Court of Appeals of Indiana | Opinion 19A

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A TTORNEY FOR A PPELLANT D.B. Heather M. Schuh

- Ogle Thomasson, Thomasson, Long & Guthrie, P.C. Columbus, Indiana A TTORNEY S FOR A PPELLEE 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 ) , Appellant s - Respondents

,
v. 

### Indiana Department of Child Services , Appellee

- Petitioner March 23, 2020 Court of Appeals Ca se No. 19A

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- 2228 Appeal from the Bartholomew Circuit Court The Honorable Kelly S. Benjamin, Judge The Honorable Heather Mollo, Magistrate Trial Court Cause No. 03C01

- 1902

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- 872

Vaidik, Judge .Court of Appeals of Indiana | Opinion 19A

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# 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 (CHIN S) fact

- finding hearing, the Department of Child Services (DCS) o ffer ed into evidence lab reports purporting to show the results of the parents’ drug test s under the business

- records exception

. T he 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 the y are and affirm the trial court on that issue and in all other respects.



# Facts and Procedural History

[2] Father a nd J.B. (“Mother”) (collectively, “Parents”) are the parents of De.B. (“Child”), who was born in June 2018. O n February 13, 2019 , an officer with the Columbus Police Department stopped Parents’ car after receiving a report that a theft had just occurred a t a nearby Target

. Father was in the driv er’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 p olice d epa rtment to be inter viewed. A detective interviewed Father, whoCourt of Appeals of Indiana | Opinion 19A

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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 on e to FCM McKitrick on March 4

. Mother provided four oral

- fluid s amples for drug testing before the fact

- finding hearing: o ne to FCM McKitrick on February 14,

o ne to Hodnett on February 19, another o ne 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

- findin g 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

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Michigan, that she was going to testify that Forensic Fluids tested Parents’ oral

fluid 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
t estimony 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 t elephonically. The trial court overruled Father’s objection and allowed Lemberg to testify. Lemberg said that Forensic Fluids is a “ federal ly certified toxicology laboratory that does oral fluid drug testing ,” subject to the Clinical Laboratory Improveme nt Amendments (“CLIA” ) , 42 U

. S

. C . § 263a (2012)

. Id. at 29. Lemberg then testified generally about how oral

- fluid sample s are processed , starting when Forensic Fluids receives a UPS delivery each morning containing individual plastic specimen bags that contain donor s’ oral

- fluid s amples and ending when the lab report , reporting the results of the drug test , i s created

. Lemberg s tated 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 test s because her testimony was based on hearsay. The trial court overruled the objection

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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 a nd 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 4 1

. 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 , ” i d. at 42 , and

o n th at 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 sai d 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 evaluation s , 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

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folder, so that the Federa l 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 e leven 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 wa s concerned because Parents d id 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 i n the past year. Id. at 26. Father said that h e lost his most recent job due to a hand injury and that he believed that his churc h 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

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- 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

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

7. In the course of the ar rest 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.

2 3

. 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 substa nce 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 fa ctor for [Child], by being a sober caregiver.

25. The stability of [P arents] 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 withCourt of Appeals of Indiana | Opinion 19A

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home

- based case management and were consistent ly attending supervised visi ts 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 no w 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 th e court. Id. Not all error is reversible, however. Id. The improper admission of evidence is harmless error when the judgment is supported by substantialCourt of Appeals of Indiana | Opinion 19A

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independent evidence to satisfy the reviewing court that there is no substantial likelihood that t he 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. I nd. Evidence Rule 802

. T he business

records 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 circu mstances of preparation indicate a lack of trustworthiness.

T he 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 theCourt of Appeals of Indiana | Opinion 19A

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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 C ou rt 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. 3 d 62 8 , 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 i s whether a busi ness depends on those records to function

. ” Id. T he 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 p anel 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 slide s , block s , or ti ssue sample s that formed the basis of

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

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th e 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 allo w CMS to access its storage facilities for specimens, reagents, records, and reports. See 42 C.F.R. § 493.1773 (1998)

. All of t h is show s that if Forensic Fluids d oes not maintain lab repor ts 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) th e 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 mont hs 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 ope rate, the lab reports are subject to federal review and internal checks, and the lab reports are created forCourt of Appeals of Indiana | Opinion 19A

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every result rendered by Forensic Fluids, we find that the trial court did not err by admitting the lab rep orts 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.” Appell ant’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 th e 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. 20 02)

. 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 tamp ered with. Id.

4 In re E.T. also established that if the business record at issue include s 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 opinion s , so we do not address this additional requirement.Court of Appeals of Indiana | Opinion 19A

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[19] It is true that there is little in the record about the chain of custody for the oral

fluid samples before they arrived at Forensic Fluids

. There is evidence that FCM McKitrick, Hodnett, and Huston collected Parents’ oral

- fluid samples, but there i s 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 no t 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 tha t the trial court erred by admitting the lab reports, the fact remains that Father and Mother both admitte d

— at the fact
- finding hearing , before the lab reports were even admitted

— that they used marijuana during the pendency of this case

. Therefore , any po ssible 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 proc edure outlined in Indiana Administrative Rule 14 (B) was not followed and t hat t herefore 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 e ven 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. H e 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 themselve s were properly admitted under the business

- record s exception to the hearsay rule, we see no error in her testifying about the results

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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 p rovides 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, gu ardian, 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 needsCourt of Appeals of Indiana | Opinion 19A

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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 wh ere 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 t he 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

. Finding s 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, th e trial court expressed concern about Parent s ’ drug use and questioned whether they could be sober caregiver s
. 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. (FindingCourt of Appeals of Indiana | Opinion 19A

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25). Although Father challenges these findings , our review of the record reveals that there i s ample evidence to support them. At the f act
- 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 use d marijuana during the pend ency 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 Prio r 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 Finding s 7 (that two syringes, a bent spoon, and a torch lighter were f

ound i n 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 committ ed 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 support s 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. E ven if the lab reports were improp erly admitted , there is ample evidence to support the trial court’s CHINS adjudication.Court of Appeals of Indiana | Opinion 19A

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Najam, J., concurs in result

.