In the Matter of the Termination of the Parent-Child Relationship of: L.S. (Minor Child), and A.S. (Mother) v. The Indiana Department of Child Services

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.
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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.
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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.
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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
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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.
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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.
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(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.
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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;
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(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
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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.
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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
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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
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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.
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