Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any           Jul 23 2014, 6:24 am
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:

TIMOTHY E. STUCKY                              GREGORY F. ZOELLER
Blume Connelly Jordan Stucky & Lauer, LLP      Attorney General of Indiana
Fort Wayne, Indiana
                                               ROBERT J. HENKE
                                               Deputy Attorney General

                                               DAVID E. COREY
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

IN RE: THE TERMINATION OF THE PARENT- )
CHILD RELATIONSHIP OF:                )
                                      )
S. J. (Minor Child),                  )
                                      )
        And                           )
                                      )
D. C. (Father),                       )
                                      )
        Appellant-Respondent,         )
                                      )
                vs.                   )               No. 02A04-1312-JT-646
                                      )
THE INDIANA DEPARTMENT OF             )
CHILD SERVICES,                       )
                                      )
        Appellee-Petitioner.          )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                                      The Honorable Charles F. Pratt, Judge
                                     The Honorable Lori Morgan, Magistrate
                                         Cause No. 02D08-1303-JT-15


                                                      July 23, 2014

                      MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge

                                          STATEMENT OF THE CASE

           Appellant-Respondent, D.C. (Father), appeals the trial court’s order terminating his

parental rights to his minor child, S.J. (the Child).

           We affirm.

                                                           ISSUE

           Father raises three issues on appeal, which we consolidate and restate as the following

single issue: Whether there was sufficient evidence to support the termination of Father’s

parental rights.

                                          FACTS AND PROCEDURAL HISTORY

           Father and Mother1 are the parents of the Child, born on February 26, 2004. Father

and Mother were not living together and it is unclear when they separated. Mother also has

three other children from other relationships—a daughter born in January 2003, a son born

in November 2005, and a son born in March 2008. In June 2011, the Department of Child

Services of Allen County (DCS) inspected the Mother’s home in Fort Wayne where the Child

and her other siblings lived. On June 10, 2011, DCS filed a petition to have the Child



1
    Mother voluntarily terminated her parental rights, she is not a party to this appeal.

                                                               2
declared a Child In Need of Services (CHINS) based on the parties’ neglect of the Child.

The Child was then removed from Mother’s care and was placed in the care of her maternal

grandmother (Grandmother).

       On June 21, 2011, a preliminary inquiry was conducted and the trial court found

probable cause to believe that the Child was CHINS. On July 18, 2011, the trial court held

a dispositional hearing on DCS’s CHINS petition. Mother failed to appear, but Father

appeared and elected to proceed without the assistance of counsel. Father admitted that: (1)

while in Grandmother’s care, the Child would call him and tell him she is hungry; (2) while

in Grandmother’s and Mother’s care, he observed the Child being on the balcony,

unsupervised; (3) the Child lacked appropriate bedding or clothes; (4) the Child was dirty

and unclean; (5) he had a confrontational relationship with Mother; (6) he was unable to

provide a safe and stable home for the Child; (7) he had been convicted in 2007 for

possession of a controlled substance, and in 2001 for receiving stolen property; and (8) was

on arrears on his child support payments.

       Based on Father’s admission, the trial court adjudicated the Child to be a CHINS and

entered a Dispositional Order along with a parent participation plan. Under the parent

participation plan, Father was required to refrain from criminal activities, maintain a clean

residence, provide clothing for the Child, and to undergo a psychological evaluation. The

Dispositional Order further provided that Father must cooperate with DCS and all court-

ordered service providers. As for the placement of the Child, the trial court ordered the Child

to remain in Grandmother’s care.



                                              3
          On December 1, 2011, the trial court conducted a review hearing where it found that

Father had not maintained contact with DCS, failed to complete a psychological assessment,

did not visit regularly with the Child, and did not demonstrate an ability to benefit from the

court-ordered services.      Based on Father’s noncompliance, the trial court continued

placement of the Child with Grandmother.

          In January 2012, Annette Meadows (Meadows), a therapist and assessment

coordinator at Headwaters Counseling, conducted a psychological evaluation of Father.

During the evaluation, Father confessed that while the Child was in his care, Mother or his

mother would take care of the Child. Based on that information, Meadows recommended

supervised visits so as to monitor Father’s interaction with the Child and, if necessary, Father

was to attend parenting classes to enable him to relate appropriately to the Child.

          Subsequent permanency review hearings were held on April 30, and October 3, 2012.

At both hearings, the trial court found that Father had not maintained contact with DCS,

regularly visited the Child, or participated in any of the court-ordered services. The trial

court therefore continued placement of the Child with Grandmother.

          On March 20, 2013, the trial court held a permanency review hearing where it found

that Father had shown some progress. Father had regularly visited the Child and had enrolled

and was participating in court-ordered services. However, Father had not fully completed

the services, and based on that fact, the trial court ordered continued placement of the Child

with Grandmother and it authorized DCS to file a petition terminating Father’s parental

rights.



                                               4
       A two-day termination hearing was held on September 4-5, 2013. Father, who was

then incarcerated in the Department of Correction for two-and-half years for possession of

marijuana and resisting law enforcement, was represented by counsel and appeared

telephonically.   During the hearing, DCS presented evidence that Father had been

incarcerated during the pendency of the CHINS proceedings. Evidence was also introduced

that Father had failed to successfully complete the stipulated court-ordered services; failed

to maintain contact with DCS; had been unable to provide the Child with a safe and stable

home; and had failed to maintain regular visits with the Child. At the conclusion of the

termination hearing, the trial court took the matter under advisement. On December 3, 2013,

the trial court granted DCS’ petition and terminated Father’s parental rights.

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


                              DISCUSSION AND DECISION

                                    I. Standard of Review

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

evidence nor assess the credibility of the witnesses. In re J.H., 911 N.E.2d 69, 73 (Ind. Ct.

App. 2009) trans. denied. 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




                                              5
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.

                                        II. Termination of Parental Rights

         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 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 at 73. Parental rights may therefore be terminated when the parents are

unable or unwilling to meet their parental responsibilities. 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’s removal or the reasons for placement outside the home of the parents
                [would] not be remedied; or
                (ii) There [was] a reasonable probability that the continuation of the parent-
                child relationship [posed] a threat to the well-being of the child;
         (C) that termination [was] in the best interests of the child.

Ind. Code § 31-35-2-4(b)(2)(B)-(C)2; Bester v. Lake Cnty. Office of Family & Children, 839

N.E.2d 143, 148 (Ind. 2005). Clear and convincing evidence as a standard of proof requires



2
  We observe that I.C. § 31-35-2-4(b)(2)(B) is written in the disjunctive. Thus, a trial court need only find that one of
the two requirements of subsection (b)(2)(B) has been established by clear and convincing evidence to properly
terminate parental rights. See In re L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999). Because we find it to be
dispositive under the facts of this case, we only consider whether DCS established, by clear and convincing evidence,

                                                            6
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 child’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 child’s emotional and physical development are threatened by the

parent’s custody. Id.

                               A. Conditions Leading to the Child’s Removal

         Father first argues that DCS failed to show by clear and convincing evidence that the

conditions leading to the Child’s removal would not be remedied. In particular, Father

argues that “Mother’s shortcomings as a parent” was the basis for the Child’s removal, and

that fact alone “cannot properly be utilized” to support the trial court’s determination that

conditions leading to the Child’s removal would not be remedied. (Appellant’s Br. p. 11).

We disagree.

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

remedy the conditions justifying a child’s removal from the home, the trial court must judge

a parent’s fitness to care for his or her 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 Servs., 896 N.E.2d 571, 578 (Ind. Ct. App. 2008), trans.



that there was a reasonable probability that the conditions resulting in the Child’s removal or continued placement
outside of Father’s care would not be remedied.

                                                           7
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)). Moreover,

the trial court may properly consider a parent’s criminal history, drug and alcohol abuse,

historical 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).

       First, we note that although Mother’s actions caused DCS to file a petition to

adjudicate the Child as CHINS, DCS also cited Father’s conduct as a reason for the Child’s

removal. At the dispositional hearing, Father admitted to all the allegations, and his

admissions were the basis for the CHINS adjudication. At the termination hearing, the trial

court found that there was reasonable probability that the conditions will not improve. The

trial court identified the several failed attempts at reunification, irregular visits, Father’s

incarceration, and Father’s inability to maintain a safe and stable home as crucial to its

conclusion.

       Father is currently incarcerated with his earliest release date scheduled for October

2014; thus, he is currently unavailable to parent the Child. Prior to his incarceration, Father

was barely present in the Child’s life, and he described his relationship with the Child as “off

and on.” (Transcript p. 149). Once the CHINS proceedings were initiated in July 2011,

Father visited the Child for the first six months but he abruptly stopped the visits. He then

resumed the visits in September 2012. At the permanency hearing held on March 20, 2013,

Father showed some progress. He had enrolled in the parent participation plan and was

regularly visiting the Child. However, the visits stopped in June 2013 when he was arrested

                                               8
for drug possession and resisting law enforcement. Whenever Father would stop his visits,

the Child was disappointed. The trial court found that Father’s irregular visits had a negative

impact on the Child’s mental and emotional well-being. In addition, Father has not contacted

the Child since he was incarcerated.

       Although Father maintained a clean home for three years prior to his incarceration,

and had allowed for unannounced visits, DCS did not place the Child with the Father because

Father’s live-in girlfriend had a criminal record. Hinged on that, Father’s home was

disqualified for placement. At the termination hearing, the court-appointed special advocate

(CASA), Suzanne Lange, testified that she had explained to Father that in order to allow for

placement, he needed to remedy that disqualification. The record reveals that Father failed

to heed her advice. Instead of breaking up with his girlfriend during the CHINS proceedings,

he broke up with her after he was incarcerated, and the termination proceedings were

concluding. We find Father’s actions are not reflective of a parent who wished to be reunited

with his child.

       This court has 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. Although expressing a desire to be reunited with his Child,

Father was given the opportunity to make that happen. However, Father chose not to

cooperate with the court-ordered services. He instead continued his life of crime and became

incarcerated, thus making him further unavailable to parent the Child. . Also, there is no



                                              9
guarantee that Father will be a suitable parent upon his release. Father will still be required

to complete certain services offered by DCS, which he has been unable to complete to date.

       In sum, the evidence establishes that Father has not shown a willingness or ability to

alter the conditions that led to the Child’s removal. Father had ample time, opportunity, and

assistance to remedy the conditions, and it is well-settled that a court does not have to wait

for a child to become “irreversibly influenced by a deficient lifestyle such that her physical,

mental, and social growth is permanently impaired” before it can terminate the parent-child

relationship. In re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002).                Under these

circumstances, we cannot say that the trial court erred in determining that DCS established

that it is unlikely that the conditions resulting in the Child’s removal would not be remedied.

                                   B. Best Interest of the Child.
       Lastly, Father argues he was “readily available” and since he had approved the

placement of the Child with Grandmother, there was “no need to sever the parent-child

relationship in order to protect the [Child’s] best interest.” (Appellant’s Br. p. 17).

       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. 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.

The court need not wait until a child is irreversibly harmed before terminating the parent-

child relationship. Id. 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



                                                10
parental rights is in the best interest of the child. Lang v. Starke Cnty. Office of Family &

Children, 861 N.E.2d 366, 373 (Ind. Ct. App. 2007).

       At the termination hearing, the family case manager, Beverly Marcus (FCM Marcus),

described Father’s compliance with the Dispositional Order as “mediocre.” (Tr. p. 66). FCM

Marcus testified that Father had failed to maintain regular visits with the Child or maintain

regular communication with her. Not once did Father call in and report his status; instead,

FCM Marcus had to call him to inquire about his employment and his whereabouts.

Similarly, the CASA recommended termination of Father’s parental rights based on the fact

that Father was unable to follow through with his court-ordered services, had failed to

maintain regular visits with the Child, he had engaged in further criminal activity, he had a

live-in girlfriend who had a criminal history, and he had been unable to provide a safe and

stable home for the Child. Also, the court appointed Guardian Ad Litem, Roberta Renbarger,

testified that Father was not prepared to take on the responsibility of being a parent to the

Child, and he did not have a stable home.

       In terminating Father’s parental rights, the trial court entered the following finding

       5. Termination of parental rights is in the best interest of the [C]hild [], in
       that [F]ather [] has shown over the course of the related CHINS cause, [] is
       unable [] to provide basic necessities of a suitable home for raising the
       [C]hild. . . .

       During the underlying CHINS proceeding, [F]ather [] did not maintain
       regular or consistent contact with the DCS family case manager. . . .

       [The Child] is nine years old and has been diagnosed with anxiety and has
       anger management problems. She has recently been prescribed medication
       for her diagnosis and is participating in counseling at Park Center. The
       [C]hild has been in the [Grandmother’s] home since the initiation of the

                                              11
       CHINS proceedings []. Prior to the initiation of the CHINS proceedings, []
       [F]ather [] had consistent [visits] with the [C]hild [which] occurred [twice
       monthly]. Once the underlying CHINS proceedings began, [Father’s]
       visitation with the Child became inconsistent. [Father] visited the [C]hild for
       approximately 6 months after the proceedings began in 2011. When the
       visits began [], [the Child] would become upset after the visits, however,
       [this] behavior subsided as time went on. [F]ather’s visits ended after [] six
       months with no explanation from [him]. The [C]hild was disappointed when
       the visits ended and later learned from a family member that the visits ended
       because of [Father’s] incarceration. [] [Father’s] earliest possible release
       date is not until October 2014. His [] engagement in criminal activity is
       having negative impact on the mental/emotional well-being of his child and
       [his incarceration] significantly interferes with his ability to provide [] basic
       necessities of a suitable home. . . . Presently, the [Child] is in a stable
       environment with her [] [G]randmother with whom she has resided with
       since the initiation of the [CHINS] proceedings. The [C]hild has flourished
       in [] [G]randmother’s home and [] [G]randmother would like to adopt the
       [C]hild. [The Child] should not be required to wait until her [Father] is
       released from incarceration in October [] 2014, in order to obtain [a]
       permanent home. The child’s best interest [would] be served by the entry of
       an order granting the petition for termination of [parental] rights. . .

(Appellant’s App. pp. 53-54).


       In light of the foregoing, we find that there was a persistent overriding theme

throughout the CHINS proceedings—Father was unavailable to parent the Child. Over a

span of two years, he had the opportunity to remedy the conditions leading to the Child’s

removal, which he failed to do. Based on our review of the record, we cannot agree with

Father’s assertions. The evidence reveals ample support to conclude that it was in the best

interest of the Child to terminate Father’s parental rights.

                                           CONCLUSION

       In conclusion, we find that the trial court did not err by terminating Father’s parental

rights to his minor child.


                                               12
     Affirmed.

ROBB, J. and BRADFORD, J. concur




                                   13
