Attorneys for Appellants Attorney for Appellee
Richard L. Williams Stephen P. Griebel
Fort Wayne, Indiana Van Gilder & Trzynka,
P.C.
Attorney for Mother, Caroline Taylor Fort Wayne,
Indiana
Robert J. Bishop
Fort Wayne, Indiana
Attorney for Father, Leroy Taylor
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 02S03-0308-JV-367
In Re: The Matter Of The Termination
Of The Parent-Child Relationship Of
E.T. and B.T.
_________________________________
Appeal from the Allen Superior Court,
No. 02D07-0012-JT-149
02D07-0012-JT-150
The Honorable Charles Pratt, Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0209-
JV-294
_________________________________
May 20, 2004
Rucker, Justice.
We conclude that reports compiled by a social services agency
describing home visits and supervised visitations do not qualify as
business records and thus are not admissible as an exception to the hearsay
rule.
Facts
The Allen County Office of Family and Children (“OFC”) removed E.T.
and B.T. from their parents’ care in August 1999 after the children were
found wandering from their home for the second time in a month. After
unsuccessfully working with the parents toward reunification, OFC filed a
petition for involuntary termination of parental rights in late 2000 or
early 2001.
The trial court’s original dispositional decree required parents to
enroll in a program offered by SCAN, Inc. Although not included in the
record before us, the public record shows that SCAN, Inc. is a non-profit
corporation whose mission is to “prevent child abuse and neglect through
direct service, education, coordination and advocacy.” See
http://www.scanfw.org/ whoweare.html. To accomplish its mission SCAN, Inc.
offers a variety of services, which it identifies as: Prevention Through
Education (PTE); Parenting Classes; Specialty Parenting Classes; Intensive
Intervention Team (IIT); Parents and Partners; Supervised Visitation; and
Healthy Families. See
http://www.scanfw.org/page/historyprogramlisting.html.
The specific program to which parents were directed to enroll was
SCAN, Inc.’s Parents and Partners program. Among other things the program
included home visits and supervised visitation. At the termination
hearing, over the parents’ objection, reports from these supervised visits
were introduced into evidence. The trial court ultimately terminated the
parents’ parental rights. On review a divided panel of the Court of
Appeals affirmed, determining (1) the reports of SCAN, Inc. were admissible
under the business records exception to the hearsay rule, (2) admission of
the reports did not violate the parents’ rights under the Confrontation
Clause of the United States Constitution, and (3) any error in admitting
the reports was harmless. In re E.T., 787 N.E.2d 483, 486-87 (Ind. Ct.
App. 2003). In their Petition To Transfer the parents do not challenge the
Court of Appeals’ harmless error determination. Therefore on this issue we
summarily affirm the Court of Appeals’ opinion. However we grant transfer
and hold that the reports at issue in this case do not qualify as business
records within the meaning of the business records exception to the hearsay
rule.
Historical Background
Every second-year law student and perhaps first-year law student as
well, depending on the law school curriculum, can recite the general
definition of hearsay: “an out of court assertion offered in court to prove
the truth of the matter asserted.” Also well known is the corollary that
absent an exception to the rule, hearsay is inadmissible as evidence. Not
so universally recited or well known are the numerous exceptions to the
rule. Indeed precisely because of its numerous exceptions, some scholars
have argued in favor of abolishing the rule altogether. See, e.g., Paul S.
Milich, Hearsay Antinomies: The Case for Abolishing the Rule and Starting
Over, 71 Or. L. Rev. 723 (1992); Eleanor Swift, Abolishing the Hearsay
Rule, 75 Cal. L. Rev. 495 (1987). In any event, the exceptions to the rule
have been generally based upon some combination of the unavailability of
the declarant, the reliability of the declaration, or the presumed
inefficiency of any possible cross-examination. See generally 5 John Henry
Wigmore, Evidence §§ 1420-27 (Chadbourn rev. 1974); 2 John W. Strong,
McCormick on Evidence § 253 (5th ed. 1999).
An outgrowth of the English common law “shop book” rule, the business
records exception is one of the oldest exceptions to the rule against the
admissibility of hearsay. In England, the custom emerged of courts
receiving the shop books of businessmen as evidence of goods sold or
services rendered. The purpose was to circumvent the prohibition against a
party appearing as its own witness. By 1832, the “shop book” rule was
firmly grounded in English common law, and its scope included all entries
made in the ordinary course of business. McCormick on Evidence § 285.
Today, either by statute, court rule, or both, every American
jurisdiction has adopted rules governing the admission of business records.
See 5 Wigmore, Evidence § 1561a, at n.6 (Supp. 1991). Like Indiana, most
state business records exceptions closely track Rule 803(6) of the Federal
Rules of Evidence.[1] See David F. Binder, Hearsay Handbook § 16:2 (4th
ed. 2001). Indiana’s rule provides:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness. . . . A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony or
affidavit of the custodian or other qualified witness, unless the
source of the information or the method or circumstances of
preparation indicate a lack of trustworthiness. The term “business”
as used in this Rule includes business, institution, association,
profession, occupation, and calling of every kind, whether or not
conducted for profit.
Ind. Evidence Rule 803(6). Prior to the 1994 codification of Rule 803(6),
Indiana common law provided in general terms that in order to come within
the business records exception to the hearsay rule the following
requirements had to be met: (1) the records offered must have been the
original entries; (2) the records must have been made in the regular course
of business at or near the time of the event recorded; (3) the facts must
have been within the first-hand knowledge of someone whose business duty it
was to observe and report the facts; and (4) the witness who had knowledge
of the facts must be unavailable. Smith v. State, 455 N.E.2d 606, 607
(Ind. 1983); Wells v. State, 254 Ind. 608, 261 N.E.2d 865, 870 (1970).
With few exceptions, Evidence Rule 803(6) is generally consistent with
longstanding Indiana precedent on the admissibility of business records.[2]
Like the common law “shop book” rule, 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.” Wells,
261 N.E.2d at 870. 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 .
. . .” Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997); 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”).
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.” Palmer v. Hoffman, 318 U.S. 109, 115 (1943).
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
of the exception to the hearsay rule. See, e.g., id. at 114 (noting that
accident reports prepared by railroad were not business records because
they were not prepared “for the systematic conduct of the enterprise as a
railroad business”; rather, “[t]heir primary utility is in litigating, not
in railroading”). 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.” Id. (citation omitted).
Discussion and Decision
The State’s exhibits 20 and 21 are reports of home visits and
supervised visitations. The State offered them into evidence during the
testimony of Karen Emery, the supervisor of SCAN, Inc.’s Parents and
Partners Program. According to Emery, the reports were compiled by staff
members based upon their first-hand observations and were made in the
regular course of business.
We first observe that not all of the information contained in the
reports was the result of first-hand observations. Rather, the reports
also contain third-party statements concerning events not observed by the
SCAN, Inc. staff members that compiled the reports. For instance, “The
receptionist stated that [Father] was in the waiting area and stated he
didn’t have to sit in ‘these f---in chairs’ and stated he was in prison.
The receptionist stated [Father] was loud and angry while mumbling to
himself.” Ex. 21. 3/7/02. “The foster parent reported . . . that since
[E.T.] heard his father state on a previous visit that he did not wipe
himself after [going to the bathroom] that they are having problems with
[E.T] wiping himself.” Ex. 21. 10/11/01. “It was reported from the aunt
that she offered the client 2 love seats and [Father] refused them.” Ex.
21. 10/4/01. We have no doubt that the SCAN, Inc. staff members compiling
the reports had a duty to do so and did so on a regular basis. However
that does not automatically transform the reports into business records
within the meaning of the exception to the hearsay rule. As one court
explained:
[T]he mere fact that the recording of third-party statements by
the caseworker might be routine, imports no guarantee of the
truth, or even reliability, of those statements. To construe
these statements as admissible simply because the caseworker is
under a business duty to record would be to open the floodgates
for the introduction of random, irresponsible material beyond
the reach of the usual tests for accuracy—cross-examination and
impeachment of the declarant.
Matter of Leon R.R., 48 N.Y.2d 117, 123 (N.Y. 1979) (termination of
parental rights proceeding in which court held portions of child’s case
file inadmissible because of third-party statements); accord Matter of
Huitt, 571 P.2d 571, 573 (Or. Ct. App. 1977) (holding Children’s Services
Division case file inadmissible under business records exception “except
those portions the official making the entry had personal knowledge of”).
Just as important, the reports also contain conclusory lay opinions.
Examples include: “[Father] appears to undermine all efforts of [Mother] to
gain control of the children.” Ex. 20. 8/3/01. “[The Taylors] remain
inconsistent in dealing with the children and appear unwilling to take
suggestions from the FSC.” Ex. 20. 1/4/02. These supervised visit reports
include a section for “Observations” and another for “Impressions.”
Entries under the section for “Impressions” include: “The FSC feels the
clients love their children but is concerned that they may not be able to
care for them on a long term basis.” Ex. 21. 3/14/01. “FSC felt as though
the parents had a very difficult time redirecting the children and keeping
them under control.” Ex. 21. 11/15/01.
Although Rule 803(6) accommodates the inclusion of “opinions” in
business records our courts have long recognized, at least in the context
of medical or hospital records, that the expertise of the opinion giver
must be established. See Fendley v. Ford, 458 N.E.2d 1167, 1171 n.3 (Ind.
Ct. App. 1984) (“Expressions of opinion within medical or hospital records
historically have not been admissible under the business records exception
because their accuracy cannot be evaluated without the safeguard of cross-
examination of the person offering the opinion.”); accord Brooks v.
Friedman, 769 N.E.2d 696, 701 (Ind. Ct. App. 2002), trans. denied; Schaefer
v. State, 750 N.E.2d 787, 793 (Ind. Ct. App. 2001); Schloot v. Guinevere
Real Estate Corp., 697 N.E.2d 1273, 1277 (Ind. Ct. App. 1998). We believe
no less is required when the decision of the trial court to terminate “one
of the most valued relationships in our culture,” Neal v. Dekalb County
Div. of Family & Children, 796 N.E.2d 280, 285 (Ind. 2003), could very well
rest on the opinion of a person who has never been placed under oath and
whose expertise and opinion have never been subjected to the crucible of
cross-examination.[3]
Further, it does not appear to us that SCAN, Inc. depends on the
reports to operate its business. Rather, forwarded to OFC by SCAN, Inc. on
a monthly basis, the reports appear to be compiled for the sole benefit of
OFC. In fact the only clients of SCAN, Inc.’s Parents and Partners program
are those referred by OFC. It may be the case that the records serve to
advance SCAN, Inc.’s mission to “prevent child abuse and neglect.” However
nothing in the record supports the view that these reports are prepared for
the systematic conduct of SCAN, Inc. as a non-profit corporation. In fact,
a survey of Indiana cases reveals that nothing similar to the reports of
SCAN, Inc. has ever been included by our courts within the business records
exception.[4] Unlike financial statements, inventory records, or other
administrative or operational documents traditionally allowed under the
business records exception, the SCAN, Inc. reports appear to be substantive
end products of a service offered by SCAN, Inc. solely for an external
government agency, to become the permanent property of that agency. In
sum, the reports did not qualify as business records. They were
inadmissible as hearsay and should not have been introduced over the
parents’ timely objection. The trial court thus erred by allowing the
reports into evidence.
However, not all trial court error is reversible. See Ind. Trial Rule
61. 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. D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.
Ct. App. 1995). The Court of Appeals in this case determined that the
evidence to support the termination of the parents’ parental rights was
sufficient even absent the questioned documents. The parents make no claim
to the contrary. Therefore, on this point we summarily affirm the Court of
Appeals.
Conclusion
Except as otherwise provided, we vacate the opinion of the Court of
Appeals and affirm the judgment of the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.
-----------------------
[1] The federal rule provides:
The following are not excluded by the hearsay rule, even though the
declarant is available as a witness:
. . . .
(6) Records of Regularly Conducted Activity. A memorandum, report,
record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from
information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record or data compilation, all as shown by the testimony of
the custodian or other qualified witness, or by certification that
complies with Rule 902(11), Rule 902(12), or a statute permitting
certification, unless the source of information or the method or
circumstances of preparation indicate lack of trustworthiness. The
term “business” as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
[2] For example, there is no longer an “original record” requirement; nor
is there a requirement that the witness be “unavailable.” In addition,
unlike the common law rule, Evidence Rule 803(6) permits the use of an
affidavit in laying the foundation for business records.
[3] This view is also consistent with that of other jurisdictions. See,
e.g., Prater v. Cabinet for Human Res., 954 S.W.2d 954, 958 (Ky. 1997)
(parental rights termination proceeding in which court held that “recorded
opinions and conclusions of social workers are not admissible, because the
persons offering those opinions are insufficiently qualified to render
expert opinions”); In re Child of Simon, 662 N.W.2d 155, 161 (Minn. Ct.
App. 2003) (in parental rights termination proceeding, court held that “a
business record containing an opinion on an ultimate issue is admissible
only if the witness offering the opinion is available [for] cross-
examination”); In re Wildoner, 407 A.2d 1351, 1354 (Pa. Super. Ct. 1979)
(finding in parental rights termination proceeding “nothing inherently
reliable in reports on the condition of a person’s household prepared by a
social agency [because such] reports invariably contain certain subjective
evaluations of the person preparing the report and, as such, should not be
admitted into evidence [without] cross-examination”).
[4] Cases from the Indiana Supreme Court and Court of Appeals reveal that
evidence held as admissible include: arrest records and arrest reports,
including fingerprint cards (Boarman v. State, 509 N.E.2d 177 (Ind. 1987);
Lyons v. State, 506 N.E.2d 813 (Ind. 1987); Prentice v. State, 474 N.E.2d
496 (Ind. 1985); Landers v. State, 464 N.E.2d 912 (Ind. 1984); McBrady v.
State, 459 N.E.2d 719 (Ind. 1984); Belcher v. State, 453 N.E.2d 214 (Ind.
1983); Pitts v. State, 439 N.E.2d 1140 (Ind. 1982); Underhill v. State, 428
N.E.2d 759 (Ind. 1981); Jennings v. State, 723 N.E.2d 970 (Ind. Ct. App.
2000); Payne v. State, 658 N.E.2d 635 (Ind. Ct. App. 1995); Knuckles v.
State, 549 N.E.2d 85 (Ind. Ct. App. 1990)); ATM photos and audit sheets
(Stark v. State, 489 N.E.2d 43 (Ind. 1986)); autopsy reports (Thompson v.
State, 270 Ind. 442, 386 N.E.2d 682 (1979)); blood alcohol test results
(Reeves v. Boyd & Sons, 654 N.E.2d 864 (Ind. Ct. App. 1995)); blood and DNA
test 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)); certifications of mailing (Collins v.
State, 567 N.E.2d 798 (Ind. 1991)); check vouchers and deposit slips
(McDonough v. State, 242 Ind. 376, 175 N.E.2d 418 (1961); Cobb v. State,
585 N.E.2d 40 (Ind. Ct. App. 1992)); commitment orders (Funk v. State, 427
N.E.2d 1081 (Ind. 1981)); financial statements (Williams v. Hittle, 629
N.E.2d 944 (Ind. Ct. App. 1994)); insurance policies (Willoughby v. State,
660 N.E.2d 570 (Ind. 1996)); inventory records (Schneider v. State, 220
Ind. 28, 40 N.E.2d 322 (1942)); job logs tracking performance (Brant
Constr. Co. v. Lumen Constr., 515 N.E.2d 868 (Ind. Ct. App. 1987)); log
sheets of police evidence (Perry v. State, 541 N.E.2d 913 (Ind. 1989);
Reynolds/Herr v. State, 582 N.E.2d 833 (Ind. Ct. App. 1991)); marriage
licenses (Smith v. State, 455 N.E.2d 346 (Ind. 1983)); medical reports
(Brooks v. Friedman, 769 N.E.2d 696 (Ind. Ct. App. 2002); Nash v. State,
754 N.E.2d 1021 (Ind. Ct. App. 2001); Schaefer v. State, 750 N.E.2d 787
(Ind. Ct. App. 2001); Schloot v. Guinevere Real Estate Corp., 697 N.E.2d
1273 (Ind. Ct. App. 1998); Carmichael v. Kroger Co., 654 N.E.2d 1188 (Ind.
Ct. App. 1995)); motel reservation entries (Smith v. State, 455 N.E.2d 606
(Ind. 1983)); motor vehicle registrations and driving records (Allen v.
State, 439 N.E.2d 615 (Ind. 1982); Dumes v. State, 718 N.E.2d 1171 (Ind.
Ct. App. 1999); Ruby v. State, 549 N.E.2d 379 (Ind. Ct. App. 1990);
Chambers v. State, 547 N.E.2d 301 (Ind. Ct. App. 1989)); pawn tickets
(Darnell v. State, 435 N.E.2d 250 (Ind. 1982)); police technician’s reports
on blood type (Clark v. State, 436 N.E.2d 779 (Ind. 1982)); prison conduct
records (Games v. State, 743 N.E.2d 1132 (Ind. 2001)); records of telephone
calls (Brandon v. State, 272 Ind. 92, 396 N.E.2d 365 (1979); Floyd v. Jay
County Rural Elec. Membership Corp., 405 N.E.2d 630 (Ind. Ct. App. 1980));
school attendance records (J.L. v. State, 789 N.E.2d 961 (Ind. Ct. App.
2003); L.H. v. State, 682 N.E.2d 795 (Ind. Ct. App. 1997)); security
agreements (Greco v. KMA Auto Exch., Inc., 765 N.E.2d 140 (Ind. Ct. App.
2002)); time cards (Wiseman v. State, 521 N.E.2d 942 (Ind. 1988)); working
papers of audits (Brane v. Roth, 590 N.E.2d 587 (Ind. Ct. App. 1992)).