 Pursuant to Ind. Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any
                                                              May 22 2013, 9:26 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:

DALE W. ARNETT                                  JAMES E. MOORE
Winchester, Indiana                             Indiana Department of Child Services
                                                Muncie, 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:                          )
                                                )
N.S. (MINOR CHILD)                              )
                                                )
       AND                                      )
                                                )
D.S. (FATHER),                                  )
                                                )      No. 68A05-1209-JT-490
       Appellant-Respondent,                    )
                                                )
           vs.                                  )
                                                )
THE INDIANA DEPARTMENT OF                       )
CHILD SERVICES,                                 )
                                                )
       Appellee-Petitioner.                     )

             APPEAL FROM THE CIRCUIT COURT OF RANDOLPH COUNTY
                         The Honorable Jay L. Toney, Judge
                           Cause No. 68C01-1202-JT-11
                                       May 22, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge

        D.S. (“Father”) appeals the involuntary termination of his parental rights to his

child, N.S.   Father raises the following restated issues: (1) whether N.S., who was

physically removed from the home of Mother, the custodial parent, was also removed

from Father, the non-custodial parent, for purposes of the statute providing for the

involuntary termination of parental rights; and (2) whether there was sufficient evidence

to support the trial court’s judgment terminating Father’s parental rights.

        We affirm.

                              Facts and Procedural History

        The facts most favorable to the juvenile court’s judgment reveal that on February

17, 2010 the Randolph County Department of Child Services (“RCDCS”) received a

report that Mother shook N.S., the home was dirty, and that N.S. was outside in

inappropriate clothing. This report was substantiated, and N.S. was removed from the

home.    RCDCS filed a petition stating that N.S. was a child in need of services

(“CHINS”).      In April 2010, N.S. was returned to both Mother and Father after they

entered into an Informal Adjustment, agreeing to participate in services in an effort to

prevent their child/children from being formally adjudicated as CHINS.

        Approximately one month later, on May 3, 2010, RCDCS received a second report

that N.S. lost weight, was lethargic, and had swollen feet. On June 18, 2010, RCDCS

received a report that N.S. had a sizeable bruise on her left cheek. Around this time
                                           2
doctors diagnosed N.S. with failure to thrive. On July 4, 2010, Father moved out of the

home. N.S. remained with Mother. On July 26, 2010, RCDCS received a fourth report

alleging that that N.S. had lost weight for the second time in a month; that Mother took

N.S. out until 1:30 a.m. without food; and that N.S. was sunburned. All three reports

were substantiated by RCDCS.         On July 30, 2010, RCDCS filed a request for an

emergency order to remove N.S. from the home. The order was granted, and N.S. was

placed in foster care.

       On August 3, 2010, the juvenile court found that there was probable cause to

believe that N.S. was a CHINS and ordered N.S. to remain in foster care.          Father

appeared at this hearing, and the juvenile court appointed counsel for Mother and Father.

On August 24, 2010, Father appeared without counsel at the second initial hearing. The

court found that Father was not in a position to admit or deny the allegations since

Mother was the child’s caregiver. Mother appeared at the hearing with counsel and

admitted that N.S. was a CHINS. The juvenile court adjudicated N.S. as a CHINS and

set a disposition hearing for September 29, 2010, apparently notifying both Father and

Mother in open court, or at least notifying their respective attorneys.

       Father appeared with counsel at the September 29, 2010 dispositional hearing.

While Mother did not appear, her attorney did appear on her behalf. The court accepted

RCDCS’s Predispositional Report recommendations. The court ordered Father to:

          • Notify the family case manager of any changes in address, household
            composition, employment, or telephone number within five days.
          • Keep all appointments with service providers, RCDCS, and CASA/GAL.
            Advance notice and good reasons must be provided for missed
            appointments.
                                              3
          •   Provide written authorization to release information.
          •   Maintain suitable, safe, and stable housing.
          •   Complete anger management.
          •   Complete counseling with Centerstone.
          •   Attend supervised visitations with N.S. at Centerstone.
          •   Engage in case management with Centerstone.

Ex. Vol. Appellee’s Ex. 5A pp. 5-7. Centerstone is a mental health group with several

facilities around Indiana.

       At the time of this hearing, Father was recently married to K.S. (“Stepmother”).

Father and Stepmother later had two daughters. Jessica Maxwell (“Maxwell”), RCDCS

family case manager, also attended this hearing. Father had threatened Maxwell and was

briefly incarcerated as a result. As a result of Father’s threats, Maxwell obtained a

protective order against Father. Thereafter, Father was incarcerated for theft between

November 2010 and May 2011. Father did appear with counsel at the December 16,

2010 and April 7, 2011 periodic case review hearings. The court noted his incarceration

and ordered N.S. to remain in foster care.

       On July 14, 2011, Father appeared with counsel at the permanency and review

hearing. While the court found Father to be somewhat compliant with the case plan, he

had also not yet enrolled in counseling or parenting classes and moved to Ohio. The

court ordered Father to participate and complete therapy and parenting classes. The court

approved a permanency plan of reunification. On October 6, 2011 and January 12, 2012

Father appeared with counsel at the periodic review hearings. The court again ordered

Father to participate in therapy and counseling.




                                             4
       RCDCS filed its Petition for the Involuntary Termination of the Parent/Child

Relationship of a Child in Need of Services on February 10, 2012. At the April 17, 2012

periodic review hearing, the court found that while Father was somewhat compliant with

his case plan, he was resistant and was not deriving any benefit from services. Father had

not made any progress, minimal bonding was observed during his visits with N.S., and

Father often slept during visits. The court discontinued services for Father.

       The juvenile court held an evidentiary hearing on July 11, 2012 and July 18, 2012.

Several professionals, who had attempted to assist Father, testified at these hearings.

Father failed to appear in person on July 11, 2012 but was represented by counsel. Father

and his counsel appeared on July 18, 2012.

       Cassie Theurer (“Theurer”), a family support specialist from Centerstone, testified

that she met with Father at least twenty-six times between April and October of 2010.

She also visited Father in jail. She advised him that he needed to contact Centerstone

after his release to arrange therapy appointments, parenting classes, and supervised

visitation with N.S. Although Father was released in May 2011, he did not arrange a

parenting class until October 2011.

       Theurer further testified that between April 2010 and February 2012 Father

responded poorly, acted in a childish manner, and failed to complete the tasks necessary

to address his parenting issues. For example, during one of Theurer’s observations,

Father and Mother threw mashed potatoes at each other. Father once took N.S. to a

doctor’s appointment, but he sat in the car through the appointment. He used supervised

visitation time to watch TV and play with his phone. He also slept during several

                                             5
visitations. During one visitation, Theurer observed as Father built a fort with a table and

dry erase board, crawled inside, and fell asleep. This behavior continued even after

Centerstone tried to accommodate Father’s work schedule. He often ignored his daughter

when he was awake, even when she tried to get his attention.

       Father failed to respond to safety issues. During another visitation, N.S., then two

years old, started putting her fingers in the DVD player. Theurer became concerned that

N.S. could possibly get her fingers caught or, worse, pull the TV down on top of her.

However, Father did nothing. Father failed to notice when N.S. needed her diaper to be

changed. Overall, Theurer did not observe any progress or improvement in Father’s

performance as a parent, attentiveness to N.S.’s cues, attention or interaction with N.S.,

communication with N.S., ability to soothe N.S., or his ability to correct or redirect N.S.

Theurer believed that because N.S. was diagnosed with failure to thrive, Father’s apathy

could be especially harmful.

       Taylor Stephens (“Stephens”), another family support specialist from Centerstone,

started working with Father after Theurer in March 2012. Stephens supervised his visits

and worked with Father on parenting classes for about a month. Twelve sessions were

required to complete the parenting class curriculum. Father completed four. He did not

complete the vast majority of homework.          Stephens also noticed apathetic behavior

during visitation and tried to work with Father to correct this issue. Mother’s visits were

immediately before Father’s visits. Stephens repeatedly emphasized the importance of

communicating with Mother regarding when N.S. had last been fed and changed. Father

never asked Mother any questions between visits and would sometimes feed N.S.

                                             6
immediately, after she had already been fed by Mother. Visitations ended in May 2012

because Father stopped coming and did not reschedule. Father told Stephens that he did

not feel that RCDCS had a case against him and that N.S. should not have been removed

in the first place.

       Jessica Hamlyn (“Hamlyn”), an outpatient therapist, met with Father

approximately twelve times between November 2011 and April 2012. Hamlyn tried to

help Father comply with the court ordered tasks, obtain employment, and address anger

management.       During sessions with Hamilyn, Father would often try to shift the

conversation to topics that made him comfortable, but that had nothing to do with the

goals of the therapy. Even after Hamilyn redirected the conversation to focus on N.S.,

Father would talk about his other children with K.S. instead. In the week after a session,

Father often did not follow up on tasks like contacting potential employers or signing up

for parenting classes. Hamilyn also observed Father nodding off during visitations with

N.S. Hamilyn suspected, and a doctor diagnosed Father with anti-social personality

disorder.    Hamlyn finally informed RCDCS that Father was not benefitting from

counseling and therapy, and recommended that services be stopped.

       Kathy Davis-Brutchen (“Brutchen”), the family case manager for RCDCS, began

working with Father in January 2011. Based on Brutchen’s observations, there was only

a very limited bond between N.S. and Father.          Father did not understand N.S.’s

developmental needs. Brutchen observed Father ignoring N.S. during visits. Father

participated minimally during family-team meetings, answering only “Yes” or “No,” or

ignoring the meeting altogether.

                                            7
       Brutchen and Debra McGriff-Tharp (“Tharp”), the child advocate, drove over an

hour to Father’s home in Ohio to complete a pre-arranged home visitation.                 This

visitation was scheduled for 10:15 a.m. on a Saturday. When they arrived, Father was

still in bed asleep. One of his other daughters toddled up to the door wearing a diaper

that sagged to her knees. Stepmother changed the diaper. Father’s other child was in a

swing and remained in the swing during the entire two-hour visit. Father did not leave

the bedroom until someone from across the street arrived and requested a ride. Then

Father left the house for over an hour. During the entire two hour and fifteen minute visit,

Father was only present for approximately thirty minutes. During this visit, Father told

Brutchen he was employed, but, in fact, he had been laid off about a week before.

       In April 2012, Brutchen recommended that services end because Father was

resistant to services. Father also told Brutchen that he did not feel that he needed services.

Brutchen testified that N.S. had a strong bond with her foster family because she had

been with them since she was removed from the home in July 2010. When asked if she

believes Father will change, Brutchen responded, “Father is resistant to that.. . . [H]e does

not feel that he has an issue. . . . [H]e doesn’t feel like he needs to participate in

services. . . .[H]e’s unwilling to try and learn what he needs to do to take care of his child.”

Tr. p. 190

       Tharp, the child advocate, worked on this case since its inception. In this case,

Tharp acted in a role similar to that of a Guardian Ad Litem. Tharp observed several

visits. During a home visit in 2010, Tharp asked Father to give N.S. a bottle. It was a



                                              8
stifling, hot day, and the home did not have air conditioning. Father laughed and ignored

the request. Tharp emphasized that Father did not make any progress toward reunification.

       On September 4, 2012 the juvenile court issued an Amended Order on Fact-

Finding Hearing terminating parental rights. Father now appeals.

                                Discussion and Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

923.



                                             9
      The Fourteenth Amendment to the United States Constitution protects the

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

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

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

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

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

threatened. Id.

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

involuntary termination of parental rights may occur in Indiana, the State is required to

allege and prove, among other things:

      (B)    that one (1) of the following is true:

             (i)     There is a reasonable probability that the conditions that
                     resulted in the child’s removal or the reasons for
                     placement outside the home of the parents will not be
                     remedied.

             (ii)    There is a reasonable probability that the continuation
                     of the parent-child relationship poses a threat to the
                     well-being of the child.

             (iii)   The child has, on two (2) separate occasions, been
                     adjudicated a child in need of services;

      (C)    that termination is in the best interests of the child; and

      (D)    that there is a satisfactory plan for the care and
             treatment of the child.

Ind. Code § 31-35-2-4(b)(2).     “The State’s burden of proof in termination of parental

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


                                             10
1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). If the trial court finds that the

allegations in a petition described in section 4 of this chapter are true, the court shall

terminate the parent-child relationship. Ind. Code § 31-35-2-8(a).

                                I.     Removal of Child

       On July 30, 2010, N.S. was removed from Mother’s home. Father argues that

because he was no longer living with Mother, he does not believe that N.S. was removed

from him. Father specifically draws from Findings of Fact 8, 13, and 20:

       8.     Juvenile was removed from her parents under an Emergency
              Custody Order on July 30, 2010.
       13.    Juvenile was removed from the parents under the Dispositional
              Order entered September 29, 2010.
       20.    Juvenile was removed from Mother and Father in July 2010.
Appellant’s App. pp. 8-9. Father argues that Finding 205 contradicts Findings 8, 13, and

20:

       205.   Father was not in the home when the CHINS case was filed, as he
              had left the home a few days prior.
Id. at 20.
       A similar argument was raised in Tipton v. Marion County Department of Public

Welfare, 629 N.E.2d 1262 (1994). In Tipton, two children with different fathers, but the

same mother, were removed from their mother’s home. The two fathers argued that their

children were removed from mother, but not from them. This court found that,

       “The fathers did not have physical custody of the children when they were
       removed. Nonetheless, the children were effectively removed from both of
       their parents when they were removed from the physical custody of the
       mother and placed in another home pursuant to the modified dispositional
       decree of July 26, 1990. Accordingly, we conclude that the trial court did

                                           11
       not err in finding that the children had been removed from their fathers for
       a period of at least six (6) months under a dispositional decree.”
Id. at 1266.
       Similarly, N.S. was removed from Father on July 30, 2010. Father was present in

the household during three of the four reports to RCDCS. Father was involved in the

Informal Adjustment. He was still living in the home when doctors diagnosed N.S. with

failure to thrive. We are unconvinced by Father’s argument that N.S. was removed solely

because of Mother’s negligence.       If Father was an apparently acceptable caregiver,

RCDCS was required to place N.S. with him before placing her in foster care. Indiana

Code section 31-34-4-2.

                               II.    Conditions Remedied

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

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

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

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

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

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

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

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

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

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

care will not be remedied, a trial court must judge a parent’s fitness to care for his or her

child at the time of the termination hearing, taking into consideration evidence of
                                             12
changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. denied.

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

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

have properly considered evidence of a parent’s prior criminal history, drug and alcohol

abuse, history of neglect, failure to provide support, and lack of adequate housing and

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

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

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

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

will be remedied. Id. Moreover, RCDCS is not required to provide evidence ruling out

all possibilities of change; rather, it need only establish that there is a reasonable

probability the parent’s behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind.

Ct. App. 2007).

       A trial court need not wait until a child is irreversibly influenced by a deficient

lifestyle such that his or her physical, mental, and social growth is permanently impaired

before terminating the parent-child relationship. In re E.S., 762 N.E.2d 1287 (Ind. Ct.

App. 2002). Moreover, we have repeatedly recognized that “[i]ndividuals who pursue

criminal activity run the risk of being denied the opportunity to develop positive and

meaningful relationships with their children.”      Castro v. State Office of Family &

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

       This case began in February 2010 when N.S. was almost two months old, and

Father and Mother were still living in the home. After N.S. was initially removed from

                                             13
the home, RCDCS entered into an Informal Adjustment with Mother and Father, N.S.

was returned to the home, and services were provided. In essence, Mother and Father

were given a second opportunity to both learn and demonstrate better parenting practices.

RCDCS provided substantial support to assist both parents in achieving this goal. Instead

of demonstrating better parenting practices, Father demonstrated immature behavior and

simply went through the motions of the program.          He took his daughter to doctor

appointments, but did not go in. He threw mashed potatoes at Mother. He refused to

give his daughter a bottle even in stifling temperatures. Finally, he did not comply with

the terms of the Informal Adjustment.

       When N.S. was removed from the home again on July 30, 2010, Father was

offered a third opportunity to learn and demonstrate better parenting practices. During

this third period of services, Father was incarcerated two different times: once for

threatening a caseworker and once for theft. Father moved over sixty miles away from

N.S., out of state. Again, he went through the motions of the program. He would show

up but ignore his daughter or sleep. He would attend parenting classes but would not

complete the homework. He would attend counseling but would not follow suggestions

like completing resumes and contacting schools.        He refused to communicate with

Mother to the detriment of N.S. When two caseworkers drove over sixty miles to his

home in Ohio for a pre-arranged home visit, Father remained in the bedroom and then left

the house for most of the visit. Over the course of the reunification services, at least six

different professionals attempted to work with Father to help him become a better parent.



                                            14
No professional noted any significant improvement in Father, even after thirty months of

services.

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

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

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

       As noted earlier, a trial court must judge a parent’s fitness to care for his or her

child at the time of the termination hearing, taking into consideration the parent’s habitual

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

child. D.D., 804 N.E.2d at 266. A thorough review of the record leaves us satisfied that

clear and convincing evidence supports the trial court’s findings, and these findings, in

turn, support the court’s ultimate decision to terminate Father’s parental rights to N.S.

RCDCS presented clear and convincing evidence to support the trial court’s findings and

ultimate determination that there is a reasonable probability that the conditions leading to

N.S.’s removal and/or continued placement outside of Father’s care will not be

remedied.1 Father’s arguments to the contrary amount to an impermissible invitation to

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

                                             Conclusion

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

findings and ultimate determination that N.S. was removed from Father’s care and there




1
  For these same reasons, we reject Father’s claim that N.S. was removed from Father’s care for the sole
reason that her foster parent’s home was superior to Father’s.
                                                  15
is a reasonable probability that the conditions leading to N.S.’s removal or continued

placement outside Father’s care will not be remedied.

      Affirmed.

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




                                           16
