                                                                          FILED
                                                                     May 21 2019, 9:06 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Adam G. Forrest                                            Curtis T. Hill, Jr.
BBKCC Attorneys                                            Attorney General of Indiana
Richmond, Indiana                                          David E. Corey
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           May 21, 2019
of the Parent-Child Relationship                           Court of Appeals Case No.
of:                                                        18A-JT-2881
L.S. (Minor Child),                                        Appeal from the Union Circuit
                                                           Court
and
                                                           The Honorable Mathew R. Cox,
A.S. (Mother),                                             Judge
Appellant-Respondent,                                      Trial Court Cause No.
                                                           81C01-1802-JT-13
        v.

The Indiana Department of
Child Services,
Appellee-Petitioner



Baker, Judge.


Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019                              Page 1 of 14
[1]   A.S. (Mother) appeals the termination of her parent-child relationship with L.S.

      (Child), arguing that the trial court erred by admitting certain evidence and that

      the evidence was insufficient. Finding no reversible error and the evidence

      sufficient, we affirm.


                                                         Facts
[2]   Child was born on October 28, 2015, with drugs in her system.1 The following

      day, the Department of Child Services (DCS) filed a petition alleging Child to

      be a Child in Need of Services (CHINS). On October 30, 2015, Mother

      admitted to the allegations in the CHINS petition, including Mother’s use of

      illicit substances, Child experiencing withdrawal symptoms due to Mother’s use

      of illicit substances, and Mother’s uncertainty about the identity of Child’s

      father. At the time of the hearing, Child was in the hospital, and the juvenile

      court ordered relative placement upon Child’s release from the hospital. The

      juvenile court found Child to be a CHINS.


[3]   At the December 22, 2015, dispositional hearing, the juvenile court ordered

      Mother to participate with certain services, including contacting the Family

      Case Manager (FCM) weekly; completing a parenting assessment and

      complying with any recommendations; completing a substance abuse

      assessment and complying with any recommendations; submitting to random




      1
       At the time of Child’s birth, the identity of her father was unknown. Child’s father is not involved in this
      appeal.

      Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019                                   Page 2 of 14
      drug screens; attending all scheduled visits with Child; and completing a

      detoxification treatment program and an inpatient treatment program and

      complying with all recommendations.


                                               Mother’s Drug Use


[4]   The FCM, who was assigned to this case in August 2016, testified that during

      her involvement in this case, Mother did not have a single clean drug screen.

      On December 15, 2015, Mother tested positive for cocaine and

      benzodiazepines. On January 7, 2016, Mother admitted to recently using

      cocaine. On January 10, 2016, when Mother went to Harbor Light Center, she

      admitted that she had used cocaine that day. On March 8, 2016, Mother was

      ordered to take a drug screen; she refused and left court before a screen could be

      administered. She refused to meet with the FCM for testing and did not return

      phone calls to set up tests.


[5]   At the December 13, 2016, review hearing, there was evidence that during the

      review period, Mother had not appeared for other scheduled or random drug

      screens. During the hearing, she was ordered to take a drug test, but she failed

      to do so. Mother tested positive for cocaine on March 14 and June 13, 2017.

      On September 19, 2017, she refused to submit to a drug screen. A drug-testing

      service suspended its services due to Mother’s non-compliance.




      Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 3 of 14
                             Mother’s Participation with Services and Visits


[6]   In October 2015, Mother was referred for detoxification services at Harbor

      Light. On January 10, 2016, Mother went there for an assessment and

      detoxification. She completed the detoxification, but left the facility on January

      19, 2016, before completing in-patient treatment. She failed to notify DCS that

      she left. At Mother’s request, she was referred to Meridian Health Services.

      She completed her substance abuse assessment there but did not comply with

      the recommended intensive outpatient treatment, attending three out of twelve

      sessions in August 2016. Meridian eventually discontinued services, partly

      because Mother missed appointments and partly because Meridian learned that

      Mother was living in Ohio, and Meridian would not offer services there. In

      June or July 2017, DCS offered Mother services through Community Mental

      Health Center (CMHC), which was closer to Mother’s location in Ohio;

      Mother cancelled three scheduled appointments, and as a result, CMHC would

      not schedule additional meetings with Mother.


[7]   Mother did not maintain regular contact with the FCM, making supervised

      visits with Child difficult to schedule. She visited Child in June 2016. At the

      March 14, 2017, review hearing, there was evidence that Mother had not

      contacted the FCM since the previous review hearing on December 13, 2016.

      Mother did not attend the Child and Family Team Meeting scheduled for

      March 3, 2017. A hearing took place on April 25, 2017, during which Mother’s

      visits with Child were suspended; Mother had not visited Child during the

      reporting period before this suspension of visits.

      Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 4 of 14
                                            Termination Proceedings


[8]    On February 15, 2018, DCS filed a petition to terminate the parent-child

       relationship. The factfinding hearing took place on May 2 and June 5, 2018.

       At the hearing, evidence was presented that Child does not know Mother, that

       Child is bonded to her maternal aunt and other family members, and that her

       caregivers have provided her permanency and stability. The FCM testified that

       in her opinion, termination is in Child’s best interest.


[9]    During the factfinding hearing, DCS offered Exhibits Sixteen and Seventeen

       into evidence. Each exhibit was an affidavit of Bridget Lemberg, the laboratory

       director of Forensic Fluids Laboratories, Inc. In the affidavits, Lemberg

       detailed the laboratory’s procedures and stated that the procedures were

       followed for Mother’s drug tests; the results of Mother’s drug tests from August

       31 and October 12, 2016, and May 3, 2017, were attached to the affidavits.

       Mother objected to the admission of these exhibits, arguing that the test results

       appeared to be unreliable and that the forensic lab technician was not there to

       testify. The State argued that the drug test results could be admitted because

       they met the requirements of the business records exception to the rule against

       hearsay.


[10]   The juvenile court stated:


               . . . The Court will take the matter under advisement but will
               proceed as if they are admitted into evidence. So any subsequent
               testimony regarding drug screens will be allowed. If I determine
               that they are not admissible, then that . . . testimony will be

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 5 of 14
               stricken from the record. If I determine they are admissible, then
               the evidence submitted, uh, for their testimony will be admitted.
               Okay?


       Tr. Vol. III p. 34.


[11]   On November 2, 2018, the trial court issued an order terminating the parent-

       child relationship. The order included the following findings of fact:


               19. On or about August 31, 2016, October 12, 2016, and May 3,
               2017, Mother submitted to drug screens, and the results were
               positive for cocaine.


                                                         ***


               21. Mother did not complete services through Meridian, and
               around January 2017 Meridian ended services for Mother due to
               non-compliance.


                                                         ***


               23. DCS made a referral for services for the parents through
               CMHC around June or July 2017, but the parents did not
               complete services.


               24. Mother has a history of unstable housing.


                                                         ***


               26. Mother and Father have not consistently visited Child.


       Appealed Order p. 11. Mother now appeals.
       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 6 of 14
                                     Discussion and Decision
                                       I. Standard of Review
[12]   Our standard of review with respect to termination of parental rights

       proceedings is well established. In considering whether termination was

       appropriate, we neither reweigh the evidence nor assess witness credibility.

       K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d 1225, 1229 (Ind. 2013). We will

       consider only the evidence and reasonable inferences that may be drawn

       therefrom in support of the judgment, giving due regard to the trial court’s

       opportunity to judge witness credibility firsthand. Id. Where, as here, the trial

       court entered findings of fact and conclusions of law, we will not set aside the

       findings or judgment unless clearly erroneous. Id. In making that

       determination, we must consider whether the evidence clearly and convincingly

       supports the findings, and the findings clearly and convincingly support the

       judgment. Id. at 1229-30. It is “sufficient to show by clear and convincing

       evidence that the child’s emotional and physical development are threatened by

       the respondent parent’s custody.” Bester v. Lake Cty. Office of Family & Children,

       839 N.E.2d 143, 148 (Ind. 2005).


[13]   Indiana Code section 31-35-2-4(b)(2) requires that a petition to terminate

       parental rights for a CHINS must make the following allegations:


               (A)      that one (1) of the following is true:


                        (i)      The child has been removed from the parent for at
                                 least six (6) months under a dispositional decree.

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019               Page 7 of 14
                 (ii)     A court has entered a finding under IC 31-34-21-5.6
                          that reasonable efforts for family preservation or
                          reunification are not required, including a
                          description of the court’s finding, the date of the
                          finding, and the manner in which the finding was
                          made.


                 (iii)    The child has been removed from the parent and
                          has been under the supervision of a local office or
                          probation department for at least fifteen (15) months
                          of the most recent twenty-two (22) months,
                          beginning with the date the child is removed from
                          the home as a result of the child being alleged to be
                          a child in need of services or a delinquent child;


        (B)      that one (1) of the following is true:


                 (i)      There is a reasonable probability that the conditions
                          that resulted in the child’s removal or the reasons
                          for placement outside the home of the parents will
                          not be remedied.


                 (ii)     There is a reasonable probability that the
                          continuation of the parent-child relationship poses a
                          threat to the well-being of the child.


                 (iii)    The child has, on two (2) separate occasions, been
                          adjudicated a child in need of services;


        (C)      that termination is in the best interests of the child; and


        (D)      that there is a satisfactory plan for the care and treatment
                 of the child.


Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019                Page 8 of 14
       DCS must prove the alleged circumstances by clear and convincing evidence.

       K.T.K., 989 N.E.2d at 1230.


                                   II. Admission of Evidence
[14]   Mother first objects to the trial court’s admission of Exhibits Sixteen and

       Seventeen into evidence, arguing that the exhibits were inadmissible hearsay.

       We will reverse the trial court’s decision regarding admission of evidence only

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

       before the court. B.H. v. Ind. Dep’t of Child Servs., 989 N.E.2d 355, 360 (Ind. Ct.

       App. 2013). Not all trial court error is reversible. In re Termination of Parent-

       Child Relationship of E.T., 808 N.E.2d 639, 645 (Ind. 2004). “The improper

       admission of evidence is harmless error when the judgment is supported by

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

       substantial likelihood that the questioned evidence contributed to the

       judgment.” Id.


[15]   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. Evid. R. 802. One such exception is

       that of records of a regularly conducted activity, which provides:


               A record of an act, event, condition, opinion, or diagnosis if:


               (A) the record was made at or near the time by--or from
               information transmitted by--someone with knowledge;



       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019           Page 9 of 14
               (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(11) or (12) [the rule on self-
               authentication] 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.


       Evid. R. 803(6).


[16]   Our Supreme Court has explained:


               [T]he business records exception to the hearsay rule is based on
               the fact that the circumstances of preparation assure the accuracy
               and reliability of the entries. As we have observed more recently,
               the reliability of business records stems in part from the fact that
               the organization depends on them to operate, from the sense that they
               are subject to review, audit, or internal checks, [and] from the
               precision engendered by the repetition. . . .


               In essence, the basis for the business records exception is that
               reliability is assured because the maker of the record relies on the
               record in the ordinary course of business activities. The regular
               course of business must find its meaning in the inherent nature of
               the business in question and in the methods systematically
               employed for the conduct of the business as a business. Thus
               where a company does not rely upon certain records for the performance
               of its functions those records are not business records within the meaning

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019                Page 10 of 14
               of the exception to the hearsay rule. It is not enough to qualify under
               the business records exception to show that the records are made
               regularly; rather, the court must also look to the character of the
               records and their earmarks of reliability acquired from their
               source and origin and the nature of their compilation.


       E.T., 808 N.E.2d at 642-43 (citations and internal quotation marks omitted)

       (emphases added).


[17]   The exhibits that contain Mother’s drug test results do not fall under the

       business records exception to the rule against hearsay. Although the affidavits

       state that the laboratory reports were maintained in the normal course of

       business activity as business records, what we consider is whether a business

       depends on those records to function. Forensic Fluids Laboratories does not

       depend on these records to operate or to conduct business. Rather, the drug test

       results were documented for the benefit of DCS. Therefore, these exhibits were

       inadmissible as hearsay and should not have been admitted over Mother’s

       timely objection. See id. at 644-45 (finding that reports of home visits and

       supervised visitations made for an Office of Family and Children did not

       qualify as business records because no organization depended on them to

       operate a business). Admission of this evidence requires expert testimony and

       the opportunity for cross-examination.


[18]   The trial court erred by admitting the exhibits into evidence. Nonetheless, as

       discussed below, the trial court’s determination is supported by substantial

       evidence independent of these two exhibits that satisfy us that its determination

       stands without reliance on these two exhibits.

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019             Page 11 of 14
              III. Remedy of Conditions Resulting in Removal
[19]   Mother also argues that there is not clear and convincing evidence that there is

       a reasonable probability that the conditions resulting in Child’s removal will not

       be remedied. Her argument consists of challenging several of the juvenile

       court’s findings of fact.


                                                     Finding 19


[20]   Mother first challenges Finding 19, in which the trial court found that, based on

       the drug test results that were admitted by affidavit, Mother tested positive for

       cocaine. As discussed above, the trial court erred by admitting this evidence

       and accordingly, erred by relying on it in its determination.


                                                Findings 21 and 23


[21]   Mother next challenges the trial court’s Findings 21 and 23, which stated:


               21. Mother did not complete services through Meridian, and
               around January 2017 Meridian ended services for Mother due to
               non-compliance.


                                                         ***


               23. DCS made a referral for services for the parents through
               CMHC around June or July 2017, but the parents did not
               complete services.


       Appealed Order p. 11. According to Mother, these findings of fact suggest that

       she simply ignored the referred services. She contends that, if she did not

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 12 of 14
       complete services, it was because DCS did not offer services to her while she

       lived in Ohio. Yet while Mother lived in Indiana, she requested that services be

       provided through Meridian, and although DCS accommodated Mother’s

       request, Mother did not complete services through that service provider. The

       FCM later referred Mother to CMHC for a substance abuse assessment

       precisely because it was closer to where Mother lived; at the time of the

       factfinding hearing, Mother had still not completed the assessment. This

       evidence supports the trial court’s findings of fact regarding Mother’s non-

       compliance with services.


                                                     Finding 24


[22]   Mother next challenges the trial court’s finding that she has a history of

       unstable housing. The FCM testified that during her involvement in the case,

       Mother had not had stable housing. During these proceedings, Mother lived

       with Child’s father, but they were evicted for not paying rent; Mother lived in

       Cincinnati, apparently as part of her employment caring for the residents of the

       home; and she again lived with Child’s father in an apartment in Ohio because

       she had nowhere else to go. Mother’s argument that there is a lack of evidence

       to support this finding is a request to reweigh the evidence, which we may not

       do. The trial court did not err by making this finding.


                                                     Finding 26


[23]   Mother also challenges the trial court’s finding that she has not consistently

       visited Child. While Mother attributes her lack of visitation to the trial court’s

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019         Page 13 of 14
       order prohibiting her from visiting Child, the trial court prohibited Mother only

       because Mother had not complied with services. Moreover, during these

       proceedings, visits could not start because of Mother’s lack of contact with

       DCS, and even when they did start, Mother did not visit Child because she

       failed to contact DCS. Mother’s last visit with Child was in October 2017.

       Because Mother did not consistently visit Child, Child does not know her. The

       trial court did not err by making this finding.


[24]   In sum, even excluding the improperly admitted evidence, we find that the

       juvenile court did not err by finding that DCS established by clear and

       convincing evidence that the conditions resulting in Child’s removal are not

       likely to be remedied.2


[25]   The judgment of the juvenile court is affirmed.


       Najam, J., and Robb, J., concur.




       2
         Mother also argues that there is insufficient evidence supporting the juvenile court’s conclusion that
       continuation of the parent-child relationship poses a threat to Child. As these statutory elements are phrased
       in the disjunctive and we have found that sufficient evidence supports the element related to remedy of the
       conditions resulting in Child’s removal, we need not and will not address this issue.

       Court of Appeals of Indiana | Opinion 18A-JT-2881 | May 21, 2019                                 Page 14 of 14
