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 APPELLEE: BRIAN J. MAY ROBERT J. HENKE South Bend, Indiana DCS Central Administration Indianapolis, Indiana SHARON R. ALBRECHT DCS St. Joseph County Office South Bend, Indiana


## IN THE COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION ) OF THE PARENT

- CHILD RELATIONSHIP ) OF: ) ) J.W. & C.W. (Minor Children) ) ) And ) ) M.W. (Father) ) ) Appellant

- Respondent, ) ) vs. ) No. 71A05

- 1105

- JT

- 278 ) ) INDIANA DEPARTMENT OF CHILD ) SERVICES, ) ) Appellee

- Petitioner. ) )

APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable Peter J. Nemeth, Judge Cause Nos. 71J01

- 1010

- JT

- 256 & 71J01

- 1010

- JT

- 2572 January 24, 2012 MEMORANDUM DECISION
- NOT FOR PUBLICATION VAIDIK, Judge Case Summary
M.W. (“ Father ”) appeal s the involuntary termination of h is parental rights to h is child ren , J.W. and C

. W. Concluding that the Indiana Department of Child Services, local office in St. Joseph C ounty (“ SJ C DCS”) , presented clear and convincing evidence to support the trial court‟s judgment , we affirm. Facts and Procedural History Father is the biological parent of J.W. , born in July 2008, and C.W ., born in September 2009

. 1 The facts most favorable to th e trial court‟s judgment reveal that several days following C.W.‟s birth and release from the hospital, SJCDCS received a report that drug tests performed on the baby‟s meconium came back positive for cocaine, opiates, amphetamin es, marijuana, and benzodiazepines. A SJCDCS assessment case worker visited the family home and determined J.W. and C.W. were in no immediate danger, as both children appeared well cared

- for, there was adequate food and housing for the family, and both pa rents were forthcoming concerning their respective drug use during the weeks before C.W.‟s birth. In addition, both parents acknowledged the need for assistance in maintaining a drug

- free home environment, and both parents voluntarily

1 At the outset, we observe that the parental rights of the children‟s biological mother, T.W. (“Mother”), were also involuntar ily terminated by the trial court. Mother, however, does not participate in this appeal. We therefore limit our recitation of the facts to those pertinent solely to Father‟s appeal.3

submitted to drug sc reens. Father ‟s drug screen results were negative , and Mother test ed positive for THC metabolites

. As a result of its initial assessment, SJCDCS determined that although the family required services, physical removal of the children was not necessary at that time

. Consequently, J.W. and C.W. were allowed to remain in the family home while the family received home

- based counseling services. Additionally, SJCDCS sought and received permission from the trial court to file child in need of services (“CHINS” ) petitions as to both children. In December 2009, SJCDCS filed petitions under separate cause numbers alleging J.W

. and C.W. were CHINS, Father admitted to the allegations in the CHINS petition s, and the children were so adjudicated. After a disposition al hearing in January 2011, the trial court issued an order directing Father to participate in and successfully complete a variety of tasks and services designed to improve his parenting abilities and to address his substance abuse issues

. Specifically, F ather was ordered to, among other things: (1) cooperate with home

- based service providers; (2) complete a drug and alcohol assessment and follow any resulting recommendations; (3) abstain from all use of illegal substances and submit to random drug screens ; (4) allow SJCDCS case managers and/or other service providers to make both announced and unannounced visit s to the family home, including entrance to the home to ensure the safety of the c hildren; (5) successfully complete parenting classes; (6) obtain a nd maintain stable housing and employment; (7) maintain contact with SJCDCS; and (8) properly care for the children. Father did not attend the dispositional hearing, however, because he was incarcerated on a probation violation in an unrelated criminal4

matter for failing to comply with the terms of the Court Substance Abuse Program of St. Joseph County

. A fter the dispositional hearing, Mother confided to her SJCDCS case worker that she and the children had recently been living with Mother‟s aunt and gra ndmother, but that they were all being evicted from the home. The SJCDCS family case manager later advised Mother that she and the children were not allowed to live in the same home with Mother‟s aunt and grandmother because both relatives had prior histor ies with SJCDCS for neglect. Mother was reminded of this condition when she later obtained an apartment. Notwithstanding th ese warning s , however, SJCDCS received a nd substantiated a report in March 2010 that Mother and the children had been living in the

same hotel room with Mother‟s unapproved relatives. Consequently, both children were immediately removed from Mother ‟s custody and placed in foster care . The court‟s dispositional orders were later modified to include supervised in

- home visits with the children. Upon Father‟ s release from incarceration in April 2010 , he joined Mother in visiting with the children. Initially, these visits seemed to go well, but the parents soon began making last

- minute requests to reschedule the visit dates and times. Father also began exhibiting erratic behaviors during visits and test ing positive for illegal and/or
controlled substances . Specifically, Father fail ed nine of fifteen drug screens administered between April and July 2010 , testing positive for oxycodone, hydrocodone, propoxyphene, morphine, heroin, THC, amphetamines, me thamphetamines, and5

alprazolam. Father refused to submit to several additional drug screen requests during this time period as well. By June 2010, the supervised in

- home vi sits had been moved to a visitation facility , due in large part to Father‟s ongoing drug use

. In addition, a lthough he was
referred for out

- patient substance abuse treatment on at least two separate occasions to the Family and Children‟s Center , Father re fused to participate in any treatment
program s . By July 2010, Father‟s visitation privileges with the children had been suspended until such time as Father could produce three consecutive clean drug screens. Father failed to do so and never visited with his children again

. In October 2010, SJCDCS filed petitions seeking the involuntary termination of Father‟s parental rights to both children. Notwithstanding the pending termination proceedings, however, SJCDCS continued to refer Father to inpatient trea tment programs, including the Life Treatment Center in January 2011 , as well as to the Oaklawn Outpatient Drug Treatment program. Father again refused to participate in either of these program s and later the same month was re - incarcerated in the Marshall County Jail on new criminal charges

. A consolidated, two

- day evidentiary hearing on the involuntary termination petitions was held in April 2011. During the termination hearing, SJCDCS presented evidence showing Father remained incapable of providing the children with a safe and stable home environment, due in large part to his current incarcerat ion and untreated substance abuse issues. Additionally, the evidence established that J.W. and C.W. were living together and thriving in a pre

- ad optive foster home. At the conclusion of the6

termination hearing, the trial court took the matter under advisement. T he trial court issued separate judgment s terminating Father‟s parental rights to C.W. and J.W. in April and May 2011

. Fa ther now brings this consolidated appeal. Discussion and Decision
T his C ourt has long had a highly deferential standard of review in cases concerning the termination of parental rights. In re K.S. , 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). When reviewing the terminati on of parental rights, we will n either reweigh the evidence n or judge witness credibility

. 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 m ost favorable to the judgmen t. Id

. Moreover, 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

. Here, in terminating Fa ther‟s parental rights, the trial court entered specific findings and conclusions . When a trial court‟s judgment contains specific findings of fact and conclusions thereon, we apply a two

- tiered standard of review. Bes ter 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

.7

The “ trad itional 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 n ot 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, a lthough the right to raise one‟s own child should not be terminated solely because there i s 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. K.S. , 750 N.E.2d at 836. Before an involuntary termination of parental rights may occur in Ind iana, 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) separa te 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 bu rden of proof in termination of parental rights cases is one of „clear and convincing evidence.‟” In re G.Y. , 904 N.E.2d 1257,8

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). Father does not challenge any of the trial court‟s specific findings pertaining to the above

- cited elements as unsupported by the evide nce . Rather, Father asserts th at he has achieved sobriety “on his own” since being incarcerated in the Marshall County Jail, anticipates an early release from incarceration, and “is hopeful” that his early release date “will convince this court to
set asi de” the trial court‟s judgment “until he can get back on his feet.” Appellant‟s Br

. p. 10. These arguments can be fairly described as a challenge to the sufficiency of the evidence supporting the trial court‟s judgment as to subsection 4(b)(2)(B) of Indi ana‟s termination statute cited above. See Ind. Code § 31

- 35

- 2

- 4(b)(2)(B). We begin our review by observing that Indiana Code section 31

- 35

- 2

- 4(b)(2)(B) requires a trial court to find that only one of the t hree 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 under the facts of this case, we only consider whether SJCDCS established, by clear and

con vincing evidence, that there is a reasonable probability the conditions resulting in C.W.‟s and J.W .‟ s r emoval and/ or continued placement outside Fa ther‟s care will not be
remedied. See I.C

. § 31

- 35

- 2

- 4(b)(2)(B)(i).
A trial court must judge a parent‟s fi tness 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 trial court must also9

“evaluate the parent‟s hab itual 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 Fam ily & Children , 762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied . Moreover, a county department of child services is not required to provide evidence ruling out all possibilities of change; rather, it need only establish that there is a reasonabl e probability the parent‟s behavior will not change. In re Kay L. , 867 N.E.2d 236, 242 (Ind. Ct. App. 2007). Finally, we have previously explained that Indiana‟s termination statute makes clear that “it is not just the basis for the initial
removal of th e child that may be considered for purposes of determining whether a parent‟s rights should be terminated, but also those bases resulting in the continued placement outside of the home.” In re A

. I

. , 825 N.E.2d 798, 806 (Ind. Ct. App. 2005), trans. denied

. Here, i n determining that there is a reasonable probability the conditions leading to the children‟s removal and /or continued placement outside Fa ther‟s care will not be remedied, the trial court made several pertinent findings regarding Fa ther‟s past and present inability to provide C.W. and J.W. with a s afe , stable , and drug

- free home environment

. Specifically, t he trial court found that “[i]n

- home therapeutic services for [the] parents were discontinued due to non

- compliance with the program.” Appella nt‟s10

App

. p. 88. 2 The court further found that Father “did not successfully complete drug and alcohol classes,” became “addicted to heroin and went through detoxification while incarcerated from January 2011 to the present,” that “[o]ngoing drug use by both parents prevente d them from complying with the requirements of their case plan,” and that both parents “promised at many court hearings that they would reform their lifestyle but have always reverted to using drugs.” Id. A thorough review of the record reveals that thes e findings and conclusions are supported by abundant evidence.
T estimony from SJCDCS family case manager Emily Russell , court

- appointed special a dvocate (“CASA”) Laura Sinn , coupled with Father‟s own testimony makes clear that, at the time of the terminat ion hearing, Fa ther‟s circumstances and ability to care for the children had worsened, rather than improve d , despite a wealth of services available to Father

. Specifically, during the underlying CHINS and termination cases, Father was arrested and incarce rated twice for drug

- related activities and had become addicted to heroin . Moreover, at the time of the termination hearing, Father remained incarcerated and thus was unavailable to parent the children. Father had also failed to complete any substance ab use treatment program despite multiple opportunities to do so, had not visited with the children since July 2010 , and had failed to obtained stable housing and employment . When specifically questioned during the termination hearing
as to his current abili ty to care for the children, Father admitted that he was “not ready” to
care for the children and further testified that he “need[s] to put [him]self into an

2 For c larification purposes, we note that the language of the trial court ‟s termination orders pertaining to each child is substantially identical, apart from certain identifying information . W e therefore cite to only one judgment throughout this opinion

.11

inpatient rehab program” for “at least a minimum of six months to a year” so that he is “strong en ough to be a father and to do what [he‟s] supposed to be doing . . . and not neglect [the] children by drug abuse . . . .” Tr . p . 62

- 63

. F amily case manager Russell and CASA Sinn likewise informed the trial court that Father had failed to complete a majority of the trial court‟s dispositional goals, most notably a substance abuse treatment program, and further confirmed that Father remained incapable of providing the children with a s afe and stable home environmen t

. In recommending termination of Father‟s parental rights, Russell informed the court that she
believed continu ation of the parent

- child relationships between Father and the children posed a threat to the children‟s well

- being. Russell also acknowledged that she did not have any confidence in Father‟s recent jailhouse sobriety or in his promises of future improvement, stating she has “personally heard” the “same promises” “multiple times” in the past, and pointing out that Father‟s ability to remain “cle an” in the “real world”
remained unknown and would have to be monitored due to the fact he was currently in a “controlled setting . . . f

ree from any type of contact where he could get drugs. . . .” Id. at 163

- 64. As previously mentioned, a court on review must determine whether the specific findings are adequate to support the trial court‟s decision. In re B.J. , 879 N.E.2d 7, 19 (Ind. Ct. App. 2008), trans. denied

. Based on the foregoing, we conclude that SJCDCS presented clear and convincing evide nce to support the trial court‟s findings cited above , including its determination that there is a reasonable probability the conditions resulting in C.W.‟s and J.W.‟s removal and continued placement outside Father‟s care will not be12

remedied. These findi ngs, in turn, support the court‟s ultimate decision to terminate Father‟s parental rights to both children. Father‟s arguments to the contrary amount to an impermissible invitation to reweigh the evidence. See D.D. , 804 N.E.2d at 264. Affirmed. ROBB, C.J., and NAJAM, J., concur.