 Pursuant to Ind.Appellate Rule 65(D), this
 Memorandum Decision shall not be
 regarded as precedent or cited before any
 court except for the purpose of establishing
 the defense of res judicata, collateral
 estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

KATHLEEN A. YOUNG                               ALICIA C. CRIPE
Kokomo, Indiana                                 Indiana Department of Child Services
                                                Kokomo, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana


                                                                          Apr 01 2013, 9:37 am
                                 IN THE
                       COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION                )
OF THE PARENT-CHILD RELATIONSHIP                )
OF:                                             )
                                                )
W.S. (Minor Child),                             )
                                                )
       AND                                      )
                                                )
B.B. (Father),                                  )
                                                )
       Appellant-Respondent,                    )
                                                )
                 vs.                            )    No. 34A02-1210-JT-867
                                                )
THE INDIANA DEPARTMENT OF                       )
CHILD SERVICES,                                 )
                                                )
       Appellee-Petitioner.                     )
                                                )


                       APPEAL FROM THE HOWARD CIRCUIT COURT
                             The Honorable Lynn Murray, Judge
                               Cause No. 34C01-1204-JT-118
                                          April 1, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge

                                        Case Summary

       B.B. (“Father”) appeals the termination of his parental rights to his son, W.S.

Concluding that there is clear and convincing evidence to support the trial court’s

judgment, we affirm.

                                Facts and Procedural History

       Father is the biological father of W.S., born on July 17, 2011. Because W.S.

tested positive for benzodiazepines at birth and showed symptoms of drug withdrawal,

the local Howard County Office of the Indiana Department of Child Services (“HCDCS”)

was contacted. Mother admitted that she had used drugs and been in an active

methamphetamine laboratory while pregnant with W.S.1 At the time of W.S.’s birth,

Father’s paternity had not yet been established, and Father was incarcerated for drug-

related offenses.

       The HCDCS took W.S. into emergency protective custody and on July 20, 2011,

filed a petition alleging that W.S. was a child in need of services (“CHINS”). Mother

admitted the allegations in the CHINS petition the same day, and the trial court

adjudicated W.S. a CHINS. Father was alleged to be W.S.’s biological father at that

time, and court-ordered DNA testing later confirmed his paternity. However, Father took

no steps to formally establish paternity at that time.

       1
         We set forth only the facts related to Mother necessary to explain this case’s progression;
Mother consented to W.S.’s adoption in February 2013 and does not participate in this appeal.
                                                 2
          A dispositional hearing was held in August 2011.                   Father, who was still

incarcerated, did not appear. The trial court issued a dispositional order directing Mother

to participate in a variety of services provided by DCS. The court also ordered DCS to

offer services to Father upon his release from the DOC. A status hearing was held six

months later. Father again did not appear as he was still incarcerated. Mother’s sporadic

participation in court-ordered services ended in early 2012 when she consented to S.W.’s

adoption by his caregivers, with whom he had lived since birth.

          In April 2012, the HCDCS filed a petition to terminate Father’s parental rights to

W.S. In May 2012, the trial court held an initial hearing on the termination petition.

Father appeared telephonically and denied the allegations.                  The trial court granted

Father’s request for a continuance in June 2012.                   An evidentiary hearing on the

termination petition was scheduled for July 16, 2012.2 Days before the hearing, Father

requested another continuance, but the trial court denied his request. On the day of the

hearing, Father again requested a continuance, explaining that he was seeking a sentence

modification but had not yet learned the outcome of his modification petition. The trial

court also denied this request, but ordered that the record remain open until the end of

August so that Father could submit additional evidence relating to his incarceration

status.

          During the termination hearing, the HCDCS presented evidence establishing that

Father’s long history of criminal behavior and substance abuse, as well as his continued

incarceration, made it unlikely that he would ever be able to provide W.S. with a safe and


          2
              At some point in the weeks before the termination hearing, Father formally established his
paternity.
                                                     3
stable home environment. Specifically, the HCDCS put forth evidence that Father had

misdemeanor and felony convictions for theft, check deception, and receiving stolen

property. Father had also been incarcerated repeatedly for failing to pay support for his

two other children.   And in 2011, Father pled guilty to Class B felony dealing in

methamphetamine and began serving an eight-year executed sentence.

      The HCDCS also put forth evidence that S.W., who had never met Father, was

thriving in his relative foster-care placement. Family Case Manager Susan Weaver

testified that although there had been some “issues in the beginning with withdraw[al]s,”

W.S. had “overcome all the withdraw[al]s from the drugs being in his system at birth.”

Tr. p. 12. W.S. had bonded with his caregivers and was “progressing age[-]appropriately

. . . .” Id. FCM Weaver testified that she did not believe there was a reasonable

probability that the conditions leading to W.S.’s placement outside the home would be

remedied and that continuing any parent-child relationship posed a threat to W.S., citing

Father’s criminal history, drug problems, and continued incarceration. Id. at 12-14. She

recommended termination of Father’s rights as being in W.S.’s best interests, explaining,

“[W.S. is] very bonded to the relatives. He’s made tons of progress. He’s overcome the

withdraw[als] . . . he deserves to have some kind of permanency.” Id. at 13.

      Court Appointed Special Advocate Georgia Peoples testified that W.S. was “in a

very loving, safe, child-protected home with relatives that love him and care for him a

lot.” Id. at 22. CASA Peoples testified that she had concerns about Father’s ability to

care for W.S. because Father was still incarcerated and, upon Father’s eventual release,

he would need to “focus on getting himself to the place where he can take care of


                                            4
himself” before he could take care of a child. Id. at 24. CASA Peoples testified that

W.S. “does not deserve to be in limbo,” and said that she believed termination of Father’s

rights was in W.S.’s best interests. Id.

       Father also testified. He told the court that his earliest release date was June 9,

2014, but said he was seeking a modification of his sentence. Id. at 33. Father testified

that he had been in and out of prison for the past ten years and had struggled with

substance abuse during that time. Father admitted that he had “signed over” his rights to

his other two children, for whom he owed more than $20,000 in child support. Id. at 45-

46. Father also testified that he had established paternity and completed two drug-

treatment programs while incarcerated. Father said he planned to live with his mother

upon his release and that his family would provide him financial support. Id. at 40-41.

       At the conclusion of the evidentiary hearing, the trial court took the matter under

advisement. In mid-August, Father’s petition to modify his sentence was denied. At the

end of the month, the trial court entered its judgment terminating Father’s rights to W.S.

Father filed a motion to correct error, which was denied. He now appeals.

                                 Discussion and Decision

       The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children. In re I.A., 934

N.E.2d 1127, 1132 (Ind. 2010). “A parent’s interest in the care, custody, and control of

his or her children is ‘perhaps the oldest of the fundamental liberty issues.’” Id. (quoting

Troxel v. Granville, 530 U.S. 57, 65 (2000)). “Indeed[,] the parent-child relationship is

‘one of the most valued relationships in our culture.’” Id. (quoting Neal v. DeKalb Cnty.


                                             5
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003)). Nevertheless, parental

rights are “not absolute and must be subordinated to the child’s interests when

determining the proper disposition of a petition to terminate parental rights.” Id. (citing

In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004), trans. denied).

       When reviewing the termination of parental rights, we will not reweigh the

evidence or judge the credibility of the witnesses. Bester v. Lake Cnty. Office of Family

& Children, 839 N.E.2d 143, 147 (Ind. 2005) (citation omitted). Instead, we consider

only the evidence and reasonable inferences that are most favorable to the judgment. Id.

Here, the trial court made specific findings and conclusions in its termination order.

When a trial court enters specific findings of fact and conclusions thereon, we apply a

two-tiered standard of review. First, we determine whether the evidence supports the

findings, and second, we determine whether the findings support the judgment. Id. We

will set aside the court’s judgment terminating a parent-child relationship only if it is

clearly erroneous. Id. Clear error is that which leaves us with a definite and firm

conviction that a mistake has been made. In re A.B., 888 N.E.2d 231, 235 (Ind. Ct. App.

2008) (citation omitted), trans. denied.

       In Indiana, before parental rights may be involuntarily terminated, the State is

required to allege and prove, among other things:

       (B)    that one (1) of the following is true:

              (i)    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.




                                              6
                (ii)      There is a reasonable probability that the continuation of the
                          parent-child relationship poses a threat to the well-being of
                          the child.

                (iii)     The child has, on two (2) separate occasions, been
                          adjudicated a child in need of services;

        (C)     that termination is in the best interests of the child; and

        (D)     that there is a satisfactory plan for the care and treatment of the
                child.

Ind. Code § 31-35-2-4(b)(2).3 In addition, the State has the burden of pleading and

proving each element of Indiana Code section 31-35-2-4(b) by “‘clear and convincing

evidence’” before the trial court can involuntarily terminate parental rights. In re G.Y.,

904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2).

        On appeal, Father challenges only the sufficiency of the evidence supporting the

trial court’s judgment as to subsections (B) and (C) of the termination statute detailed

above. See Ind. Code § 31-35-2-4(b)(2)(B)-(C).

                                       I. Conditions Remedied

        Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) is written in

the disjunctive.        The trial court therefore had to find only that one of the three

requirements of subsection 2(B) had been met before terminating Father’s parental

rights. See In re L.V.N., 799 N.E.2d 63, 69 (Ind. Ct. App. 2003). Nevertheless, the trial

court found sufficient evidence had been presented to satisfy the evidentiary requirements

of subsections 2(B)(i) and 2B(ii). Because we find it to be dispositive in this context, we



        3
            Indiana Code section 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff.
July 1, 2012). The changes to the statute became effective after the filing of the termination petition in
this case and are therefore not applicable here.
                                                    7
shall only consider whether clear and convincing evidence supports the trial court’s

finding as to subsection 2(B)(i) of the termination statute.

       In making such a determination, a trial court must judge a parent’s fitness to care

for his or her child at the time of the termination hearing, taking into consideration

evidence of changed conditions. In re I.A., 903 N.E.2d 146, 154 (Ind. Ct. App. 2009)

(citations omitted). The court must also evaluate the parent’s habitual patterns of conduct

to determine whether there is a substantial probability of future neglect or deprivation of

the child. Id. Similarly, courts may consider evidence of a parent’s prior criminal

history, drug and alcohol abuse, history of neglect, failure to provide support, and lack of

adequate housing and employment. Id. The trial court may also consider the services

offered to the parent and the parent’s response to those services, as evidence of whether

conditions will be remedied. Id. Finally, DCS is not required to provide evidence ruling

out all possibilities of change; rather, it need establish only that there is a reasonable

probability the parent’s behavior will not change. Id.

       Here, in determining that there was a reasonable probability that the reasons for

W.S.’s placement outside Father’s care will not be remedied, the trial court set forth the

evidence regarding Father’s inability to provide W.S. with a safe and stable home

environment. Specifically, Father testified about his history of substance abuse and

criminal behavior, which spanned more than a decade. Father admitted that he had been

incarcerated for failing to provide financial support for his other two children. Father

also admitted that his scheduled release date was two years away. FCM Weaver and

CASA Peoples expressed concern about Father’s ability to care for W.S. and


                                              8
recommended termination, explaining that W.S. was thriving in his current home, was

bonded to his caregivers, and deserved permanency.

        Although Mother was W.S.’s sole caretaker when he was initially taken into

protective custody, the HCDCS was unable to place W.S. with Father due to Father’s

incarceration. At the time of the termination hearing, Father was still unable to provide

D.L. with the necessities of life, including food, clothing, or a safe and stable home, due

to his continuing incarceration. Notwithstanding his inability to care for W.S. at the time

of the termination hearing, Father claims he should have the chance to parent W.S.

because he “did all the programs available at [the DOC] to remedy his problems,” and

had filed a petition to modify his sentence. Appellant’s Br. p. 10.4 While Father’s efforts

are steps in the right direction, they are outweighed by his history of criminal conduct and

substance abuse, which led to his continued incarceration in the ten years before W.S.’s

birth, and in the years after.5 And although Father’s sentence-modification petition was

pending at the time of the termination hearing, a trial court must judge a parent’s fitness

to care for his or her children at the time of the termination hearing. I.A., 903 N.E.2d at

154.

        Based on the foregoing, we conclude that the trial court’s determination that there

is a reasonable probability the conditions resulting in W.S.’s removal and continued


        4
         Father notes that he received “no services from DCS,” but makes no argument on appeal that his
due-process rights were violated. See Appellant’s Br. p. 8, 12.
        5
          In noting his efforts, Father cites the case of Rowlett v. Vanderburgh County Office of Family &
Children, 841 N.E.2d 615, 622 (Ind. Ct. App. 2006). But the father in Rowlett, who was scheduled to be
released from prison six weeks after the termination hearing, had completed “nearly 1,100 hours of
individual and group services, including services in encounters, anger management and impulse control,
parenting skills, domestic violence, self-esteem, self-help, and substance abuse.” Id. Father’s efforts in
this case are not comparable to the father’s in Rowlett.
                                                    9
placement outside Father’s care will not be remedied is supported by clear and

convincing evidence. See Castro v. State Office of Family & Children, 842 N.E.2d 367,

374 (Ind. Ct. App. 2006) (concluding that trial court did not commit clear error in finding

conditions leading to child’s removal from father would not be remedied where father,

who had been incarcerated throughout CHINS and termination proceedings, was not

expected to be released until after termination hearing), trans. denied. At the time of the

termination hearing, Father was unable to care for W.S., and those involved in the case

expressed concern about his ability to do so in the future given his criminal and

substance-abuse history. Therefore, we cannot say that the trial court committed clear

error when it found that there is a reasonable probability that the conditions leading to

W.S.’s removal will not be remedied.

                                       II. Best Interests

       We next consider Father’s assertion that the HCDCS failed to prove that

termination of his parental rights is in W.S.’s best interests. In determining what is in the

best interests of a child, the trial court is required to look beyond the factors identified by

the DCS and look to the totality of the evidence. I.A., 903 N.E.2d at 155 (citing McBride

v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003)).

In so doing, the trial court must subordinate the interests of the parent to those of the

child. Id. A trial court need not wait until a child is irreversibly harmed such that his or

her physical, mental, and social development is permanently impaired before terminating

the parent-child relationship. Id. at 199. In addition, we have previously held that the

recommendations of the case manager and child advocate to terminate parental rights, in


                                              10
addition to evidence that the conditions resulting in removal will not be remedied, is

sufficient to show by clear and convincing evidence that termination is in the child’s best

interests. Id. (citations omitted).

       Further, a parent’s historical inability to provide adequate housing, stability, and

supervision, coupled with a current inability to provide the same will support a finding

that termination of the parent-child relationship is in the child’s best interests. Castro,

842 N.E.2d at 374-75 (citing In re A.L.H., 774 N.E.2d 896, 900 (Ind. Ct. App.

2002), trans. denied.). In other words, “[a]lthough parental rights have a constitutional

dimension, the law allows for their termination when parties are unable or unwilling to

meet their responsibility as parents.” Id. (citing In re S.P.H., 806 N.E.2d 874, 880 (Ind.

Ct. App. 2004)). Because he has been incarcerated since before W.S.’s birth, Father has

an historical inability to provide adequate housing, stability, and supervision for his son.

And Father’s continued incarceration at the time of the termination hearing is evidence of

his current inability to provide the same.

       A number of other factors also weigh in favor of the trial court’s conclusion that

termination of Father’s parental rights is in W.S.’s best interests: (1) W.S. is in need of

and deserving of permanency; (2) W.S. is thriving in his current placement; (3) FCM

Weaver and CASA Peoples recommended termination as in W.S.’s best interests; and (4)

there is no guarantee that Father will be a suitable parent once he is released or that he

would even obtain custody. See Castro, 842 N.E.2d at 374; see also S.P.H., 806 N.E.2d

at 883 (finding “the needs of the children to be too substantial to force them to wait while

determining if [their father] would be able to be a parent for them.”). As to W.S.’s best


                                             11
interests, Father argues again that he “made great strides to improve his life and thereby

his ability to care for his child.” Appellant’s Br. p. 11. But the totality of the evidence

shows that these “great strides” are dwarfed by Father’s criminal and substance-abuse

history, and more importantly, W.S.’s need for stability and permanency. We cannot say

that the trial court erred in determining that termination of the parent-child relationship

was appropriate in this case.

       This Court will reverse a termination of parental rights only upon a showing of

clear error—“that which leaves us with a definite and firm conviction that a mistake has

been made.” A.B., 888 N.E.2d at 235 (quotation omitted). We find no such error here.

       Affirmed.

KIRSCH, J., and PYLE, J., concur.




                                            12
