MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing                              Sep 08 2017, 7:38 am

the defense of res judicata, collateral                                        CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark E. Small                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                         September 8, 2017
of the Parent-Child Relationship                         Court of Appeals Case No.
of Ka.M., Cy.M., Ks.M., &                                11A01-1705-JT-958
Cn.M. (Minor Children)                                   Appeal from the Clay Circuit
and                                                      Court
                                                         The Honorable Joseph D. Trout,
C.R. (Mother)                                            Judge
Appellant-Respondent,                                    Trial Court Cause Nos.
                                                         11C01-1608-JT-226
        v.                                               11C01-1608-JT-227
                                                         11C01-1608-JT-228
The Indiana Department of                                11C01-1608-JT-229
Child Services,
Appellee-Petitioner.




Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017            Page 1 of 10
                                                 Case Summary
[1]   C.R. (“Mother”) appeals the termination of her parental rights to Ka.M.,

      Cy.M., Ks.M. and Cn.M. (“Children”), upon the petition of the Clay County

      Department of Child Services (“the DCS”). She presents the sole issue of

      whether fundamental error occurred in the admission of evidence. We affirm.



                                  Facts and Procedural History
[2]   Mother and G.M. (“Father”)1 had three children when the DCS initiated an

      investigation into allegations that the medical needs of Cn.M. and Cy.M. were

      being neglected. During the investigation, the DCS received an additional

      report, alleging that Mother had given birth on November 24, 2014 and had

      tested positive for methamphetamine upon delivery. Children were taken into

      DCS custody. On November 26, 2014, the DCS filed a petition alleging that

      Children were Children in Need of Services (“CHINS”) because of parental

      drug use, medical neglect, and lack of cooperation with investigative efforts.


[3]   On January 27, 2015, Mother and Father appeared for a fact-finding hearing.

      They admitted that Mother had used methamphetamine during her pregnancy

      and Ks.M. had been born with drugs in his system. They also admitted to past

      methamphetamine abuse and missing necessary pediatric medical

      appointments. Pursuant to a dispositional decree entered on March 30, 2015,




      1
          Father is not an active party to this appeal.


      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 2 of 10
      Mother was court-ordered to refrain from illicit drug use and other criminal

      activity, maintain appropriate housing, cooperate with service providers,

      maintain contact with the DCS, visit with Children, complete a substance abuse

      assessment, and submit to random drug screens.


[4]   Mother’s participation in services was inconsistent. She visited with Children

      frequently but also missed a significant number of visits, arrived late, or left

      early. She successfully completed group therapy but was non-compliant with

      individual therapy. She had ninety-seven negative drug screens and ten to

      twelve positive drug screens. According to her service providers, Mother would

      be very motivated and cooperative for two or three months, and then lose

      contact with the providers.


[5]   At each review hearing, the CHINS court found Mother to be generally non-

      compliant with the court orders. On December 7, 2015, the DCS plan was

      changed to termination of parental rights. The DCS was authorized to file a

      parental rights termination petition; however, the petition was dismissed on

      June 23, 2016, upon reports that the parents were participating in services. A

      second parental rights termination petition was filed on September 12, 2016.


[6]   An evidentiary hearing commenced on December 13, 2016, but was continued

      at Mother’s request to February 21, 2017. On February 2, 2017, the DCS filed

      a motion to conduct the testimony of Forensic Fluids Laboratories toxicologist

      Bridget Lemberg (“Lemberg”) telephonically. The motion was granted on

      February 15, 2017.


      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 3 of 10
[7]   On February 21, 2017, Mother failed to appear. The evidentiary hearing

      proceeded, with each parent represented by counsel. Lemberg testified that

      Mother had tested positive for methamphetamine on August 7, 2016. Family

      case manager Tris Decker (“Decker”) testified that Mother was no longer

      receiving services related to her four oldest children, but had given birth to a

      fifth child and was ordered to participate in services as part of a CHINS

      proceeding as to that child. Decker further testified that Mother was “not at

      all” participating in those services. (Tr. Vol. I, pg. 173.) Children’s Guardian

      Ad Litem (“GAL”) opined that termination of parental rights was appropriate

      because the parents had been non-compliant, they were “obviously using

      [drugs],” and the “traffic” in the parental home was unsafe for Children. (Tr.

      Vol. I, pg. 178.)


[8]   On April 6, 2017, the trial court entered its findings of fact, conclusions and

      order terminating Mother’s parental rights. This appeal ensued.



                                 Discussion and Decision
[9]   “The Fourteenth Amendment to the United States Constitution protects the

      traditional right of parents to establish a home and raise their children.” In re

      Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

      of a constitutional dimension, they are not absolute and the law provides for the

      termination of those rights when the parents are unable or unwilling to meet

      their parental responsibilities. Bester v. Lake Cty. Office of Family & Children, 839

      N.E.2d 143, 147 (Ind. 2005).

      Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 4 of 10
[10]   Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

       allege and prove by clear and convincing evidence to terminate a parent-child

       relationship:


               (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.
               (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 | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 5 of 10
[11]   Mother does not lodge a direct challenge to the sufficiency of the evidence

       supporting the termination decision. Rather, she argues that the admission of

       some of the supporting evidence, that is, Lemberg’s testimony, amounted to

       fundamental error that deprived her of her constitutional right to parent under

       the Fourteenth Amendment to the United States Constitution. First, she argues

       that the DCS elicited telephonic testimony from Lemberg absent compliance

       with administrative rule requirements for telephonic testimony. Second, she

       argues that Lemberg was permitted to testify to a positive drug screen result

       although the chain of custody was not clearly established.


[12]   The fundamental error doctrine applies to egregious trial errors. In re E.E., 853

       N.E.2d 1037, 1043 (Ind. Ct. App. 2006), trans. denied. It provides a narrow

       exception to the waiver doctrine, applicable only to an error so egregious to

       fundamental due process that the trial judge should or should not have acted,

       regardless of a party’s failure to object or preserve the issue of error for appeal.

       N.C. v. Indiana Dep’t of Child Servs., 56 N.E.3d 65, 69 (Ind. Ct. App. 2016), trans.

       denied. Reversal of the trial court’s ruling based upon fundamental error

       requires both a clear blatant violation of basic and elementary principles and

       that the harm or potential for harm therefrom is substantial and appears clearly

       and prospectively. Id.


[13]   Mother asserts that the trial court failed to follow the procedure outlined in

       Indiana Administrative Rule 14, governing “Use of Telephone and Audiovisual

       Telecommunication” in court proceedings and providing in relevant part:



       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 6 of 10
               [A] trial court may use telephone or audiovisual communication
               subject to:


               (1) the written consent of all the parties, entered on the
               Chronological Case Summary; or


               (2) upon a trial court’s finding of good cause, upon its own
               motion or upon the motion of a party. . . .


               (3) A party or a trial court if it is acting on its own motion must
               give notice of the motion to use telephone or audiovisual
               telecommunication as follows:


               (a) Any motion for testimony to be presented by telephone or
               audiovisual telecommunications shall be served not less than
               thirty (30) days before the time specified for hearing of such
               testimony;


               (b) Opposition to a motion for testimony to be presented by
               telephone or audiovisual telecommunication shall be made by
               written objection within seven (7) days after service;


               (c) A trial court may hold an expedited hearing no later than ten
               (10) days before the scheduled hearing of such testimony to
               determine if good cause has been shown to present testimony by
               telephone or audiovisual telecommunication;


               (d) A trial court shall make written findings of fact and
               conclusions of law within its order on the motion for testimony
               to be presented by telephone or audiovisual telecommunication[.]


[14]   The record indicates that the DCS motion for telephonic testimony was granted

       thirteen days after the February 2, 2017 filing of the motion. Although Mother

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 7 of 10
       did not object within seven days after service, she was entitled to notice thirty

       days before the February 21, 2017 hearing. Also, it appears that the trial court

       did not make the requisite findings and conclusions as to good cause. The DCS

       argues that substantial compliance was adequate. We disagree. Parental rights

       are of a constitutional dimension and disregard of administrative procedures is

       not to be condoned.


[15]   That said, the telephonic evidence is of a cumulative nature. The thrust of

       Lemberg’s testimony was that Mother had used illicit substances; specifically,

       she had tested positive for methamphetamine and synthetic marijuana. At the

       outset of the evidentiary hearing, the CHINS exhibits were admitted into

       evidence by stipulation and some of these reference Mother’s drug screens. For

       example, the Notice of Removal of Child from a Trial Home Visit discloses that

       drug screen results of July 8, 2015 were “positive for synthetic cannabanoids.”

       (Ex. 6.)


[16]   Michael McKamey, a Lifeline home-based therapist, testified that Mother

       reported to him a relapse, that is, she used synthetic marijuana. Decker testified

       that, during her case management tenure, Mother had relapsed “a couple of

       times.” (Tr. Vol. I, pg. 148.) She referred to a positive result for “Spice” in July

       of 2015 and a positive result for methamphetamine in August of 2016. (Tr. Vol.

       I, pgs. 145, 173.) Parenting time supervisor Amy Clark, who had background

       in substance abuse treatment, opined that Mother appeared to be under the

       influence of drugs at some visits. Given the abundance of evidence of Mother’s

       drug use, the erroneous admission of telephonic testimony is harmless error as

       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 8 of 10
       opposed to reversible error or fundamental error. See Indiana Trial Rule 61(B)

       (no error in the admission or exclusion of evidence is grounds for granting relief

       unless refusal to take such action appears inconsistent with substantial justice).


[17]   Mother also contends that the test results were admitted despite an improper

       chain of custody. “To establish a proper chain of custody, the State must give

       reasonable assurances that the evidence remained in an undisturbed condition.”

       Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). A successful challenger must

       “present evidence that does more than raise a mere possibility that the evidence

       may have been tampered with.” Id.


[18]   Mother acknowledges that the DCS presented testimony regarding its test

       collection and transportation procedures, Lemberg testified regarding

       laboratory handling procedures, and the trial court summarized this evidence at

       some length. However, she argues, “neither the trial court nor counsel for

       either parent addressed discrepancies in testimony as to delivery by UPS and

       FedEx.” Appellant’s Brief at 17. Lemberg testified regarding a “UPS packet,”

       (Tr. Vol. I, pg. 48), while Decker testified to using a “FedEx bag” and “sending

       FedEx bags out daily.” (Tr. Vol. I, pgs. 152, 170.) Thus, the chain-of-custody

       testimony was not entirely without conflict. However, such is not required.


[19]   The DCS’s testimonial evidence provided reasonable assurances that the

       physical evidence had been undisturbed. Additionally, each test result

       document was accompanied by Lemberg’s Affidavit, detailing procedures

       utilized and certifying the business record. Merely pointing to conflicting


       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 9 of 10
       testimony as to the identification of a private delivery service does not present

       an issue of fundamental error. The contested evidentiary hearing in this case

       was not a situation where the trial court blatantly dispensed with either a chain-

       of-custody inquiry or the foundational requirements for the admission of

       telephonic testimony. Mother has not shown egregious trial error.



                                               Conclusion
[20]   Mother did not establish that fundamental error occurred in the admission of

       evidence.


[21]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 11A01-1705-JT-958 | September 8, 2017   Page 10 of 10
