Term. of Parent-Child Rel. of C.S., Jr., D.S., and J.S., minor children: C.S., Sr., father v. Indiana Dept. of Child Services

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Aug 15 2012, 8:49 am
court except for the purpose of
establishing the defense of res judicata, CLERK
of the supreme court,
collateral estoppel, or the law of the case. court of appeals and
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ATTORNEYS FOR APPELLANTS: ATTORNEYS FOR APPELLEE:

MARIELENA DUERRING SHARON R. ALBRECHT
Duerring Law Office Indiana Department of Child Services
South Bend, Indiana South Bend, Indiana

ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Termination of the Parent-Child )
Relationship of C.S., Jr., D.S., and J.S., minor children, )
and C.S., Sr., father: )
)
C.S., Sr., )
)
Appellant-Respondent, )
)
vs. ) No. 71A04-1111-JT-641
)
INDIANA DEPARTMENT OF CHILD SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE ST. JOSEPH PROBATE COURT
The Honorable Peter J. Nemeth, Judge
Cause No. 71J01-1106-JT-72, -73, and -74

August 15, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge
 C.S., Sr., (“Father”), appeals the involuntary termination of his parental rights to

his children, challenging the sufficiency of the evidence supporting the trial court’s

judgment. We affirm.

FACTS AND PROCEDURAL HISTORY

Father is the biological father of C.S, Jr. (“C.S.”), born in January 2007, D.S., born

in July 2008, and J.S., born in December 2009. The facts most favorable to the trial

court’s judgment reveal that in December 2008, C.S. was removed from the child’s

mother1 after the local St. Joseph County office of the Indiana Department of Child

Services (“DCS”) confirmed a report that eleven-month-old C.S. had been discovered

wandering outside alone for fifteen to thirty minutes wearing only a diaper and t-shirt.

The weather conditions at the time C.S. was found were “negative two (2) degrees

Fahrenheit with wind gusts up to twenty-one (21) miles an hour.” Appellant’s Appendix

at 10. In addition, DCS received a second referral the same day alleging there was no

food or electricity in the family home and that the children’s mother and other relatives

who lived in the home used illegal drugs.

During an assessment that same day, DCS case managers visited the family home

and observed holes in the ceiling, dirty clothes scattered across the floors, and two

electrical heaters, along with the stove, being used to heat the family home despite a

known gas leak. Mother denied using drugs. Mother’s own father admitted to using

marijuana, but declined to take a drug screen. In addition, an older half-sibling of C.S.

and D.S. was interviewed and disclosed additional information concerning the lack of

1
The children’s biological mother, A.C. (“Mother”), does not participate in this appeal. We
therefore limit our recitation of the facts to those pertinent solely to Father’s appeal.
2
supervision and drug use in the family home. As a result of its assessment, including the

circumstances surrounding C.S.’s removal earlier the same day and the existence of

several previous life and heath endangerment referrals involving the family, DCS decided

to remove D.S. and the older half-sibling from Mother’s care as well. D.S. was placed

together in foster care together with C.S.2 At the time of the children’s removal, Father

was incarcerated on drug-related convictions and unavailable to parent the children.

The children were subsequently adjudicated children in need of services

(“CHINS”) and the children’s biological mother began participating in court-ordered

reunification services while Father remained incarcerated. Although Father was released

in March 2009, shortly thereafter he was again incarcerated, this time in the State of

Michigan, on additional drug-related charges. The record does not disclose the exact

nature of the new charges, however, nor was Father’s actual release date indicated.

Nevertheless, Father did not become actively involved in the CHINS cases involving C.S.

and D.S. until March 2010. Meanwhile, J.S. was born in December 2009.

Father’s initial hearing on the CHINS petitions as to C.S. and D.S. was held on

March 3, 2010. Following the hearing, the trial court adjudicated C.S. and D.S. CHINS

and proceeded to disposition the same day. The trial court thereafter entered a

dispositional order formally removing both children from Father’s care and directing

Father to participate in and successfully complete a variety of tasks and services designed

to improve his parenting skills and to facilitate reunification. Among other things, Father

was ordered to: (1) establish paternity of the children; (2) obey the law; (3) abstain from

2
For clarification purposes we note that the children’s older half-sibling was placed with that
child’s biological father and is not a subject of this appeal.
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the use of illegal drugs and alcoholic beverages; (4) submit to random drug screens; (5)

maintain a legal and regular source of income; (6) obtain and maintain adequate housing;

(7) participate in family and individual counseling and follow all recommendations; and

(8) pay weekly child support for each child.

By August 2009, J.S had also been removed from Mother’s care. Although Father

had not yet established paternity of J.S., he admitted to the allegations of the CHINS

petition pertaining to J.S. during an initial hearing in the matter, and the child was so

adjudicated. A dispositional hearing pertaining to J.S. was held in September 2010, and

the trial court later entered a nearly identical dispositional order as was entered in the

cases involving C.S. and D.S., with the added requirements that Father take any and all

medications as prescribed and that Father successfully complete the drug treatment and

aftercare program in which he was currently engaged.

Father’s participation in reunification services throughout the CHINS case was

inconsistent and was replete with periods of compliance followed by periods of non-

compliance. For example, when Father first began participating in the CHINS case, he

tested positive for marijuana and was observed by service providers to smell like

alcoholic beverage and/or marijuana during several visits with the children. Although

Father began participating in a substance abuse treatment program and subsequent drug

tests indicated Father was no longer using these illegal substances, Father began using the

prescription drug Tramadol, a narcotic, for back pain which case workers and service

providers reported negatively affected Father’s personality and demeanor when

interacting with the children and service providers. Despite being asked by DCS to

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change his medication, Father went back to using the Tramadol and therefore was asked

to restart the drug treatment program.

In addition, although Father obtained housing for himself with Hope Ministries in

October 2010 and later obtained a family unit at the Hope Family Life Center in February

2011, he was officially terminated from the program and lost all housing in August 2011

for non-participation. Similarly, Father obtained employment at a Goodwill Store in June

2011, but had stopped working by August 2011 and remained unemployed and dependent

upon his sister for housing for the remainder of the underlying proceedings. Father also

was arrested and incarcerated several times throughout the CHINS and termination cases

on various charges including violation of probation, driving while suspended, and

operating a vehicle while intoxicated.

As for visitation, although Father attended over one hundred scheduled visits with

the children, the visits were oftentimes chaotic and never progressed to unsupervised

visits. In addition, Father was late for approximately thirty (30) of the visits, oftentimes

forgot to bring snacks and/or meals for the children as required, fell asleep and/or

struggled to stay awake during several visits, and oftentimes was unable to properly

supervise all three children at the same time necessitating repeated intervention and

redirection by visitation supervisors.

DCS eventually filed petitions seeking the involuntary termination of Father’s

parental rights to the children in June 2011.3 A consolidated evidentiary hearing on all

three termination petitions was later held in November 2011. During the termination

3
The mother’s parental rights were involuntarily terminated by the trial court in August 2010.
5
hearing, DCS presented evidence establishing that the circumstances resulting in the

children’s removal and continued placement outside Father’s care remained largely

unchanged. Although Father had completed several of the court-ordered reunification

services, including parenting classes and substance abuse treatment, he was unable to

demonstrate that he had benefitted from these services and was now able to provide the

children with a safe and stable environment on his own. Moreover, at the time of the

termination hearing, Father remained unemployed, did not have independent housing,

and had paid only $27.00 total in child support for all three children for the duration of

the nineteen-month case. Finally, DCS presented evidence showing C.S., D.S., and J.S.

had been living together and thriving in relative foster care with Father’s cousin who was

meeting all the children’s needs and who wished to adopt all the children should the court

decide to grant DCS’s termination petitions.

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

advisement. On November 14, 2011, the trial court entered its judgments terminating

Father’s parental rights to all three children. Father now appeals.

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

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

6
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 Father’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. 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).

Before an involuntary termination of parental rights may occur in Indiana, the

State is required to allege and prove, among other things:

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 (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. . . .

Ind. Code § 31-35-2-4(b)(2).4 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 trial 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). Here, Father challenges the sufficiency of the evidence supporting the trial

court’s findings as to subsection (b)(2)(B) of the termination statute cited above. See Ind.

Code § 31-35-2-4(b)(2).

To properly effectuate the termination of parental rights under Indiana Code

section 31-35-2-4(b)(2)(B), a trial 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 trial court determined that the 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 DCS established, by clear and

convincing evidence, that there is a reasonable probability the conditions resulting in the

4
We observe that Indiana Code section 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.
8
children’s removal or continued placement outside of Father’s care will not be remedied.

See Ind. Code § 31-35-2-4(b)(2)(B)(i).

When 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 also “evaluate the parent’s habitual patterns of conduct to

determine the probability of future neglect or deprivation of the child.” Id. Pursuant to

this rule, courts have properly considered evidence of a parent’s prior criminal history,

drug and alcohol abuse, history of neglect, failure to provide support, and lack of

adequate housing and employment. A.F. v. Marion Cnty. Office of Family & Children,

762 N.E.2d 1244, 1251 (Ind. Ct. App. 2002), trans. denied. The trial court may also

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

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

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

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

the parents’ behavior will not change. In re Kay L., 867 N.E.2d 236, 242 (Ind. Ct. App.

2007).

On appeal, Father admits that the trial court’s findings of fact “arguably were

supported by sufficient evidence.” Appellant’s Brief at 3. Nevertheless, Father asserts

that these facts were “purely historical.” Id. Father further complains that the trial court

completely ignored Father’s “current circumstances” and “evidence of changed

conditions.” Id. at 3-4.

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 In terminating Father’s parental rights, the trial court specifically found that Father

was “inconsistent in attending visitations with his children,” “broke the rules at Hope

Ministries” regarding “curfew” and attending meetings “as requested,” and failed to

arrange for the correct amount of bus passes in order to attend DCS case meetings.

Appellant’s Appendix at 6. The court further found that Father was “removed” from his

drug treatment program because of his “belligerent attitude,” that he “stopped going to

his therapy sessions in June 2011[,] and was terminated from that program in August

2011,” and that he was incarcerated both when the children were first removed from their

mother and again in July 2011 when Hope Ministries held a meeting and determined to

terminate Father from their program. Id. Based on these and other findings, the trial

court determined that there is a reasonable probability the conditions resulting in the

children’s removal and continued placement outside Father’s care will not be remedied.

Our review of the record leaves us convinced that ample evidence supports the

trial court’s findings cited above. At the time of the termination hearing, Father’s

circumstances remained largely unchanged. Specifically, Father continued to be

unemployed, did not have independent housing, and had ceased attending individual

counseling sessions approximately two months before DCS cancelled the referral. As for

visitation, Father had failed to consistently demonstrate the parenting skills he had been

taught while visiting with the children and was never able to progress to unsupervised

visits. Additionally, Father was incarcerated on new criminal charges several times

during the underlying proceedings. Although Father does appear to have maintained his

sobriety for several months leading up to the termination hearing, his habitual pattern of

10
conduct in achieving periods of compliance and sobriety, followed by periods of non-

compliance and drug use, calls into question Father’s long-term ability to properly care

for the children and to maintain a safe and stable home environment, all of which further

supports the trial court’s ultimate determination that there is a reasonable probability the

conditions resulting in the children’s removal from Father’s care will not be remedied.

During the termination hearing, Court Appointed Special Advocate Thomas Beck

recommended termination of Father’s parental rights. When asked to describe his

“feelings” about “this case” and “termination,” Beck answered:

I think [Father’s] a good human being overall, but the problem is that he’s
very immature in terms of being able to accept responsibilities for himself
let alone for three children, and I don’t think he’s at the stage of life at this
point in time where he could handle three children because his own life is
in such disarray . . . . I dealt with him for 19 months and there hasn’t been
a three month period during that time where he hasn’t had some serious
issue crop up; that had he had custody of the children, he would have either
put them in jeopardy, actual physical jeopardy[,] or they would have ended
up back in a foster home.

Transcript at 31-32. Beck went on to confirm that Father had “two DUI arrests” during

the underlying proceedings, “falsely identified himself” and was later arrested after being

in an accident, failed the first court-ordered drug treatment program, and within two

weeks of starting the second program “took two drugs that had potentially fatal drug

interaction implications. . . .” Id. at 32. Although Beck indicated that during the three

months leading up to the termination hearing the visits between Father and the children

had “gone very well” overall, Beck nevertheless testified that these recent visits had also

been “very, very up and down,” explaining that Father would have an “excellent” visit

where he would be “on time,” and “bring the right food,” and then the very next visit

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Father “might not show up at all or if he did, he didn’t show up with the right food[,] or

no food . . .” Id. at 33-34 DCS case manager Sarah Henry (“Henry”) likewise

recommended termination of Father’s parental rights. In so doing, Henry reported that

Father’s last individual counseling session was in June 2011 and that he had voluntarily

quit going two months before services were terminated. Henry also confirmed that

Father was unemployed, did not have independent housing, and had only paid “[a] total

of three [child support] payments for a total of $27.00.” Id. at 82. Henry went on to

testify that although Father’s visits with the children had “gone better” recently, Father

had “still been late, even as most recent[ly] as September 29[th] he was late and did not

come prepared with food for the children.” Id. at 75. When asked, “[W]hat conditions

exist today in this case that are different or similar to what it was like when [DCS] took

the children,” Henry answered, “My concern with [Father] is still just being able to meet

the children’s day[-]to[-]day needs. If you can’t attend a once a week visit on time with

food for a two-hour visit . . . how can I feel comfortable putting three children in your

care[?]” Id. at 54.

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

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

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

child. D.D., 804 N.E.2d at 266. “A pattern of unwillingness to deal with parenting

problems and to cooperate with those providing services, in conjunction with unchanged

conditions, supports a finding that there exists no reasonable probability that the

conditions will change.” Lang v. Starke Cnty. Office of Family & Children, 861 N.E.2d

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366, 372 (Ind. Ct. App. 2007), trans. denied. Moreover, we have previously explained

that “simply going through the motions of receiving services alone is not sufficient if the

services do not result in the needed change.” In re J.S., 906 N.E.2d 226, 234 (Ind. Ct.

App. 2009). Here, for approximately nineteen months, Father has demonstrated a

persistent unwillingness and/or inability to refrain from criminal activity and to take the

actions necessary to show that he is capable of providing the children with the safe and

stable home environment they need. Father’s arguments on appeal emphasizing his

purported change in circumstances, rather than the evidence cited by the trial court in its

findings, amounts to an impermissible invitation to reweigh the evidence. See e.g. D.D.,

804 N.E.2d 258. We therefore find no error.

Affirmed.

BAKER, J., and BROWN, J., concur.

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