Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not                          FILED
be regarded as precedent or cited                        Dec 21 2012, 9:06 am
before any court except for the
purpose of establishing the defense of                          CLERK
                                                              of the supreme court,

res judicata, collateral estoppel, or the                     court of appeals and
                                                                     tax court


law of the case.
ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MICHAEL T. DOUGLASS                             CHERRIE WELLS
Fort Wayne, Indiana                             DCS, Allen County Office
                                                Fort Wayne, 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:   )
B.W., Minor Child,                  )
                                    )
R.C., Father,                       )
                                    )
       Appellant-Respondent,        )
                                    )
              vs.                   )                No. 02A03-1204-JT-173
                                    )
INDIANA DEPARTMENT OF CHILD         )
SERVICES,                           )
                                    )
       Appellee-Petitioner.         )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Charles F. Pratt, Judge
                             Cause No. 02D08-1107-JT-112


                                     December 21, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
        R.C. (“Father”) appeals the involuntary termination of his parental rights to his

child, B.W. Concluding that there is sufficient evidence to support the trial court’s

judgment, we affirm.

                                  Facts and Procedural History

        Father is the biological father of B.W., born in October 1999. The evidence most

favorable to the trial court’s judgment reveals that in February 2010 B.W.’s biological

mother, V.W. (“Mother”), was incarcerated, with an earliest projected release date

sometime in 2014. Because Father was unemployed, without stable housing, and serving

parole, Father’s mother, R.S. (“Grandmother”), agreed to temporarily care for B.W. and

his older brother.1      By August 2010, however, Grandmother felt she could no longer

afford to care for B.W. and requested help from the local Allen County office of the

Indiana Department of Child Services (“ACDCS”).

        Later the same month, ACDCS filed a petition alleging B.W. was a child in need

of services (“CHINS”). Father admitted to the allegations of the CHINS petition and

B.W. was so adjudicated. The court proceeded to disposition the same day, formally

removed B.W. from Father’s custody, and ordered that the child be made a ward of

ACDCS. The court’s dispositional order also incorporated a Parent Participation Plan

which directed Father to successfully complete a variety of tasks and services designed to

        1
          Father has several additional children not subject to this appeal. Father’s daughters, E.W. and
C.W., were placed in a guardianship with their paternal Great Aunt at approximately the same time B.W.
and his brother began living with Grandmother. B.W.’s older brother was also adjudicated a CHINS, but
he was placed in a planned permanent living arrangement during the pendency of the underlying
proceedings. Mother voluntarily relinquished her parental rights to B.W. at the commencement of the
termination hearing and does not participate in this appeal. We therefore limit our recitation of the facts
to those facts pertinent solely to Father’s appeal of the termination of his parental rights to B.W.

                                                    2
address his parenting deficiencies and to facilitate reunification with B.W. Specifically,

Father was ordered to, among other things: (1) refrain from all criminal activities, submit

to random drug screens, and obey the terms of his parole; (2) secure and maintain a stable

source of income sufficient to provide the child with clean, suitable housing and clothing;

(3) participate in and successfully complete family counseling; (4) participate in a Family

Support Conference; and (5) cooperate with all caseworkers as directed, maintain contact

with ACDCS, and accept all announced and unannounced home visits. Father was also

granted unrestricted, unsupervised visitation privileges with B.W.

      Father’s participation in court-ordered reunification services was sporadic from

the beginning of the CHINS case and ultimately unsuccessful.          Father attended the

Family Support Conference, but he refused to engage in family counseling by failing to

appear for the first scheduled appointment in February 2011 and then failing to contact

the service provider to reschedule until November 2011. Father also failed to secure

stable housing, preferring instead to bounce between living with Grandmother and his

girlfriend. Although Father attended several of B.W.’s football games and one or two

family gatherings, Father failed to visit specifically with B.W. on a regular basis even

though the foster parent informed Father that he could have unlimited access to B.W. In

2011, Father participated in only two visits with B.W.

      ACDCS eventually filed a petition seeking the involuntary termination of Father’s

parental rights to B.W. in July 2011. An evidentiary hearing on the termination petition

was held in January 2012. During the termination hearing, ACDCS presented substantial

evidence establishing Father had failed to remedy the conditions that necessitated

                                            3
removal and continued placement of B.W. outside Father’s care. In addition, it was the

general consensus of case workers and service providers that Father remained incapable

of providing B.W. with a safe and stable home environment. As for the child, ACDCS

presented evidence showing B.W. was happy and thriving in foster care.

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

advisement. In March 2012, the court entered its judgment terminating Father’s parental

rights to B.W. Father now appeals.

                                Discussion and Decision

       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). Instead, we consider only the evidence

and reasonable inferences that are most favorable to the judgment. Id. When, as here,

the trial court makes 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. In

deference to the trial 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; see also Bester, 839

N.E.2d at 147. Thus, if the evidence and inferences support the trial court’s decision, we

must affirm. Id.

       “The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment of the United States Constitution.” In re M.B.,

                                             4
666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. Although parental rights are of a

constitutional dimension, the law provides for the termination of these rights when

parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892

N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a trial court need not wait until a child

is irreversibly harmed before terminating the parent-child relationship.                 McBride v.

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

       Before parental rights may be involuntarily terminated 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 . . . .

Ind. Code § 31-35-2-4(b)(2).2          The State’s burden of proof for establishing these

allegations in termination cases “is one of ‘clear and convincing evidence.’” In re G.Y.,

904 N.E.2d 1257, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)). “[I]f

the court finds that the allegations in a petition described in section 4 of this chapter are

       2
          We observe that 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
involved herein and are not applicable to this case.


                                                  5
true, the court shall terminate the parent-child relationship.” Ind. Code § 31-35-2-8(a)

(emphasis added). Father challenges the sufficiency of the evidence supporting the trial

court’s findings as to subsection (b)(2)(B) and (C) of the termination statute cited above.

We shall address each argument in turn.

                     I. Conditions Remedied/Threat to Well-Being

       Indiana Code § 31-35-2-4(b)(2)(B) requires the State to establish, by clear and

convincing evidence, only one of the three requirements of subsection (b)(2)(B).

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

ACDCS presented clear and convincing evidence establishing that there is a reasonable

probability the conditions leading to the removal and continued placement of B.W.

outside Father’s care will not be remedied. On appeal, Father argues that the efforts he

made in inquiring about family counseling and in obtaining stable and suitable housing

were “reasonable.” Appellant’s Brief at 15-16. Father therefore contends the trial court

erred in terminating his parental rights.

       In terminating Father’s parental rights to B.W., the trial court made several

detailed findings regarding Father’s history of deficient parenting, housing and income

instability, and failure to complete and/or benefit from the court-ordered reunification

services.   Specifically, the trial court acknowledged that Father failed to “maintain

contact with [ACDCS] and had not demonstrated an ability to benefit from services.”

Appellant’s Appendix at 25.       Regarding Father’s housing instability, the trial court

specifically found “Father acknowledges that he cannot allow [B.W.] to reside with him

                                             6
at either” the Grandmother’s or girlfriend’s house, that he “does not believe he has

sufficient financial resources to independently provide a home for him[self] and his son,”

and he is “not currently able to provide his son with a place to live.” Id. at 26.

       As for Father’s failure to visit with B.W., the trial court specifically found that

Father was “reminded at a Family Team Meeting that he needed to regularly visit with

the child and to secure suitable housing;” however, Father had “only personally visited

with [B.W.] on two (2) occasions since the summer of 2011.” Id. The court further

found: (1) it had been “several months” since Father last visited with B.W. at the time of

the termination hearing; (2) Father had failed to visit with B.W. on his birthday and

Christmas; and (3) despite the fact there had been “no restrictions on Father’s visits” and

the foster mother was willing to transport B.W. to Father’s home for visits, Father “never

made that request.” Id.

       The court also made several findings pertaining to Father’s refusal to engage in

family counseling and the Fatherhood Engagement Program. In so doing, the court noted

that a referral for family counseling was made in December 2010, that Father was

“unavailable” for the “first offered appointment” in January 2011, and that Father “failed

to appear for later appointments[,] and the referral was closed.” Id. at 27. Although the

court acknowledged that Father contacted the provider in November 2011 to inquire

about family counseling, the court also pointed out that Father remained on the waiting

list at the time of the termination hearing. As for Father’s participation in the Fatherhood

Engagement Program, which was recommended to assist Father in developing a bond

with B.W. and to help address his transportation issues, the court noted that Father

                                              7
attended one session in November 2011 and thereafter failed to participate any further in

the program.

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

reasonable probability the reasons for B.W.’s removal from Father’s care will not be

remedied, stating:

       Father has an historic pattern of placing the responsibility for the care of his
       children on others. Two daughters, following a CHINS adjudication, were
       placed with his aunt. He does not financially contribute to their support.
       His sons, the child in this case and his brother, were first placed in the care
       of [Grandmother]. She testified that she knew he could not financially
       support them and did not ask for his help. Within a few months, she asked
       [ACDCS] to take the boys because she was unable to maintain them in her
       care. Thereafter, Father found the resources to pay [Grandmother] three
       hundred dollars ($300.00) per month so that he could live part[-]time in her
       house. The Father does not disagree with his girlfriend or [Grandmother’s]
       refusal to accept the child into their homes notwithstanding the fact that he
       is paying each substantial sums of money each month toward housing costs.
       The Father has not cooperated with services to assist him with
       transportation and he has not completed family counseling as ordered. At
       the time evidence was closed. The child had been in foster care for over a
       year and the Father was still unable to provide for his care. The reasons for
       the child’s removal continue to exist today and, given the Father’s historic
       pattern, are unlikely to be remedied.

Id. at 28. A thorough review of the record reveals that clear and convincing evidence

supports the trial court’s findings and conclusions detailed above.

       In recommending termination of Father’s parental rights, ACDCS case manager

Marie Kidd informed the trial court that Father had never been employed during the

underlying proceedings, was complicit in denying ACDCS access to both his girlfriend’s

and Grandmother’s home, was “noncomplian[t]” with visitation despite having been

given “full opportunity to spend time with B.W.,” and failed to take the CHINS case


                                              8
“serious[ly].” Transcript at 196, 199.    When asked what factors led ACDCS to finally

seek termination of parental rights, Kidd explained, “[Father] wasn’t doing what he

needed to do. And he hadn’t had any regular visitation with his own son throughout

pretty much the whole entire case, since August 2010.” Id. at 200. We have previously

explained that the “failure to exercise the right to visit one’s children demonstrates a lack

of commitment to complete the actions necessary to preserve [the] parent child

relationship.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d 366, 372

(Ind. Ct. App. 2007) (quotations omitted), trans. denied.

       Family and Children Services’ Intake Clinician Laura Vojtush likewise testified

during the termination hearing. Vojtush confirmed that Father declined the first available

family counseling appointment offered in January 2011 and subsequently failed to show

for a scheduled appointment in February 2011. Vojtush went on to explain that Father

thereafter delayed in initiating any contact with her office for approximately nine months,

until November 2011, but by then the referral for services had expired. Notwithstanding

Father’s failure to contact ACDCS in November 2011 and to request that the counseling

referral be renewed, case manager Kidd learned of Father’s renewed interest in family

counseling during a follow-up conversation with Vojtush and renewed Father’s referral

on her own initiative. Father remained on the waiting list at the time of the termination

hearing.

       Father’s own testimony lends further support to the trial court’s findings. During

the termination hearing, Father confirmed that he receives six hundred ninety-eight

dollars ($698.00) per month in “disability income,” but that he pays Grandmother and his

                                             9
girlfriend a total of approximately six hundred and fifty dollars ($650.00) per month in

rent. Transcript at 148. Father further testified that although he had applied for “Section

8 housing” approximately two years earlier and was currently number sixty-eight on the

wait list (down from 2000), he remained uncertain as to whether he would be able to

support B.W. even with the housing assistance but would “give it a shot.” Id. at 143-144.

       As for family counseling and visitation with B.W., Father insisted that he “didn’t

need to go to no (sic) counseling,” that he was “strongly against it from the beginning”

and that he felt it would be a “waste of my time.” Id. at 131-132. Although Father

acknowledged that he had been repeatedly told that he could and should visit with B.W.,

when asked why he failed to do so, Father answered: “[T]o be honest, I really don’t have

no excuses.” Id. at 145.

       As noted above, 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. In re D.D., 804 N.E.2d 258, 266 (Ind. Ct. App. 2004), trans. denied. Where

a parent’s “pattern of conduct shows no overall progress, the court might reasonably find

that under the circumstances, the problematic situation will not improve.” In re A.H.,

832 N.E.2d 563, 570 (Ind. Ct. App. 2005). After reviewing the record in its entirety, we

conclude that clear and convincing evidence supports the trial court’s specific findings set

forth above. These findings, in turn, provide ample evidence to support the court’s

ultimate decision to terminate Father’s parental rights to B.W. Father’s arguments to the

contrary, emphasizing his self-serving testimony, rather than the evidence cited by the

                                            10
trial court in its termination order, amount to an impermissible invitation to reweigh the

evidence. See D.D., 804 N.E.2d at 265.

                                     II. Best Interests

       We next consider Father’s assertion that ACDCS failed to prove termination of his

parental rights is in B.W.’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 Indiana

Department of Child Services and look to the totality of the evidence. McBride, 798

N.E.2d at 203. In so doing, the 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. Moreover, we have previously held that the

recommendations by both the case manager and child advocate to terminate parental

rights, in 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. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

       In addition to the findings previously cited, the trial court made several additional

pertinent findings relating to B.W.’s best interests. Although the trial court specifically

noted that B.W. loves Father, the court nevertheless acknowledged Guardian Ad Litem

(“GAL”) Michael Harmeyer’s testimony recommending termination of Father’s parental

rights as in B.W.’s best interests, including the GAL’s specific testimony that Father is

not able to financially support B.W., not able to secure housing for the child, has physical

and mental health limitations, and has failed to regularly visit with B.W. The court went

on to conclude that “[n]either parent can provide for the child at this time,” and that

                                             11
through termination of parental rights, B.W. can be “placed for adoption and can be given

a safe and sustainable home.” Appellant’s Appendix at 28. Based on these and other

findings, the trial court concluded that termination of Father’s parental rights is in B.W.’s

best interests. These findings and conclusion, too, are supported by the evidence.

          During the termination hearing, GAL Harmeyer testified that Father had “a

significant number of issues or challenges in his life . . . which I think are fairly

significant.”    Transcript at 221.   GAL Harmeyer also informed the trial court that

“[b]eyond the economic and financial issues” were the “housing and stability” issues, as

Father had been without independent housing for several years and was “now reliant on

his own parents who appear to be of advanced age and frail health themselves,” as well as

the “generosity of a girlfriend.” Id. at 222. GAL Harmeyer expressed additional concern

regarding Father’s “relatively profound health issues” including Father’s “significant

problems controlling blood sugar levels and high blood pressure.” Id. To that end,

Father’s own testimony confirmed that despite medication, his blood pressure was “not

under control” and that his doctor had described him as a “walkin (sic) time bomb.” Id.

at 133.

          In recommending termination of Father’s parental rights as in B.W.’s best

interests, GAL Harmeyer testified: “[W]hen you add all of those dynamics up . . . what I

see is a father who is simply not able to raise B.W. as a single parent. . . . [T]he

challenges that [Father] faces as I see them are too significant both in number and in

terms of severity . . . and he just doesn’t have enough left over for his son.” Id. at 223.

Similarly, when asked why she recommended termination of Father’s parental rights as in

                                             12
B.W.’s best interests, case manager Kidd answered, “B.W., he’s such a good kid. He is,

and he deserves to have either one supportive loving parent or two (2) supporting loving

parents that want a child and want to be a part of their [sic] life.” Id. at 202. When asked

whether Father could provide that type of environment for B.W., Kidd answered “no.”

Id.

       Based on the totality of the evidence, including Father’s unresolved struggle with

housing and financial instability, failure to visit with B.W., and failure to meaningfully

engage in reunification services throughout the underlying proceedings, coupled with the

testimony from case manager Kidd and GAL Harmeyer recommending termination of the

parent-child relationship, we conclude that there is sufficient evidence to support the trial

court’s determination that termination of Father’s parental rights is in B.W.’s best

interests. See, e.g., In re A.I., 825 N.E.2d 798, 811 (Ind. Ct. App. 2005) (testimony of

court-appointed advocate and family case manager, coupled with evidence that

conditions resulting in continued placement outside home will not be remedied, is

sufficient to prove by clear and convincing evidence termination is in child’s best

interests), trans. denied.

       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.’” Matter of A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997) (quoting Egly

v. Blackford Cnty. Dep’t of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992)). We find

no such error here.

       Affirmed.

                                             13
FRIEDLANDER, J., and PYLE, J., concur.




                                         14
