In the Matter of the Termination of the Parent-Child Relationship…

                           IN THE                                     FILED
     Indiana Supreme Court                                        Oct 15 2020, 9:55 am

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax 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.
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



Indiana Supreme Court | Case No. 20S-JT-63                         Page 2 of 8
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




1The 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.”



Indiana Supreme Court | Case No. 20S-JT-63                                           Page 3 of 8
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;




2Because 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.



Indiana Supreme Court | Case No. 20S-JT-63                                              Page 4 of 8
      (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


Indiana Supreme Court | Case No. 20S-JT-63                               Page 5 of 8
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 Parent-
Child 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.


Indiana Supreme Court | Case No. 20S-JT-63                            Page 6 of 8
   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.




Indiana Supreme Court | Case No. 20S-JT-63                           Page 7 of 8
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




Indiana Supreme Court | Case No. 20S-JT-63   Page 8 of 8

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