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