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

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEES:

JOANN M. PRICE                                  EUGENE M. VELAZCO, JR.
Merrillville, Indiana                           Indiana Department of Child Services
                                                Lake County Office
                                                Gary, Indiana

                                                ROBERT J. HENKE
                                                DCS Central Administration
                                                Indianapolis, Indiana
                              IN THE
                    COURT OF APPEALS OF INDIANA                              FILED
                                                                   Mar 08 2012, 9:38 am
In the Matter of the Termination of the Parent-Child
                                                  )
Relationship of R.H., minor child, and            )
D.H., mother,                                     )                       CLERK
                                                                              of the supreme court,
                                                                              court of appeals and

                                                  )                                  tax court



D.H.,                                             )
                                                  )
      Appellant-Respondent,                       )
                                                  )
            vs.                                   )     No. 45A03-1107-JT-339
                                                  )
INDIANA DEPARTMENT OF CHILD SERVICES, )
                                                  )
      Appellee-Petitioner,                        )
                                                  )
            and                                   )
                                                  )
LAKE COUNTY CASA,                                 )
                                                  )
      Co-Appellee.                                )
                 APPEAL FROM THE LAKE SUPERIOR COURT
                The Honorable Mary Beth Bonaventura, Senior Judge
                           Cause No. 45D06-1009-JT-174
                                  March 8, 2012
          MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
       D.H. (“Mother”) appeals the involuntary termination of her parental rights to her

child, R.H. Mother challenges the sufficiency of the evidence supporting the juvenile

court‟s judgment. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       Mother is the biological mother of R.H., born in February 2006. The facts most

favorable to the juvenile court‟s judgment reveal that in April 2010, the Lake County

office of the Indiana Department of Child Services (“LCDCS”) was contacted by local

law enforcement personnel because Mother had been arrested on Class D felony neglect

and Class D felony performing sexual conduct in the presence of a minor charges for

having engaged in sexual acts with another unnamed woman in the family home while

R.H., another young child, and R.H.‟s biological father observed.1 At the time of their

arrest, both parents were intoxicated.2

       LCDCS assessment case worker Darice Shelby immediately investigated the

matter and retrieved R.H. from the police station. R.H. was thereafter placed in foster

care, as neither parent was available to care for R.H. Upon his arrival in foster care, the

foster parent observed multiple old marks and bruises on R.H.‟s back and buttocks. R.H.

reported that he received the marks from his Mother who spanks him.



       1
           The parental rights of R.H.‟s biological father, Ro.H., were involuntarily terminated by the
juvenile court in its June 2011 judgment. The biological father does not participate in this appeal. We
therefore limit our recitation of the facts to those pertinent solely to Mother‟s appeal.
       2
          Mother later pleaded guilty to one count of Class D felony neglect of a dependent. She was
sentenced to one year of incarceration, with all time suspended and ordered served on probation.
Additionally, the parties agreed that at the time of sentencing, the judgment of conviction would be
entered as a class A misdemeanor.

                                                  2
        Mother has had significant involvement with LCDCS over the years and

numerous substantiations for neglect with regard to her six older biological children.

Three of Mother‟s older children were born testing positive for cocaine, one child was

born with Fetal Alcohol Syndrome3, and all the children had been adjudicated children in

need of services (“CHINS”). By 2003, Mother‟s parental rights to all six of R.H.‟s older

siblings had been involuntarily terminated.

        Following a hearing in May 2010, R.H. was adjudicated a CHINS. The juvenile

court proceeded to disposition the same day and entered an order (1) formally removing

R.H. from Mother‟s custody and (2) making R.H. a ward of LCDCS, retroactive to April

16, 2010. Although the juvenile court‟s dispositional order directed Mother to undergo a

drug and alcohol evaluation, the court did not direct LCDCS to provide Mother with any

additional referrals for services as it had on numerous previous occasions involving

R.H.‟s siblings. To the contrary, the juvenile court determined, pursuant to Indiana Code

section 31-34-21-5.6 that “[r]easonable efforts to reunify [R.H.] with the parent . . . or to

preserve the family are not required . . . .” State‟s Ex. E, at 2.; see also Ind. Code § 31-

34-21-5.6(b)(4) (providing that a court may determine at any time that reasonable efforts

to reunify child with child‟s parent are not required if child is CHINS and parental rights

of parent have been involuntarily terminated with regard to adopted or biological sibling

of that child). Notwithstanding its finding that reasonable efforts were not required, the

juvenile court recommended that Mother participate in drug and alcohol treatment,

parenting classes, and random drug screens for at least six months.                      The court‟s
        3
           The record is unclear as to whether the child born with Fetal Alcohol Syndrome was one of the
three children that was also born testing positive for cocaine.
                                                   3
dispositional order further directed LCDCS to continue to monitor Mother‟s compliance

with its previously ordered services.

       Mother remained incarcerated from April through June 30, 2010.          Upon her

release, Mother made monthly contact with LCDCS case workers to inquire about R.H.‟s

well-being. Although LCDCS provided Mother with a list of service providers so that

she could obtain reunification services on her own, she failed to do so. In September

2010, the juvenile court authorized LCDCS to file a petition requesting the involuntary

termination of Mother‟s parental rights to R.H.

       An evidentiary hearing on LCDCS‟s termination petition was eventually held in

June 2011. During the termination hearing, LCDCS presented evidence establishing that

Mother was living in a condemned building, was unemployed, had failed to complete any

of the suggested reunification services and programs recommended by LCDCS, and

remained unable to demonstrate that she could provide R.H. with a safe and stable home

environment. In addition, LCDCS presented evidence showing R.H. was living and

thriving in a pre-adoptive foster home. At the conclusion of the termination hearing, the

juvenile court took the matter under advisement. Later the same day, the juvenile court

entered its judgment terminating Mother‟s parental rights to R.H. This appeal ensued.

                                DISCUSSION AND DECISION

       When reviewing a termination of parental rights case, 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

                                            4
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.

       Here, in terminating Mother‟s parental rights, the juvenile court entered specific

findings and conclusions. When a juvenile court‟s judgment contains specific findings of

fact and conclusions thereon, we apply a two-tiered standard of review. Bester v. Lake

Cnty. Office 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. L.S., 717 N.E.2d at 208.

       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.,

666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied. These parental interests, however,

are not absolute and must be subordinated to the child‟s interests when determining the

proper disposition of a petition to terminate parental rights. Id. In addition, 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. In re K.S., 750 N.E.2d 832, 836

(Ind. Ct. App. 2001).



                                             5
       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.

                                              ***

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

Ind. Code § 31-35-2-4(b)(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, 1260-61 (Ind. 2009) (quoting Ind. Code § 31-37-14-2). Moreover, if

the court finds that the allegations in a petition described in Indiana Code section 31-35-

2-4 are true, the court shall terminate the parent-child relationship. Ind. Code § 31-35-2-

8(a). Mother challenges the sufficiency of the evidence supporting the juvenile court‟s

findings as to subsection (b)(2)(B) & (C) of the termination statute cited above. See Ind.

Code § 31-35-2-4(b)(2).

                     I. Conditions Remedied/Threat to Well-Being

       To properly effectuate the termination of parental rights under Indiana Code

section 31-35-2-4(b)(2)(B), the juvenile court need only find that one of the three

requirements of subsection (b)(2)(B) has been established by clear and convincing

evidence. See e.g., L.S., 717 N.E.2d at 209. Here, the juvenile court determined that the

                                                6
first two elements of subsection (b)(2)(B) had been established. Because we find it to be

dispositive under the facts of this case, however, we shall only discuss whether LCDCS

established, by clear and convincing evidence, that there is a reasonable probability the

conditions resulting in R.H.‟s removal or continued placement outside of Mother‟s care

will not be remedied. See Ind. Code § 31-35-2-4(b)(2)(B)(i).

         When making such a determination, a juvenile 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 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 juvenile court may also

consider any services offered to the parent by the county department of child services and

the parent‟s response to those services, as evidence of whether conditions will be

remedied. Id. Moreover, LCDCS is not required to provide evidence ruling out all

possibilities of change; rather, it need establish only 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).

         On appeal, Mother does not claim that any of the juvenile court‟s findings of fact

were unsupported by the evidence.         In addition, Mother “concedes” that Indiana‟s

                                              7
termination statute permits a juvenile court to take into consideration a parent‟s previous

involvement with the Indiana Department of Child Services when considering

involuntary termination decisions. Appellant’s Br. at 8. Nevertheless, Mother asserts

that the juvenile court “abused its discretion in relying entirely on Mother‟s past to the

complete exclusion of evidence establishing Mother‟s fitness to parent at the time of the

fact finding.” Id.

       In terminating Mother‟s parental rights, the juvenile court made numerous

findings regarding Mother‟s “lengthy history of substance abuse,” noting Mother had

given birth to “three drug[-]exposed children.” Appellant’s App. at e. The court also

found that Mother had an “extensive” history of “neglect” of her children, involvement

with LCDCS, and non-compliance with “any case plan regarding the children.” Id.

Additionally, the court noted that Mother “has at least seven [biological] children, none

of [whom] are in her care today.” Id. With regard to the circumstances surrounding

R.H.‟s removal from the family home, the juvenile court found that Mother had been

observed engaging in a sex act with another woman “in front of [R.H.],” that four-year-

old R.H. was found wearing a “very soiled diaper,” that Mother was intoxicated, and that

immediately following his removal R.H. was observed with “marks and bruises on his

body.” Id. at d.

       As for Mother‟s current ability to care for R.H., the juvenile court specifically

found that Mother “does not have stable housing and is currently living in a condemned

building.” Id. In addition, although the juvenile court acknowledged that Mother was

not offered any services through LCDCS in R.H.‟s CHINS case due to Mother‟s

                                            8
“extensive history,” the court further found that despite having been given “a list of

services that [Mother] could seek out and complete on [her] own,” she failed to complete

“any” of these recommended services. Id. Finally, the court found, “It is unlikely that

either parent will be in a position to properly parent this child. Relative placement was

explored, but the relatives were not in a position to parent [R.H.] due to the number of

[M]other‟s children that they had in their care and custody.” Id. Our review of the

record leaves us convinced that ample evidence supports the juvenile court‟s findings

cited above.

      At the time of the termination hearing, Mother‟s circumstances remained largely

unchanged. Although Mother appears to have maintained her sobriety for several months

as part of the terms of her criminal probation, testimony from current LCDCS case

manager Sheila Walker confirmed that Mother had failed to successfully participate in

and/or complete a substance abuse treatment program at the time of the termination

hearing, and that Mother‟s long-term ability to maintain her sobriety without the threat of

probation revocation and after so many years of addiction and abuse remained unknown.

Moreover, Mother had failed to complete any parenting classes, was living in a

condemned building, and was unemployed. When asked whether she felt like Mother

would ever be able to remedy the reasons for R.H.‟s removal, Walker answered in the

negative. Walker further informed the juvenile court that Mother‟s ability to parent

appeared to be going “from bad to worse” in light of her “long history of neglect,

extensive [past] drug use,” and the more recent “physical abuse substantiations”

involving R.H. Tr. at 50.

                                            9
       As noted above, a juvenile 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. Moreover, 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). Here, Mother has demonstrated a persistent unwillingness and/or inability to take

the actions necessary to show she is capable of providing R.H. with the safe, stable, and

drug-free home environment the child needs. Based on the foregoing, we conclude that

the juvenile court‟s determination that there is a reasonable probability the conditions

resulting in R.H.‟s removal from Mother will not be remedied is supported by clear and

convincing evidence. Mother‟s unsubstantiated assertions to the contrary amount to an

impermissible invitation to reweigh the evidence. D.D., 804 N.E.2d at 265.

                                     II. Best Interests

       We next consider Mother‟s assertion that LCDCS failed to prove that termination

of her parental rights is in R.H.‟s best interests. In determining what is in the best

interests of a child, the juvenile court is required to look beyond the factors identified by

LCDCS and look to the totality of the evidence. McBride v. Monroe Cnty. Office of

Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003). In so doing, the 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.

                                             10
       In addition to the findings previously cited, the juvenile court made several

additional pertinent findings relating to R.H.‟s best interests, including the following:

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

       It is in the best interests of the child and his health, welfare, and future that
       the parent-child relationship . . . be forever fully and absolutely terminated.

Appellant’s App. at e. These findings, too, are supported by the evidence.

       In recommending termination of Mother‟s parental rights as being in R.H.‟s best

interests, Walker testified that “[R.H.]is in need of a permanent, loving, nurturing home

in which all his needs will be met, and I don‟t feel that [Mother] . . . [is] able to provide

that for him.” Tr. p. 56. Walker further testified that R.H. was “bonding” with his

current pre-adoptive foster family, “gets a lot of love and attention” from his foster

mother, and is “doing real [sic] good.” Id. at 59. Similarly, R.H.‟s foster mother testified

that R.H. presents as a “happy little boy,” that he is “always smiling,” and that he is

“doing really well” at school. Id. at 69. The foster mother also confirmed that R.H. was

receiving treatment for his ADHD, anger issues, and impulse control issues.

       Based on the totality of the evidence, including Mother‟s untreated substance

abuse issues, significant history of neglectful conduct toward all her children resulting in

the involuntary termination of her parental rights to all seven children, and her continuing

inability to provide R.H. with a safe and stable home environment, coupled with the

testimony from Walker recommending termination of the parent-child relationship, we



                                              11
conclude that there is ample evidence to support the juvenile court‟s determination that

termination of Mother‟s parental rights is in R.H.‟s best interests.

       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.

BARNES, J., and BRADFORD, J., concur.




                                             12
