In Re: 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) v. The Indiana Department of Child Services

FILED
Sep 26 2019, 8:42 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT, A.B. ATTORNEYS FOR APPELLEE
Leanna Weissmann Curtis T. Hill, Jr.
Lawrenceburg, Indiana Attorney General of Indiana
David E. Corey
Deputy Attorney General
ATTORNEY FOR APPELLANT, J.R.
Indianapolis, Indiana
Kimberly A. Jackson
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: the Termination of the September 26, 2019
Parent-Child Relationship of: Court of Appeals Case No.
K.R., J.T.R., J.L.R., & E.R. 19A-JT-487
(Minor Children); Appeal from the Steuben Circuit
A.B. (Mother) and J.R. (Father), Court
The Honorable Allen N. Wheat,
Appellants-Respondents,
Judge
v. Trial Court Cause Nos.
76C01-1807-JT-234
76C01-1807-JT-235
The Indiana Department of
76C01-1807-JT-236
Child Services, 76C01-1807-JT-237
Appellee-Petitioner.

Pyle, Judge.

Court of Appeals of Indiana | Opinion 19A-JT-487 | September 26, 2019 Page 1 of 18
 Statement of the Case
[1] A.B. (“Mother”) and J.R. (“Father”) (collectively “Parents”) each appeal the

termination of the parent-child relationship with their children J.L.R.

(“J.L.R.”), E.R. (“E.R.”), J.T.R. (“J.T.R.”) and K.R. (“K.R.”) (collectively

“the Children”). Parents argue that the trial court abused its discretion in

admitting their drug test results into evidence and that there is insufficient

evidence to support the terminations. Regarding the sufficiency of the

evidence, Parents argue that the Department of Child Services (“DCS”) failed

to prove by clear and convincing evidence that there is a reasonable probability

that the conditions that resulted in the Children’s removal or the reasons for

placement outside the home will not be remedied. Mother also argues that

DCS failed to prove by clear and convincing evidence that the termination of

the parent-child relationships is in the Children’s best interests and that there is

a satisfactory plan for the care and treatment of the Children. Concluding that

the trial court did not abuse its discretion in admitting evidence and that there is

sufficient evidence to support the termination of the parent-child relationships,

we affirm the trial court’s judgment.

[2] We affirm.

Issues
1. Whether the trial court abused its discretion in admitting
Parents’ drug test results into evidence.

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 2. Whether there is sufficient evidence to support the
terminations.

Facts
[3] The evidence and reasonable inferences to be drawn therefrom that support the

judgment reveal that Mother and Father are the parents of K.R., who was born

in June 2004; J.T.R., who was born in in May 2008; E.R., who was born in

December 2010; and J.L.R., who was born in March 2013. In April 2017, DCS

removed the Children from Parents’ home because of conditions in the home

and domestic violence. One week later, the Children were returned to the

home for a trial visit. At this time, Father was incarcerated. After Mother had

a positive drug test, DCS removed the Children from the home again in May

2017 and placed them in foster care.

[4] The trial court subsequently adjudicated the Children to be children in need of

services (“CHINS”). In September 2017, following the CHINS adjudication,

the trial court ordered Parents to: (1) maintain suitable and safe housing; (2)

secure and maintain a legal and stable source of income; (3) submit to random

drug screens; (4) complete parenting assessments and successfully complete all

recommendations; (5) complete psychological evaluations and successfully

complete all recommendations; (6) complete substance abuse assessments and

successfully complete all recommendations; and (7) abstain from the use of

illegal controlled substances.

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[5] In July 2018, DCS filed petitions to terminate the parent-child relationships.

Testimony at the January 2019 termination hearing revealed that although

Parents had participated in the court-ordered assessments, Parents had failed to

successfully complete any of the court-ordered programs. In addition, Parents,

who were living with Mother’s brother and his family at the time of the

termination hearing, did not have stable housing to accommodate the Children.

Mother’s brother, who had recently lost his job, also housed his girlfriend and

his five children. Further, although Mother was employed at the time of the

hearing, her employment throughout the proceedings had been sporadic. In

addition, the testimony revealed that during the course of the proceedings,

Parents had never progressed to unsupervised visitation with the Children.

[6] Also during the hearing, the trial court admitted Parents’ drug test results over

Parents’ objections. (State’s Exhibits 30 (Father’s Test Results) and 31

(Mother’s Test Results)). Each exhibit included a total of nearly sixty pages of

Parents’ consents and drug testing results. The trial court admitted these

exhibits during the telephonic testimony of Bridget Lemberg (“Lemberg”), lab

director and custodian of the records at Forensic Fluids Laboratories (“Forensic

Fluids”) in Michigan. Forensic Fluids is licensed by the Michigan State

Department of Health with CLIA certification by the Federal Department of

Health and Human Services. Each exhibit was also accompanied by Lemberg’s

sworn affidavit, which provided that in her capacity as lab director, she was

“familiar with the procedures employed to ensure the chain of custody of

samples, the testing of those samples, and the validity of the test procedures

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 employed by [the] laboratory.” (State’s Ex. 30 and 31 at 54). Lemberg also set

forth in detail the laboratory’s procedures and affirmed that all of the

procedures had been followed when testing Parents’ submitted samples.

Lemberg’s affidavit further explained that the laboratory reports set forth in the

exhibits had been “maintained in the normal course of business activity as []

business record[s].” (State’s Exs. 30 and 31 at 55).

[7] According to the drug test results, Mother tested positive for amphetamine and

methamphetamine in August, September, and October 2018 after the

termination petitions had been filed. Mother also submitted to a drug test the

day of the termination hearing, and the results of that test were also positive for

methamphetamine. In addition, Mother testified at the termination hearing

that she had used methamphetamine in August, September, and October 2018

and that she had no reason to believe that the positive drug test results from that

period were inaccurate. Mother also admitted that she had not completed any

of the court-ordered services and that she had never progressed to unsupervised

visitation.

[8] Father also testified that he had used methamphetamine, amphetamine, and

marijuana in August, September, and October 2018 and did not dispute the

positive drug test results from that time period. Father admitted that he had

used illegal drugs “probably all [his] life” and believed that it would be

appropriate for his children to live with him even though he continued to use

drugs because, according to him, his drug use did not affect the Children. (Tr.

Vol. 2 at 142). He also testified that he was in “a little bit worse” of a place to

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 have the Children living with him than he was when they were removed twenty

months before the hearing because he did not “have [his] own, [his] own place

for ‘em.” (Tr. Vol. 2 at 144). The evidence also revealed that Father had two

pending charges for dealing methamphetamine as Level 2 and 4 felonies.

According to Father, he thought that he would be convicted of the Level 4

charge but not the Level 2 one.

[9] Also at the hearing, former DCS Family Case Manager Tennille Evers (“FCM

Evers”), who had been the family’s case manager from November 2016 until

October 2018, testified that during that time period, Parents had not

“progress[ed] . . . in any meaningful way in terms of improving their overall

situation relative to uh the reason that they ha[d] involvement at the DCS.”

(Tr. Vol. 2 at 165). Specifically, FCM Evers explained that Parents’ “drug

issues [had] continued. Their domestic violence issues [had] continued. Their

housing situation was unstable at best.” (Tr. Vol. 2 at 165). DCS FCM Justin

Kuhnle, who had been the family’s case manager since November 2018,

testified that the four children were in foster care and that the plan for them was

adoption.

[10] Therapist Suzanne Poe (“Therapist Poe”), who supervised the visits between

Parents and the Children, testified that based on her observations during the

visits, she would have concerns for the Children’s safety if they were placed in a

home with Father. Specifically, Therapist Poe explained that she was

concerned about the way Father had interacted with Mother and the things that

she had heard Father say to Mother. She was also concerned about the anger

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 that she had seen him display toward Mother and his inability to calm down.

Therapist Poe was particularly concerned about “the mental and emotional

state of the children should they witness such interactions between their

parents.” (Tr. Vol. 3 at 38).

[11] Following the hearing, the trial court issued an order terminating the parental

relationships between Parents and their four children. Each parent separately

appeals the terminations.

Decision
[12] Parents contend that: (1) the trial court abused its discretion in admitting their

drug test results into evidence and (2) there is insufficient evidence to support

the terminations. We address each of their contentions in turn.

1. Admission of Evidence

[13] Parents argue that the trial court abused its discretion in admitting Exhibits 30

and 31, their drug test results, into evidence over their objections. Parents

specifically contend that the test results were hearsay. DCS responds that the

test results were admissible pursuant to the records of regularly conducted

activity exception, which was previously referred to as the business records

exception, to the hearsay rule. We agree with DCS.

[14] The admission of evidence is left to the sound discretion of the trial court, and

we will not reverse that decision except for an abuse of discretion. In re

Involuntary Termination of the Parent Child Relationship of A.H., 832 N.E.2d 563,

567 (Ind. Ct. App. 2005). An abuse of discretion occurs when the trial court’s
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 decision is against the logic and effect of the facts and circumstances before it.

Id.

[15] Hearsay is an out-of-court statement offered in evidence to prove the truth of

the matter asserted. Ind. Evidence Rule 802(c). Hearsay is not admissible

unless is falls under certain exceptions. Evid. R. 802. One such exception is

that of records of a regularly conducted activity. Specifically, Evid. R. 803(6)

provides that such records are 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(11) or (12) [the rule on self-
authentication] or with a statute permitting certification; and

(E) neither the source of the information nor the method or
circumstances of preparation indicated a lack of trustworthiness.

This hearsay exception is grounded on the theory that records of regularly

conducted activity are reliable because they can be checked systematically.

Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997).

[16] The Indiana Supreme Court has explained as follows regarding this rule:

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 The 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 function those records are not business records
within the meaning 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
the compilation.’

Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 642-43 (Ind.

2004) (citations omitted).

[17] Here, Parents specifically argue that their drug test results do not fit into the

business records exception to the hearsay rule. In support of their argument,

they direct us to Matter of L.S., 125 N.E.3d 628 (Ind. Ct. App. 2019), wherein

another panel of this Court held that the exhibits that contained a mother’s

Forensic Fluids’ drug test results did not fall under the business records

exception to the rule against hearsay. Id. at 634. Specifically, that panel

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 explained that although Lemberg’s affidavits explained that the laboratory

reports had been maintained in the normal course of business activity as

business records, the panel also had to consider whether Forensic Fluids had

depended on those records to operate or to conduct business. Id. After

considering this issue, the panel determined that Forensic Fluids had not

depended on drug test results to operate or to conduct business. Id. Rather, the

panel concluded that the drug test results had been documented for the benefit

of DCS and were, therefore, not admissible under the business records

exception to the hearsay rule. Id.

[18] In support of its decision, the panel cited E.T., 808 N.E.2d at 645, wherein the

Indiana Supreme Court held that reports of SCAN’s (“SCAN”)1 home visits

and supervised visitations did not fit into the business records exception to the

hearsay rule. Specifically, the Indiana Supreme Court explained that the

reports included third-party statements concerning events not observed by

SCAN’s staff members as well as conclusory lay opinions. Id. at 643, 644. The

Supreme Court further pointed out that the reports appeared to have been

compiled for the sole benefit of DCS, and that, in fact, the only clients of this

particular SCAN program were those referred by DCS. Id. at 644-45. In

addition, there was nothing in the record that supported the view that the

reports had been prepared for the systematic conduct of SCAN as a non-profit

1
SCAN, Inc. is a non-profit corporation whose mission is to “prevent child abuse and neglect through direct
service, education, coordination and advocacy.” E.T., 808 N.E.2d at 640-41.

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 corporation. Id. at 645. In fact, a survey of Indiana cases revealed that nothing

similar to the SCAN reports had ever been included by our courts within the

business records exception. Id. Rather, cases from the Indiana Supreme Court

and Court of Appeals revealed that evidence held as admissible included blood

alcohol test results (Reeves v. Boyd & Sons, 654 N.E.2d 864 (Ind. Ct. App. 1995))

as well as blood and DNA results (Fowler v. Napier, 663 N.E.2d 1197 (Ind. Ct.

App. 1996); Humbert v. Smith, 655 N.E.2d 602 (Ind. Ct. App. 1995); Burp v.

State, 612 N.E.2d 169 (Ind. Ct. App. 1993)). E.T., 808 N.E.2d at 645 n.4 (and

cases cited therein). Further, unlike documents traditionally allowed under the

business records exception, the SCAN reports “appear[ed] to be substantive end

products of a service offered by SCAN, Inc. solely for an external governmental

agency, to become the permanent property of that agency.” Id. In sum, the

Indiana Supreme Court held that the SCAN reports did not qualify as business

records. Id.

[19] Our review of the facts in E.T. reveals that they are distinguishable from the

facts before us. Specifically, Forensic Fluids functions independently from any

law enforcement body or state agency. Rather, its services are presumably

available to any person, public or private, corporate or individual, who wishes

to pay the lab fees. In addition, the chemical analyses performed at Forensic

Fluids appear to be routine procedures, done for whomever requests them.

These facts distinguish the SCAN reports on E.T. from the drug test results in

this case and leads us to disagree with the result in L.S. Accordingly, we

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 conclude that drug test results do indeed fit into the business records exception

to the hearsay rule.

[20] This conclusion is consistent with the results reached in other jurisdictions. See

In the Matter of S.D.J., 665 S.E.2d 818, 822 (N.C. Ct. App. 2008) (explaining

that blood test results are records made in the usually course of business); J.G. v.

State, 685 So.2d 1385, 1385 (Fla. Dist. Ct. App. 1997) (holding that the trial

court did not err in admitting drug test reports under the business records

exception to the hearsay rule); Montoya v. State, 832 S.W.2d 138, 141 (Tex. App.

1992) (holding that the trial court did not abuse its discretion in admitting drug

test result into evidence pursuant to the business record exception to the hearsay

rule); Commonwealth of Pennsylvania v. Kravontka, 558 A.2d 865, 871 (Pa. Super.

Ct. 1989) (holding that there was “no question that [Kravontka’s blood alcohol

test results were] properly admitted into evidence pursuant to the business

records exception to the hearsay rule).

[21] We further note that even if we had concluded that the trial court had

improperly admitted the Parents’ drug test results, any such error was harmless

because the remaining evidence presented at the termination hearing, as

discussed below, was more than sufficient to support the termination of Parents’

parental rights.2 See E.T., 808 at 646 (explaining that the improper admission of

2
Parents also argue that the trial court abused its discretion in admitting the test results because: (1) the tests were
not administered in accordance with proper protocol; (2) “Lemberg’s affidavit appears to have been drafted, at least
in part, to certify a single drug test, not the 40 drug tests referenced in documents attached to each affidavit;”

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 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).

2. Sufficiency of the Evidence

[22] Parents argue that there is insufficient evidence to support the terminations.

The traditional right of parents to establish a home and raise their children is

protected by the Fourteenth Amendment to the United States Constitution. In

re J.W., Jr., 27 N.E.3d 1185, 1187-88 (Ind. Ct. App. 2015), trans. denied.

However, a trial court must subordinate the interests of the parents to those of

the child when evaluating the circumstances surrounding a termination. Id. at

1188. Termination of the parent-child relationship is proper where a child’s

emotional and physical development is threatened. Id. Although the right to

raise one’s own child should not be terminated solely because there is a better

home available for the child, parental rights may be terminated when a parent is

unable or unwilling to meet his or her parental responsibilities. Id.

[23] Before an involuntary termination of parental rights may occur, DCS is

required to allege and prove, among other things:

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

(Father’s Br. at 29) and (3) DCS failed to establish a proper chain of custody. We also reject these arguments
because any error in the admission of the test results would be harmless error.

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 (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.

IND. CODE § 31-35-2-4(b)(2). DCS must prove the alleged circumstances by

clear and convincing evidence. K.T.K. v. Ind. Dep’t of Child Servs., 989 N.E.2d

1225, 1230 (Ind. 2013).

[24] When reviewing a termination of parental rights, this Court will not reweigh

the evidence or judge the credibility of the witnesses. In re R.S., 56 N.E.3d 625,

628 (Ind. 2016). We consider only the evidence and any reasonable inferences

to be drawn therefrom that support the judgment and give due regard to the

trial court’s opportunity to judge the credibility of the witnesses firsthand.

K.T.K., 989 N.E.2d at 1229.

[25] When the trial court’s judgment contains specific findings of fact and

conclusions thereon, we apply a two-tiered standard of review. In re R.S., 56

N.E.3d at 628. First, we determine whether the evidence supports the findings,

and second, we determine whether the findings support the judgment. Id. We

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 will set aside a trial court’s judgment terminating a parent-child relationship

only if it is clearly erroneous. Id. Findings are clearly erroneous only when the

record contains no facts or inferences to be 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 judgment. Id.

[26] Mother and Father both argue that DCS failed to prove by clear and convincing

evidence that there is a reasonable probability that the conditions that resulted

in the Children’s removal or the reasons for placement outside the home will

not be remedied. In determining whether the conditions that resulted in a

child’s removal or placement outside the home will not be remedied, we engage

in a two-step analysis. In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). We first

identify the conditions that led to removal or placement outside the home and

then determine whether there is a reasonable probability that those conditions

will not be remedied. Id. The second step requires trial courts to judge a

parent’s fitness at the time of the termination proceeding, taking into

consideration evidence of changed conditions and balancing any recent

improvements against habitual patterns of conduct to determine whether there

is a substantial probability of future neglect or deprivation. Id. Habitual

conduct may include parents’ prior criminal history, drug and alcohol abuse,

history of neglect, failure to provide support, and a lack of adequate housing

and employment. A.D.S. v. Ind. Dep’t of Child Servs., 987 N.E.2d 1150, 1157

(Ind. Ct. App. 2013), trans. denied. The trial court may also consider services

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 offered to the parent by DCS and the parent’s response to those services as

evidence of whether conditions will be remedied. Id.

[27] Here, our review of the evidence reveals that the Children were removed from

Parents because of conditions in the home, domestic violence, and drug use.

Evidence at the termination hearing revealed that Mother and Father have not

provided suitable housing for the Children. Specifically, at the time of the

hearing, Parents were living with Mother’s brother, who had recently lost his

job and who also housed his girlfriend and his five children. In addition,

Parents admitted that they had continued to use methamphetamine throughout

the proceedings and even after the termination petitions had been filed. Father

did not believe that his drug use affected the Children even though he had two

pending felony charges for dealing methamphetamine. Further, neither parent

had completed any of the court-ordered programs. FCM Evers testified that the

conditions that had resulted in the Children’s removal had not been remedied

because the drug and domestic violence issues continued and the family’s

housing situation was unstable. This evidence supports the trial court’s

conclusion that there was a reasonable probability that the conditions that

resulted in the Children’s removal would not be remedied. We find no error.

[28] Mother also argues that there is insufficient evidence that the termination was

in the Children’s best interests. In determining whether termination of parental

rights is in the best interests of a child, the trial court is required to look at the

totality of the evidence. In re D.D., 804 N.E.2d 258, 267 (Ind. Ct. App. 2004),

trans. denied. In so doing, the court must subordinate the interests of the parents

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 to those of the child involved. Id. Termination of the parent-child relationship

is proper where the child’s emotional and physical development is threatened.

In re R.S., 774 N.E.2d 927, 930 (Ind. Ct. App. 2002), trans. denied. “‘A parent’s

historical inability to provide adequate housing, stability and supervision

coupled with a current inability to provide the same will support a finding that

continuation of the parent-child relationship is contrary to the child’s best

interest.’” In re B.D.J., 728 N.E.2d 195, 203 (Ind. Ct. App. 2000) (quoting

Matter of Adoption of D.V.H., 604 N.E.2d 634, 638 (Ind. Ct. App. 1992), trans.

denied, superceded by rule on other grounds). Here, our review of the evidence

reveals that Mother and Father have historically been unable to provide

housing, stability, and supervision for the Children. Further, testimony at the

termination hearing revealed that they were unable to provide the same at the

time of the hearing. Mother’s argument therefore fails, and there is sufficient

evidence that termination is in the Children’s best interests.

[29] Last, Mother argues that DCS does not have a satisfactory plan for the

Children’s care and treatment. This Court has previously explained that the

plan for the care and treatment of the child need not be detailed, so long as it

offers a general sense of the direction in which the child will be going after the

parent-child relationship is terminated. In re L.B., 889 N.E.2d 326, 341 (Ind. Ct.

App. 2008). Here, the DCS caseworker testified the plan for the care and

treatment of the Children is adoption. This is a satisfactory plan. See In re

A.N.J., 690 N.E.2d 716, 722 (Ind. Ct. App. 1997).

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[30] Affirmed.

Robb, J., concur in result.

Mathias, J., concur.

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