In re Termination of the Parent-Child Relationship of K.R., No. 20S-JT-63, __ N.E.3d __ (Ind., Oct. 15, 2020).

David. J.

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.

….

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 in light of the ample other evidence of parents’ drug use and in support of termination of their parental rights. [Footnote omitted.]

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.

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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… 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.

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.

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