                                                                          FILED
                                                                      Mar 23 2020, 8:51 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT D.B.                                ATTORNEYS FOR APPELLEE
Heather M. Schuh-Ogle                                      Curtis T. Hill, Jr.
Thomasson, Thomasson, Long &                               Attorney General
Guthrie, P.C.                                              Frances Barrow
Columbus, Indiana                                          Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: De.B., a Child                           March 23, 2020
Alleged to be in Need of                                   Court of Appeals Case No.
Services,                                                  19A-JC-2228
J.B. (Mother) and D.B. (Father),                           Appeal from the
                                                           Bartholomew Circuit Court
Appellants-Respondents,
                                                           The Honorable
        v.                                                 Kelly S. Benjamin, Judge
                                                           The Honorable
Indiana Department of Child                                Heather Mollo, Magistrate
Services,                                                  Trial Court Cause No.
                                                           03C01-1902-JC-872
Appellee-Petitioner



Vaidik, Judge.




Court of Appeals of Indiana | Opinion 19A-JC-2228 | March 23, 2020                            Page 1 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 2 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 3 of 17
      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

      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 4 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 5 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 6 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 7 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 8 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 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
               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 9 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 10 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 11 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 12 of 17
[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 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 13 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 14 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 15 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 16 of 17
Najam, J., concurs in result.




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