The Indiana Court of Appeals affirmed the termination of a mother and father's parental rights based on sufficient evidence. The appellate court also found the mother couldn't appeal on the basis that the Department of Child Services failed to prove her drug use when she repeatedly refused to submit to drug testing.
Mother D.B. and father B.B. appealed the termination of their parental rights to their daughter, A.B. The girl tested positive for cocaine after birth; her mother admitted to using the drug five days before birth. Mother admitted to the child in need of services petition, but father declined to appear in court because he had outstanding warrants. A default hearing with respect to him was later conducted, during which the court found A.B. was a CHINS.
A.B. was removed from the home and both parents were ordered to comply with certain services, counseling, and testing. Mother repeatedly refused to submit to drug testing. The trial court granted DCS' petition to terminate both parent's rights.
In In the matter of the involuntary termination of the parent-child relationship of A.B.; D.B., B.B. v. Marion County Dept. of Child Services and Child Advocates, No. 49A02-0908-JV-710, mother challenged the trial court's findings that the conditions that led to A.B.'s removal won't be remedied. A.B. was removed because of mother's drug use. The appellate court rejected her argument that DCS lacked documentary evidence that she ever failed any drug test.
"A parent whose drug use led to a child's removal cannot be permitted to refuse to submit to drug testing, then later claim the DCS has failed to prove that the drug use has continued. Mother cannot and should not prevail with such a circular and cynical argument," wrote Judge Michael Barnes.
Father argued that DCS failed to prove A.B. was removed from his care for at least six months under the dispositional decree at the time the petition to terminate his parental rights was filed. He claimed the trial court set aside an earlier dispositional CHINS order by default when it stated it was entering a denial on his behalf and setting pretrial. But the court never entered a different dispositional order or said it was setting aside the earlier order.
Even if the trial court purported to set aside that order, it couldn't have done so under Indiana Trial Rule 60.
"The trial court could have chosen its words more carefully when it issued the September 3, 2008 order," Judge Barnes wrote. "Nevertheless, it never expressly set aside the dispositional order, it could not have done so sua sponte, and there is no basis upon which Father could have set aside the order even if he had moved to do so."
There was sufficient evidence to support the termination of both the mother and father's parental rights.