FOR PUBLICATION

ATTORNEY FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

M. JOSH PETRUNIW                           DAVID E. COREY
Tiede Metz & Downs, P.C.                   DCS Central Administration
Wabash, Indiana
                                           ROBERT J. HENKE
                                           DCS Central Administration
                                           Indianapolis, Indiana


                         IN THE
                                                                        FILED
                                                                   Jun 06 2012, 9:27 am

               COURT OF APPEALS OF INDIANA
                                                                           CLERK
                                                                         of the supreme court,
                                                                         court of appeals and
                                                                                tax court



IN THE MATTER OF THE TERMINATION )
OF THE PARENT-CHILD RELATIONSHIP )
OF:                                        )
                                           )
D.W., K.K., Ke.K., & L.W. (Minor Children) )
                                           )
       And                                 )
                                           )
J.K. (Father),                             )
                                           )
       Appellant-Respondent,               )
                                           )
               vs.                         )     No. 85A05-1109-JT-591
                                           )
THE INDIANA DEPARTMENT OF                  )
CHILD SERVICES,                            )
                                           )
       Appellee-Petitioner.                )


               APPEAL FROM THE WABASH CIRCUIT COURT
                 The Honorable Robert R. McCallen, III, Judge
                Cause No. 85C01-1103-JT-1; 85C01-1103-JT-2;
                    85C01-1103-JT-3 & 85C01-1103-JT-4
                                             June 6, 2012

                               OPINION – FOR PUBLICATION

RILEY, Judge


                                   STATEMENT OF THE CASE

        Appellant-Respondent, J.K. (Father), appeals the trial court’s termination of his

parental rights to his minor children, D.W., K.K., Ke.K., and L.W.1

        We affirm.

                                                  ISSUE

        Father raises one issue on appeal, which we restate as the following: Whether the

trial court properly terminated his parental rights to his four children.

                            FACTS AND PROCEDURAL HISTORY

        Father and H.W. (Mother) are the parents of four children, D.W., born June 6,

2004; K.K., born August 29, 2005; Ke.K., born July 17, 2008; and L.W., born May 28,

2010. On August 20, 2009, the Wabash County Department of Child Services (DCS)

received a report that Mother had been sleeping in a car with her three eldest children,

had been leaving her children with various people to care for them, did not have a home

or a job, and had a substance abuse problem. The report also stated that Mother’s oldest

child, D.W., was of school age and was not enrolled in school. At the time, Father was

1
 Although the trial court also terminated Mother’s parental rights to the four minor children, she is not a
party to this appeal.

                                                     2
incarcerated. He had been incarcerated since April 1, 2009, and his earliest possible

release date was September 2009.

      On August 21, 2009, after investigating the report, DCS filed a petition alleging

that the children were children in need of services (CHINS). On October 30, 2009, after

the parents admitted to the allegations in the CHINS petition, the trial court found the

children to be CHINS and placed them into foster care. Subsequently, on December 4,

2009, the trial court held a dispositional hearing whereby it maintained the children’s

placement in foster care and ordered the parents to complete services and programs.

Specifically, the trial court ordered Father to: (1) participate in a parenting and family

functioning assessment and follow all recommendations; (2) submit to random drug and

alcohol screens as requested with negative results for all substances; (3) participate in

home-based services; and (4) receive individual counseling, among other requirements.

      On May 28, 2010, during the course of the CHINS proceedings for the eldest three

children, Mother gave birth to L.W. Mother’s drug screen at the hospital was positive for

opiates, and L.W. exhibited signs of withdrawal. As a result, L.W. was transferred to the

Neonatal Intensive Care Unit at Lutheran’s Children’s Hospital. On June 1, 2010, DCS

filed a petition alleging that L.W. was a CHINS and placed him in foster care upon his

release from the hospital. On July 22, 2010, the trial court conducted a hearing on the

CHINS petition and found L.W. to be a CHINS after Mother and Father admitted to the

allegations. In its dispositional order, the trial court ordered Father to participate in



                                            3
substantially the same services and programs in which it had ordered him to participate

with respect to the CHINS proceedings relating to the elder three children.

       Upon his release from incarceration, Father began participating in the programs

and services as ordered by the trial court. He completed a substance abuse assessment at

the Wabash Bowen Center (Bowen Center), a community mental health center. Based on

the results of the assessment, Father was recommended to participate in intensive

outpatient group sessions twice a week. Father never completed the program because he

did not show up for any of the sessions.

       Under the terms of the dispositional order, Father was required to submit to

random drug screens. To fulfill this requirement, Father was instructed to call DCS daily

to find out whether he needed to take a drug screen that day. If so, he was required to

timely submit the screen. In the course of two years of CHINS proceedings, Father only

complied with calling in, submitting to drug screens, and testing negative for drugs

during three months:      December 2009, July, 2010, and March 2010.              During the

remaining months, Father either did not call in or tested positive for drugs, including

heroin, marijuana, alcohol, and opiates. At the termination hearing, Father admitted to

using illegal drugs sporadically throughout the CHINS proceedings up to the first day of

the trial court’s hearing to terminate his parental rights. Father also testified that his drug

use caused him to be frequently tardy for work, which led to his dismissal and subsequent

unemployment. DCS offered Father therapy for substance abuse, but Father did not

participate in the offered therapy.

                                              4
       During the CHINS proceedings, Allison Esch (Esch), a rehabilitation service

provider at the Bowen Center, provided Father with home-based services and supervised

visits with the children. Father never completed the home-based services due to missed

appointments. According to Esch, Father did not show a lot of motivation to follow

through with the discussions in the appointments he did attend or to schedule further

appointments. Similarly, Father’s attendance for court-ordered counseling at the Bowen

Center was sporadic. Sometimes he would “hit four sessions in a row and then there

[were] a couple of times where he hit two and then he missed several.” (Transcript p.

87).

       In addition, there was a period of time where Father “disappeared” and did not

have any contact or participation in visitation or any other court-ordered services. In

January of 2011, the parents were evicted from their apartment due to their inability to

pay the rent. They were required to contact family case manager, Sara Cole (FCM Cole),

regarding any updates in their address or contact information, but they did not do so.

Instead, FCM Cole did not hear from the parents from January 6, 2011, until the end of

March, when she was able to locate them through relatives. During this period, Father

did not visit the children or participate in any court-ordered services. When FCM Cole

finally talked to Father, he explained that he had felt like the termination had already

occurred and that he had been in “a very dark place” during those three months; he had

been depressed, living in different places, and using drugs. (Tr. p. 54).



                                             5
       On March 21, 2011, DCS filed petitions requesting the termination of the parents’

parental rights towards all four minor children. On August 4 and September 13, 2011,

the trial court held an evidentiary hearing. On September 13, Father testified that he was

sober, although he admitted that he had still been using drugs around August 4—the first

day of the hearing. Father also testified that he had separated from Mother, was living

with his father, and was unemployed. At the conclusion of the hearing, the trial court

terminated Mother and Father’s parental rights to the children.

       Father now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       Father argues that the trial court erred in terminating his parental rights because

the trial court concluded that the conditions that resulted in the children’s removal from

his custody would not be remedied. In support of his argument, Father claims that he did

not cause the conditions that resulted in the children’s removal—the three older children

were removed from Mother’s custody while Father was incarcerated, and L.W. was

removed as a result of Mother’s use of narcotics during the pregnancy. Thus, according

to Father, he cannot be held responsible for a failure to remedy those conditions.

       We recognize that the Fourteenth Amendment to the United States Constitution

protects the traditional right of parents to establish a home and raise their children. In re

J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). A parent’s interest in the care,

custody, and control of his or her children is arguably one of the oldest of our

fundamental liberty interests. Id. However, the trial court must subordinate the interests

                                             6
of the parents to those of the children when evaluating the circumstances surrounding a

termination of a parent-child relationship. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct. App.

2009), trans. denied. Parental rights may therefore be terminated when the parents are

unable or unwilling to meet their parental responsibilities. Id.

       In reviewing termination proceedings on appeal, this court must not reweigh the

evidence nor assess the credibility of the witnesses. Id. We consider only the evidence

that supports the trial court’s decision and the reasonable inferences drawn therefrom. Id.

Where, as here, the trial court has entered findings of fact and conclusions of law, we

apply a two-tiered standard of review. Id. First, we determine whether the evidence

supports the findings, and second, whether the findings support the conclusions of law.

Id. In deference to the trial court’s position to assess the evidence, we set aside the trial

court’s findings and judgment terminating the parent-child relationship only if they are

clearly erroneous. Id.

       In order to terminate Father’s parental rights, DCS was required to prove by clear

and convincing evidence:

              (B) that one of the following [was] true:
                     (i) There [was] a reasonable probability that the conditions
                     that resulted in the child[ren]’s removal or the reasons for
                     placement outside the home of the parents [would] not be
                     remedied.
                     (ii) There [was] a reasonable probability that the continuation
                     of the parent-child relationship [posed] a threat to the well-
                     being of the child[ren].
                     (iii) The child[ren] [had], on two (2) separate occasions, been
                     adjudicated [] in need of services[.]
              (C) that termination [was] in the best interests of the child[ren].

                                             7
Ind. Code § 31-35-2-4(b)(2)(B), -(C). 2 Clear and convincing evidence as a standard of

proof requires the existence of a fact to “be highly probable.” Hardy v. Hardy, 910

N.E.2d 851, 859 (Ind. Ct. App. 2009). It need not reveal that “the continued custody of

the parent[] is wholly inadequate for the children’s very survival.” Bester, 839 N.E.2d at

148 (quoting Egly v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1233 (Ind.

1992)).    Rather, it is sufficient to show that the children’s emotional and physical

development are threatened by the parent’s custody. Id.

        In essence, Father argues that the requirements of I.C. § 31-35-2-4(b)(2)(B)(i)

(emphasis added) are disjunctive; a trial court may find that either “[t]here [was] a

reasonable probability that the conditions that resulted in the child’s removal or the

reasons for placement outside the home of the parents [would] not be remedied,” and a

finding of one is independent of a finding of the other. Because the trial court here found

that the conditions that resulted in the children’s removal would not be remedied but did

not find that the reasons for placement outside the home of the parents would not be

remedied, Father asserts that the trial court erred in terminating his parental rights

because he is not at fault for the children’s removal from the home.

        First, we note that although it was Mother’s actions that caused DCS to file

petitions to adjudicate the children as CHINS, DCS also cited Father as a reason for the

children’s removal. In the CHINS petition regarding the elder three children, DCS listed

2
 I.C. § 31-15-2-4 was amended by 2012 Ind. Legis. Serv. P.L. 48-2012 (S.E.A. 286) (WEST), but the
amendments are not relevant here and do not apply as the termination of Father’s parental rights occurred
prior to the amendments.

                                                    8
Father’s incarceration in support of a CHINS finding. In the CHINS petition for L.W.,

DCS noted that Father had tested positive for heroin on May 18, 2010 and May 19, 2010.

In both CHINS hearings, Father admitted to the allegations, and his admissions were

proper bases for the CHINS adjudications.

       However, we do agree with the Father that the trial court did not provide sufficient

findings that the cause for the removal of the older three children—Father’s

incarceration—would not be remedied, as Father was released from incarceration shortly

after the start of the CHINS proceedings and has remained free from incarceration since.

Accordingly, we will address Father’s argument that I.C. § 31-35-2-4(b)(2)(B)(i) can be

read in the disjunctive and that the trial court therefore did not conclude that the

conditions that led to the children’s continued removal from Father’s home would not be

remedied.    Because this is an issue of first impression, we will rely on statutory

interpretation of I.C. § 31-35-2-4.

       The interpretation of a statute is a question of law reserved for the courts. In re

J.Q., 836 N.E.2d 961, 964 (Ind. Ct. App. 2005), reh’g denied.                If a statute is

unambiguous, i.e., susceptible to only one meaning, we must give the statute its clear and

plain meaning. In re S.B., 896 N.E.2d 1243, 1247 (Ind. Ct. App. 2008). However, if a

statute is susceptible to multiple interpretations, we must try to ascertain the legislature’s

intent and interpret the statute so as to accomplish that intent. Stewart v. Randolph Cnty.

Office of Family and Children, 804 N.E.2d 1207, 1211 (Ind. Ct. App. 2004), trans.

denied. In ascertaining the legislature’s intent, we consider the phraseology, nature, and

                                              9
design of the statute, and the consequences that flow from the reasonable alternative

interpretations of the statute. In re K.B., 793 N.E.2d 1191, 1197 (Ind. Ct. App. 2003).

We presume that our legislature intended the statutory language to be applied in a logical

manner consistent with the underlying goals and policy of the statute. In re S.B., 896

N.E.2d at 1247.

       Pursuant to I.C. § 31-35-2-4(b)(2)(B),

       DCS was required to prove by clear and convincing evidence:

              (B) that one of the following [was] true:
                     (i) There [was] a reasonable probability that the conditions
                     that resulted in the child[ren]’s removal or the reasons for
                     placement outside the home of the parents [would] not be
                     remedied.
                     (ii) There [was] a reasonable probability that the continuation
                     of the parent-child relationship [posed] a threat to the well-
                     being of the child[ren].
                     (iii) The child[ren] [had], on two (2) separate occasions, been
                     adjudicated [] in need of services[.]

Due to the “or” in § 31-35-2-4(b)(2)(B)(i), Father argues that § 31-35-2-4(b)(2)(B)(i) can

be read as two independent statutory elements. In other words, the trial court may find

that either there was a reasonable probability that the conditions that resulted in the

children’s removal would not be remedied or the reasons for placement outside the home

of the parents would not be remedied, and a finding of one will preclude a finding of the

other absent an independent trial court conclusion. However, our interpretation of the

legislature’s intent in drafting § 31-35-2-4(b)(2)(B) is that a finding that one part of

subsection (i) has been fulfilled is equivalent to a finding that subsection (i) as a whole

has been fulfilled.
                                            10
       In support of this interpretation, § 31-35-2-4(b)(2)(B) states that DCS must show

that one of the following is true: subsection (i), subsection (ii), or subsection (iii).

Although subsection (i) has two parts, the legislature does not refer to the two parts

individually as being sufficient to fulfill § 31-35-2-4(b)(2)(B). The legislature refers to

subsection (i) as a complete entity.      If the legislature had intended the contents of

subsection (i) to constitute two independent elements, it would have separated § 31-35-2-

4(b)(2)(B) into four separate subsections rather than three. Thus, we conclude that a

finding as to one part of subsection (i) is a finding as to subsection (i) as a whole.

       When we apply this interpretation to the facts of the instant case, we cannot agree

with Father’s assertion that the trial court found that the conditions for removal would not

be remedied but did not find that the conditions resulting in the continued placement

outside of the home would not be remedied. Because the trial court’s determination that

the conditions that led to the children’s removal would not be remedied was a conclusion

that subsection (i) as a whole had been met, and the trial court did not need to

independently state that the conditions that led to the children’s continued placement

outside of the home would not be remedied. However, we still must address whether the

trial court’s findings support the conclusion that the conditions that led to the children’s

continued placement outside of the home would not be remedied.

       When determining whether there is a reasonable probability that a parent will not

remedy the conditions justifying a child’s removal from the home or continued placement

outside of the home, the trial court must judge a parent’s fitness to care for his or her

                                              11
child at the time of the termination hearing. Rowlett v. Vanderburgh Cnty. Office of

Family and Children, 841 N.E.2d 615, 621 (Ind. Ct. App. 2006). The trial court must

evaluate the parent’s habitual patterns of conduct to determine whether there is a

substantial probability of future neglect or deprivation of the child. C.T. v. Marion Cnty.

Dept. of Child Services, 896 N.E.2d 571, 578 (Ind. Ct. App. 2008), trans. denied. DCS is

not required to rule out all possibilities of change; rather, it need only establish “that there

is a reasonable probability that the parent’s behavior will not change.” Id. (quoting In re

Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App. 2007)).

       Here, the trial court found that:

       Throughout these proceedings, Mother and Father have had a rocky
       relationship, however, for the most part, they remained together. They are
       or at least as of the August 4, 2011, hearing, were living in separate
       residences on the same street in Wabash. The future of their relationship is
       uncertain though Father has testified that he does not intend to get back
       together with Mother. The [c]ourt does not believe they will not get back
       together.

       Both Mother and Father have substance abuse issues. Since the children
       were removed, each has tested positive, on numerous occasions, for a
       myriad of different substances including: Heroin, Methamphetamine,
       Hydrocodone, Methadone, and Marijuana. The record is replete with failed
       drug tests, missed appointments and failures to follow through with
       services ordered. Father further admitted to continued use of marijuana
       after the August 4, 2011, TPR hearing. He reports he is now clean, on his
       own, but acknowledges his addictions. While he has been repeatedly
       offered substance abuse services by the DCS, he has not followed through
       and is not participating in any. His “sobriety” is tenuous at best,
       particularly without any formal assistance and while he says he is now
       receptive to such assistance, his history indicates otherwise.

       During the course of the CHINS proceedings, monthly progress reports
       were prepared either by DCS and/or service providers. Those monthly
       reports documented substantial non-compliance by both parents throughout
                                          12
       these proceedings. . . . Father, upon his release from jail, was likewise
       fairly compliant. Beginning in the latter part of 2010 and the early part of
       2011, neither of the parties participated in any services. Father described
       this period as a dark time in his life. Drug use continued and the parties’
       instability escalated. Fortunately, during this “dark time” when Mother and
       Father again resorted to behaviors that led to the removal of their children,
       the children were safely in foster care.

       While Father expresses his desire for one more chance, he has not availed
       himself of the numerous chances previously offered. Simply stated, his
       testimony that he now gets it and wants to take advantage of all services is
       too little too late. Father is not engaged in services, he does not have a
       home of his own, and he remains unemployed.

       Tellingly, at a review hearing for the three (3) oldest children on or about
       August 15, 2011, neither Mother [n]or Father attended that hearing, though
       they were provided with notice.

(Appellant’s App. pp. 8-9). Father disputes the trial court’s finding that he and Mother

may get back together, but we conclude that the trial court had sufficient findings to

support its conclusion even if we do not consider that finding. Father consistently failed

to take advantage of services provided and ordered by the trial court and consistently

failed to stay clean of drugs. Although Father testified that he has not used drugs in a

month, this sobriety is, as the trial court stated, “tenuous” in light of his history.

(Appellant’s App. p. 9).     Accordingly, we determine that the trial court’s findings

supported its conclusion that the conditions causing the children’s continued removal

from Father’s home will not be remedied. As Father does not dispute any of the trial

court’s other conclusions of law, we also find that the trial court did not err in terminating

Father’s parental rights to his four minor children.

                                      CONCLUSION

                                             13
       Based on the foregoing, we conclude that the trial court properly terminated

Father’s parental rights to his four minor children.

       Affirmed.

NAJAM, J. and DARDEN, J. concur




                                             14
