 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                          Apr 02 2013, 8:13 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEVEN J. HALBERT                               PATRICK M. RHODES
Carmel, Indiana                                 Indiana Department of Child Services
                                                Indianapolis, 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:                          )
                                                )
S.B. (MINOR CHILD)                              )
AND                                             )
W.G., (FATHER)                                  )
                                                )
       Appellant-Respondent,                    )
                                                )
           vs.                                  )
                                                )      No. 49A02-1208-JT-663
THE INDIANA DEPARTMENT OF                       )
CHILD SERVICES,                                 )
                                                )
       Appellee-Petitioner,                     )
                                                )
           and                                  )
                                                )
CHILD ADVOCATES, INC.                           )
                                                )
       Co-Appellee-Guardian ad Litem            )
        APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
                      The Honorable Marilyn Moores, Judge
                    The Honorable Julianne Cartmel, Magistrate
                        Cause Nos. 49D09-1203-JT-11168



                                       April 2, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

       W.G. (“Father”) appeals the involuntary termination of his parental rights to his

child, S.B. Father raises the following restated issue: whether there is sufficient evidence

supporting the trial court’s judgment terminating Father’s parental rights.

       We affirm.

                             Facts and Procedural History

       On March 7, 2011, S.B. was born to Father and F.B. (“Mother”). Mother admitted

to taking opiates, cocaine, and benzodiazepines while pregnant with S.B. Appellant App.

p. 14. The facts most favorable to the judgment reveal that S.B. remained hospitalized

for several weeks after his birth due to severe withdrawal from the narcotics Mother took

during pregnancy. It was only in early May 2011, that S.B. was released from the

hospital and into the care of his current foster parents. Father has been incarcerated

throughout S.B.’s life.

       On March 24, 2011, the Department of Child Services in Marion County

(“MCDCS”) filed a petition alleging that Mother was unable to provide S.B. with a safe

and appropriate living environment free from substance abuse and that S.B. was a Child


                                             2
In Need of Services (“CHINS”). Id. S.B. was so adjudicated following a hearing on

March 24, 2011. Father was not given notice of this hearing, and he did not attend the

hearing, as he was incarcerated. Because Father was incarcerated and did not appear at

the hearing, he was not given any parenting time with S.B.

       At the time of the juvenile court’s pretrial hearing on April 14, 2011, MCDCS was

still attempting to serve Father. Father was not present during a second pretrial hearing

on May 4, 2011. During a third pretrial hearing on May 25, 2011, the court noted that the

Public Defender’s Agency had been appointed to represent Father, but an appearance had

not been filed. The court scheduled another pretrial hearing for Father.

       During the predisposition and pretrial hearing on June 15, 2011, Father was still

absent due to his incarceration, but he was represented by a public defender (“PD”). The

court proceeded with disposition as to Mother, but rescheduled another pretrial hearing

for Father. Father was represented by his PD during a June 29, 2011 pretrial hearing.

Father’s PD indicated that he was still unable to contact Father and the court granted

PD’s request to reschedule the pretrial hearing. During a pretrial hearing on July 27,

2011, PD waived Father’s right to a fact-finding hearing, and the matter proceeded to

disposition. Ex. Vol., Pet. Ex. 11 p. 1.

       During the juvenile court’s periodic review hearing on September 7, 2011, Father

was represented by a new PD. By the December 7, 2011 Placement and Jurisdiction

Review hearing, Mother was starting to struggle with her plan. Father’s PD again made

an appearance on his behalf.      As of December 7, 2011, reunification was still the

objective. However, during the March 14, 2012 Permanency Hearing, adoption became

                                            3
the new objective. At the time of this hearing, both Mother and Father were incarcerated.

While Father was not present for this hearing, he was represented by a PD. On March 20,

2012, MCDCS filed a Petition for Involuntary Termination of the Parent-Child

Relationship. Mother consented to the adoption of S.B.

       The juvenile court held a Termination Hearing on July 10, 2012.               Father

participated telephonically.   This was the first time he actively participated in any

hearings in this matter. The hearing revealed that Father had never met S.B. Father was

unaware of S.B.’s special needs. Father has six older children, yet he had not had any

contact with those children in over a year. He could not remember S.B.’s birthday or the

birthdays of several of his other children. He did not pay regular child support for his any

of his other children. While Father testified that he regularly sent letters to his siblings

and children, the MCDCS case manager (“Case Manager”), Chad Shewman, testified that

while he had sent an initial letter to Father explaining that he was S.B.’s case manager.

Father never responded. Tr. pp. 104-105. In fact, Father never made any attempt to

contact him regarding S.B. Father has a lengthy criminal history that began when he was

a juvenile, and he has been incarcerated at least eight different times as an adult. One of

Father’s other sons has also been in trouble with the law.

       On July 18, 2012, the juvenile court ordered the termination of the parent-child

relationship between Father and S.B. The court found that Father had never met S.B. or

had any contact with S.B. At the time of the termination hearing, Father was still

incarcerated. He never provided proof that he completed services while incarcerated. He

did not have his own home and could not provide contact information for an employer

                                             4
following his release. The court found that termination of the parent-child relationship

was in the best interests of S.B.

                                    Discussion and Decision

       We begin our review by acknowledging that when reviewing a termination of

parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.

In re D.D., 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied. Instead, we consider

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

Moreover, in deference to the juvenile court’s unique position to assess the evidence, we

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

clearly erroneous. In re L.S., 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), trans. denied.

       Where, as here, the juvenile court enters findings of fact and conclusions of law in

its termination of parental rights, our standard of review is two-tiered. In re J.H., 911

N.E.2d 69, 73 (Ind. Ct. App. 2009), trans. denied. First, we determine whether the

evidence supports the findings, and second, we determine whether the findings support

the judgment. In re C.G., 954 N.E.2d 910, 923 (Ind. 2011). “Findings are clearly

erroneous only when the record contains no facts to support them either directly or by

inference.” Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996). If the evidence and

inferences support the juvenile court’s decision, we must affirm. C.G., 954 N.E.2d at

923.

       The Fourteenth Amendment to the United States Constitution protects the

traditional rights of parents to establish a home and raise their children. Id. However, a

juvenile court must subordinate the interests of the parents to those of the child when

                                              5
evaluating the circumstances surrounding a request to terminate parental rights. In re

K.S., 750 N.E.2d 832, 837 (Ind. Ct. App. 2001).             Termination of a parent-child

relationship is proper where the child’s emotional and physical development is

threatened. Id.

      A request to terminate a parent’s rights is not made lightly, and before an

involuntary termination of parental rights may occur in Indiana, 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.

             (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).     “The State’s burden of proof in termination of parental

rights cases is one of ‘clear and convincing evidence.’” In re G.Y., 904 N.E.2d 1257,

1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial 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. Ind. Code § 31-35-2-8(a). Father challenges the


                                             6
sufficiency of the evidence supporting the trial court’s conclusions as to subsections

(b)(2)(B) and (C) of the termination statute cited above. See I.C. § 31-35-2-4(b)(2).

                                I.     Conditions Remedied

       Initially, we observe that Indiana Code section 31-35-2-4(b)(2)(B) requires a trial

court to find that only one of the three elements of subsection (b)(2)(B) has been

established by clear and convincing evidence before properly terminating parental rights.

See L.S., 717 N.E.2d at 209. Because we find it to be dispositive, we limit our review to

Father’s allegations of error pertaining to subsection (b)(2)(B)(i) of Indiana’s termination

statute, namely, whether MCDCS presented clear and convincing evidence establishing

that there is a reasonable probability the conditions leading to the removal and continued

placement of S.B. outside Father’s care will not be remedied.

       When making a determination as to whether there is a reasonable probability that

the conditions resulting in a child’s removal or continued placement outside of a parent’s

care will not be remedied, 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 J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

The court must also “evaluate the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of the child.” Id. Pursuant to this rule, courts

have properly considered 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. A.F. v. Marion Cnty. Office of Family & Children, 762 N.E.2d 1244, 1251

(Ind. Ct. App. 2002), trans. denied. The trial court may also consider any services

                                             7
offered to the parent by the local Indiana Department of Child Services office (here,

MCDCS) and the parent’s response to those services, as evidence of whether conditions

will be remedied. Id. Moreover, MCDCS 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. In re Kay L., 867 N.E.2d 236, 242 (Ind.

Ct. App. 2007).

       Father argues that although he was never asked to complete any services, he

participated in a drug dependency program, anger management classes, and a prison

Christian ministry. Father also claimed to have stable housing and employment waiting

for him upon release. Father therefore contends that the trial court committed reversible

error in terminating his parental rights.

       However, the trial court made a number of detailed findings in its judgment

terminating Father’s parental rights to S.B. addressing, among other things, Father’s

history of substance abuse, chronic incarceration, and unresolved parenting issues. S.B.’s

case manager testified that MCDCS did not offer services for Father because the court

did not order services for Father. The court did not order services for Father because he

was incarcerated. MCDCS typically does not send home-based counselors into prisons.

Tr. p. 106. While Father claims to have completed services in prison, Father never

provided the court with documentation or certificates for these programs. Father has

been incarcerated at least eight different times as an adult. Despite previous participation

in services while incarcerated, Father has continued to re-offend. The juvenile court

found that, “[Father] has a repetitive and ongoing history of incarceration and chronic

                                             8
substance abuse.” Appellant App. p. 15. Father was incarcerated before S.B.’s birth for

cocaine possession. Cocaine is one of the drugs that Mother ingested while she was

pregnant with S.B.

       The court further found that Father did not demonstrate the ability or willingness

to parent. Although Mother and Father were married at the time of S.B.’s birth, Father is

not listed on S.B.’s birth certificate. Father never made any effort to correct the birth

certificate or to establish paternity. Father never met, parented, or cared for S.B. Father

is unaware of S.B.’s needs. Father has no bond with S.B.; S.B. is bonded to his foster

parents. S.B.’s foster parents are the only parents he has ever known. Finally, the court

found that Father had never owned a home, secured stable housing, or provided any

financial support to S.B. Id.

       Based on these and other findings, the trial court concluded that there is a

reasonable probability that the conditions that resulted in the removal and continued

placement of S.B. outside of Father’s care will not be remedied. A thorough review of

the record leaves us satisfied that clear and convincing evidence supports the trial court’s

findings, and these findings, in turn, support the court’s ultimate decision to terminate

Father’s parental rights to S.B.

       As noted earlier, 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 the parent’s habitual

patterns of conduct to determine the probability of future neglect or deprivation of the

child. D.D., 804 N.E.2d at 266. A trial court need not wait until a child is irreversibly

influenced by a deficient lifestyle such that his or her physical, mental, and social growth

                                             9
is permanently impaired before terminating the parent-child relationship. In re E.S., 762

N.E.2d 1287 (Ind. Ct. App. 2002).         Moreover, we have repeatedly recognized that

“[i]ndividuals who pursue criminal activity run the risk of being denied the opportunity to

develop positive and meaningful relationships with their children.” Castro v. State Office

of Family & Children, 842 N.E.2d 367, 375 (Ind. Ct. App. 2006), trans. denied. After

reviewing the record, we conclude that MCDCS presented clear and convincing evidence

to support the trial court’s findings and ultimate determination that there is a reasonable

probability the conditions leading to S.B.’s removal and/or continued placement outside

of Father’s care will not be remedied. Father’s arguments to the contrary amount to an

impermissible invitation to reweigh the evidence. See D.D., 804 N.E.2d at 265.

                               II. Best Interests of the Child

       The evidence in the record before us is more than sufficient to support the

conclusion that termination of Father’s parental rights is in S.B.’s best interests. Father’s

history of instability, substance abuse, and chronic incarceration all support termination

of his parental rights.   See Lang v. Starke County Officer of Family & Children, 861

N.E.2d 366, 373 (Ind. Ct. App. 2007) (“A parent’s historical inability to provide a

suitable environment along with the parent’s current inability to do the same supports a

finding that termination of parental rights is in the best interests of the children.”), trans.

denied.

       During the termination hearing, it was the overwhelming consensus of case

managers and service providers that Father could not provide S.B. with a safe and stable

home environment. Specifically, the family case manager, (“Case Manager”) concluded
                                              10
that the termination of Father’s parental rights was in S.B.’s best interests and that S.B.

would not benefit if the court gave Father more time to establish a relationship because at

the time of the Termination Hearing S.B. was already sixteen months old. S.B. would be

three and one half years old by the time Father was scheduled for release in September

2014. S.B. was bonded to his foster parents and his special needs are being met. S.B.

needs permanency that Father cannot currently provide because he is in prison. The court

further found that, “continuation of the parent-child relationship would deny permanency

to [S.B.].” Appellant App. p. 16. See In re G.Y., 904 N.E.2d 1257, 1265 (Ind. 2009).

S.B.’s Guardian ad Litem, (“GAL”) testified that permanency is a central consideration in

determining the best interests of a child. The GAL further testified that S.B. had a strong

bond with his foster parents, and his special needs were being met. He could not

recommend contact between S.B. and Father.

                                            Conclusion

       MCDCS presented clear and convincing evidence to support the juvenile court’s

findings and ultimate determination that there is a reasonable probability that the

conditions leading to S.B.’s removal or continued placement outside Father’s care will

not be remedied. Furthermore, continuing the parent-child relationship would not be in

S.B.’s best interest. For all of these reasons, we affirm the juvenile court.

       Affirmed.

BAKER, J., and MAY, J., concur.




                                             11
