Opinion

In the Matter of the Termination of the Parent-Child Relationship of K.R., J.T.R., J.L.R., and E.R. (Minor Children) A.B. (Mother) and J.R. (Father) v. Indiana Department of Child Services

Court
Indiana Supreme Court
Filed
Oct 15, 2020
Status
Published
Cited by
0 cases
Authority
More cited than 12.9%

reversing CHINS adjudication and citing L.S. for the proposition that “exhibits containing drug test results do not fall under the business records exception to the rule against hearsay”

How later courts described this case

  • reversing CHINS adjudication and citing L.S. for the proposition that “exhibits containing drug test results do not fall under the business records exception to the rule against hearsay”

Written by the judges who cited it.

The opinion

IN THE

Indiana Supreme Court FILED

Oct 15 2020, 12:57 pm

CLERK

Supreme Court Case No. 20S-JT-63 Indiana Supreme Court

Court of Appeals

and Tax Court

In the Matter of the Termination of the Parent-Child

Relationship of K.R., J.T.R, J.L.R., & E.R. (Minor

Children); A.B. (Mother) and J.R. (Father),

Appellants/Respondents,

–v–

Indiana Department of Child Services,

Appellee/Petitioner.

Argued: May 21, 2020 | Decided: October 15, 2020

Appeal from the Steuben Circuit Court

No. 76C01-18070-JT-234 through -237

The Honorable Allen Wheat, Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 19A-JT-487

Opinion by Justice David

Justices Massa, Slaughter, and Goff concur.

Chief Justice Rush concurs in result.

David, Justice.

In this termination of parental rights case, parents appealed the trial

court’s decision to admit drug test reports alleging that these reports did

not fit the records of a regularly conducted activity exception pursuant to

Indiana Evidence Rule 803(6). For the reasons discussed herein, we affirm

the trial court finding these reports do meet the exception.

Facts and Procedural History

Mother, A.B., and Father, J.R., are the parents of four children who

were determined to be children in need of services (CHINS) and removed

from their home because of the parents’ inability to provide safe,

sustainable housing free from domestic violence. The Indiana

Department of Child Services (DCS) eventually filed a petition to

terminate the parents’ parental rights because parents failed to complete

court ordered services, failed to provide stable housing for the children

and struggled with both domestic violence and drug addiction.

A termination hearing was held in January 2019. During this hearing,

the trial court admitted drug test results from Forensic Fluids Laboratory

for both parents over their objections. DCS admitted the evidence

through the telephonic testimony of the Forensic Fluids Laboratories

Director, Bridgette Lemberg, who had also signed an affidavit certifying

the results as business records.

Other evidence presented regarding Mother’s drug use included

Mother’s admission that she used drugs as well testimony from service

providers that she did not complete all substance abuse treatment or

services as ordered in the CHINS case. Similarly, Father testified about

his lifelong drug use, admitting he still smoked marijuana but stated he

did not think he had a problem. There was also evidence that he did not

complete all services ordered in the CHINS case.

After hearing evidence about parents’ drug use, failure to complete

services, criminal histories, failure to maintain stable housing and

regarding the best interests of the children, the court terminated both

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

parents’ rights. Parents appealed arguing that the trial court abused its

discretion in admitting their drug test results into evidence and that there

was insufficient evidence to support the terminations. Our Court of

Appeals affirmed finding that the drug test results were properly

admitted as records of a regularly conducted activity and that in any case,

any error in their admission was harmless. In re K.R., 133 N.E.3d 754, 762

(Ind. Ct. App. 2019). It further found the evidence was sufficient to

support termination. Id. at 764-65. Parents petitioned for transfer which

we granted. Ind. Appellate Rule 58(A).

Standard of Review

Trial courts have broad discretion whether to admit or exclude

evidence. Marshall v. State, 117 N.E.3d 1254, 1258 (Ind. 2019), cert. denied.

Appellate courts generally review decisions to admit evidence for abuse of

discretion. See Zanders v. State, 118 N.E.3d 736, 741 (Ind. 2019). “An abuse

of discretion occurs when the decision is clearly against the logic and

effect of the facts and circumstances and the error affects a party’s

substantial rights.” Beasley v. State, 46 N.E.3d 1232, 1235 (Ind. 2016)

(quotation omitted).

Discussion and Decision

At issue is whether the drug tests can properly fall under the records of

a regularly conducted activity exception to the hearsay rule pursuant to

Indiana Rule of Evidence 803(6). 1 Parents argue that they do not. The

State argues that the matter should be decided on harmless error grounds

1The Indiana Rules of Evidence presently refer to this exception as the “Records of a

Regularly Conducted Activity Exception.” However, it is often still referred to as the

“business records exception.”

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

in light of the ample other evidence of parents’ drug use and in support of

termination of their parental rights. 2

Our Court of Appeals panels have come to different conclusions about

whether drug test reports fit the records of a regularly conducted activity.

On the one hand, we have panels that have found that the lab does not

depend on the records to conduct business, but rather the records are

generated for the benefit of DCS and thus, the exception does not apply.

In re L.S., 125 N.E.3d 628, 634-35 (Ind. Ct. App. 2019), trans. not sought;

accord In re A.B., 130 N.E.3d 122, 128-29 (Ind. Ct. App. 2019) (reversing

CHINS adjudication and citing L.S. for the proposition that “exhibits

containing drug test results do not fall under the business records

exception to the rule against hearsay”), trans. not sought. On the other, we

have panels, including the present one, that found drug test records do

fall within the exception. In re K.R., 133 N.E.3d at 762; Matter of De.B., 144

N.E.3d 763, 767 (Ind. Ct. App. 2020). We agree with our Court of Appeals

panel below and with the panel in Matter of De.B. that the drug test

records fall under the records of a regularly conducted business activity.

Hearsay is an out-of-court statement offered in evidence to prove the

truth of the matter asserted. Ind. Evidence Rule 801(c). Hearsay is not

admissible unless it falls under certain exceptions. Ind. Evidence Rule

802. The records of a regularly conducted activity exception provides that

a record of an act, event, condition, opinion, or diagnosis is admissible if:

(A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a business, organization, occupation, or calling,

whether or not for profit;

2Because of the recent decision in In re L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019), the State

conceded in its brief that the records of a regularly conducted activity exception does not

apply here.

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

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification that

complies with Rule 902(9) or (10) or with a statute permitting

certification; and

(E) neither the source of information nor the method or

circumstances of preparation indicate a lack of trustworthiness.

Ind. Evidence Rule 803(6). Further, this Court has held that:

[t]he business records exception permits records of business

activity to be admitted in circumstances when the recorded

information will be trustworthy. The reliability of business

records stems from the fact that the organization depends on

them to operate, from the sense that they are subject to review,

audit, or internal checks, from the precision engendered by the

repetition, and from the fact that the person furnishing the

information has a duty to do it correctly.

Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997); See also, In re Termination of

Parent-Child Relationship of E.T., 808 N.E.2d 639, 642 (Ind. 2004).

Here, parents challenge the trustworthiness of the records. They argue

that pursuant to Matter of L.S., 125 N.E.3d at 631, because the records are

not necessary for the laboratory to operate, they do not qualify as records

of a regularly conducted activity exception. However, as the panel in

Matter of De.B. aptly observed, there are two problems with this argument.

First, the laboratory does depend on the records to operate. As Lemberg

indicated in her affidavit, Forensic Fluids Laboratories, Inc. has a CLIA

certification by the Federal Department of Health and Human Services.

As such, it is required to keep drug test reports for two years to keep its

certification. See 42 C.F.R. § 493.1105(a)(6) (2003). Further, we find the

argument that the laboratory only creates the drug test reports for DCS

and not for its own operations is not consistent with the practicalities of

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

using a laboratory that provides drug testing. That is, if any client, not

just DCS submits a sample for drug testing to the laboratory, it is expected

that results will follow or else it is not clear why someone would utilize

the laboratory in the first place. It also seems to follow that such results

would be provided in writing instead of, for example, via a phone call.

Thus, it is clear that drug test reports are required for a laboratory that

provides drug testing services to operate, both to keep necessary

certifications and as a practical matter.

Second, there are other considerations impacting whether records are

sufficiently reliable so as to meet the exception. In addition to whether the

records are required for a business to operate, this Court previously noted

other indicia of reliability. That is, the records at issue are subject to 1)

review, audit, or internal check; 2) the precision engendered by the

repetition; and 3) the fact that the person furnishing the information has a

duty to do it correctly. Stahl, 686 N.E.2d at 92; In re Termination of Parent-

Child Relationship of E.T., 808 N.E.2d at 642; see also Advisory Committee's

Note to Fed. R. of Evid. 803(6) (observing that business records are made

reliable by “systematic checking, by regularity and continuity which

produce habits of precision, by actual experience of business in relying

upon them, or by a duty to make an accurate record as part of a

continuing job or occupation”). Here, all of these additional indicia are

met. Lemberg testified in detail about the internal laboratory process and

quality control screening and further indicated that the laboratory does

double blind testing almost monthly. Both her testimony and affidavit

also reveal the detailed, methodical and repetitive process for processing

samples. Finally, Ms. Lemberg is the Laboratory Director and Custodian

of Records for Forensic Fluids and is licensed by the Michigan

Department of Health and has a CLIA certification by the federal

government. As such, she is required to follow all state and federal

regulations in order to maintain her job and her company’s licensure and

certification. Because we find that the drug test records meet the

trustworthiness indicia set forth in our prior case law, including that they

are required for the ongoing business operations of Forensic Fluids, we

hold the trial court did not err in admitting these records over parents’

objections.

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

We acknowledge that Parents continue to argue that the tests are

untrustworthy in other ways as well, citing issues with the test

administration and the chain of custody. However, both sides presented

evidence regarding these collection and chain of custody issues during

trial, including testimony from the collectors and various persons

involved in the chain of custody. The trial court assessed these witnesses’

credibility. As such, we find that Parents are asking for this Court to

reweigh evidence. Further, we note that “[DCS] need not establish a

perfect chain of custody, and once [DCS] strongly suggests the exact

whereabouts of the evidence, any gaps go to the weight of the evidence

and not to admissibility.” Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002).

“To mount a successful challenge to the chain of custody, one must

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

evidence may have been tampered with.” Id. Here, parents do not

present any such evidence of tampering.

Conclusion

We affirm the trial court.

Massa, Slaughter, and Goff, JJ., concur.

Rush, C.J., concurs in result.

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

ATTORNEY FOR APPELLANT, A.B.

Cara Schaefer Wieneke

Brooklyn, Indiana

ATTORNEY FOR APPELLANT, J.R.

Kim Shoup

Angola, Indiana

Lisa Manning

Danville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.