In the Matter of the Termination of the Parent-Child Relationship of : B.M.B. and B.A.B., Minor Children, R.B., Father v. Indiana Department of Child Services

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Dec 18 2013, 10:00 am
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:

LEANNA WEISSMANN GREGORY F. ZOELLER
Lawrenceburg, Indiana Attorney General of Indiana

ROBERT J. HENKE
Deputy Attorney General
Indianapolis, Indiana

RONALD K. RYCHENER
Indiana Department of Child Services
Fayette County
Connersville, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE TERMINATION OF )
THE PARENT-CHILD RELATIONSHIP OF: )
B.M.B. and B.A.B., Minor Children, )
)
R.B., Father, )
)
Appellant-Respondent, )
)
vs. ) No. 21A01-1304-JT-188
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE FAYETTE CIRCUIT COURT
The Honorable Eugene A. Stewart, Senior Judge
Cause Nos. 21C01-1109-JT-381, 21C01-1109-JT-382

December 18, 2013
 MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge

R.B. (“Father”) appeals the involuntary termination of his parental rights to his

children, B.M.B. and B.A.B. (collectively, the “Children”). Father raises two issues,

which we revise and restate as:

I. Whether the court abused its discretion in admitting evidence of
Father’s previous criminal convictions and pending criminal
charges; and

II. Whether the evidence is sufficient to support the trial court’s
judgment terminating his parental rights.

We affirm.

FACTS AND PROCEDURAL HISTORY

Father is the biological father of B.M.B., a girl born on January 5, 2007, and

B.A.B., a boy born on September 11, 2008.1 The evidence most favorable to the trial

court’s judgment reveals that on June 11, 2010, the Indiana Department of Child Services

(“DCS”) filed, and the court approved, verified petitions alleging the Children were

children in need of services (“CHINS”). The CHINS petitions alleged as follows:

On 5/29/10, the mother and father were asked to leave the Gray Haven
Hotel for fighting and at that time they went to the home of the father’s
grandparents. On 6/7/10, the parents were asked to leave the home of the
grandparents due to arguing among the family. The family was then
homeless and the parents’ families admitted to being “tired” of the parents’
behavior. The mother left the children with the father and went to a
friend’s home. The mother, father and other family members have
described domestic violence between the mother and father that have [sic]
1
The juvenile court also terminated the parental rights of the Children’s biological mother, D.H.
(“Mother”). Mother, however, does not participate in this appeal. We therefore limit our recitation of the
facts to those pertinent solely to Father’s appeal.
2
 occurred in front of the children. The mother states that the father is
physically abusive to her and threatens to kill her. Both parents admit to
abusing prescription drugs. Both parents report that they “snort” pills, such
as Oxycotin [sic] and Loratab [sic]. The father has stated that due to the
drug use, the family does not have money to rent another home and causes
the arguments between the parents. The parents’ drug use is directly
affecting the parents[’] ability to parent and care for the children. Due to
the parents’ homelessness, domestic violence and drug abuse, the children
have been placed in licensed foster care.

DCS Exhibits 8, 9.

On July 9, 2010, Father and Mother appeared in person and by their respective

counsel at an initial hearing and admitted to the CHINS allegations, and the Children

were adjudicated as CHINS. On August 20, 2010, the court held a dispositional hearing

at which the juvenile court awarded wardship of the Children to DCS. That same day the

court, in its dispositional order and order of participation, directed Father to successfully

complete a variety of tasks and services with the goal of reunification which included,

among other things, to: (1) maintain contact with the DCS Family Case Manager

(“FCM”); (2) notify the FCM of any arrest or criminal charges; (3) keep all DCS

appointments; (4) maintain safe, suitable, and stable housing; (5) maintain a source of

income; (6) not use, consume, manufacture, trade, distribute, or sell any illegal controlled

substances; (7) complete a parenting assessment and all recommendations; (8) complete a

substance abuse assessment and follow all treatments successfully; (9) submit to random

drug screens, noting that not completing a drug screen in a timely manner would result in

a positive result indication; (10) obtain a high school diploma or GED; (11) attend all

scheduled visitations with the Children; and (12) participate in individual and family

therapy.

3
 On November 17, 2010, Father appeared with counsel at a periodic review hearing

in which the court found that Father had been complying with the case plan and had

progressed in his therapy goals, noting that he continued to work on his issues with co-

dependency and domestic violence and that he was working on completing the full

parenting curriculum as well as seeking full time employment and obtaining reliable

transportation. The court also noted that he needed to continue in his efforts to live a

sober lifestyle and that he was attending substance abuse treatment on a weekly basis,

and that Father was “working on enhancing his ability to fulfill his parental obligations.”

DCS Exhibit 13. On April 19, 2011, following a subsequent periodic review hearing, the

court entered an amended order, finding that Father had complied with the case plan,

enhanced his ability to fulfill his parental obligations, visited the Children on a consistent

basis, cooperated with DCS, and progressed with his therapy goals, noting specifically

that the therapist recommended that Father “go from once a week to once every two

weeks, due to his progress.”2 DCS Exhibit 15. The court authorized a trial home visit

(“THV”) for Father.

On May 27, 2011, the THV with Father and the Children began; however, it lasted

three days only and ended on May 30, 2011 because Father failed to maintain contact

with the FCM and allowed unauthorized contact between Mother and the Children. FCM

Farrah Owens informed Father prior to the THV that Mother was not to be in the home

when Children were present due to her non-compliance and their domestic conflict, and

2
We note that the court’s findings regarding Mother were not similar to those of Father, in which
the court found that Mother had not complied with the case plan, had not enhanced her ability to fulfill
her parental obligations, and had not cooperated with DCS.
4
Father lied to FCM Owens about Mother’s presence in the home. DCS removed the

Children to ensure their safety. Soon after, DCS and service providers worked with

Father to secure housing and childcare for a second THV, and the THV commenced on

June 10, 2011. This second THV lasted until July 11, 2011, when FCM Owens visited

Father’s home and determined that the living environment had “diminished,” specifically

observing:

[Father] was in the process of eviction if he did not pay the sum of over
$300.00 within the matter of a few days. [He] did not know how he was
going to get the money because he was not working. The home was very
dirty with rusty tools in various rooms of the home, old food on the floor,
open packages of old meat on the counters, dirty dishes in the sink, on the
stove and on the kids table in the kitchen. There was no food in the freezer,
but dead beavers. There was little food in the refrigerator and in the
cabinets. [B.M.B.’s] room had clothes and other items all over the floor
and the bed. There was no toilet paper in the house and the children were
unkept [sic].

DCS Exhibit 18 at 4. Father also acknowledged that during the second THV, although

Mother was not living in the home, she had visited the home.

Following the second failed THV, Father stopped cooperating with service

providers. Specifically, on July 18, 2011, Father attended a child and family team

meeting in which he indicated that he was leaving that day for Alaska where he had a job

waiting for him. Also, his service providers at LifeLine noted that Father had shown a

“decline in progress” including substance abuse relapse, continued codependent-thinking

errors in his interactions with Mother, and unpredictable behavior and mood. DCS

Exhibit 37. Father’s visits were then returned to a supervised setting, although he had

only one supervised visit, on August 3, 2011. Father stopped contacting LifeLine in

August of 2011 and missed appointments, and services were eventually closed.
5
 On September 27, 2011, DCS filed a petition seeking the involuntary termination

of Father’s parental rights to the Children. Also, on October 18, 2011, following a

hearing in the CHINS matter, the court filed its order on periodic case review noting that

Father had not visited the children and had not cooperated with DCS, and it specifically

found that Father had been given every opportunity to be successful at reunification but

had let outside influences hinder progress and had been arrested for false reporting. The

court changed the permanency plan from reunification to adoption. In the ensuing

months, Father was arrested on multiple occasions.

On September 26, 2012, and January 16, 2013, the court held a termination

hearing in which DCS presented evidence consistent with the foregoing. At the hearing,

FCM Owens testified that she had trouble contacting Father, but that after Father’s arrests

she was able to obtain phone numbers and addresses and tried to call him and send him

correspondence. FCM Owens testified that termination of Father’s parental rights was in

the Children’s best interests for their safety, and that Father continued to have positive

drug screens, was unable to keep a stable living environment including a clean home and

food, had failed two THVs, and continued to be involved in criminal activity.

FCM Nicole Whallon, who acted as FCM between May 2012 and June 2012,

testified that Father visited the DCS office on May 25, 2012 and June 25, 2012, although

he did not inquire about the Children or ask for a visit, and noted that she had trouble

contacting him. FCM Whallon also testified that the Children were safe and happy in

their foster home and appeared adjusted. Darrell Robinson, the Children’s court

appointed special advocate (“CASA”), testified that the children were very relaxed and

6
happy in the foster home. He recommended that the court terminate Father’s parental

rights based upon issues of domestic violence, substance abuse, and for repeatedly

ignoring the guidelines of the juvenile court and DCS.

Regarding Father’s substance abuse, FCM Owens testified that during the CHINS

proceedings, Father had submitted to nine random drug screens and that three were

positive and six were negative. She also indicated that even after completing substance

abuse classes, Father tested positive during the second THV in June 2011 and refused a

drug screen at the end of the THV, in which he “cussed” at FCM Owens when she asked

him to take the screen. Transcript at 29. Father testified regarding his substance abuse

that he “was doin’ good,” that he “didn’t have any problem until after they came and got

the kids,” but that after DCS removed the Children following the second THV he “was

drinkin’ a little bit and stuff.” Id. at 83.

During the hearing, DCS presented evidence of Father’s criminal history,

including that in April 2002, Father pled guilty to possession, consumption, or

transportation of alcohol by a minor as a class C misdemeanor, and battery as a class A

misdemeanor. That same month he also was charged with and pled guilty to a separate

charge of possession, consumption or transportation of alcohol by a minor as a class C

misdemeanor.3 In October 2002, Father pled guilty to possession of marijuana as a class

A misdemeanor and reckless possession of paraphernalia as a class A misdemeanor. That

same day, under a separate cause number, Father pled guilty to another count of

3
The chronological case summary for this cause reveals that Father had been placed on probation
and charged with a probation violation stemming from charges filed in May of 2003; however, the State
agreed to not revoke Father’s probation in exchange for pleading guilty to that charge.
7
possession, consumption or transportation of alcohol by a minor as a class C

misdemeanor. Father also was found guilty of violating probation in April of 2002 when

he was arrested on the possession of marijuana and reckless possession of paraphernalia

charges.

In January 2003 Father pled guilty to theft as a class D felony and was placed on

probation. In June 2003 he pled guilty to public intoxication as a class B misdemeanor

and was ordered to serve thirty days in the Fayette County Jail. On December 7, 2005,

Father entered into a plea agreement regarding a charge of attempted conversion as a

class A misdemeanor as well as a violation of probation on his theft conviction in which

he agreed to serve sixty days and then have his probation terminated, as well as to a

sentence of one year suspended to probation on the attempted conversion charge. In

August of 2006, he pled guilty to violating his probation by failing to obtain a

drug/alcohol evaluation and for refusing a drug/alcohol screen. Also, in October of 2007

he pled guilty to residential entry as a class D felony, and he was sentenced to one year

suspended to probation.

In addition to these criminal convictions, DCS introduced, as DCS Exhibit 43(a),

evidence of Father’s guilty plea for false informing as a class B misdemeanor on August

11, 2011. DCS Exhibit 43(a) contains the probable cause affidavit which notes that on

July 12, 2011, 911 dispatchers received a call from Mother that Father stole Mother’s

purse containing prescription medication, among other things, and fled from the area.

Also, on July 15, 2011, a woman, Tabitha Colburn, informed an officer that someone had

stolen all of her clothing which she had been keeping in a duffle bag at Father’s home,

8
whom she had just met. The officer spoke with Father, who stated that “he thought a

possible suspect in the theft was his ‘baby’s mama’, Jayln Thompson . . . .” DCS Exhibit

43(a) at 2. Regarding the purse incident, Father told the officer that he did not know

Mother and “that the incident involving the theft of a purse was a purse that belonged to

Jayln Thompson.” Id. Father stated that “Jayln is addicted to legal and illegal drugs,”

that “she has a prescription for different drugs including Lortab,” that “Jayln had gone

through all of her prescription Lortab” and “ran out of her pills,” and that she and Father

“devised a scheme in which he would take her purse from the home and put it in or near

the alley behind her home so that she could report to RPD that [Father] had stolen her

purse including her medication.” Id. Father stated that “Jayln had since gotten her purse

back.” Id. The officer wrote that, following further investigation, he again spoke with

Father, who at that point told him that “the mother of his children is [Mother]. He told

me he made up the name Jayln Thompson in an attempt to keep [Mother] out of trouble

just in case she was the one who had taken Tabitha’s clothing.” Id. at 3. Father was

sentenced to 120 days suspended and ordered to perform thirty-two work crew hours by

September 11, 2011, and, when he failed to do so, the court revoked two days of his

previously-suspended sentence.

DCS also submitted evidence of various pending criminal charges. The court

admitted as DCS Exhibit 31 a complaint filed in September 2011 in the Preble County,

Ohio, Eaton Municipal Court for attempted theft. DCS also admitted as DCS Exhibit 32

an information filed in January 2012 for intimidation as a class A misdemeanor. Next,

DCS admitted two separate informations for conversion as class A misdemeanors: DCS

9
Exhibit 33, filed in April 2012; and DCS Exhibit 34, filed in June 2012. DCS also

admitted as DCS Exhibit 35 an information filed in June 2012 for receiving stolen

property as a class D felony. Finally, the court admitted as DCS Exhibit 36 an

information filed on August 20, 2012, for Count I, dealing in methamphetamine as a class

A felony; and Count II, possession of chemical reagents or precursors with intent to

manufacture a controlled substance as a class C felony. Father was housed in the Fayette

County Jail at the time of the termination hearing stemming from the August 20, 2012

charges.

At the conclusion of the termination hearing, the court took the matter under

advisement, and on April 15, 2013, issued its Findings of Fact, Conclusions of Law, and

Order Terminating Parental Rights (the “Termination Order”) in which it terminated the

parent-child relationship between Father and the Children.4 Father now appeals.

I.

The first issue is whether the court abused its discretion in admitting evidence of

Father’s previous criminal convictions and pending criminal charges. The admission of

evidence is entrusted to the sound discretion of the juvenile court. In re A.J., 877 N.E.2d

805, 813 (Ind. Ct. App. 2007), trans. denied. We will find an abuse of discretion only

where the juvenile court’s decision is against the logic and effect of the facts and

circumstances before the court. Id. If a juvenile court abuses its discretion by admitting

the challenged evidence, we will reverse for that error only if the error is inconsistent

4
The Termination Order also terminated the parental rights of Mother to the Children.

10
with substantial justice or if a substantial right of the party is affected. In re S.W., 920

N.E.2d 783, 788 (Ind. Ct. App. 2010).

Father argues that although “a trial court must evaluate the parent’s habitual

patterns of conduct,” the “rationale espoused” by the relevant case law “involves

weighing one’s parenting abilities against past patterns to predict future behaviors of

neglect,” but “[i]n this case, Father’s criminal history has no relevance to the children’s

safety.” Appellant’s Brief at 24. Father notes that his previous convictions, “except for a

recent B misdemeanor, all occurred before the children were born” and were “all for

minor crimes which did not result in Father being sent away to prison.” Id. at 25. He

argues that his “criminal history has a long gap from the time his children were born until

present” which underscores “the fact that Father became more responsible once B.M.B.

and B.A.B. were born.” Id. Regarding the evidence of pending charges, Father argues

that he is maintaining his innocence of such charges and he “ought not be unfairly judged

on these unproven accusations,” noting that “[t]o hold that all documents from pending

cases are relevant . . . would unjustly broaden the scope of TPR proceedings and would

force parents to defend themselves against criminal accusations in a civil court.” Id.

DCS asserts that Father acknowledges in his brief that the court was required to

examine his criminal history and that, accordingly, his arguments in this regard are

merely a request to reweigh the evidence. DCS notes that contrary to Father’s

suggestion, his criminal activities did not cease with the birth of his children, and points

specifically to his residential entry conviction, in which the date of the occurrence of the

crime was on or about July 19, 2007, about six months after B.M.B.’s birth, and the false

11
informing conviction which occurred in 2011. DCS also argues that the court did not

abuse its discretion in admitting the evidence of the pending criminal charges,

specifically noting that the pending criminal history was relevant “in that he had been

incarcerated since August 16, 2012, [and] was unable to care for Children at the time of

the termination hearing, and his release date was unknown.” Appellee’s Brief at 16.

DCS maintains that the court correctly ruled that such evidence was admissible under

Ind. Evidence Rule 403. DCS notes that the court’s decision to terminate the parent-child

relationship was not based solely on Father’s pending criminal charges as it “also looked

at other factors such as his criminal history, inability to provide a stable home, substance

abuse issues, lack of visitation with Children, and what was in Children’s best interests.”

Id. at 16-17. DCS argues that even if admitting evidence of the pending charges was an

abuse of discretion, such error was harmless because the evidence is undisputed that he

committed criminal acts after the birth of the children including the false informing

conviction, which occurred during the underlying CHINS proceedings, and this evidence

along with the court’s other findings was sufficient to support termination.

A parent’s character is at issue in proceedings to terminate parental rights. See

Matter of D.G., 702 N.E.2d 777, 780 (Ind. Ct. App. 1998) (holding that specific instances

of character, including evidence regarding a previous termination of parental rights, is

admissible character evidence in a subsequent termination proceeding). Indeed, a

parent’s character is an integral factor in assessing a parent’s fitness and in determining

the child’s best interest. Id. Also, this court has previously observed that in deciding

whether to terminate a parent’s parental rights, a court may properly consider evidence of

12
a parent’s prior criminal history, drug and alcohol abuse, history of neglect, failure to

provide support, and lack of adequate housing and employment. In re N.Q., 996 N.E.2d

385, 392 (Ind. Ct. App. 2013). This is because although a court must judge a parent’s

fitness to care for his or her child at the time of the termination hearing and take into

consideration evidence of changed conditions, it must also, due to the permanent effect of

termination, evaluate the parent’s habitual patterns of conduct to determine the

probability of future neglect or deprivation of the child. Id.

Also, this court has recognized that the juvenile court may properly consider

recent arrests of a parent, especially when such pending criminal charges might subject

the parent “to possible executed time which would necessarily interrupt reunification

services” or have an impact on the parent’s ability to provide a safe and suitable home.

See In re J.C., 994 N.E.2d 278, 283 (Ind. Ct. App. 2013), reh’g denied. Indeed, in J.C.

this court held that “the trial court made findings regarding Mother’s drug use and

criminal activity that resulted in the children’s removal,” that “Mother was incarcerated

at the time of the termination hearing” and “faced revocation of her probation for an

earlier charge based on criminal activity,” and that her “arguments are invitations for us

to reweigh the evidence, which we cannot do.” Id. at 290. We therefore conclude that

the juvenile court did not abuse its discretion when it allowed DCS to admit evidence of

Father’s previous criminal convictions and pending criminal charges.

II.

The next issue is whether the evidence is sufficient to support the trial court’s

judgment terminating Father’s parental rights. When reviewing the termination of

13
parental rights, we will not reweigh the evidence or judge the credibility of the witnesses.

Bester v. Lake Cnty. Office of Family & Children, 839 N.E.2d 143, 147 (Ind. 2005).

Instead, we consider only the evidence and reasonable inferences that are most favorable

to the judgment. Id. In accordance with Ind. Code § 31-35-2-8(c), the trial court’s

judgment contains specific findings of fact and conclusions thereon. We therefore apply

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

findings, and second, we determine whether the findings support the judgment. Id. In

deference to the trial 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), reh’g denied, trans. denied; see also

Bester, 839 N.E.2d at 147. Thus, if the evidence and inferences support the trial court’s

decision, we must affirm. Id.

“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. Although parental rights are of a

constitutional dimension, the law provides for the termination of these rights when

parents are unable or unwilling to meet their parental responsibilities. In re R.H., 892

N.E.2d 144, 149 (Ind. Ct. App. 2008). Moreover, a trial court need not wait until a child

is irreversibly harmed before terminating the parent-child relationship. McBride v.

Monroe Cnty. Office of Family & Children, 798 N.E.2d 185, 203 (Ind. Ct. App. 2003).

Before parental rights may be involuntarily terminated in Indiana, the State is

required to allege and prove, among other things:

14
 (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 . . . .

Ind. Code § 31-35-2-4(b)(2).5 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, 1260-1261 (Ind. 2009) (quoting Ind. Code § 31-37-14-2 (2008)), reh’g

denied. “[I]f the 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) (emphasis added). Father challenges the sufficiency of the evidence supporting

the trial court’s findings as to subparagraphs (b)(2)(B) and (b)(2)(C) of the termination

statute cited above.

A. Conditions Remedied/Threat to Well-Being

Ind. Code § 31-35-2-4(b)(2)(B) is written in the disjunctive and requires the State

to establish, by clear and convincing evidence, only one of the three requirements of

subparagraph 4(b)(2)(B). Because we find it to be dispositive, we limit our review to

5
We observe that Ind. Code § 31-35-2-4 was amended by Pub. L. No. 48-2012 (eff. July 1,
2012). The changes to the statute became effective after the filing of the termination petition involved
herein and are not applicable to this case.
15
Father’s allegations of error pertaining to subsection (b)(2)(B)(i) of Indiana’s termination

statute, namely, whether DCS presented clear and convincing evidence establishing that

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

placement of the Children outside Father’s care will not be remedied. As noted above,

the court must judge a parent’s fitness to care for his or her child at the time of the

termination hearing, but it must also evaluate the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child. In re N.Q., 996

N.E.2d at 392. The statute does not simply focus on the initial basis for a child’s removal

for purposes of determining whether a parent’s rights should be terminated, “but also

those bases resulting in the continued placement outside the home.” Id. In making this

determination, the court may 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, and it can reasonably consider the services offered by the DCS

to the parent and the parent’s response to those services. Id. In addition, where there are

only temporary improvements and the pattern of conduct shows no overall progress, the

court might reasonably find that under the circumstances, the problematic situation will

not improve. Id. The burden for the DCS is to establish only that there is a reasonable

probability that the parent’s behavior will not change. Id.

On appeal, Father argues that, the court found that he “failed to take part in the

services referred by DCS, and ordered by the court, and failed to establish a safe and

stable home,” but that “[t]he court’s findings do not find support in the evidence from the

hearing and further, do not support the conclusion of law that the reasons for continued

16
placement of the [Children] outside Father’s home will not be remedied.” Appellant’s

Brief at 29. Specifically, Father argues that “[u]p until the final removal, [he] had at all

times visited with the children” and “[b]y March 9, 2011, he had progressed sufficiently

in therapy for the frequency of visits to be halved.” Id. at 30. He notes that he also

completed his drug addiction program with Cornerstone and attended AA/NA classes

regularly. Regarding the drug screens, Father maintains that “of the three positives, one

was a refused drug screen and one occurred right after the children were taken when

Father admitted to having a problem.” Id. He argues that “[b]y May 11, 2011, [he] had

completed his GED requirements and was having unsupervised visits with his children,”

and that “[a]ll in all, caseworkers deemed him very ‘cooperative’ with reunification

efforts.” Id. at 31 (quoting DCS Exhibit 12 at 3-5). Father also argues that the court’s

conclusion that the conditions resulting in the Children’s removal would not be remedied

is not supported by the record, specifically noting that the Children “were removed from

the home due to the parent’s drug addictions, homelessness, and domestic violence” and

“[t]hese issues had been resolved by the time of the final hearing.” Id. at 31-32. He

notes that he testified to owning a three bedroom trailer and having “completed drug

treatment and was living drug free – and the DCS did not produce any evidence to show

otherwise.” Id. at 32. He suggests that “other than his refusal to take a drug test,

caseworkers did not testify that he’d begun abusing drugs again.” Id. He also asserts that

there were no incidents of domestic violence after the children were removed from the

home.

17
 DCS begins its argument by noting that Father’s arguments are a challenge to

Finding 16, and it “acknowledges that Father did complete his GED and substance abuse

classes including relapse prevention, and that until the second failed THV, he regularly

visited Children.” Appellee’s Brief at 20. DCS argues that “Father does not contest the

relevant findings listed in Finding 16 regarding his failed services,” including not

completing services with LifeLine, failing the two THVs, not visiting the Children after

August 3, 2011, and failing to maintain contact with DCS after the second THV ended.

Id. at 20-21. DCS also argues that Father’s substance abuse issues remain unresolved,

noting that he tested positive for cocaine in June 2011 after he had completed substance

abuse treatment, and he refused a drug screen on July 11, 2011, which DCS and the court

considered a positive result. DCS notes that Mother alleged that Father had battered her

when she made her criminal complaint to the police resulting in Father’s conviction for

false informing. DCS maintains that Father “ignores the other half of the court’s

conclusion in that there was a reasonable probability that the reasons for placement of

Children outside Father’s home will not be remedied” and notes that “[a]fter the second

failed THV, Father never progressed in services to the point where DCS could place

Children back with Father.” Id. at 24. DCS also suggests that Father’s arguments are

merely a request for this court to reweigh the evidence, noting specifically that the

evidence demonstrated that he failed at the two THVs, he stopped participating in

services, his LifeLine providers reported “that he had a ‘remarkable decline in the past

several months,’” he tested positive for cocaine in June 2011 after completing substance

abuse treatment, he refused a drug screen at the time of the Children’s removal from the

18
second THV, he last visited the Children in August 2011, he has been incarcerated since

August 16, 2012, and he is facing six criminal charges including a class A felony drug-

related charge. Id. at 21-22.

In its termination order, the trial court made detailed findings regarding Father’s

numerous failures to remedy the circumstances leading to the Children’s placement

outside of his home under Finding 16, and Father’s arguments do not challenge the

court’s statements in that finding. First, the court found that Father failed to complete

home based services with LifeLine. Second, the first THV failed after only three days,

when “he failed to secure appropriate child care.” Appellant’s Appendix at 426. Third,

Father failed in the second THV after about a month because “there was not an

appropriate food supply in the home, the home was dirty with rotten food and rusty tools,

the children were filthy, and [Father] refused to submit to a drug screen.” Id. Fourth,

Father failed three drug screens. The court also found that “[a]t the conclusion of the

second failed [THV], [Father] failed to visit with the children with the exception of one

time in August 2011,” failed to maintain contact with DCS despite efforts by DCS to

contact him, and that he was in custody on charges of dealing in methamphetamine as a

class A felony and intent to manufacture a controlled substance as a class C felony. Id.

Based on these and other findings, the court determined that the conditions that resulted

in the Children’s “removal or the reasons for the placement outside the home . . . will not

be remedied in that both parents failed to take part in the services referred by DCS, and

ordered by Court, and failed to establish a safe and stable home.” Id. at 432.

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 A thorough review of the record reveals that clear and convincing evidence

supports the trial court’s findings as detailed above. As noted previously, 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. In re D.D., 804 N.E.2d 258,

266 (Ind. Ct. App. 2004), trans. denied. The findings provide ample evidence to support

the trial court’s ultimate decision to terminate Father’s parental rights to the Children.

B. Best Interests

We next consider Father’s assertions that DCS failed to prove termination of his

parental rights is in the Children’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 the

Indiana Department of Child Services and look to the totality of the evidence. McBride,

798 N.E.2d at 203. 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. Moreover, we have previously held that the

recommendations by both the case manager and child 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 a

child’s best interests. In re M.M., 733 N.E.2d 6, 13 (Ind. Ct. App. 2000).

Father argues that “[t]he fact that the children are doing well in foster care is not a

sufficient basis for termination.” Appellant’s Brief at 37 (citing In re A.B., 888 N.E.2d

231, 239 (Ind. Ct. App. 2008), trans. denied). He suggests that reversing the trial court’s

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termination order “would not mean that [the Children] would immediately be taken from

[the] foster family and placed back with” him, but “[r]ather Father could work on

gradually reuniting with [the Children] in a way that was not unduly traumatic to them.”

Id. at 38. DCS argues that, in A.B., the “court reasoned that the sole basis for terminating

parental rights could not be because it was in the child’s best interest to be adopted by her

foster parents; especially where there was not sufficient evidence to support the trial

court’s determination that the parent would not likely remedy the conditions resulting in

the child’s removal.” Appellee’s Brief at 28. DCS maintains that in this case, “there is

evidence to support both the juvenile court’s legal conclusions that there was a

reasonable probability that Father would not remedy the reasons for [the Children’s]

removal, and that continuation of the parent-child relationship was a threat to [the

Children’s] wellbeing.” Id. DCS notes that both CASA Robinson and FCM Owens

testified that termination was in the Children’s best interest. DCS also argues that

“Father’s suggested plan of continued foster care . . . necessarily relegates Children to an

indeterminate period waiting for a permanent home–with the hope that Father may

rehabilitate,” but the Children “need permanency and stability, and not wishful thinking

and last minute plans.” Id. at 29.

In addition to the findings previously cited, the court specifically found that based

on the CASA’s visit with the children and Father, it was in the Children’s best interest to

terminate Father’s parental rights, noting that the Children are thriving in their present

placement. The court also noted the FCM’s testimony that termination of Father’s

parental rights was in the Children’s best interest. These findings and conclusion are

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supported by the evidence. In addition, we have concluded above that the conditions

leading to removal will not be remedied, and to the extent Father relies on In re A.B., we

find that DCS is correct that In re A.B. is distinguishable. Accordingly, we conclude that

there is sufficient evidence to support the trial court’s determination that termination of

Father’s parental rights is in the Children’s best interests. See, e.g., In re A.I., 825 N.E.2d

798, 811 (Ind. Ct. App. 2005) (testimony of court-appointed advocate and family case

manager, coupled with evidence that conditions resulting in continued placement outside

home will not be remedied, is sufficient to prove by clear and convincing evidence

termination is in child’s best interests), trans. denied.

CONCLUSION

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.” In re 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.

ROBB, C.J., and BARNES, J., concur.

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