Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 1 of 17

ATTORNEY FOR APPELLANT D.B.

Heather M. Schuh-Ogle

Thomasson, Thomasson, Long & 

Guthrie, P.C.

Columbus, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

In the Matter of: De.B., a Child 

Alleged to be in Need of 

Services,

J.B. (Mother) and D.B. (Father),

Appellants-Respondents,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

March 23, 2020

Court of Appeals Case No.

19A-JC-2228

Appeal from the 

Bartholomew Circuit Court

The Honorable 

Kelly S. Benjamin, Judge

The Honorable

Heather Mollo, Magistrate

Trial Court Cause No.

03C01-1902-JC-872

Vaidik, Judge.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 2 of 17

Case Summary

[1] Indiana Evidence Rule 803(6) provides an exception to the rule against hearsay 

for records of a “regularly conducted activity” of a business or other 

organization. This is commonly referred to as the “business-records 

exception.” Here, during a child in need of services (CHINS) fact-finding 

hearing, the Department of Child Services (DCS) offered into evidence lab 

reports purporting to show the results of the parents’ drug tests under the 

business-records exception. The trial court found that the lab reports were 

business records and therefore admitted them. On appeal, D.B. (“Father”)

argues that the lab reports are not business records. We find that they are and 

affirm the trial court on that issue and in all other respects.

Facts and Procedural History

[2] Father and J.B. (“Mother”) (collectively, “Parents”) are the parents of De.B.

(“Child”), who was born in June 2018. On February 13, 2019, an officer with 

the Columbus Police Department stopped Parents’ car after receiving a report 

that a theft had just occurred at a nearby Target. Father was in the driver’s seat, 

Mother was in the passenger’s seat, and Child was in a car seat in the back seat. 

During the stop, Mother said that “she committed the theft so that she could . . 

. sell the items that she had stolen, to get food.” Tr. p. 54. The officer then 

searched the car and found several electronic items from Target, some syringes, 

and a bent spoon. See id. Parents were both arrested and transported to the 

police department to be interviewed. A detective interviewed Father, who 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 3 of 17

admitted that he was the “getaway driver” for the Target theft and that they

planned to sell the stolen items “to pay for baby supplies.” Id. at 60-61. Father 

also told the detective that the syringes and spoon were Mother’s and that “he 

prefers to snort his” methamphetamine.

1

 Id. at 59-60.

[3] Because Child was with Parents when they were arrested and there was no 

other caregiver available for Child, police officers contacted DCS. Family Case 

Manager (FCM) Christine McKitrick arrived at the police station to remove 

Child and place her in foster care. While FCM McKitrick was at the station, 

Mother told her that Father “uses THC.” Id. at 67. The next day, DCS filed a 

petition alleging that Child is a CHINS. A fact-finding hearing was set for April 

5.

[4] Father provided oral-fluid samples for drug testing twice before the fact-finding 

hearing: one to DCS employee Susie Hodnett on February 19 and one to FCM 

McKitrick on March 4. Mother provided four oral-fluid samples for drug 

testing before the fact-finding hearing: one to FCM McKitrick on February 14, 

one to Hodnett on February 19, another one to FCM McKitrick on March 4, 

and one to DCS employee Collin Huston on March 19. On March 20, DCS 

filed a motion requesting permission for Bridget Lemberg to testify 

telephonically at the fact-finding hearing. The motion indicated that Lemberg 

was the lab director and a toxicologist at Forensic Fluids in Kalamazoo, 

1

Father eventually pled guilty to Class A misdemeanor criminal conversion, and Mother pled guilty to Level 

6 felony unlawful possession of a syringe.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 4 of 17

Michigan, that she was going to testify that Forensic Fluids tested Parents’ oralfluid samples, and that requiring her to travel and testify in person would cause 

a great burden and inconvenience. See Appellant’s App. Vol. II pp. 28-29. 

Father objected based on DCS’s failure to comply with Indiana Administrative 

Rule 14(B), which sets forth the procedural requirements for telephonic 

testimony in a CHINS fact-finding hearing.

[5] On April 5, the CHINS fact-finding hearing began. Both Father and Mother 

admitted to using marijuana during the pendency of the CHINS case. Tr. pp. 

18-19, 27. Father renewed his objection to Lemberg testifying telephonically. 

The trial court overruled Father’s objection and allowed Lemberg to testify. 

Lemberg said that Forensic Fluids is a “federally certified toxicology laboratory 

that does oral fluid drug testing,” subject to the Clinical Laboratory 

Improvement Amendments (“CLIA”), 42 U.S.C. § 263a (2012). Id. at 29. 

Lemberg then testified generally about how oral-fluid samples are processed, 

starting when Forensic Fluids receives a UPS delivery each morning containing 

individual plastic specimen bags that contain donors’ oral-fluid samples and 

ending when the lab report, reporting the results of the drug test, is created. 

Lemberg stated that a lab report showing the drug-test results—positive or 

negative—is created for every result that comes out of Forensic Fluids. Id. at 

41. When asked, Lemberg admitted that she did not personally process 

Parents’ oral-fluid samples. Father’s attorney therefore objected to Lemberg 

testifying about the results of Parents’ oral-fluid drug tests because her 

testimony was based on hearsay. The trial court overruled the objection. 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 5 of 17

Lemberg then testified that Father tested positive for marijuana on February 19 

and March 4 and that Mother tested positive for marijuana on March 19 and 

tested positive for marijuana and methamphetamine on February 14 and March 

4. See id. at 35, 40. 

[6] Lemberg also said that the lab reports are made the same day that the results are 

transmitted and that Forensic Fluids is required to keep lab reports to maintain 

their federal CLIA certification. See id. at 41. DCS then moved to admit the 

lab reports showing the results of Parents’ oral-fluid drug tests under Indiana 

Evidence Rule 803(6), the business-records exception. Father’s attorney 

objected, arguing that the lab reports were “specifically created for DCS” and 

that therefore they did not qualify as business records. Id. at 41. Mother’s 

attorney joined in the objection. Lemberg explained that Forensic Fluids “ha[s] 

to keep [the lab reports] for two years for the federal government,” id. at 42, and 

on that basis, the trial court overruled Parents’ objection and admitted the lab 

reports.

[7] On cross-examination by Father’s attorney, Lemberg provided additional 

information about Forensic Fluids’ operations. Lemberg said that to keep their 

certification, Forensic Fluids is also “physically inspected every twelve to 

eighteen months, and [Forensic Fluids] do[es] blind sample testing, and [has] 

standard operating procedures.” Id. at 45. Lemberg also said that lab 

supervisors do quarterly and annual performance evaluations, and that “to keep

[Forensic Fluids’] Federal Certificate, everybody has to be re-trained on all the 

pieces of equipment . . . on a yearly basis, and it has to go in [the employee’s]
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 6 of 17

folder, so that the Federal Government can see that they’ve had training every 

year.” Id. Lemberg testified that performance evaluations consist of lab 

supervisors observing employees “while they’re working” and that “[t]hey’re 

also given blank or blind samples to test.” Id. 

[8] Home-based case worker Anne Moore testified that Father attended eleven out 

of fifteen visits with Child. Id. at 49. Moore said that Parents “d[id] a pretty 

good job” during visits but that in early March “they asked to reduce to two 

visits a week . . . [b]ecause they said they had so much to do for DCS.” Id. at 

50. FCM Stacy Prior testified that she was concerned because Parents did not 

have a consistent living situation or consistent employment and that both 

parents had positive drug screens. Id. at 71. FCM Prior said that although 

Parents had recently obtained suitable housing, she was still concerned because 

Parents “moved in approximately three days ago.” Id. Father testified that he 

was unemployed and had three jobs in the past year. Id. at 26. Father said that 

he lost his most recent job due to a hand injury and that he believed that his 

church was going to set up a fund to help him until he could get back on his 

feet. Id. at 86.

[9] On June 6, the trial court issued an order adjudicating Child a CHINS pursuant 

to Indiana Code section 31-34-1-1. The trial court entered findings to support 

its order, which include:

5. [Parents] were arrested for retail theft on or about 

February 13, 2019.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 7 of 17

6. At the time of [P]arents’ arrest, [Child] was present with 

[P]arents.

7. In the course of the arrest of [P]arents, law enforcement 

found two syringes, a bent spoon and a torch lighter.

*****

22. The underlying events that brought [P]arents to the 

attention of law enforcement and DCS portray either 

desperate living circumstances or very poor judgment by 

[P]arents having their infant daughter present while 

committing an act of theft.

23. With the drug related items found in the car, the positive 

drug screens for methamphetamine, and the admissions by 

[P]arents to officials, there is evidence that substance abuse 

is a present concern for both parents that warrants 

monitoring and services.

24. The tender age of [Child] is a factor, given her total 

dependence on others for her care. It is also questionable 

as to whether either parent can be a protective factor for 

[Child], by being a sober caregiver.

25. The stability of [Parents] is hopeful but tenuous, as things 

were just starting to fall into place at the time of trial.

Appellant’s App. Vol. II pp. 14-15.

[10] On June 24, the trial court held a dispositional hearing. FCM Prior testified 

that Parents were both unemployed and seeking housing. Tr. p. 99. FCM Prior 

said that Parents were staying at a shelter but continued to be involved with 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 8 of 17

home-based case management and were consistently attending supervised visits 

with Child. Id. FCM Prior requested that Father continue participating in 

supervised visitation, engage in random drug screens, complete a psychological 

evaluation, and participate in home-based case management. Id. at 102. FCM 

Prior said that Father had completed a substance-abuse assessment and had 

been referred to in-patient treatment. Id. At the end of the hearing, the trial 

court adopted DCS’s recommendations and ordered Parents to participate in 

services.

[11] Father now appeals (but Mother does not).

Discussion and Decision

[12] Father contends that the trial court erred by admitting the lab reports from 

Forensic Fluids. He also argues that there is insufficient evidence to support the 

trial court’s CHINS adjudication.

I. Lab Reports

[13] Father argues that the trial court erred by determining that the lab reports fit 

within the business-records exception. The admission of evidence is entrusted 

to the sound discretion of the trial court. In re B.H., 989 N.E.2d 355, 360 (Ind. 

Ct. App. 2013). We will find an abuse of discretion only where the trial court’s 

decision is against the logic and effect of the facts and circumstances before the 

court. Id. Not all error is reversible, however. Id. The improper admission of 

evidence is harmless error when the judgment is supported by substantial 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 9 of 17

independent evidence to satisfy the reviewing court that there is no substantial 

likelihood that the questioned evidence contributed to the judgment. Id.

[14] Hearsay is an out-of-court statement offered in evidence to prove the truth of 

the matter asserted. Ind. Evidence Rule 801(c). Hearsay is not admissible 

unless it falls under certain exceptions. Ind. Evidence Rule 802. The businessrecords exception, Indiana Evidence Rule 803(6), provides that a record of an 

act, event, condition, opinion, or diagnosis is admissible if:

(A) the record was made at or near the time by—or from 

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted 

activity of a business, organization, occupation, or calling, 

whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the 

custodian or another qualified witness, or by a certification that 

complies with Rule 902(9) or (10) or with a statute permitting 

certification; and

(E) neither the source of information nor the method or 

circumstances of preparation indicate a lack of trustworthiness.

The reliability of business records stems in part from (1) the fact that the 

organization depends on them to operate, (2) the sense that they are subject to 

review, audit, or internal checks, and (3) the precision engendered by the 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 10 of 17

repetition. In re E.T., 808 N.E.2d 639, 642-43 (Ind. 2003) (citing Stahl v. State, 

686 N.E.2d 89, 92 (Ind. 1997)).

[15] Recently, a panel of this Court held, in In re L.S., that a mother’s Forensic 

Fluids lab reports did not fall under the business-records exception and 

therefore excluded them. 125 N.E.3d 628, 634 (Ind. Ct. App. 2019), trans. not 

sought. In that case, Lemberg’s affidavits explained that the lab reports had 

been maintained in the normal course of Forensic Fluids’ business activity as 

business records. However, citing In re E.T., the panel determined that “what 

we consider is whether a business depends on those records to function.” Id. 

The panel found that “Forensic Fluids Laboratories does not depend on these 

records to operate or conduct business. Rather, the [lab reports] were 

documented for the benefit of DCS.” Id. Therefore, the panel concluded that 

the lab reports were inadmissible as hearsay.2, 3

[16] For two reasons, we respectfully disagree with the holding in L.S. First, 

Forensic Fluids does depend on the lab reports to operate. That is, Lemberg 

testified that Forensic Fluids is required to create and keep lab reports for two 

years to maintain its federal CLIA certification. The CLIA also requires that 

certified labs retain the slides, blocks, or tissue samples that formed the basis of 

2 The L.S. panel found that, even excluding the lab reports, there was substantial independent evidence 

supporting the trial court’s termination order. Neither party sought transfer.

3 A different panel of this Court held in In re K.R. that Forensic Fluids lab reports were business records. 133 

N.E.3d 754, 762 (Ind. Ct. App. 2019), trans. granted. Our Supreme Court granted transfer in that case, and 

oral argument is scheduled for April 16, 2020. See 20S-JT-63.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 11 of 17

the information contained in the lab reports. See 42 C.F.R. § 493.1105 (2003); 

see also 42 C.F.R. § 493.1773 (1998) (explaining that a lab may be required to 

test samples while being observed by agents from the Centers for Medicare and 

Medicaid Services (CMS)). A CLIA certified lab is further required to allow 

CMS to access its storage facilities for specimens, reagents, records, and reports. 

See 42 C.F.R. § 493.1773 (1998). All of this shows that if Forensic Fluids does 

not maintain lab reports for two years it would lose its certification and, 

presumably, its business. 

[17] Second, the L.S. panel did not consider the other two indicators of reliability 

mentioned by our Supreme Court in In re E.T.: (1) the records being subject to 

review, audit, or internal checks and (2) the precision engendered by repetition. 

See 808 N.E.2d at 642-43. Here, Lemberg testified that Forensic Fluids is 

subject to physical inspection by the federal government every twelve to 

eighteen months and that Forensic Fluids does blind-sample testing. See Tr. p. 

45. Furthermore, Lemberg testified that a lab report is routinely created for 

every result rendered by Forensic Fluids. See id. at 41. Thus, because Forensic 

Fluids depends, at least in part, on the lab reports to operate, the lab reports are 

subject to federal review and internal checks, and the lab reports are created for 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 12 of 17

every result rendered by Forensic Fluids, we find that the trial court did not err 

by admitting the lab reports under the business-records exception.4

[18] Father also argues that “[t]here was no foundational testimony regarding the 

collection of the [drug] screen[s] beyond [Lemberg’s] statements as to who the 

collector was and the date of the collection.” Appellant’s Br. p. 17 n. 3; see also 

Appellant’s Reply Br. p. 9. In other words, Father contends that DCS failed to 

prove that the oral-fluid samples addressed in the lab reports were the same 

samples that Parents provided. This appears to be a challenge to the chain of 

custody for the samples. DCS bears a higher burden to establish the chain of 

custody of “fungible” evidence, such as blood and hair samples, whose 

appearance is indistinguishable to the naked eye. Troxell v. State, 778 N.E.2d 

811, 814 (Ind. 2002). To establish a proper chain of custody, DCS must give 

reasonable assurances that the evidence remained in an undisturbed condition. 

Id. However, DCS need not establish a perfect chain of custody, and once DCS 

strongly suggests the exact whereabouts of the evidence, any gaps go to the 

weight of the evidence and not to admissibility. Id. To mount a successful 

challenge to the chain of custody, one must present evidence that does more 

than raise a mere possibility that the evidence may have been tampered with. 

Id.

4

In re E.T. also established that if the business record at issue includes an opinion, the expertise of the 

opinion giver must be established. 808 N.E.2d at 644. Father doesn’t argue that the lab reports at issue here 

include opinions, so we do not address this additional requirement.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 13 of 17

[19] It is true that there is little in the record about the chain of custody for the oralfluid samples before they arrived at Forensic Fluids. There is evidence that 

FCM McKitrick, Hodnett, and Huston collected Parents’ oral-fluid samples, 

but there is no evidence of what they did with the samples after collecting them. 

However, this lack of evidence might be due to the fact that Father did not 

make a chain-of-custody objection at the fact-finding hearing. Because no 

objection was made to the trial court, we cannot say that the trial court erred by 

admitting the lab reports for a lack of chain of custody. In any event, even if we 

believed that the trial court erred by admitting the lab reports, the fact remains 

that Father and Mother both admitted—at the fact-finding hearing, before the 

lab reports were even admitted—that they used marijuana during the 

pendency of this case. Therefore, any possible error was harmless.5

II. Sufficiency of the Evidence

[20] Father also challenges the sufficiency of the evidence supporting the trial court’s 

CHINS adjudication. A CHINS proceeding focuses on the best interests of the 

5

Father also raises two issues regarding the admission of Lemberg’s testimony. First, he argues that the 

procedure outlined in Indiana Administrative Rule 14(B) was not followed and that therefore the trial court 

erred by allowing Lemberg to testify telephonically. Administrative Rule 14(B) provides, among other 

things, that a motion for telephonic testimony must be served not less than thirty days before the time 

specified for a hearing and that a court is required to enter written findings of fact and conclusions of law 

before a person can testify telephonically. Neither requirement was satisfied here. But even if the trial court 

erred by allowing Lemberg to testify telephonically about Parents’ drug-test results, because of Parents’ 

admissions—that they used marijuana during the pendency of the CHINS case—we do not find any 

reversible error. 

He also argues that Lemberg’s testimony about the results of the drug tests was hearsay because she did not 

personally process Parents’ oral-fluid samples. However, because the lab reports themselves were properly 

admitted under the business-records exception to the hearsay rule, we see no error in her testifying about the 

results.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 14 of 17

children, not the guilt or innocence of the parents. In re D.P., 72 N.E.3d 976, 

980 (Ind. Ct. App. 2017). The purposes of a CHINS case are to help families in 

crisis and to protect children, not to punish parents. Id. A CHINS proceeding 

is civil in nature, so the State must prove by a preponderance of the evidence 

that a child is a CHINS as defined by the juvenile code. In re N.E., 919 N.E.2d 

102, 105 (Ind. 2010). Indiana Code section 31-34-1-1 provides that a child is a 

CHINS if, before the child becomes eighteen years of age:

(1) the child’s physical or mental condition is seriously impaired 

or seriously endangered as a result of the inability, refusal, or 

neglect of the child’s parent, guardian, or custodian to supply the 

child with necessary food, clothing, shelter, medical care, 

education, or supervision:

(A) when the parent, guardian, or custodian is financially 

able to do so; or

(B) due to the failure, refusal, or inability of the parent, 

guardian, or custodian to seek financial or other 

reasonable means to do so; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the 

coercive intervention of the court.

In other words, this statute requires “three basic elements: that the parent’s 

actions or inactions have seriously endangered the child, that the child’s needs 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 15 of 17

are unmet, and . . . that those needs are unlikely to be met without State 

coercion.” In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014), reh’g denied. The final 

element “guards against unwarranted State interference in family life, reserving 

that intrusion for families where parents lack the ability to provide for their 

children, not merely where they encounter difficulty in meeting a child’s 

needs.” Id. 

[21] When determining whether there is sufficient evidence to support a CHINS 

determination, we neither reweigh the evidence nor judge the credibility of the 

witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Rather, we 

consider only the evidence that supports the trial court’s determination and 

reasonable inferences drawn therefrom. Id. Where, as in this case, the trial 

court enters findings and conclusions sua sponte, we apply the two-tiered 

standard of whether the evidence supports the findings, and whether the 

findings support the judgment for the issues covered by the findings. S.D., 2 

N.E.3d at 1287. Findings are clearly erroneous when there are no facts or 

inferences drawn therefrom that support them. In re A.G., 6 N.E.3d 952, 957 

(Ind. Ct. App. 2014). A judgment is clearly erroneous if the findings do not 

support the trial court’s conclusions or the conclusions do not support the 

resulting judgment. Id.

[22] In its order, the trial court expressed concern about Parents’ drug use and 

questioned whether they could be sober caregivers. See Appellant’s App. Vol. II 

p. 15 (Findings 23, 24). The trial court also found that things were just starting 

to fall into place and expressed concern about Parents’ stability. See id. (Finding 
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 16 of 17

25). Although Father challenges these findings, our review of the record reveals

that there is ample evidence to support them. At the fact-finding hearing, FCM 

McKitrick testified that Mother told her that Father “uses THC,” the detective

testified that Father said that “he prefers to snort his” methamphetamine,” and 

both Father and Mother admitted that they used marijuana during the 

pendency of this case. Tr. pp. 18-19, 27, 59-60, 67, 88. The lab reports showing 

Parents’ positive results were also admitted into evidence.6 Regarding Parents’ 

stability, FCM Prior said that Parents obtained suitable housing only three days 

before the fact-finding hearing. All of this supports the trial court’s Findings 23, 

24, and 25. Moreover, the trial court made findings that Father does not 

challenge, which also support its CHINS adjudication. Specifically, Father 

does not challenge Findings 7 (that two syringes, a bent spoon, and a torch 

lighter were found in the same car as Child) and 22 (Parents’ desperate living 

circumstances may have led them to commit theft and Child was with Parents 

while they committed theft). Any unchallenged findings stand as proven. See 

In re B.R., 875 N.E.2d 369, 373 (Ind. Ct. App. 2007), trans. denied. All of this

supports the trial court’s conclusion that Child needed services. We therefore 

conclude that the trial court did not err in adjudicating Child a CHINS.

[23] Affirmed.

Tavitas, J., concurs.

6

Father also challenges Findings 11 and 12, which address Mother and Father’s lab reports respectively. 

Even if the lab reports were improperly admitted, there is ample evidence to support the trial court’s CHINS 

adjudication.
Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020 Page 17 of 17

Najam, J., concurs in result.