IN THE

Indiana Supreme Court

Supreme Court Case No. 20S-JT-63

In the Matter of the Termination of the Parent-Child 

Relationship of K.R., J.T.R, J.L.R., & E.R. (Minor 

Children); A.B. (Mother) and J.R. (Father),

Appellants/Respondents,

–v–

Indiana Department of Child Services,

Appellee/Petitioner.

Argued: May 21, 2020 | Decided: October 15, 2020

Appeal from the Steuben Circuit Court

No. 76C01-18070-JT-234 through -237

The Honorable Allen Wheat, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 19A-JT-487

Opinion by Justice David

Justices Massa, Slaughter, and Goff concur.

Chief Justice Rush concurs in result.
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David, Justice. 

In this termination of parental rights case, parents appealed the trial 

court’s decision to admit drug test reports alleging that these reports did 

not fit the records of a regularly conducted activity exception pursuant to

Indiana Evidence Rule 803(6). For the reasons discussed herein, we affirm 

the trial court finding these reports do meet the exception. 

Facts and Procedural History 

Mother, A.B., and Father, J.R., are the parents of four children who

were determined to be children in need of services (CHINS) and removed 

from their home because of the parents’ inability to provide safe, 

sustainable housing free from domestic violence. The Indiana 

Department of Child Services (DCS) eventually filed a petition to 

terminate the parents’ parental rights because parents failed to complete 

court ordered services, failed to provide stable housing for the children

and struggled with both domestic violence and drug addiction.

A termination hearing was held in January 2019. During this hearing, 

the trial court admitted drug test results from Forensic Fluids Laboratory

for both parents over their objections. DCS admitted the evidence 

through the telephonic testimony of the Forensic Fluids Laboratories 

Director, Bridgette Lemberg, who had also signed an affidavit certifying 

the results as business records.

Other evidence presented regarding Mother’s drug use included 

Mother’s admission that she used drugs as well testimony from service 

providers that she did not complete all substance abuse treatment or 

services as ordered in the CHINS case. Similarly, Father testified about 

his lifelong drug use, admitting he still smoked marijuana but stated he 

did not think he had a problem. There was also evidence that he did not 

complete all services ordered in the CHINS case. 

After hearing evidence about parents’ drug use, failure to complete 

services, criminal histories, failure to maintain stable housing and 

regarding the best interests of the children, the court terminated both 
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parents’ rights. Parents appealed arguing that the trial court abused its 

discretion in admitting their drug test results into evidence and that there 

was insufficient evidence to support the terminations. Our Court of 

Appeals affirmed finding that the drug test results were properly 

admitted as records of a regularly conducted activity and that in any case, 

any error in their admission was harmless. In re K.R., 133 N.E.3d 754, 762 

(Ind. Ct. App. 2019). It further found the evidence was sufficient to 

support termination. Id. at 764-65. Parents petitioned for transfer which 

we granted. Ind. Appellate Rule 58(A). 

Standard of Review

Trial courts have broad discretion whether to admit or exclude 

evidence. Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019), cert. denied. 

Appellate courts generally review decisions to admit evidence for abuse of 

discretion. See Zanders v. State, 118 N.E.3d 736, 741 (Ind. 2019). “An abuse 

of discretion occurs when the decision is clearly against the logic and 

effect of the facts and circumstances and the error affects a party’s 

substantial rights.” Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016)

(quotation omitted).

Discussion and Decision

At issue is whether the drug tests can properly fall under the records of 

a regularly conducted activity exception to the hearsay rule pursuant to 

Indiana Rule of Evidence 803(6).1 Parents argue that they do not. The 

State argues that the matter should be decided on harmless error grounds

1 The Indiana Rules of Evidence presently refer to this exception as the “Records of a 

Regularly Conducted Activity Exception.” However, it is often still referred to as the 

“business records exception.” 
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in light of the ample other evidence of parents’ drug use and in support of 

termination of their parental rights.

2

Our Court of Appeals panels have come to different conclusions about 

whether drug test reports fit the records of a regularly conducted activity. 

On the one hand, we have panels that have found that the lab does not 

depend on the records to conduct business, but rather the records are 

generated for the benefit of DCS and thus, the exception does not apply. 

In re L.S., 125 N.E.3d 628, 634-35 (Ind. Ct. App. 2019), trans. not sought; 

accord In re A.B., 130 N.E.3d 122, 128-29 (Ind. Ct. App. 2019) (reversing 

CHINS adjudication and citing L.S. for the proposition that “exhibits 

containing drug test results do not fall under the business records 

exception to the rule against hearsay”), trans. not sought. On the other, we 

have panels, including the present one, that found drug test records do 

fall within the exception. In re K.R., 133 N.E.3d at 762; Matter of De.B., 144 

N.E.3d 763, 767 (Ind. Ct. App. 2020). We agree with our Court of Appeals 

panel below and with the panel in Matter of De.B. that the drug test 

records fall under the records of a regularly conducted business activity. 

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 records of a regularly conducted activity exception 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;

2 Because of the recent decision in In re L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019), the State 

conceded in its brief that the records of a regularly conducted activity exception does not 

apply here.
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(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.

Ind. Evidence Rule 803(6). Further, this Court has held that:

[t]he business records exception permits records of business 

activity to be admitted in circumstances when the recorded 

information will be trustworthy. The reliability of business 

records stems from the fact that the organization depends on 

them to operate, from the sense that they are subject to review, 

audit, or internal checks, from the precision engendered by the 

repetition, and from the fact that the person furnishing the

information has a duty to do it correctly.

Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997); See also, In re Termination of 

Parent-Child Relationship of E.T., 808 N.E.2d 639, 642 (Ind. 2004).

Here, parents challenge the trustworthiness of the records. They argue 

that pursuant to Matter of L.S., 125 N.E.3d at 631, because the records are 

not necessary for the laboratory to operate, they do not qualify as records 

of a regularly conducted activity exception. However, as the panel in 

Matter of De.B. aptly observed, there are two problems with this argument. 

First, the laboratory does depend on the records to operate. As Lemberg 

indicated in her affidavit, Forensic Fluids Laboratories, Inc. has a CLIA 

certification by the Federal Department of Health and Human Services. 

As such, it is required to keep drug test reports for two years to keep its 

certification. See 42 C.F.R. § 493.1105(a)(6) (2003). Further, we find the 

argument that the laboratory only creates the drug test reports for DCS 

and not for its own operations is not consistent with the practicalities of 
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using a laboratory that provides drug testing. That is, if any client, not 

just DCS submits a sample for drug testing to the laboratory, it is expected 

that results will follow or else it is not clear why someone would utilize 

the laboratory in the first place. It also seems to follow that such results 

would be provided in writing instead of, for example, via a phone call. 

Thus, it is clear that drug test reports are required for a laboratory that 

provides drug testing services to operate, both to keep necessary 

certifications and as a practical matter. 

Second, there are other considerations impacting whether records are 

sufficiently reliable so as to meet the exception. In addition to whether the 

records are required for a business to operate, this Court previously noted 

other indicia of reliability. That is, the records at issue are subject to 1) 

review, audit, or internal check; 2) the precision engendered by the 

repetition; and 3) the fact that the person furnishing the information has a 

duty to do it correctly. Stahl, 686 N.E.2d at 92; In re Termination of ParentChild Relationship of E.T., 808 N.E.2d at 642; see also Advisory Committee's 

Note to Fed. R. of Evid. 803(6) (observing that business records are made 

reliable by “systematic checking, by regularity and continuity which 

produce habits of precision, by actual experience of business in relying 

upon them, or by a duty to make an accurate record as part of a 

continuing job or occupation”). Here, all of these additional indicia are 

met. Lemberg testified in detail about the internal laboratory process and 

quality control screening and further indicated that the laboratory does 

double blind testing almost monthly. Both her testimony and affidavit 

also reveal the detailed, methodical and repetitive process for processing 

samples. Finally, Ms. Lemberg is the Laboratory Director and Custodian 

of Records for Forensic Fluids and is licensed by the Michigan 

Department of Health and has a CLIA certification by the federal 

government. As such, she is required to follow all state and federal 

regulations in order to maintain her job and her company’s licensure and 

certification. Because we find that the drug test records meet the 

trustworthiness indicia set forth in our prior case law, including that they 

are required for the ongoing business operations of Forensic Fluids, we 

hold the trial court did not err in admitting these records over parents’ 

objections. 
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We acknowledge that Parents continue to argue that the tests are 

untrustworthy in other ways as well, citing issues with the test 

administration and the chain of custody. However, both sides presented 

evidence regarding these collection and chain of custody issues during 

trial, including testimony from the collectors and various persons 

involved in the chain of custody. The trial court assessed these witnesses’ 

credibility. As such, we find that Parents are asking for this Court to 

reweigh evidence. Further, we note that “[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.” Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). 

“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. Here, parents do not 

present any such evidence of tampering. 

Conclusion 

We affirm the trial court. 

Massa, Slaughter, and Goff, JJ., concur.

Rush, C.J., concurs in result. 
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ATTORNEY FOR APPELLANT, A.B.

Cara Schaefer Wieneke

Brooklyn, Indiana 

ATTORNEY FOR APPELLANT, J.R.

Kim Shoup

Angola, Indiana 

Lisa Manning

Danville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

David E. Corey

Robert J. Henke

Deputy Attorney General 

Indianapolis, Indiana