FOR PUBLICATION

ATTORNEY FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

JOHN T. WILSON GREGORY F. ZOELLER

Anderson, Indiana Attorney General of Indiana

ROBERT J. HENKE

CHRISTINE REDELMAN

Deputies Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )

THE PARENT-CHILD RELATIONSHIP OF: )

)

Z.C., Minor Child, )

)

S.C., Mother, )

)

Appellants-Respondents, )

)

vs. ) No. 33A01-1310-JT-434

)

THE INDIANA DEPARTMENT OF )

CHILD SERVICES, )

)

Appellee-Petitioner. )

APPEAL FROM THE HENRY CIRCUIT COURT

The Honorable Mary G. Willis, Judge

Cause No. 33C01-1306-JT-13

July 11, 2014

OPINION - FOR PUBLICATION

MAY, Judge
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S.C. (“Mother”) appeals a termination of her parental rights to her son, Z.C. (“Child”). 

She asserts the trial court proceedings denied her due process and the evidence is insufficient 

to support termination of her rights. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 6, 2012, Child was born with controlled substances in his bloodstream. 

Mother admitted using heroin, morphine, Xanax, and Oxycontin. Due to the severe 

withdrawal symptoms he was experiencing, Child remained hospitalized for a number of 

weeks. Prior to Child’s release, Mother was arrested on federal drug charges and 

incarcerated in Kentucky. Because Mother was incarcerated, the State obtained an 

emergency order to take custody of Child on August 22, 2012, when he was released from 

the hospital. 

In September 2012, the court held a hearing on the State’s petition to declare Child a 

child in need of services (“CHINS”). Mother admitted she was unable to take care of Child

because of her incarceration and because, when released from incarceration, she would need

“services to address her substance abuse.” (DCS Ex. 13.) The court declared Child a 

CHINS. One month later, the court entered a dispositional order requiring Mother to 

complete a number of services following her release from incarceration.

On May 23, 2013, the court modified its dispositional order to indicate unification 

efforts between Mother and Child were ending because Mother had not participated in 

services or developed a relationship with Child. (DCS Ex. 16, 24.) In August 2013, the 

court approved a permanency plan calling for termination of parental rights. The State filed a 
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petition to terminate Mother’s rights on June 24, 2013, and the court held a hearing thereon. 

Thereafter, the court entered an order that included the following pertinent findings:

25. Mother never had Child in her exclusive care or custody, nor has she had 

contact with the Child since the Child’s detention [by DCS]. Mother is 

not able to care properly for Child due to her incarceration.

26. Mother has remained incarcerated in the State of Kentucky since August 

22, 2012 and has an unknown release date. Mother’s current incarceration 

is the result of federal charges for conspiracy to deal heroin conspiracy 

[sic] to which she has admitted guilt through a plea agreement.

27. Attorney Howard Bernstein represents Mother in her pending federal 

criminal case. He states that Mother has pled guilty in the heroin 

conspiracy case and is currently facing a minimum ten-year sentence. Mr. 

Bernstein believes Mother may be able to renegotiate her sentence for a 

lesser time period of between 18 months and ten years but the sentencing 

date and term of incarceration are unknown.

28. Mother has a lengthy adult criminal history beginning in 2001 that includes 

convictions for Illegal Consumption on three occasions, Criminal 

Mischief, Theft, Possession of Marijuana, Visiting a Common Nuisance, 

felony Possession of Cocaine, felony Possession of Schedule IV 

Controlled Substance with a habitual substance offender enhancement, 

Operating While Intoxicated, and Conversion. Mother is facing an 

additional Operating While Intoxicated charge.

29. Mother was nine months pregnant with the Child at the time she committed

the federal drug offense for which she is currently incarcerated. 

30. Mother admitted to [family case manager] Hoffman that she had used 

illegal and non-prescribed controlled substances daily during her 

pregnancy with the Child. Mother’s drug use during pregnancy included 

consumption of marijuana, suboxone, hydrocodone, morphine and heroin. 

31. Mother admitted to FCM Hoffman that her drug abuse began at the age of 

twelve years and that her longest period of sobriety was one year in 2007, 

despite having received substance abuse treatment intervention on six 

occasions.

32. Mother has one older child, age 16 years, who is in the informal 

guardianship care of the child’s maternal grandmother although Mother 

has never been the primary physical custodian living alternately with her 

mother, various partners and incarcerated intermittently during her adult 

life.

33. Mother objects to the DCS plan of adoption and that the originally

designated maternal relatives have bonded with the child, love the child, 

and desire to become the permanent parents for the child. Mother 
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proposed that the child be placed with her Mother (maternal grandmother) 

on a similar informal guardianship basis as her older 16 year old child 

until some unknown time when she may be released from federal 

incarceration or, alternately, that the newly named Father, Michael 

Kendall, being given [sic] an opportunity to “get on his feet” upon release 

from incarceration and introduced to the child.

34. Mother misrepresented the identity of the putative father to the Court and 

DCS from August, 2012 to April, 2013 because Father was incarcerated at 

the time DCS initiated its assessment and she thought it would “look 

worse on her” in the assessment if she named a man who was incarcerated 

as the Child’s father. Alleged Father was residing in the Mother’s home at 

the time of assessment and is a named co-conspirator in the heroin case. 

Alleged Father purported himself to be the father in court proceedings 

when he was aware that it was not possible for him to be the child’s 

biological father. Mother continued to misrepresent the identity of the 

father in correspondence to the Court. 

35. Mother used heroin days before the birth of the Child and while the Child 

was hospitalized.

36. DCS’ plan for Child is that he be adopted; this plan is satisfactory for 

Child’s care and treatment and an adoptive family has been identified as 

the family he has resided with continuously since he release [sic] from the 

hospital following his recovery from drug withdrawal symptoms.

37. Child has been in the same relative care family since detention on August 

23, 2012. The child is very bonded with the prospective adoptive parents, 

Mr. and Mrs. Jones, and they are willing to adopt Child.

38. The Child’s CASA is supportive of the plan of termination of parental 

rights and believes it is in the Child’s best interests to be adopted by Mr. 

and Mrs. Jones with whom the Child has a close bond.

39. DCS believes it is in the best interests of the child to be adopted due to the 

inability of the Mother and Father to provide appropriate care for the 

Child.

(Appellant’s App. at 19-21.) Based thereon, the court concluded there was a reasonable 

probability the conditions resulting in Child’s removal would not be remedied and the 

continuation of the parent-child posed a threat to Child’s well-being. The court also 

concluded termination of rights was in Child’s best interests and the State had a satisfactory 

plan for Child’s future care and treatment and, therefore, the court terminated Mother’s 
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parental rights. 

DISCUSSION AND DECISION

We review termination of parental rights with great deference. In re K.S., 750 N.E.2d 

832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of 

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 most favorable to the judgment. Id. In 

deference to the trial court’s unique position to assess the evidence, we will set aside a 

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, cert. denied 534 U.S. 1161 (2002). 

When, as here, a 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). We determine whether the evidence supports the findings 

and 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. 

“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. A trial court must subordinate the interests

of the parents to those of the child, however, when evaluating the circumstances surrounding 

a termination. In re K.S., 750 N.E.2d at 837. The right to raise one’s own child should not 
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be terminated solely because there is a better home available for the child, id., but parental 

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

responsibilities. Id. at 836. 

To terminate a parent-child relationship:

(2) The petition must allege:

(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.

Ind. Code § 31-35-2-4(b)(2). The State must prove these allegations by clear and convincing 

evidence. In re G.Y., 904 N.E.2d 1257, 1260-61 (Ind. 2009), reh’g denied. If the court finds 

the allegations in the petition are true, the court must terminate the parent-child relationship. 
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Ind. Code § 31-35-2-8. 

The trial court concluded there was a reasonable probability the conditions resulting in 

Child’s removal would not be remedied and the continuation of the parent-child relationship 

posed a threat to Child’s well-being. Because our legislature wrote subsection (B) in the 

disjunctive, stating only one of those three circumstances needed to exist, the trial court 

needed to find only one of the three established by clear and convincing evidence before 

terminating parental rights. See In re L.S., 717 N.E.2d at 209. Accordingly, we may affirm 

the trial court’s decision if the evidence and findings support the court’s determination as to 

the existence of one of those circumstances. See id. (finding supporting conclusion that one 

circumstance listed under Ind. Code § 31-35-2-4(b)(2)(B) is sufficient to affirm termination 

of parental rights).

We review first the finding the conditions that resulted in Child’s removal would not 

be remedied. In making such a determination, 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 changed conditions. In re J.T., 742 N.E.2d 509, 512 (Ind. Ct. App. 2001), trans. 

denied. The court must evaluate a parent’s habitual patterns of conduct to determine whether 

there is a substantial probability of future neglect or deprivation. 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 properly consider, as evidence 
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of whether conditions will be remedied, the services offered to the parent by DCS, and the 

parent’s response to those services. Id. 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 are 

permanently impaired before terminating the parent-child relationship. In re E.S., 762 

N.E.2d 1287, 1290 (Ind. Ct. App. 2002).

Here, the Record indicated Child came into the State’s custody because Mother was 

arrested on drug charges before Child was released from hospitalization for drug withdrawal 

symptoms. Mother admitted Child was a CHINS because she was incarcerated and would 

need substance abuse treatment when released. At the termination hearing, Mother’s 

criminal defense counsel testified Mother had agreed to plead guilty to conspiracy to deal 

heroin and her minimum sentence would be ten years. Counsel testified that he hoped to 

renegotiate Mother’s plea agreement but at the time of the termination hearing, Mother’s 

sentencing date and the length of her sentence remained unknown. That evidence supports

the conclusion the conditions that resulted in Child’sremoval from Mother’s custody would 

not be remedied. See In re L.S., 717 N.E.2d at 208 (appellate court must affirm trial court 

decision if evidence supports facts that lead to the conclusions of law).

Mother also asserts the court should not have concluded the reasons for Child’s 

placement outside her care would not be remedied because the court’s participation order 

instructed her that to keep rights over Child, she “needed to participate in services upon her 

release from incarceration.” (Appellant’s Br. at 10.) However, at the time termination 

proceedings commenced on May 31, 2013, the services offered to Mother as part of Child’s 
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CHINS adjudication ceased. Therefore, we are unable to address the alleged inadequacy of 

services offered to Mother during the CHINS proceeding because that issue is unavailable 

during an appeal following termination of parental rights. See In re H.L., 915 N.E.2d 145, 

148 n. 3 (Ind. Ct. App. 2009) (“failure to provide services does not serve as a basis on which 

to directly attack a termination order as contrary to law”).

Mother claims the same arguments demonstrate the court erred when determining the

termination of her rights would not be in Child’s best interests. We cannot agree. As the 

court found, both DCS and Child’s CASA believed termination of Mother’s rights was in 

Child’s best interests. The testimony of such individuals supports the court’s findings and 

conclusion. See In re L.S., 717 N.E.2d at 208 (appellate court must affirm trial court decision 

if evidence supports facts that lead to the conclusions of law).

Finally, Mother asserts a number of “procedural irregularities as to Father . . . violated 

her due process rights to family integrity.” (Appellant’s Br. at 16.) We decline to find a due 

process violation, as it was Mother who misled the court regarding Father’s true identity for 

over six months, because she was concerned that his status as a prisoner might have a 

negative impact on her ability to maintain her own parental rights. Moreover, Mother cannot 

assert error in the termination of her rights based on an alleged denial of due process to 

Father. See Rumple v. Bloomington Hospital, 422 N.E.2d 1309, 1314 (Ind. Ct. App. 1981) 

(litigants are normally barred “from asserting the rights or legal interests of others in order to 

obtain relief from injury themselves.”) (quoting Warth v. Seldin, 422 U.S. 490, 509 (1975)), 

trans. denied.
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Mother’s arguments are an invitation for us to reweigh the evidence, which we cannot 

do. See In re D.D., 804 N.E.2d at 265 (appellate court cannot reweigh evidence or judge 

credibility of witnesses). DCS presented sufficient evidence that the conditions under which 

Child was removed from Mother’s care would not be remedied and that termination was in 

Child’s best interests. Accordingly, we affirm.

Affirmed. 

KIRSCH, J., and BAILEY, J., concur.