Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                            FILED
                                                          Dec 27 2012, 8:56 am
court except for the purpose of
establishing the defense of res judicata,                        CLERK
collateral estoppel, or the law of the case.                   of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

MICHAEL B. TROEMEL                             CRAIG JONES
Lafayette, Indiana                             Indiana Department of Child Services
                                               Lafayette, Indiana

                                               ROBERT J. HENKE
                                               DCS Central Administration
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION               )
OF THE PARENT-CHILD RELATIONSHIP OF:           )
  R.D. (Minor Child),                          )
       and                                     )
  M.D. (Father),                               )
                                               )
       Appellant-Respondent,                   )
                                               )
              vs.                              )      No. 79A02-1205-JT-394
                                               )
THE INDIANA DEPARTMENT OF                      )
CHILD SERVICES,                                )
                                               )
       Appellee-Petitioner.                    )


               APPEAL FROM THE TIPPECANOE SUPERIOR COURT III
                        The Honorable Loretta H. Rush, Judge
                     The Honorable Faith A. Graham, Magistrate
                            Cause No. 79D03-1201-JT-23
                                    December 27, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge

       In this termination of parental rights appeal, the evidence demonstrated that Father

has an extensive criminal history relating to substance abuse and has been diagnosed with

depression and borderline personality disorder. Father occasionally used drugs in front of

his now four-year-old daughter, R.D., and attempts at counseling and drug rehabilitation

have been unsuccessful. Father is incarcerated and will not be released from prison for

nearly four years.

       Father was unable to participate in various parenting services and programs

offered by the Department of Child Services (DCS) because of his incarceration. The

caseworker, court appointed special advocate (CASA), and even R.D.’s mother (Mother),

testified that terminating Father’s parental rights in R.D. is in the child’s best interests.

Accordingly, we affirm the trial court’s decision to terminate Father’s parental rights.

                                          FACTS

       R.D. was born to Mother and Father on August 1, 2007. R.D. was born during the

pendency of another Child In Need of Services (CHINS) proceeding that involved L.B., a

different child of Mother. During the pendency of those earlier proceedings, Mother, her

boyfriend, and L.B. all tested positive for cocaine.

       On March 27, 2011, the DCS received a report that Mother and Father had been

arrested for crimes relating to the manufacture, use, and possession of methamphetamine.
                                             2
Father was on probation at the time for forgery involving prescription medication.

Following the arrest, Father tested positive for methamphetamine, morphine, and heroin,

and Mother tested positive for methamphetamine and morphine.            Father was later

sentenced for the probation violation and on the new charges. In short, Father will not be

released from prison for three or four years.

       R.D. and Mother’s other child, L.B., were placed in protective custody following

the filing of a CHINS petition. Assessments were conducted at the jail for both parents.

Although a variety of parenting and counseling services were offered to both parents

through the DCS, they were unable to participate in and complete them because of their

continued incarceration.

       At the termination hearing on April 3, 2012, Father acknowledged that he has a

lengthy criminal history related to his issues with substance abuse. Father started using

marijuana and alcohol in his teens, and drugs became a “real problem” by the time that he

turned nineteen. Tr. p. 26.

       Father was charged as a delinquent for committing burglary that occurred while he

was under the influence of marijuana. His criminal mischief conviction was the result of

behavior that he exhibited while intoxicated. Father admits that he had used “cocaine,

heroin, methamphetamine, and abused prescription medications.” Appellant’s Br. p. 6.

Although Father attended college for several years, he was not able to obtain a degree or

maintain steady employment because of his substance abuse.



                                                3
       The evidence also showed that Mother and Father regularly used drugs together

between 2008 and their arrests just prior to the commencement of the CHINS proceeding.

Mother testified that approximately six months before their arrests, she and Father were

using heroin on a daily basis, often traveling to Chicago with the children to purchase the

drugs. Additionally, Father used drugs in front of the children. Just months before the

CHINS case was filed, Mother and Father started using methamphetamine, sometimes

together with heroin.

       Father participated in some substance abuse treatment programs, but he always

reverted to drug use. Father was ordered to complete substance abuse classes after a

1995 conviction, and again following his entry into drug court in 2006. Father attended

substance abuse and/or individual counseling services from 2007 to 2011. At times,

Father participated in a twelve-step program, and he completed the “Thinking for a

Change” course in 2009. Ex. 9. Although Father claimed that he could not afford

substance abuse counseling and treatment, he acknowledged that his drug habit was more

expensive than treatment and rehabilitation.

       Although Father was aware of several free substance abuse programs, he did not

take advantage of them or reach out to family members for support or assistance. Father

admitted that his treatment had generally been ineffective and that he often entered

treatment with the intent to “sabotage and manipulate and shift everything toward where

it suits [him] not allowing [himself] to be treated.” Tr. p. 100.



                                               4
       The evidence also demonstrated that Father has been diagnosed with anxiety,

depression, borderline personality disorder, and post-traumatic stress disorder. These

illnesses have persisted for nearly fourteen years.

       Father’s assessments were conducted at the jail, and he participated in supervised

telephone contact with R.D. during that time. However, Father was largely unable to

participate in the various parenting services because he was incarcerated from the

initiation of the CHINS case through the evidentiary hearing on the termination petition.

Although there was evidence that Father participated in services during the first CHINS

hearing regarding L.B., he did not change his behavior.

       Mother, who voluntarily relinquished her parental rights in R.D., testified at length

that she believed termination and adoption by R.D.’s relatives were in R.D.’s best

interests because of the drug abuse and the harm that had resulted to R.D. over the years.

The CASA, Jennifer Thilges, also supported termination of the parent-child relationship

between Father and R.D. and agreed with the plan of adoption. Thilges testified that even

if the parents could be released from jail on the day of the evidentiary hearing, they

“would have many months of hard work ahead of them.” Ex. 14. Because of Father’s

drug addiction, Thilges thought that the time it would take for him to recover “would not

be fair” to R.D. Id.

       R.D. has bonded with her grandparents and extended family and is doing well in

their care. Thilges believed that R.D. requires permanency in her life. The DCS family

case manager, Keith Luebcke, testified that termination is in R.D.’s best interest because

                                             5
of Father’s history of criminal behavior, drug use—especially his use of drugs around

R.D.—and his reliance on others to support R.D.’s needs.

        On April 25, 2012, the juvenile court entered findings of fact and conclusions of

law, terminating Father’s parental rights as to R.D. In particular, the juvenile court noted

Father’s various medical diagnoses, his substance abuse and criminal history associated

with that abuse, his inability to maintain employment because of his addictions, and his

many unsuccessful attempts at counseling and treatment. The juvenile court observed

that Father’s investment in substance abuse treatment has been “marginal.” Appellant’s

App. p. 4. The juvenile court concluded that Father has historically placed his own needs

above those of R.D. and that his behavior created substantial threats to R.D.’s well-being.

        The juvenile court specifically observed:

        Although Mother and Father love these children, neither has the current
        ability to meet the children’s needs. It is not safe for the children to be in
        the care of Mother or Father. The long-standing history of substance abuse
        displayed by these parents continues. Services have been previously
        offered and nothing is singularly different in today’s circumstances since
        the time of removal. To continue the parent-child relationships would be
        detrimental to the children. The children need permanency now.

Id. at 5.

        In light of this evidence, the juvenile court determined that there was a reasonable

probability that the conditions that resulted in the removal of the children from the

parents’ care or the reasons for the continued placement outside the home would not be

remedied. The juvenile court also concluded that a continuation of the parent-child



                                              6
relationship poses a threat to R.D.’s well-being and that termination of Father’s parental

rights is in R.D.’s best interest. Father now appeals.1

                                DISCUSSION AND DECISION

                                      I. Standard of Review

       We initially observe that the Fourteenth Amendment to the United States

Constitution protects the traditional right of parents to raise their children. Troxel v.

Granville, 530 U.S. 57, 65 (2000); Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 147 (Ind. 2005).            But parental rights are not absolute and must be

subordinated to the child’s interest in determining the proper disposition of a petition to

terminate parental rights. In re D.D., 804 N.E.2d 258, 264-65 (Ind. Ct. App. 2004). Thus,

“parental rights may be terminated when the parents are unable or unwilling to meet their

parental responsibilities.” Id. at 265. The purpose of terminating parental rights is not to

punish parents but to protect their children. In re S.P.H., 806 N.E.2d 874, 880 (Ind. Ct.

App. 2004).

       When reviewing the termination of parental rights, we neither reweigh the

evidence nor judge the credibility of the witnesses. In re G.Y., 904 N.E.2d 1257, 1260

(Ind. 2009). Instead, we consider only the evidence and reasonable inferences that are

most favorable to the judgment below. Id. Here, the juvenile court made specific

findings of fact and conclusions of law in its order terminating Father’s parental rights.


1
 Mother consented to the termination of her parent-child relationship with R.D. on April 3, 2012. Thus,
she is not a party to this appeal.

                                                  7
Where the juvenile court enters specific findings and conclusions, we apply a two-tiered

standard of review. Bester, 839 N.E.2d at 147. We first determine whether the evidence

supports the findings, and then whether the findings support the judgment. Id. We will

not set aside the juvenile court’s judgment unless it is clearly erroneous. In re A.A.C.,

682 N.E.2d 542, 544 (Ind. Ct. App. 1997). A judgment is clearly erroneous when the

evidence does not support the findings, or the findings do not support the result. In re

S.F., 883 N.E.2d 830, 834 (Ind. Ct. App. 2008).

       The elements that the DCS must allege and prove by clear and convincing

evidence in order to effect the termination of parental rights are set forth in Indiana Code

section 3l–35–2–4(b)(2), which provides

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

              (i) The child has been removed from the parent for at least six (6)
              months under a dispositional decree.

              (ii) A court has entered a finding under IC 31–34–21–5.6 that
              reasonable efforts for family preservation or reunification are not
              required, including a description of the court’s finding, the date of
              the finding, and the manner in which the finding was made.

              (iii) The child has been removed from the parent and has been under
              the supervision of a county office of family and children or
              probation department for at least fifteen (15) months of the most
              recent twenty-two (22) months, beginning with the date the child is
              removed from the home as a result of the child being alleged to be a
              child in need of services or a delinquent child;

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




                                              8
              (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.

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

I.C. § 31–35–2–4(b)(2).

       We note that Indiana Code section 3l–35–2–4(b)(2)(B) is written in the

disjunctive, which requires that only one of the sub-elements, under subsection (B), be

proven true by clear and convincing evidence. In re L.S., 717 N.E.2d 204, 209 (Ind. Ct.

App. 1999).

                                     II. Father’s Claims

                                 A. Conditions Remedied

       Father contends that the termination of parental rights order must be set aside

because the DCS failed to adequately establish that the conditions resulting in R.D.’s

removal would not be remedied. Specifically, Father maintains that because of his

continued incarceration, he was unable to avail himself of the services provided by the

DCS. Because Father asserts that he was capable of benefiting from those services, had

he not been in jail, he claims that the trial court erred in concluding that the conditions

resulting in the removal would not be remedied.




                                              9
       When determining whether the conditions that led to a child’s removal will not be

remedied, the juvenile court must judge a parent’s fitness to care for his or her child at the

time of the termination hearing. In re A.B., 924 N.E.2d 666, 670 (Ind. Ct. App. 2010).

However, the juvenile court’s inquiry must also evaluate a parent’s habitual patterns of

conduct to determine the probability of future neglect or deprivation of the child. Id.

       The juvenile court may properly consider a parent’s history of neglect, failure to

provide support, lack of adequate housing, and lack of employment, among other things.

McBride v. Monroe Cnty. OFC, 798 N.E.2d 185, 199 (Ind. Ct. App. 2003). The juvenile

court may also consider the services that the DCS has offered to a parent and the response

to those services. In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008).

       A parent’s history of incarceration and the effects upon the children is also a

relevant consideration.    In re A.A.C., 682 N.E.2d at 545.         Individuals who pursue

criminal activity run the risk of being denied the opportunity to develop positive and

meaningful relationships with their children. In re A.C.B., 598 N.E.2d 570, 572 (Ind. Ct.

App. 1992). Finally, the DCS is not required to rule out all possibilities of change.

Rather, it need establish “only that there is a reasonable probability that the parent’s

behavior will not change.” In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007).

       In this case, the evidence demonstrated that Father has a lengthy history of

substance abuse that escalated prior to the CHINS case. Tr. p. 34-35. He also has a long

criminal history related to his substance abuse that began when he was a juvenile. There

were several failed attempts at treatment, and Father did not take advantage of substance

                                             10
treatment opportunities when he could do so. Id. at 28, 52, 77, 106. Although Father

participated in services during a prior CHINS proceeding that involved a child that was

not his, he did not change his behavior. Father also continued to commit crimes to feed

his drug habit while on probation, and he received a lengthy criminal sentence for which

he will serve, at the very least, three to four additional years in the DOC, and that time

will be followed by more probation.         Id. at 20-21.   Father has been incarcerated

throughout the CHINS case and was not able to participate in services to work toward

reunification with R.D. Father was still incarcerated at the time of the evidentiary

hearing on the termination petition and was not able to care for R.D. Id.

       As noted by the juvenile court, there is no evidence suggesting that Father’s

situation, which directly caused R.D.’s removal, will ever improve. Father’s habitual

pattern of conduct points to the likelihood that, even when he is released from prison,

Father will return to drug use and criminal activity.

       Although we acknowledge that Father has made a few efforts to participate in

some of the services, the juvenile court nonetheless found that the evidence was clear and

convincing that he did not sufficiently benefit from those services.         It was also

reasonable, based on the evidence, for the juvenile court to conclude that Father cannot

adequately parent R.D.

       In sum, it is apparent that the juvenile court properly considered Father’s pattern

of conduct to determine the likelihood of continued interference with his parenting

ability. From the evidence presented, the juvenile court reasonably concluded that there

                                             11
was a reasonable probability that the conditions that resulted in R.D.’s removal would not

be remedied. In effect, Father’s claims amount to an invitation to reweigh the evidence—

an invitation that we decline.2

                                          B. Best Interests

        Father also argues that the evidence was insufficient to support the juvenile court’s

conclusion that terminating his parental rights was in R.D.’s best interest. Specifically,

Father maintains that the termination order must be set aside because the evidence

demonstrated that R.D. had bonded with him. Therefore, Father claims that breaking that

bond is not in R.D.’s best interest.

        In determining the best interests of a child, the juvenile court is required to look

beyond the factors identified by the DCS and should consider the totality of the evidence.

In re J.S., 906 N.E.2d 226, 236 (Ind. Ct. App. 2009). The juvenile court need not wait

until a child is irreversibly harmed such that his or her physical, mental, and social

development are permanently impaired before terminating the parent-child relationship.

In re A.A.C., 682 N.E.2d at 545. Recommendations of the case manager and the CASA

to terminate parental rights, in addition to evidence that the conditions resulting in

removal will not be remedied, are sufficient to show by clear and convincing evidence

that termination of parental rights is in a child’s best interests. J.S., 906 N.E.2d at 236. A

parent’s historical inability to provide a suitable environment along with the parent’s


2
  As noted above, Indiana Code section 31-35-2-4(b)(2)(B) is written in the disjunctive. Therefore, we
need not address Father’s contention that the DCS failed to show that there was a reasonable probability
that continuation of the parent-child relationship posed a threat to R.D. In re L.S., 717 N.E.2d at 209.
                                                  12
current inability to do the same supports a finding that termination of parental rights is in

the child’s best interest. Lang v. Starke Cnty. OFC, 861 N.E.2d 366, 373 (Ind. Ct. App.

2007).     The juvenile court may properly consider evidence of a parent’s history of

neglect, failure to provide support, and lack of adequate housing and employment.

Matter of D.G., 702 N.E.2d 777, 779 (Ind. Ct. App. 1998).

         As discussed above, the evidence demonstrates that R.D. is bonded with her

grandparents and extended family, and is doing well. Ex. 14. Although the evidence

might also support the determination that Father loves R.D., Father is unable to help,

support, or care for her while he is incarcerated for several more years.

         Thilges, the CASA in this case, the DCS family case manager, and Mother all

testified that they believed termination of parental rights to be in R.D.’s best interests.

Tr. p. 39, 69-71. These recommendations were based on Father’s criminal history, his

substance abuse, including his use of drugs around R.D., his reliance on others to provide

for R.D., and the long period of time that R.D. would have to await Father’s release from

prison. Id. at 69-71.

         In short, we cannot say that the juvenile court’s determination that it was in R.D.’s

best interest that Father’s parental rights be terminated is clearly erroneous. Thus, we

decline to set aside the termination order.

         The judgment of the juvenile court is affirmed.

RILEY, J., and BARNES, J., concur.



                                              13
