 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 establishing                        Jun 28 2013, 7:08 am
 the defense of res judicata, collateral
 estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

WILLIAM W. GOODEN                                  DANIEL JANKOWSKI
Mt. Vernon, Indiana                                DCS Posey County Local Office
                                                   Evansville, 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                )
J.W. (Minor Child) and                             )
                                                   )
K.S. (Father),                                     )
                                                   )
       Appellant-Respondent,                       )
                                                   )
                 vs.                               )      No. 65A01-1211-JT-535
                                                   )
INDIANA DEPARTMENT OF CHILD                        )
SERVICES,                                          )
                                                   )
       Appellee-Petitioner.                        )


                        APPEAL FROM THE POSEY CIRCUIT COURT
                           The Honorable James M. Redwine, Judge
                               Cause No. 65C01-1009-JT-167


                                          June 28, 2013

                  MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
                                       Case Summary

       When he was three months old, J.W. was removed from his mother’s home due to her

lack of supervision and the filthy condition of the home. At that time, K.S.’s paternity had

not been established, and his whereabouts were unknown. During the child in need of

services (“CHINS”) case, K.S. (“Father”) was in and out of incarceration. During the times

that he was not incarcerated, Father did not stay in contact with the Department of Child

Services (“DCS”). Nearly two years after the initial removal, paternity was established while

Father was incarcerated. Soon thereafter, Father was released on parole. He absconded and

was later arrested on new charges. DCS then filed a petition to terminate his parental rights.

At the time of the termination hearing, Father was still incarcerated and was scheduled to be

released in about seven months.

       The trial court terminated Father’s parental rights. On appeal, Father challenges the

court’s conclusions that there was a reasonable probability that the conditions that resulted in

the child’s removal from and continued placement outside Father’s care and custody would

not be remedied, that there was a reasonable probability that continuation of the parent-child

relationship between Father and the child poses a threat to the child’s well-being, and that

termination of the parent-child relationship is in the best interests of the child.

       We affirm. Father was not available to parent J.W. at the time of his removal, and that

condition remained unchanged due to Father’s alternating periods of incarceration and

disappearance. Alternatively, Father’s instability, lack of housing and employment, failure to

deal with his mental health and substance abuse problems, and criminal conduct demonstrate


                                               2
that continuation of the parent-child relationship poses a threat to the child’s well-being.

J.W. has never met his Father and has spent most of his life in a foster home. J.W. is bonded

to his foster family, who is willing to adopt J.W. and his half-sister. J.W. is thriving in the

stability of his foster family, while Father has done nothing to address his unstable lifestyle.

Therefore, we agree with the trial court that termination is in the child’s best interests, and we

affirm the judgment of the trial court.

                                    Facts and Procedural History

       J.W. was born on November 13, 2009. As of February 2010, J.W. was living in a

shelter with his mother, N.W. (“Mother”), and his half-sister, B.W.1 On February 24, 2010,

shelter staff reported to DCS that they had observed Mother leave J.W. unattended and

propped up on a bed with a plastic sack in his hand. His diaper was soaked. Mother’s room

was filthy, with dirty diapers and bottles of formula lying on the floor. Mother had also been

known to yell and curse at B.W. and leave her in her high chair for hours at a time. DCS

removed the children from Mother and placed them with a foster family. DCS filed a

petition alleging that J.W. was a CHINS because of Mother’s refusal or inability to supply

him with necessary supervision. The petition also noted that K.S. was J.W.’s alleged father

and that K.S.’s whereabouts were unknown. The intake officer’s report of preliminary

inquiry and investigation indicates that paternity had not been established and that the family

case manager (“FCM”) attempted to locate Father using online search engines and the white

pages. DCS was also aware that Father is required to register as a sex offender, but


       1
           K.S. is not B.W.’s father.

                                                 3
apparently was not able to determine his whereabouts using the registry.2

       On February 25, 2010, the court authorized the filing of the CHINS petition. An

initial hearing was held for Mother, and she admitted the allegations. The court ordered J.W.

to remain in his foster care placement.

       On April 12, 2010, Father was arrested in Cook County, Illinois, for “prohibited

presence within a school zone by a child sex offender.” Petitioner’s Exs. 17 and 18.

Sometime that month, a detective informed FCM Davita Hubbard that Father was

incarcerated in the Cook County Jail. DCS and the Posey County Prosecutor’s Office

attempted to make arrangements to get a DNA sample from Father while he was at the Cook

County Jail, but they were not permitted to do so. On May 11, 2010, Father was sentenced to

one year in the Illinois Department of Corrections. The record is unclear as to when Father

was released, and DCS lost contact with him.

       In August 2010, DCS stopped providing services to Mother, and the trial court

approved adoption as the permanency plan. J.W. and his sister were still in the same foster

home, and the foster parents were willing to adopt both of them. Various reports filed in the

CHINS case reflect that J.W. was in good health, developmentally on target, and bonded with




       2
           Father is required to register due to a 2002 conviction of class B felony child molesting.

                                                      4
his sister and foster family. Mother’s parental rights were terminated on December 9, 2010.3

       The CHINS case remained open, and a court order dated February 14, 2011, reflects

that DCS was unable to locate Father at that time. It appears that DCS’s next contact with

Father was on June 8, 2011, when Hubbard learned that he was incarcerated in the Posey

County Jail on a charge of failing to register as a sex offender. According to Hubbard, Father

indicated that he was aware of J.W. and had contacted Mother at some point. Mother had

wanted Father to help support J.W., but he was not willing or able to do so. Hubbard

provided Father with paperwork relating to the CHINS case. On June 14, 2011, Father pled

guilty to class D felony failure to register as a sex offender, and on August 9, 2011, he was

sentenced to one year in the Department of Correction. On August 11, 2011, at the request of

Father’s attorney, the court ordered that Father be held at the Posey County Jail pending

DNA testing. Father’s paternity was established on October 3, 2011.

       Father was placed on parole toward the end of 2011 and provided housing in a hotel.

In December 2011, Father left the hotel without informing his parole agent, and he was

declared delinquent. On January 10, 2012, a new charge of failure to register as a sex

offender was filed and a bench warrant was issued. On April 18, 2012, Father was located in

Kentucky and arrested on the new charge. Two days later, DCS filed a petition to terminate

Father’s parental rights. On May 31, 2012, Father pled guilty to the new charge of failure to

register as a sex offender, which was enhanced to a class C felony due to his previous



       3
          We affirmed the termination of Mother’s parental rights in N.W. v. Indiana Department of Child
Services, No. 65A01-1101-JT-7, 2011 WL 4499369 (Ind. Ct. App. Sept. 29, 2011), trans. denied (2012).
Therefore, Mother does not participate in this appeal.

                                                   5
conviction. On June 27, 2012, he was sentenced to two years in the Department of

Correction.

       The termination hearing was held on September 5, 2012, and Father appeared

telephonically due to his incarceration. DCS offered into evidence chronological case

summaries from fifteen different criminal cases in Indiana, as well as documentation of his

conviction in Illinois. K.S.’s Indiana convictions include class B felony child molesting,

three counts of failure to register as a sex offender, failure to carry identification,4 illegal

consumption of an alcoholic beverage, eight counts of public intoxication, possession of

marijuana, two counts of disorderly conduct, three counts of resisting law enforcement,

criminal mischief, and trespass.

       Arthur Davis testified that he was Father’s parole agent from November 2011 to

December 2011. Davis testified that he went over the rules of parole with Father. As a sex

offender, Father was not allowed to have contact with anyone under the age of eighteen, even

with supervision. Father’s file included notes from a therapist, who indicated that Father

seemed childlike, was difficult to understand, appeared to be regressing, and might have

Asperger’s syndrome. While on parole, Father called Davis and threatened to commit

suicide. Davis and a detective went to Father’s hotel room and found that he was attempting

to hang himself. Father was taken to a hospital, but was released the same day. At some

point, Father had been prescribed several medications for anxiety.

       In December 2011, Father moved out of the hotel and did not tell Davis where he was


       4
           Sex offenders are required to keep valid identification in their possession. Ind. Code § 11-8-8-15.

                                                      6
going. Davis checked several shelters and also contacted Father’s sister, who “seemed to

indicate that this was normal behavior for him. To take off and not tell anybody where he’s

at.” Tr. at 49. Davis picked up Father’s personal effects from the hotel room, and found that

he had left his medications there. Hotel staff also showed Davis a light bulb that had been

taken apart and used to smoke drugs. Davis was unable to locate Father, and he was declared

delinquent from parole. Davis last had contact with Father in November 2011. Davis

testified that Father never mentioned having a son.

       FCM Hubbard testified that she could locate Father only during the times that he was

incarcerated. She stated that Father had written her one letter, but when she attempted to

respond, he was no longer incarcerated, and she did not know where he was. Other than that

letter, Father had never contacted her about the case. Hubbard testified that DCS would have

been willing to help him establish paternity earlier in the case.

       Hubbard testified that J.W. was doing “very well” in his foster home and responded

well to the structure of the home. Id. at 61. J.W. was bonded with his sister and his foster

family. DCS’s plan was for the foster family to adopt J.W. and his sister. Hubbard felt that

termination of Father’s parental rights was in J.W.’s best interest. Beth Folz, who is the

guardian ad litem (“GAL”) for J.W. and his sister, also recommended termination of Father’s

rights and adoption of J.W. by the foster family.

       Father testified that he was currently incarcerated at Plainfield Correctional Facility




                                              7
and his scheduled release date was April 16, 2013.5 Father stated that his brother was going

to help him find a place to live when he is released, but he also stated that he planned to go to

the United Caring Shelter. Children can visit there, but are not allowed to live there. DCS

asked Father, “Is it your intention to have [J.W.], all the time, at some point?” Id. at 40.

Father responded, “No. At one point I mean, I would like to, but I mean, I’m hoping it comes

down to that. At least visitation though.…” Id. at 41.

        Father testified that he knew that N.W. had gotten pregnant and he believed that the

baby was his, although he also claimed that N.W. told him that he might not be the father

because she had been cheating on him. Father acknowledged that he has never met J.W. and

did not attempt to establish paternity. He testified that he could not afford to hire an attorney

to pursue a paternity action. At the time that J.W. was born, Father was living in a shelter,

and after that, he lived on the streets for about six months.

        Father testified that he has bipolar disorder and ADHD. At the time of the termination

hearing, Father was taking medication, but he stated that he cannot afford his medications

when he is not incarcerated. He stated that he received treatment for alcohol abuse in 2005,

but it did not help him. He claimed that, for about six months prior to his arrest, he had not

drunk any alcohol and was attending AA and NA meetings. He estimated that he had been

incarcerated for about 45% of his adult life.




        5
           Neither party makes any representations regarding whether Father has in fact been released. We note
that the sex offender registry and the Department of Correction’s offender search both reflect that he is
currently incarcerated.

                                                      8
       Father claimed that no one had explained the rules of parole to him. He testified that

after moving out of the hotel, he stayed in Evansville for a while, and then went to Kentucky

in search of a job. He believed that his last job was sometime in 2009, and he held that job

for about a month. Prior to that, he had worked at Dairy Queen for six months in 2007.

       On October 30, 2012, the trial court issued an order terminating Father’s parental

rights. The trial court made the following findings:

       [K.S.] thought [J.W.] was his child but never sought to establish paternity.
       Paternity was established at the instance of and through the offices of the
       Indiana Department of Child Services.

             [K.S.] has never met his son. When he was approached about providing
       support for [J.W., K.S.] refused to do so or even consider doing so.

              [K.S.] is currently incarcerated for failing to register as a sex offender.
       He is due to be released in April 2013.

               When [K.S.] was paroled, before being re-convicted, his Parole Officer,
       Arthur Davis, went over the rules with [K.S., but K.S.] violated several rules,
       absconded out of state and attempted suicide. [K.S.] never asked Davis about
       [J.W.] In fact, Davis was unaware [K.S.] had a child until he became involved
       in this proceeding. [K.S.] was instructed by Davis to find a job, but [K.S.]
       never did.

              …

       Davita Hubbard testified the Indiana Department of Child Services made
       numerous attempts to locate and keep track of [K.S.] and to keep him notified
       of court proceedings. However, the only times Indiana Department of Child
       Services could find [K.S.] were when he was incarcerated.…

       The court appointed Guardian Ad Litem, attorney Beth Folz, who
       recommended that the court terminate [K.S.’s] parental rights.

Appellant’s App. at 35-36.

       Based on these findings, the court concluded that there was a reasonable probability

                                               9
that the conditions that resulted in the child’s removal from and continued placement outside

Father’s care and custody would not be remedied, that there was a reasonable probability that

continuation of the parent-child relationship between Father and the child poses a threat to

the child’s well-being, and that termination of the parent-child relationship is in the best

interests of the child. The trial court terminated Father’s parental rights, and Father now

appeals.

                                  Discussion and Decision

       The Fourteenth Amendment to the United States Constitution protects the traditional

right of parents to establish a home and raise their children. Bester v. Lake Cnty. Office of

Family & Children, 839 N.E.2d 143, 147 (Ind. 2005) (citing Pierce v. Soc’y of Sisters, 268

U.S. 510, 534-35 (1925)). A parent’s interest in the care, custody, and control of his or her

children is “perhaps the oldest of the fundamental liberty interests.” Troxel v. Granville, 530

U.S. 57, 65 (2000). Indeed, the parent-child relationship is “one of the most valued

relationships in our culture.” Neal v. DeKalb Cnty. Div. of Family & Children, 796 N.E.2d

280, 285 (Ind. 2003). However, parental rights are not absolute and must be subordinated to

the child’s interests in determining the proper disposition of a petition to terminate parental

rights. Bester, 839 N.E.2d at 147. Thus, “[p]arental rights may be terminated when the

parents are unable or unwilling to meet their parental responsibilities.” In re D.D., 804

N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied.

       Indiana Code Section 31-35-2-4(b)(2) requires that a petition to terminate a parent-

child relationship involving a CHINS must allege:


                                              10
       (A) that one (1) of the following is true:

              (i) The child has been removed from the parent for at least six (6)
              months under a dispositional decree.

              (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable
              efforts for family preservation or reunification are not required,
              including a description of the court’s finding, the date of the finding,
              and the manner in which the finding was made.

              (iii) The child has been removed from the parent and has been under the
              supervision of a local office or probation department for at least fifteen
              (15) months of the most recent twenty-two (22) months, beginning with
              the date the child is removed from the home as a result of the child
              being alleged to be a child in need of services or a delinquent child;

       (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.

The State must prove each of these elements by clear and convincing evidence. Bester, 839

N.E.2d at 148.

       Father challenges the trial court’s conclusions regarding subsection (b)(2)(B)(i),

(b)(2)(B)(ii), and (b)(2)(C). When reviewing a trial court’s findings of fact and conclusions

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


                                              11
supports the findings, and second we determine whether the findings support the judgment.

Bester, 839 N.E.2d at 147. We do not reweigh the evidence or judge witness credibility. Id.

We consider only the evidence and reasonable inferences favorable to the judgment. Id. We

will set aside the trial court’s judgment only if it is clearly erroneous. Id. A judgment is

“clearly erroneous if the findings do not support the trial court’s conclusions or the

conclusions do not support the judgment.” In re R.J., 829 N.E.2d 1032, 1035 (Ind. Ct. App.

2005).

                              I. Conditions Resulting in Removal

         Father argues that the trial court’s conclusion that there is a reasonable probability that

the conditions resulting in J.W.’s removal or placement outside the home of the parent would

not be remedied places him in an “impossible situation,” because J.W. was “removed because

of the Mother’s shortcomings which the Father is unable to correct” and Father “was

powerless to change or improve the child’s environment while the child resided with his

Mother.” Appellant’s Br. at 8. Father’s argument focuses solely on paragraph 5 of the

CHINS petition, which detailed Mother’s lack of supervision of J.W. and the dirty condition

of her living space. However, it is apparent from reading the petition as a whole that J.W.

could not be placed with Father because paternity had not been established and his

whereabouts were unknown.            Thus, while Father was not directly involved in the

circumstances that led to J.W.’s placement in foster care, he contributed to the removal by

being unavailable to parent the child. See In re B.D.J., 728 N.E.2d 195, 200-01 (Ind. Ct.

App. 2000) (in case where child was removed from mother’s home, we looked to the reasons


                                                 12
the child were not placed with father and affirmed termination of father’s rights because

those reasons had not been remedied).

       Father remained unavailable to parent J.W. since he was placed in foster care in

February 2010. For much of this time, he has been incarcerated. When he was not

incarcerated, he did not keep in contact with DCS. As a result, DCS was not able to provide

services to Father, and despite DCS’s willingness to help Father establish paternity, this was

not accomplished until October 2011. During the time that Father was on parole, he was not

allowed to have contact with children, even with supervision. By repeatedly going missing,

Father not only made himself unavailable to parent, but also subjected himself to additional

criminal sanctions due to his failure to register. Father was incarcerated at the time of the

termination hearing, and while he thought that his brother would help him find a place to live

upon release, Father also acknowledged that he might end up living in a shelter where J.W.

would not be allowed to live with him. When asked whether he intended to have J.W. live

with him full time at some point, Father equivocated. In sum, Father was unavailable to

parent J.W. at the time of his removal, and he remained unavailable to parent throughout the

proceedings. This supports the trial court’s conclusion that there is a reasonable probability

that the conditions resulting in J.W.’s placement outside the home would not be remedied.

                             II. Threat to Well-being of Child

       Subsection (b)(2)(B) is written in the disjunctive; thus, DCS was required to establish,

by clear and convincing evidence, only one of the requirements of subsection (B). In re I.A.,

903 N.E.2d 146, 153 (Ind. Ct. App. 2009). Nevertheless, we note that the evidence discussed


                                              13
above also supports a conclusion that continuation of the parent-child relationship poses a

threat to the child’s well-being. In determining whether the continuation of the parent-child

relationship poses a threat to the child’s well-being, the trial court need not wait until the

child is irreversibly influenced by a deficient lifestyle before terminating the relationship. In

re E.S., 762 N.E.2d 1287, 1290 (Ind. Ct. App. 2002). Instead, “[w]hen the evidence shows

that the emotional and physical development of a child in need of services is threatened,

termination of the parent-child relationship is appropriate.” Id. A parent’s habitual pattern of

conduct is relevant to determine whether there is a substantial probability of future neglect or

deprivation of the child. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000). “A court may

properly consider 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.”

McBride v. Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 199 (Ind. Ct. App.

2003).

         Throughout J.W.’s life, Father has either been incarcerated or has led an unstable

lifestyle. He has worked only sporadically, has been homeless at times, has failed to take

medication for his mental health conditions, has attempted suicide, and has abused drugs and

alcohol. Father has never supported or even met J.W. Among his numerous criminal

offenses, Father has been convicted of child molesting and continues to flout the sex offender

registration laws. This evidence supports the trial court’s conclusion that there is a

reasonable probability that continuation of the parent-child relationship poses a threat to

J.W.’s well-being.


                                               14
                                  III. Child’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 DCS and to consider the totality of the evidence. In re J.S.,

906 N.E.2d 226, 236 (Ind. Ct. App. 2009). In so doing, the trial court must subordinate the

interests of the parent to those of the child. Id. The recommendations of the case manager

and court-appointed 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. Id.

       Father compares his case to In re H.G., 959 N.E.2d 272 (Ind. Ct. App. 2011), trans.

denied (2012), in which we reversed the termination of parental rights of an incarcerated

father, C.L.D. C.L.D. was due to be released relatively soon, and noting that his ability to

parent could be quickly assessed upon release, we held that termination was not in the child’s

best interests. Id. at 292.

       In re H.G. is distinguishable on several grounds. While incarcerated, C.L.D. remained

in contact with DCS and his son and made substantial efforts to improve himself and earn an

early release. He completed vocational classes, anger management classes, a substance abuse

program, and the Inside Out Dads program. Furthermore, our decision was based in part on

the fact that C.L.D.’s son was old enough that his consent was required for adoption.

C.L.D.’s son had indicated that he did not want to be adopted; therefore, termination of

parental rights would leave him in the limbo of foster care until he reached adulthood. In

addition, shortly after the termination hearing, C.L.D.’s son was removed from the foster


                                               15
family that DCS had hoped would adopt him. In light of C.L.D.’s efforts and the fact that

adoption likely would not occur, we concluded that termination of C.L.D.’s parental rights

was not in the child’s best interests. Id. at 292, 294.

       By contrast, Father has not had any contact with his son, has not stayed in contact with

DCS, and there is no indication that he has made use of his time in or out of incarceration to

improve his ability to parent. Furthermore, unlike in H.G., in this case, there is no barrier to

adoption. J.W. is a young child, and his consent is not required. He has lived with his foster

family since he was just a few months old. J.W. is bonded to his foster family, who is also

planning to adopt his sister. Because Father has not taken any steps toward improving his

ability to parent, this is not a case where his parenting can be quickly assessed upon his

release. For these reasons, we agree with the trial court’s conclusion that termination is in

J.W.’s best interests. Therefore, we affirm the termination of Father’s parental rights.

       Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.




                                              16
