MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D), this                           Jun 30 2016, 9:39 am
Memorandum Decision shall not be                                          CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
court except for the purpose of establishing                               and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deidre L. Monroe                                         Gregory F. Zoeller
Public Defender’s Office                                 Attorney General of Indiana
Gary, Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         James D. Boyer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Termination of the                                June 30, 2016
Parent-Child Relationship of:                            Court of Appeals Case No.
J.S., Minor Child,                                       45A03-1601-JT-63
                                                         Appeal from the Lake Superior
M.S.,                                                    Court
Appellant-Respondent,                                    The Honorable Thomas P.
                                                         Stefaniak, Jr., Judge
        v.                                               Trial Court Cause No.
                                                         45D06-1503-JT-48
Indiana Department of Child
Services,
Appellee-Petitioner.




Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016             Page 1 of 15
      Najam, Judge.


                                            Statement of the Case
[1]   M.S. (“Father”) appeals the trial court’s termination of his parental rights over

      his minor child, J.S. (“Child”). Father raises one issue for our review, which

      we restate as whether the trial court’s termination of Father’s parental rights to

      Child was clearly erroneous.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Child was born to Father and J.M. (“Mother”)1, who were not married, on May

      28, 2010. On May 29, Father established his paternity of Child by affidavit, but

      Father did not live with Mother and Child.


[4]   On July 28, 2013, officers with the Lake Station Police Department were

      dispatched to Mother’s home in Hobart following a report that Mother had

      overdosed on Valium pills with Child in the home. Upon arriving at Mother’s

      home, the police found Mother unresponsive and Child watching television.

      Mother was taken to the hospital, and the police contacted the Indiana

      Department of Child Services (“DCS”) regarding Child. Child was placed in

      the care of her maternal grandmother.




      1
          Mother voluntarily terminated her parental rights and does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016                Page 2 of 15
[5]   On July 30, DCS filed its petition alleging Child was a child in need of services

      (“CHINS”). On August 30, following a fact-finding hearing, the trial court

      adjudicated Child to be a CHINS. Both Mother and Father were ordered to

      participate in reunification services, including a drug/alcohol evaluation and

      any recommended treatment, random drug screens, and supervised visitation.

      The trial court ordered that Child be placed with her paternal great-

      grandparents.


[6]   Father did not engage in any of the services ordered by the trial court. He did

      not visit Child, and he did not obtained a drug/alcohol evaluation. Father was

      imprisoned from September 2013 to February 2014 for theft, and from June

      2014 to October 2014 for theft of a firearm and a probation violation. Because

      Father had failed to engage in any of the services offered by DCS, the service

      providers closed their services to him in October 2014.


[7]   In November 2014, the trial court granted Father’s grandmother’s request that

      the services to Father be reopened. However, Father again failed to complete

      any of the required services, and the services were once more closed to him for

      non-compliance. Three months later, DCS reopened services to Father for a

      second time, but Father again failed to participate in any of the services, even

      when he was not incarcerated. Father did participate in a “substance anger

      management type class” while he was incarcerated in Lake County Jail in 2014,

      but he “did not find it helpful” and relapsed into drug use when he was

      subsequently released from incarceration. Tr. at 54-55.



      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 3 of 15
[8]   On March 12, 2015, DCS filed its petition to terminate Mother’s and Father’s

      parental rights as to Child. In June, Father was again incarcerated, this time for

      Level 5 burglary, for which he could be sentenced to one to three years

      imprisonment. On September 30, the trial court held a permanency hearing

      and changed the permanency plan from reunification to termination of parental

      rights and adoption by Child’s maternal grandmother. On December 9, the

      trial court held an evidentiary hearing on the termination petition. At the

      hearing, Antoinette Crosslin, the DCS family case manager (“FCM”), testified

      that termination of parental rights is in Child’s best interest because of Father’s

      “long term history of being incarcerated for different offenses and substance

      abuse.” Id. at 94. FCM Crosslin also testified that Child’s adoption by her

      maternal grandmother is best for Child because the maternal grandmother also

      had care of Child’s younger sibling with whom Child had bonded.


[9]   On December 16, the trial court entered the following relevant findings and

      conclusions in support of terminating Father’s parental rights:


              The child(ren) has been removed from her parent(s) for least six
              (6) months under a dispositional decree(s) of this Court dated
              August 30, 2013[,] as to the father and on December 9, 2013[.] as
              to the [m]other[,] retroactive to July 28, 2013. . . .


              The child(ren) has been removed from the parent and has been
              under the supervision of the Indiana Department of Child
              Services for at least fifteen (15) of the most recent twenty-two
              (22) months.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 4 of 15
        There is a reasonable probability that the conditions resulting in
        the removal of the child(ren) from her parents’ home will not be
        remedied in that: The child was removed from parental care in
        July of 2013 when mother overdosed in the home with the child
        present. The child was removed from mother’s care and placed
        in relative placement. The investigation revealed that the child
        lived with the grandmother most of her life and was only
        sporadically in the care of the parents.


        Services were offered to the parents pursuant to a case plan
        which included initial clinical assessments, random drug screens,
        substance abuse evaluations, individual therapy, inpatient and
        outpatient substance abuse programs and supervised visitations.


        Mother has voluntarily relinquished her parental rights in open
        court.


        Father, [M.S.] is the legal father of this child. (Exhibit A)


        Father did not participate in any services. Father did not
        complete the substance abuse evaluation. Father did not submit
        to any drug screens. Father did not participate in any inpatient
        or outpatient substance abuse programs. Father did not
        participate in any supervised visitations with the child. Father
        did not complete one single aspect of the case plan. Father has
        been totally non-compliant with the case plan. Father has made
        absolutely no effort to work towards reunification with his child.
        Services for the father were closed in October of 2014 due to
        father’s non-compliance. In November of 2014, the relatives
        appeared at a CHINS review hearing requesting services for
        father to be reinstated. Services were reinstated and father again
        was totally non-compliant. Father did not even start any of the
        services, much less complete any of them. Services were again
        suspended after three months of non-compliance. At another
        CHINS review hearing, services were again reinstated for the

Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 5 of 15
        father for the third [sic] time and father again was non-compliant
        and did not even begin any of the services. All efforts made to
        provide services to the father have failed due to father’s lack of
        participation.


        Father has a lengthy criminal history and is currently
        incarcerated since June of 2015 and has been throughout the
        majority of this case. Father testified that he is currently
        incarcerated for burglary and is scheduled to be sentenced in a
        few days which he is facing a one to three year sentence.


        Father testified that he was incarcerated from September 2013
        through February of 2014 for fraud and forgery and again
        incarcerated from June of 2014 through October of 2014 for
        Theft. Father indicated that he has been in and out of jail for
        numerous years stemming back from 2009 and also violations of
        his probation. Father’s criminal history is lengthy and continues
        to this date. Father’s pattern of conduct has not improved.


        Father testified that he has substance abuse issues and has been
        struggling with a heroin addiction since the year 2013. Father
        further testified that he remains clean while incarcerated, but
        whenever he is released from incarceration, his [sic] continues
        with his addiction. Father did not participate in any substance
        abuse treatments for his addiction during this case. Father
        clearly has not addressed his substance abuse issues. Father
        testified that he cannot maintain sobriety out of incarceration
        even though he completed a substance abuse case [sic] in the
        Lake County Jail during one of his incarcerations.


        Father is not able to provide a safe and secure home for this
        child. Father does not have stable housing and plans on living
        with a relative when he is released from incarceration although
        Father has not formally asked any relative if he can live with
        them. Father is in no position to properly parent this child.

Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 6 of 15
        Father’s history shows a long pattern of substance abuse issues
        and multiple burglary/theft charges. Father continues with his
        criminal and substance abuse patterns. Father continues with the
        instability in his life. Father, by his own admission, will likely be
        incarcerated further at this [sic] sentencing hearing later this
        week.


        Father indicated that the child has been raised by his parents and
        grandparents for the past five years. Father indicated that he did
        not raise this child and wants the child placed with his relatives.
        Father testified that he is in no position to parent this child.


        Neither parent is providing any emotional or financial support
        for the child. Neither parent has completed any case plan for
        reunification. Mother has voluntarily relinquished her parental
        rights and Father is in no position to properly parent this child.
        The child is in relative placement with her sibling and is bonded
        and thriving. The child has been in placement since July of 2013
        and has never been returned to parental care or custody.


        There is a reasonable probability that the continuation of the
        parent-child relationship poses a threat to the well-being of the
        child(ren) in that: for the reasons stated above. Additionally, the
        child deserves a loving, caring, safe, stable and drug free home.


        It is in the best interest of the child(ren) and her health, welfare
        and future that the parent-child relationship between the
        child(ren) and her parents be forever fully and absolutely
        terminated.


        The Indiana Department of Child Services has a satisfactory plan
        for the care and treatment of the child(ren) which is Adoption by
        the grandmother, Ms. Cummings.



Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 7 of 15
                                                       ***


               The Court grants said petition, and it is adjudged that the parent-
               child relationship between [J.S.] - Ward of DCS, the child(ren),
               and [J.M.] (Mother) and [M.S.] (Father), the parent(s), and any
               unknown Father, be, and the same hereby is terminated, and all
               rights, powers, privileges, immunities, duties and obligations
               (including the right to consent to adoption) pertaining to that
               relationship are hereby permanently terminated. . . .


       Appellant’s App. at 1-4. This appeal ensued.


                                      Discussion and Decision
[10]   Father maintains that the trial court’s order terminating his parental rights was

       clearly erroneous. We begin our review of this issue by acknowledging that

       “[t]he traditional right of parents to establish a home and raise their children is

       protected by the Fourteenth Amendment of the United States Constitution.”

       Bailey v. Tippecanoe Div. of Family & Children (In re M.B.), 666 N.E.2d 73, 76 (Ind.

       Ct. App. 1996), trans. denied. However, a trial court must subordinate the

       interests of the parents to those of the child when evaluating the circumstances

       surrounding a termination. Schultz v. Porter Cnty. Ofc. of Family & Children (In re

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

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

       threatened. Id. Although the right to raise one’s own child should not be

       terminated solely because there is a better home available for the child, parental

       rights may be terminated when a parent is unable or unwilling to meet his or

       her parental responsibilities. Id. at 836.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 8 of 15
[11]   Before an involuntary termination of parental rights can occur in Indiana, DCS

       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) [and] that termination is in the best interests of the child . . . .


       Ind. Code § 31-35-2-4(b)(2) (2015). DCS need establish only one of the

       requirements of subsection (b)(2)(B) before the trial court may terminate

       parental rights. Id. DCS’s “burden of proof in termination of parental rights

       cases is one of ‘clear and convincing evidence.’” R.Y. v. Ind. Dep’t of Child Servs.

       (In re G.Y.), 904 N.E.2d 1257, 1260-61 (Ind. 2009) (quoting I.C. § 31-37-14-2).


[12]   When reviewing a termination of parental rights, we will not reweigh the

       evidence or judge the credibility of the witnesses. Peterson v. Marion Cnty. Ofc. of

       Family & Children (In re D.D.), 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans.


       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 9 of 15
       denied. Instead, we consider only the evidence and reasonable inferences that

       are most favorable to the judgment. Id. Moreover, 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.

       Judy S. v. Noble Cnty. Ofc. of Family & Children (In re L.S.), 717 N.E.2d 204, 208

       (Ind. Ct. App. 1999), trans. denied.


[13]   Here, in terminating Father’s parental rights, the trial court entered specific

       findings of fact and conclusions thereon. When a trial court’s judgment

       contains special findings and conclusions, we apply a two-tiered standard of

       review. Bester v. Lake Cnty. Ofc. of Family & Children, 839 N.E.2d 143, 147 (Ind.

       2005). First, we determine whether the evidence supports the findings and,

       second, we determine whether the findings support the judgment. Id.

       “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 trial court’s

       decision, we must affirm. In re L.S., 717 N.E.2d at 208.


[14]   Father contends that the trial court erred in concluding that he will not remedy

       the conditions that resulted in Child’s removal; that the continuation of the

       parent-child relationships poses a threat to the well-being of Child; that

       termination is in the best interest of Child; and that the permanency plan was

       satisfactory. Because Indiana Code Section 31-35-2-4(b)(2)(B) is written in the

       disjunctive, we address only whether the trial court erred in concluding that

       continuation of the parent-child relationships poses a threat to Child and that

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 10 of 15
       termination is in Child’s best interests. We also briefly address Father’s

       “satisfactory plan” contention.


                            Continuation of the Parent-Child Relationship

[15]   Father contends that the trial court’s conclusion that continuation of the parent-

       child relationship would pose a threat to Child is not supported by the evidence.

       However, Father’s arguments are simply requests that we reweigh the evidence,

       which we cannot do. In re D.D., 804 N.E.2d at 265. Instead, we must

       determine whether the evidence most favorable to the judgment supports the

       trial court’s conclusion. Id.; Quillen, 671 N.E.2d at 102. We hold that it does.


[16]   The trial court’s conclusion is supported by the evidence. FCM Crosslin

       testified that termination of parental rights is in Child’s best interest because of

       Father’s “long term history of being incarcerated for different offenses and

       substance abuse.” Tr. at 94. This testimony is supported by the uncontested

       fact that Father has a lengthy criminal history, starting in 2009 and continuing

       to the date of the termination hearing. In fact, Father was incarcerated at the

       time of the hearing and had not yet been sentenced. Father testified that,

       because of that, he was unable to care for Child at the time of the hearing and

       would not be able to do so within the next one to three years, depending on the

       length of his sentence for his most recent crime. Father also admitted that he

       has a drug abuse problem and relapses into drug abuse every time he is released




       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 11 of 15
       from incarceration.2 Moreover, Father has not been employed since 2013, and

       he does not have a home in which to care for Child. Father testified that he

       planned to live with his mother when he was released from jail, but he had not

       yet discussed that with his mother.


[17]   All of this evidence clearly supports the trial court’s conclusion that

       continuation of the parent-child relationship would pose a threat to Child. The

       trial court must consider the parent’s ability to care for the child at the time of

       the termination hearing, taking into consideration evidence of changed

       conditions. In re M.S., 898 N.E.2d 307, 311 (Ind. Ct. App. 2008). To predict

       future behavior of a parent, the trial court should look at the parent’s habitual

       patterns of conduct, and it “need not wait until a child is irreversibly influenced

       by a deficient lifestyle such that his physical, mental, and social growth is

       permanently impaired before terminating the parent-child relationship.” Id.

       Father clearly has a habitual pattern of criminal activity, incarceration, and

       substance abuse, and there is no evidence that those conditions are likely to

       change. Moreover, Father had not been Child’s caretaker in the past, and there

       was no evidence, other than his own speculation, that he would be in a position

       to care for Child in the future. When the evidence shows that the emotional




       2
         The trial court’s finding that Father did not engage in any substance abuse treatment during this case is not
       erroneous, as Father contends. Father points to his participation in a “substance anger management type
       class” while he was incarcerated in Lake County Jail in 2014, but there was no evidence that the class
       actually provided treatment. Tr. at 54. Moreover, Father admitted that he “did not find [the class] helpful”
       and relapsed into drug use when he was subsequently released from prison. Id. at 55.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016                 Page 12 of 15
       and physical development of a child in need of services is threatened, as it does

       here, termination of the parent-child relationship is appropriate. Id.


                                                  Best Interests

[18]   In determining whether termination of parental rights is in the best interests of a

       child, the trial court is required to look at the totality of the evidence. A.S. v.

       Ind. Dep’t of Child Servs. (In re A.K.), 924 N.E.2d 212, 224 (Ind. Ct. App. 2010).

       “A parent’s historical inability to provide adequate housing, stability and

       supervision coupled with a current inability to provide the same will support a

       finding that termination of the parent-child relationship is in the child’s best

       interests.” Castro v. State Ofc. of Family & Children, 842 N.E.2d 367, 374 (Ind. Ct.

       App. 2006), trans. denied. “Additionally, a child’s need for permanency is an

       important consideration in determining the best interests of a child, and the

       testimony of the service providers may support a finding that termination is in

       the child’s best interests.” In re A.K., 924 N.E.2d at 224. Such evidence, in

       addition to evidence that continuation of the parent-child relationship poses a

       threat to the children, is sufficient to show by clear and convincing evidence

       that termination is in the child’s best interests. L.S. v. Ind. Dep’t of Child Servs.

       (In re A.D.S.), 987 N.E.2d 1150, 1158-59 (Ind. Ct. App. 2013), trans. denied.


[19]   Here, the evidence cited above also supports the trial court’s conclusion that

       termination of Father’s parental rights is in Child’s best interest. Father’s

       history of criminal activity, incarceration, and drug abuse made him unable to

       provide stable, safe care for Child in the past, and there is no evidence to

       support his speculation that he will be able to do so at some unknown point in
       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 13 of 15
       the future. Based on Father’s criminal and drug abuse history, FCM Crosslin

       testified that termination of parental rights is in Child’s best interest. Moreover,

       Father provides no evidentiary support for his contentions that Child will be

       harmed by the termination of Father’s parental rights. Given the evidence that

       Child needs stability, supervision, and care that Father cannot provide, we hold

       that the totality of the evidence supports the trial court’s conclusion that

       termination is in Child’s best interests.


                                         Satisfactory Plan for Child

[20]   Father claims, without citation to the record, that “[t]estimony at trial

       indicated” that maternal grandmother had not fully bonded with Child.

       Appellant’s Br. at 9. However, a satisfactory plan for the care and treatment of

       the children “need not be detailed, so long as it offers a general sense of the

       direction in which the child will be going after the parent-child relationship is

       terminated.” In re D.D., 804 N.E.2d at 268 (citing Jones v. Gibson Cnty. Div. of

       Family and Children (In re B.D.J.), 728 N.E.2d 195, 204 (Ind. Ct. App. 2000)).

       Further, DCS need not have a plan that contemplates a specific adopting family

       at all; it need only show that the plan is adoption. Lang v. Stark Cnty. Ofc. of

       Family and Children, 861 N.E.2d 366, 375 (Ind. Ct. App. 2007) (“[a]ttempting to

       find suitable parents to adopt the children is clearly a satisfactory plan”), trans.

       denied. In this case, the plan was for Child’s adoption by maternal

       grandmother, and the FCM testified that she believed this was the “best fit” for

       Child. Tr. at 91-92. Thus, the evidence supports the trial court’s conclusion

       that adoption is a satisfactory plan, and that conclusion is not clearly erroneous.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 14 of 15
[21]   The trial court did not err when it terminated Father’s parental rights to Child.


[22]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1601-JT-63| June 30, 2016   Page 15 of 15
