Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017 Page 1 of 10

MEMORANDUM DECISION

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

Mark E. Small

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the Termination 

of the Parent-Child Relationship 

of Ka.M., Cy.M., Ks.M., & 

Cn.M. (Minor Children) 

and

C.R. (Mother) 

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

September 8, 2017

Court of Appeals Case No.

11A01-1705-JT-958

Appeal from the Clay Circuit 

Court

The Honorable Joseph D. Trout, 

Judge

Trial Court Cause Nos.

11C01-1608-JT-226

11C01-1608-JT-227

11C01-1608-JT-228

11C01-1608-JT-229

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017 Page 2 of 10

Case Summary

[1] C.R. (“Mother”) appeals the termination of her parental rights to Ka.M., 

Cy.M., Ks.M. and Cn.M. (“Children”), upon the petition of the Clay County 

Department of Child Services (“the DCS”). She presents the sole issue of 

whether fundamental error occurred in the admission of evidence. We affirm.

 Facts and Procedural History

[2] Mother and G.M. (“Father”)1 had three children when the DCS initiated an 

investigation into allegations that the medical needs of Cn.M. and Cy.M. were 

being neglected. During the investigation, the DCS received an additional

report, alleging that Mother had given birth on November 24, 2014 and had 

tested positive for methamphetamine upon delivery. Children were taken into 

DCS custody. On November 26, 2014, the DCS filed a petition alleging that 

Children were Children in Need of Services (“CHINS”) because of parental 

drug use, medical neglect, and lack of cooperation with investigative efforts.

[3] On January 27, 2015, Mother and Father appeared for a fact-finding hearing. 

They admitted that Mother had used methamphetamine during her pregnancy 

and Ks.M. had been born with drugs in his system. They also admitted to past 

methamphetamine abuse and missing necessary pediatric medical 

appointments. Pursuant to a dispositional decree entered on March 30, 2015, 

 

1

Father is not an active party to this appeal.
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Mother was court-ordered to refrain from illicit drug use and other criminal 

activity, maintain appropriate housing, cooperate with service providers, 

maintain contact with the DCS, visit with Children, complete a substance abuse 

assessment, and submit to random drug screens.

[4] Mother’s participation in services was inconsistent. She visited with Children 

frequently but also missed a significant number of visits, arrived late, or left 

early. She successfully completed group therapy but was non-compliant with 

individual therapy. She had ninety-seven negative drug screens and ten to 

twelve positive drug screens. According to her service providers, Mother would 

be very motivated and cooperative for two or three months, and then lose 

contact with the providers.

[5] At each review hearing, the CHINS court found Mother to be generally noncompliant with the court orders. On December 7, 2015, the DCS plan was 

changed to termination of parental rights. The DCS was authorized to file a 

parental rights termination petition; however, the petition was dismissed on 

June 23, 2016, upon reports that the parents were participating in services. A 

second parental rights termination petition was filed on September 12, 2016.

[6] An evidentiary hearing commenced on December 13, 2016, but was continued 

at Mother’s request to February 21, 2017. On February 2, 2017, the DCS filed 

a motion to conduct the testimony of Forensic Fluids Laboratories toxicologist 

Bridget Lemberg (“Lemberg”) telephonically. The motion was granted on 

February 15, 2017.
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[7] On February 21, 2017, Mother failed to appear. The evidentiary hearing 

proceeded, with each parent represented by counsel. Lemberg testified that 

Mother had tested positive for methamphetamine on August 7, 2016. Family 

case manager Tris Decker (“Decker”) testified that Mother was no longer 

receiving services related to her four oldest children, but had given birth to a 

fifth child and was ordered to participate in services as part of a CHINS 

proceeding as to that child. Decker further testified that Mother was “not at 

all” participating in those services. (Tr. Vol. I, pg. 173.) Children’s Guardian 

Ad Litem (“GAL”) opined that termination of parental rights was appropriate 

because the parents had been non-compliant, they were “obviously using 

[drugs],” and the “traffic” in the parental home was unsafe for Children. (Tr. 

Vol. I, pg. 178.)

[8] On April 6, 2017, the trial court entered its findings of fact, conclusions and 

order terminating Mother’s parental rights. This appeal ensued. 

Discussion and Decision

[9] “The Fourteenth Amendment to the United States Constitution protects the 

traditional right of parents to establish a home and raise their children.” In re 

Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are 

of a constitutional dimension, they are not absolute and the law provides for the 

termination of those rights when the parents are unable or unwilling to meet 

their parental responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 

N.E.2d 143, 147 (Ind. 2005).
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[10] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must 

allege and prove by clear and convincing evidence to terminate a parent-child 

relationship:

(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.
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[11] Mother does not lodge a direct challenge to the sufficiency of the evidence 

supporting the termination decision. Rather, she argues that the admission of 

some of the supporting evidence, that is, Lemberg’s testimony, amounted to 

fundamental error that deprived her of her constitutional right to parent under 

the Fourteenth Amendment to the United States Constitution. First, she argues 

that the DCS elicited telephonic testimony from Lemberg absent compliance 

with administrative rule requirements for telephonic testimony. Second, she 

argues that Lemberg was permitted to testify to a positive drug screen result 

although the chain of custody was not clearly established.

[12] The fundamental error doctrine applies to egregious trial errors. In re E.E., 853 

N.E.2d 1037, 1043 (Ind. Ct. App. 2006), trans. denied. It provides a narrow 

exception to the waiver doctrine, applicable only to an error so egregious to 

fundamental due process that the trial judge should or should not have acted, 

regardless of a party’s failure to object or preserve the issue of error for appeal. 

N.C. v. Indiana Dep’t of Child Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans. 

denied. Reversal of the trial court’s ruling based upon fundamental error 

requires both a clear blatant violation of basic and elementary principles and 

that the harm or potential for harm therefrom is substantial and appears clearly 

and prospectively. Id. 

[13] Mother asserts that the trial court failed to follow the procedure outlined in 

Indiana Administrative Rule 14, governing “Use of Telephone and Audiovisual 

Telecommunication” in court proceedings and providing in relevant part:
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[A] trial court may use telephone or audiovisual communication 

subject to:

(1) the written consent of all the parties, entered on the 

Chronological Case Summary; or

(2) upon a trial court’s finding of good cause, upon its own 

motion or upon the motion of a party. . . .

(3) A party or a trial court if it is acting on its own motion must 

give notice of the motion to use telephone or audiovisual 

telecommunication as follows:

(a) Any motion for testimony to be presented by telephone or 

audiovisual telecommunications shall be served not less than 

thirty (30) days before the time specified for hearing of such 

testimony;

(b) Opposition to a motion for testimony to be presented by 

telephone or audiovisual telecommunication shall be made by 

written objection within seven (7) days after service;

(c) A trial court may hold an expedited hearing no later than ten 

(10) days before the scheduled hearing of such testimony to 

determine if good cause has been shown to present testimony by 

telephone or audiovisual telecommunication;

(d) A trial court shall make written findings of fact and 

conclusions of law within its order on the motion for testimony 

to be presented by telephone or audiovisual telecommunication[.]

[14] The record indicates that the DCS motion for telephonic testimony was granted 

thirteen days after the February 2, 2017 filing of the motion. Although Mother 
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did not object within seven days after service, she was entitled to notice thirty 

days before the February 21, 2017 hearing. Also, it appears that the trial court 

did not make the requisite findings and conclusions as to good cause. The DCS 

argues that substantial compliance was adequate. We disagree. Parental rights 

are of a constitutional dimension and disregard of administrative procedures is 

not to be condoned.

[15] That said, the telephonic evidence is of a cumulative nature. The thrust of 

Lemberg’s testimony was that Mother had used illicit substances; specifically, 

she had tested positive for methamphetamine and synthetic marijuana. At the 

outset of the evidentiary hearing, the CHINS exhibits were admitted into 

evidence by stipulation and some of these reference Mother’s drug screens. For 

example, the Notice of Removal of Child from a Trial Home Visit discloses that 

drug screen results of July 8, 2015 were “positive for synthetic cannabanoids.” 

(Ex. 6.) 

[16] Michael McKamey, a Lifeline home-based therapist, testified that Mother 

reported to him a relapse, that is, she used synthetic marijuana. Decker testified 

that, during her case management tenure, Mother had relapsed “a couple of 

times.” (Tr. Vol. I, pg. 148.) She referred to a positive result for “Spice” in July 

of 2015 and a positive result for methamphetamine in August of 2016. (Tr. Vol. 

I, pgs. 145, 173.) Parenting time supervisor Amy Clark, who had background 

in substance abuse treatment, opined that Mother appeared to be under the 

influence of drugs at some visits. Given the abundance of evidence of Mother’s 

drug use, the erroneous admission of telephonic testimony is harmless error as 
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opposed to reversible error or fundamental error. See Indiana Trial Rule 61(B) 

(no error in the admission or exclusion of evidence is grounds for granting relief 

unless refusal to take such action appears inconsistent with substantial justice).

[17] Mother also contends that the test results were admitted despite an improper 

chain of custody. “To establish a proper chain of custody, the State must give 

reasonable assurances that the evidence remained in an undisturbed condition.” 

Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). A successful challenger must 

“present evidence that does more than raise a mere possibility that the evidence 

may have been tampered with.” Id. 

[18] Mother acknowledges that the DCS presented testimony regarding its test 

collection and transportation procedures, Lemberg testified regarding 

laboratory handling procedures, and the trial court summarized this evidence at 

some length. However, she argues, “neither the trial court nor counsel for 

either parent addressed discrepancies in testimony as to delivery by UPS and 

FedEx.” Appellant’s Brief at 17. Lemberg testified regarding a “UPS packet,” 

(Tr. Vol. I, pg. 48), while Decker testified to using a “FedEx bag” and “sending 

FedEx bags out daily.” (Tr. Vol. I, pgs. 152, 170.) Thus, the chain-of-custody 

testimony was not entirely without conflict. However, such is not required. 

[19] The DCS’s testimonial evidence provided reasonable assurances that the 

physical evidence had been undisturbed. Additionally, each test result 

document was accompanied by Lemberg’s Affidavit, detailing procedures 

utilized and certifying the business record. Merely pointing to conflicting 
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testimony as to the identification of a private delivery service does not present 

an issue of fundamental error. The contested evidentiary hearing in this case 

was not a situation where the trial court blatantly dispensed with either a chainof-custody inquiry or the foundational requirements for the admission of 

telephonic testimony. Mother has not shown egregious trial error. 

Conclusion

[20] Mother did not establish that fundamental error occurred in the admission of 

evidence.

[21] Affirmed.

Baker, J., and Altice, J., concur.