a shot being fired at Father's residence. Father claimed that, as he was moving items in the garage, a firearm fell and accidentally discharged. Law enforcement, however, stated that they moved those same items during their search and a firearm was not found at that location. DNA found on the firearm likely originated from Father, and a firearms examiner found that the firearm would not discharge if dropped.

[5] On March 1, 2022, the Department of Child Services (“DCS”) removed Child from Father's care when Father was arrested for charges of aggravated stalking in Georgia involving Father's former partner with whom he has two children. Because Mother was missing and Father was incarcerated in Georgia until February 2023, DCS filed a petition alleging that Child is a child in need of services (“CHINS”) on March 2, 2022. Father admitted that Child was a CHINS, and a dispositional decree was entered on May 17, 2022.

[6] During the proceedings, Father was allowed to have video visitations with Child through Child's placement, but Father did not contact placement from December 2023 through June 2024. Father has not seen Child in person since Child was five months old. Father has also refused to meet with the DCS family case manager (“FCM”) and Child's guardian ad litem (“GAL”).

[7] Father was ordered to undergo a psychological evaluation with Dr. Daniel Westmoreland. Dr. Westmoreland found that Father's testing “was invalid due to a very high Lie Scale, resulting in a Fake Good profile.” Ex. Vol. III p. 179. Other testing performed by Dr. Westmoreland indicated that Father had “elevations on Compulsive and Narcissistic scales.” Id. Dr. Westmoreland “deferred diagnosis and recommended a forensic psychological evaluation” and services for fatherhood engagement and therapy. Id. Father refused to participate in therapy but did participate in fatherhood engagement from July 2022 through October 2022, although he did not complete the program.

[8] Father did participate in a forensic psychological evaluation with Dr. Linda McIntire. Father, however, “was not forthright and refused to answer questions on most topics, not just the disappearance of [Mother].” Id. at 180. Dr. McIntire administered MMPI-2 testing and again Father's responses indicated that he “was dishonest in responses[.]” Id. at 187. The testing revealed:

antisocialities, narcissism, difficulty connecting to and bonding to others, low positive emotion, low empathy for others, disregard for the law, the rules of society, and sometimes even being disrespectful to authority figures. It indicates that somebody is likely to focus on and prioritize their own needs over those of others which gets them into difficulties within relationships and with the law.

Tr. Vol. II p. 44. Persons with these personality traits are “not amenable to treatment.” Id. According to Dr. McIntire, Father met the criteria for antisocial personality disorder. Parents with antisocial personality disorder:

have little ability to tune into the emotions and the needs of their children because they're too consumed with meeting their own, so they prioritize themselves over their children. They have low empathy for their children. They can be impulsive. They're more likely to be aggressive. And these traits also expose[ ] him to things like violence and other kinds of things, incarcerations, that are not good for children. [A]cross the board Antisocial Personality Disorder is not compatible with good parenting.

Id. at 47. Dr. McIntire did not endorse Father having increased contact with Child because “reunification with an antisocial parent who is still facing charges and taking no responsibility for his actions is not promising.” Ex. Vol. III p. 192.

[9] In November 2022, Father was charged for the February 2022 firearm incident. In July 2024, a jury found Father guilty of unlawful possession of a firearm by a serious violent felon, a Level 4 felony.¹ During the criminal trial, Father told the FCM that she was “the ugliest person on the planet.”² Tr. Vol. II p. 69. The trial court sentenced Father to twelve years in the Department of Correction. In November 2024, this Court affirmed Father's conviction, and our Supreme Court denied transfer.³

[10] In April 2024, DCS filed a petition to terminate Father's parental rights. Fact-finding hearings were held on July 11, 2024, and October 4, 2024. At the start of the October 4, 2024 hearing, DCS called Dr. McIntire as a witness. The following discussion occurred during her testimony:

Q Did [Father] share with you any history as an adult?

A He did.

Q Okay. And what history was that, if you recall?

A He told me about various charges, not a complete set per the records, but he did tell me about some of his charges and each time he kind of detailed how he was a victim of racism or someone was out to get him and that it was not his fault. He minimized his actions so --

[Father]: I think you're a piece of shit.

[Father's Counsel]: Oh, geez.

THE COURT: Okay. [Father], I'm going to give you an admonishment at this time.

[Father]: I've got 12 years in prison. I don't care. She's a lying piece of shit.

THE COURT: If you are going to participate in this hearing, you may not speak out of turn and you may not make derogatory comments towards witnesses or parties in this case.

[Father]: She's already lying, Your Honor.

THE COURT: If you continue to make those comments, you will be removed from the courtroom.

[Father]: I have no problem being removed.

THE COURT: I want you to stay --

[Father]: I'm ready to go back to jail. I'm already going to prison.

THE COURT: I want you to stay and participate in your termination hearing.

[Father]: I want to stay, too, but I'm not going to listen to -- she just said --

THE COURT: Sir --

[Father]: I told her that I got expelled but that was in 10th grade.

THE COURT: Do you wish to stay for your hearing?

[Father]: I never said that.

THE COURT: Do you wish to stay for your hearing? Are you going to continue to talk out of turn and be removed?

[Father]: I don't care if I stay or go. I'm going to tell you the truth. I've got 12 years in prison, I'm ready to go back and do my time.

THE COURT: Okay. Well, if you talk out of turn again or you make a comment to a witness or a party in this case, or any of the parties present in the courtroom, you will be removed.

[Father]: Sounds good.

Id. at 31-33.

[11] DCS continued its examination of Dr. McIntire, but Father interrupted again:

Q Did that concern you that he was minimizing his criminal charges?

A I think it was a part of an overall picture. When you see a client, yes, I want to know about his legal charges but I really want to know is their approach to the evaluation. Are they being forthright or is there a lack of veracity? So across the board that was part of a pattern of a lack of veracity.

THE COURT: Dr. McIntire, I'm sorry. I'm going to have you stop.

[Father's Counsel]: My client wants to leave the courtroom.

THE COURT: [Father], are you choosing to leave the courtroom at this time?

[Father]: No, I just want to be cuffed.

THE COURT: Okay, I'm just going to note for the record that [Father] is having his cuffs put back on at his request.

(The deputy handcuffed [Father])

Id. at 33-34.

[12] Later in Dr. McIntire's testimony, the following occurred:

Q Okay. What were Father's results on the MMPI-2 scale that he did with you?

A Well, similar to his approach the other two times, it was invalid because of a high Lie Scale. But typically, let me explain --

[Father]: They won't answer your f**king questions.

[Father's Counsel]: Your Honor, I'm going to ask --

THE COURT: Okay, sir, I've warned you. Yes, if you are going to speak derogatory to the --

[Father]: You want me to leave?

THE COURT: Yes. I am going to have you removed at this time for your inability to remain quiet.

([Father] was removed from the courtroom)

THE COURT: I'm sorry, I'm going to interrupt you real quick. Just for the record I am going to note that Father [ ] has been removed from the courtroom at this time due to his derogatory comments towards the witness after being warned and continuing.

Id. at 43.

[13] The FCM and GAL then testified. When DCS completed its case-in-chief, Father's counsel stated, “Judge I was planning on calling my client but he has been removed from the courtroom so I don't have any evidence.” Id. at 81. The trial court granted DCS's petition to terminate Father's parental rights and entered findings of fact and conclusions thereon. Father now appeals.

Discussion and Decision

I. Father's Due Process Rights

[14] Father first argues that his due process rights were violated by his removal from the fact-finding hearing. “ ‘The Due Process Clause of the U.S. Constitution and the Due Course of Law Clause of the Indiana Constitution prohibit state action that deprives a person of life, liberty, or property without a fair proceeding.’ ” In re C.G., 954 N.E.2d 910, 916 (Ind. 2011) (quoting In re Paternity of M.G.S., 756 N.E.2d 990, 1004 (Ind. Ct. App. 2001), trans. denied). “Parental rights constitute an important interest warranting deference and protection[.]” Id. at 916-17. The United States Supreme Court has held that “the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal quotations omitted). “[A] party on appeal may waive a constitutional claim, including a claimed violation of due process rights, by raising it for the first time on appeal.” In re N.G., 51 N.E.3d 1167, 1173 (Ind. 2016).

[15] First, we note that Father did not raise a due process argument below and did not object to his removal from the courtroom. Accordingly, Father has waived his due process argument. See id. Waiver notwithstanding, Father's argument fails. Our Supreme Court has observed that there is “no absolute right to be present” at a termination of parental rights hearing. C.G., 954 N.E.2d at 921; see also In re I.L., 181 N.E.3d 974, 976 (Ind. 2022) (expressly adopting a decision by this Court, which held that “[p]arents do not have a constitutional right to be physically present at a final termination hearing”). Moreover, Father had the opportunity to be heard at a meaningful time and in a meaningful manner. See A.B. v. Ind. Dep't of Child Servs., 61 N.E.3d 1182, 1188 (Ind. Ct. App. 2016).

[16] Father's “ultimate absence from the hearing was the result of his own disruptive actions.” Id. The trial court repeatedly warned Father regarding his disruptive behavior, and Father chose to continue interrupting the proceedings. The trial court did not deny Father his due process rights.⁴ See id. (holding that the parent's due process rights were not violated by his removal from the courtroom).

II. Termination of Father's Parental Rights

[17] Next, Father challenges the termination of his parental rights. The Fourteenth Amendment to the United States Constitution protects the traditional rights of parents to establish a home and raise their children. In re K.T.K. v. Ind. Dep't of Child Servs., 989 N.E.2d 1225, 1230 (Ind. 2013). “[A] parent's interest in the upbringing of [his or her] child is ‘perhaps the oldest of the fundamental liberty interests recognized by th[e] [c]ourt[s].’ ” Id. (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054 (2000)). We recognize that parental rights are not absolute and must be subordinated to the child's best interests when determining the proper disposition of a petition to terminate parental rights. Id.; see also In re Ma.H., 134 N.E.3d 41, 45 (Ind. 2019) (“Parents have a fundamental right to raise their children—but this right is not absolute.”). “When parents are unwilling to meet their parental responsibilities, their parental rights may be terminated.” Ma.H., 134 N.E.3d at 45-46.

[18] Pursuant to Indiana Code Section 31-35-2-8(c), the trial court “shall enter findings of fact that support the entry of the conclusions required by subsections (a) and (b)” when granting a petition to terminate parental rights.⁵ Here, the trial court did enter findings of fact and conclusions thereon in granting DCS's petition to terminate Father's parental rights. We affirm a trial court's termination of parental rights decision unless it is clearly erroneous. Ma.H., 134 N.E.3d at 45. A termination of parental rights decision is clearly erroneous when the trial court's findings of fact do not support its legal conclusions, or when the legal conclusions do not support the ultimate decision. Id. We do not reweigh the evidence or judge witness credibility, and we consider only the evidence and reasonable inferences that support the trial court's judgment. Id.

[19] Before an involuntary termination of parental rights can occur in Indiana, DCS is required to allege and prove, among other things:

(1) the existence of one (1) or more of the circumstances described in subsection (d);

(2) that there is a satisfactory plan for care and treatment of the child; and

(3) that termination of the parent-child relationship is in the child's best interests.

Ind. Code § 31-35-2-4(c).⁶ Subsection (d) requires the existence of one or more circumstances, including the following circumstances relevant here:

(3) That there is a reasonable probability that the conditions that resulted in the child's removal or the reasons for placement outside the home of the parents will not be remedied.

(4) That there is a reasonable probability that the continuation of the parent-child relationship poses a threat to the well-being, safety, physical health, or life of the child.

Ind. Code § 31-35-2-4(d).

[20] DCS “is required to prove that termination is appropriate by a showing of clear and convincing evidence.” In re V.A., 51 N.E.3d 1140, 1144 (Ind. 2016) (citing In re G.Y., 904 N.E.2d 1257, 1260 (Ind. 2009)). If the trial court finds that the allegations in the termination petition are true, it “shall” terminate the parent-child relationship and enter findings supporting its conclusions. Ind. Code § 31-35-2-8.

[21] Father does not challenge the trial court's conclusions regarding the statutory elements. Rather, Father challenges several of the trial court's factual findings. We conclude, however, that the trial court's factual findings are not clearly erroneous.

A. Finding No. 1 – Father's Courtroom Behavior

[22] Father challenges the trial court's factual finding regarding his courtroom behavior and removal from the courtroom. The trial court found:

At the beginning of the hearing, Father's handcuffs were removed at the request of Father's counsel. After an outburst by Father and an admonishment by the Court, Father requested his handcuffs be reapplied. After an admonishment and warnings by the Court, Father was removed approximately twenty-five (25) minutes into the hearing, for his inability to maintain appropriate behavior in the Courtroom.

Appellant's App. Vol. II pp. 29-30. This finding is merely a recitation of the facts resulting in Father's removal from the courtroom. The finding is supported by the evidence and, thus, not clearly erroneous.

B. Finding Nos. 3 and 4 – Opening of the CHINS Action

[23] Finding No. 3 recites that Child is the child of Mother and Father, and Finding No. 4 states that Child was “removed from Father on an emergency basis due to allegations of abuse and/or neglect.” Id. at 30. Father contends that the findings “fail to capture the nature of the opening of the case, which was that Father was incarcerated out of state and Mother's whereabouts were unknown, leaving the Child without adult care.” Appellant's Br. p. 20. Father seems to contend that the circumstances were resolved when he was released from jail in Georgia. Father ignores, however, that he was soon re-incarcerated in Indiana. The trial court's findings are not clearly erroneous.

C. Finding Nos. 6, 10, and 11—Father's Participation in Services

[24] Finding No. 6 listed Father's requirements under the dispositional order. Finding No. 10 states that “Father did not have meaningful participation in services, and he had little meaningful or consistent visitation with the Child, through to the date of the Fact-Finding Hearing on the termination petition.” Appellant's App. Vol. II p. 31. And Finding No. 11 noted the FCM's opinion that termination of Father's parental rights was in Child's best interest “due to Father's lack of effort to reunify with the Child in a meaningful manner ․” Id. Father argues that he participated in individual therapy, the fatherhood engagement program, visitation, and the psychological evaluations. Father contends that he participated in all ordered services and was compliant.

[25] The FCM testified that Father refused to participate in therapy, failed to complete the fatherhood engagement program, did not visit with Child from December 2023 through June 2023, and had only sporadic video visitation with Child. Although Father participated in the psychological evaluations, Dr. McIntire testified that it was difficult to get the required information and releases from Father; Father had a “pattern of a lack of veracity” during the evaluation; and Father's testing indicated that he was “dishonest in responses by denying even typical human foibles and shortcomings.” Tr. Vol. II p. 33; Ex. Vol. III p. 187. Father's argument is merely a request that we reweigh the evidence, which we cannot do. The trial court's findings are not clearly erroneous.

D. Finding Nos. 7 and 8 – Non-Return of Child

[26] Next, Father challenges Finding Nos. 7 and 8. Finding No. 7 states that “Father never progressed to a trial home visit with the Child” and that Father is currently incarcerated. Appellant's App. Vol. II p. 30. Finding No. 8 states that “the Child has never returned to Father's care” and that adoption petitions have been filed. Id. According to Father, the CHINS court improperly refused to allow him to have in person visits with Child when Father was not incarcerated. The trial court's findings, however, are supported by the evidence. Father is merely requesting that we reweigh the evidence, which we cannot do.

E. Finding Nos. 11 and 12 – Child's Best Interest

[27] These findings detail the testimony of the FCM and GAL as follows:

11) The [FCM] testified it is in the best interest of the Child for the Court to grant the Petition and to terminate Father's parent-child relationship. This is due to Father's lack of effort to reunify with the Child in a meaningful manner since March 1, 2022. The granting of the termination of parental rights petition is what's best for the Child's life. In addition, there is a satisfactory plan for permanency for the Child, which is for the Child to be adopted.

12) The [GAL] testified that it is in the Child's best interest to have Father's parent-child relationship terminated so that the Child may be adopted. The Child is thriving since removal from Father's care. The Child is happy and well-bonded to placement and potential adoptive relatives.

Appellant's App. Vol. II p. 31. Both the FCM and GAL testified that termination of Father's parental rights was in Child's best interest.

[28] Child was only five months old when he was removed from Father's care, and Father's contact with Child since then has been minimal. Father's participation in services was inconsistent; Father is currently incarcerated and serving a twelve-year sentence; and Father was diagnosed with an antisocial personality disorder, which according to Dr. McIntire is “not compatible with good parenting.” Tr. Vol. II p. 47. Again, the findings are supported by the evidence, and Father is merely requesting that we reweigh the evidence, which we cannot do. The trial court's findings are not clearly erroneous.

F. Finding No. 13 – Dr. McIntire's Testimony

[29] Father challenges Dr. McIntire's professional judgment, claims that Dr. McIntire was biased, and argues that Dr. McIntire's testimony was not based on Father's interactions with Child. Finding No. 13 details Dr. McIntire's testimony and provides:

Dr. Linda McIntire testified that Father met the criteria for antisocial personality disorder. Dr. McIntire administered several assessments to Father. The results of these assessments indicated Father was dishonest in his responses. Father has presented a pervasive pattern of poor judgment. While Father can attend to some of the Child's basic needs, Father lacks the ability and empathy to care for the Child. As such, termination of Father's parental rights are in the Child's best interests.

Appellant's App. Vol. II p. 31. Dr. McIntire testified regarding Father's interactions with her during the testing, Father's test results, and the implications from those test results on Father's parenting abilities. The finding is supported by the evidence and is not clearly erroneous.

Conclusion

[30] Father's due process rights were not violated when he was removed from the courtroom due to his disruptive behavior. Additionally, the trial court's factual findings granting DCS's petition to terminate Father's parental rights are not clearly erroneous. Accordingly, we affirm.

[31] Affirmed.

FOOTNOTES

1.   Father was a serious violent felon because he was convicted of burglary in 2005.

2.   It is unclear from the record why the FCM was present at the criminal trial.

3.   We take judicial notice of Father's criminal history pursuant to Indiana Evidence Rule 201.

4.   Even in the context of a criminal trial, we have held that a defendant may “lose the right to be present at trial by consent or misconduct.” Partee v. State, 184 N.E.3d 1225, 1234 (Ind. Ct. App. 2022), trans. denied. “ ‘Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.’ ” Id. (quoting Illinois v. Allen, 397 U.S. 337, 343 (1970)). The trial court, however, is not required to “advise the defendant that he may return to the courtroom if he promises to behave.” Id. at 1235. In Partee, we concluded that “the trial court did not commit error, let alone fundamental error, by failing to explicitly advise Partee that he could return to the courtroom if he promised to behave.” Id. at 1236.

5.   Indiana Code Section 31-35-2-8, governing termination of a parent-child relationship involving a delinquent child or CHINS, provides as follows:(a) Except as provided in section 4.5(d) of this chapter, if the court finds that the allegations in a petition described in section 4 of this chapter are true, the court shall terminate the parent-child relationship.(b) If the court does not find that the allegations in the petition are true, the court shall dismiss the petition.

6.   This statute was amended effective March 11, 2024. DCS filed its petition in April 2024, under the new version of the statute.

Tavitas, Judge.

Altice, C.J., and Brown, J., concur.