In re B.B.

735 N.W.2d 855

2007 ND 115

In the Interest of B.B., a child Carmell F. Mattison, Grand Forks County Assistant State's Attorney, Petitioner and Appellee, v. B.B., B.J.F., Respondents, and S.L.B., Respondent and Appellant.

No. 20060322.

Supreme Court of North Dakota.

July 25, 2007.

Carmell Faye Mattison, Assistant State's Attorney, Grand Forks, N.D., for petitioner and appellee.

Daniel James Borgen, Grand Forks Public Defender Office, Grand Forks, N.D., for respondent and appellant.

KAPSNER, Justice.

[¶ 1] S.B., the father of nine-year-old B.B., appeals a juvenile court order finding B.B. is a deprived child and placing him in the custody of the Department of Human Services. We affirm.

I

[¶ 2] In April 2006, the State filed a deprivation petition, alleging B.B. was deprived under N.D.C.C. § 27-20-02(8)(a) because of psychological maltreatment by his parents, S.B. and B.F. At the time of the petition, S.B. had physical custody of B.B., and B.B.'s mother, B.F., had visitation. B.B. has three half-siblings, who are minors and were living with their mother, B.F. The deprivation petition also alleged B.B.'s three half-siblings were deprived.

[¶ 3] At the deprivation hearing, S.B.'s probation officer testified about S.B.'s criminal history and that S.B. had recently violated his probation by testing positive for methamphetamine. Serena Koop, a licensed social worker with Grand Forks County Social Services ("Social Services"), testified about her investigation of the abuse and neglect allegations involving B.B.'s family and her preparation of a child protection service assessment report detailing her investigation and findings. Koop's report was admitted into evidence. The report contained statements from B.F., B.B., B.B.'s half-siblings, B.B.'s maternal grandfather, other family members, and other unidentified people who reported neglect or abuse or spoke with Koop during her investigation. S.B. objected to the report, arguing it contained hearsay within hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6). Koop also testified that since 1996, Social Services had received 29 separate abuse or neglect reports regarding this family, which resulted in 18 investigations and assessments, and five determinations by Social Services that the children were deprived and services were required to ensure the children's safety. Koop testified B.B. had been placed in the custody of the Department of Human Services on two separate occasions, July 2000 to April 2002 and September 2004 to September 2005. Koop testified the family has been offered a variety of services since 1996, the parents have not followed through with many of the services, and the parents have not shown a willingness to change.

[¶ 4] The juvenile court found B.B. was deprived because of repeated exposure to domestic violence between his parents, the parents' substance abuse, and the parents' failure to follow through with appropriate rehabilitative treatment. After a dispositional hearing, the court placed B.B. in the care, custody and control of the Department of Human Services for a period of twelve months.

II

[¶ 5] S.B. argues the juvenile court erred in admitting the child protection service assessment report into evidence under N.D.R.Ev. 803(6), the business records exception to the hearsay rule. He claims the report should not have been admitted because it contained hearsay within hearsay. He asserts he specifically objected to statements in the report from B.B.'s maternal grandfather, arguing those statements were not reliable because Social Services did not investigate the grandfather's trustworthiness.

[¶ 6] A district court has broad discretion on evidentiary matters, and we will not reverse a court's decision to admit or exclude evidence absent an abuse of discretion. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 40, 689 N.W.2d 366. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. State v. Woinarowicz, 2006 ND 179, ¶ 14, 720 N.W.2d 635.

[¶ 7] The juvenile court admitted Koop's child protection service assessment report under N.D.R.Ev. 803(6), the business record exception to the hearsay rule. The business record exception to the hearsay rule provides for the admission of:

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, 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.

N.D.R.Ev. 803(6). Rule 803, N.D.R.Ev., is an adoption of Fed.R.Evid. 803, and we may look to federal courts' interpretations of the federal rule as a guide in construing our rule. N.D.R.Ev. 803 Explanatory Note. See State v. Fischer, 2007 ND 22, ¶ 9, 727 N.W.2d 750 (when a state rule is derived from a federal rule, we may look to the interpretation of the federal rule as a guide).

[¶ 8] The child protection service assessment report does not meet the criteria set out in N.D.R.Ev. 803(6) to qualify as a business record. The information in the report includes out-of-court statements by B.B., B.B.'s half-siblings, B.B.'s maternal grandfather, and other reporters. 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." Fed.R.Evid. 803(6) Advisory Comm. Note. To satisfy the business records exception, each participant in the creation of the record must be acting in the course of regularly conducted business to ensure the trustworthiness and reliability of the information. N.D.R.Ev. 803(6); Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st Cir.1994). Although Koop may have been acting in the regular course of business when she prepared the report, the report also includes statements by others who were not acting in the regular course of business, and Koop did not have personal knowledge about the events detailed in their testimony, therefore, there are no guarantees of the reliability or trustworthiness of their statements. See, e.g., Fed.R.Evid. 803(6) Advisory Comm. Note (bystanders' statements in a police report are inadmissible); In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643-44 (Ind.2004) (simply because a caseworker may have a duty to record a third-party statement does not guarantee the accuracy or reliability of those statements). The report contained hearsay within hearsay, and those additional levels of hearsay are not admissible unless they are admissible under another hearsay exception. N.D.R.Ev. 805. See also Zimmerman v. Zimmerman, 1997 ND 182, ¶ 12, 569 N.W.2d 277 (out-of-court statements from persons other than the author contained in a child abuse investigation report were inadmissible hearsay). We conclude the hearsay statements in the report were not admissible under the business records exception.

[¶ 9] Social Services argues even if the report was not admissible as a business record, it was admissible under N.D.R.Ev. 803(8), the public records exception to the hearsay rule. While the report may be admissible as a public record, the State did not offer the report as a public record and we will not decide issues raised for the first time on appeal. See Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54.

[¶ 10] We have said in a non-jury case the court should "admit all evidence which is not clearly inadmissible because a judge, when deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence." McKechnie v. Berg, 2003 ND 136, ¶ 7, 667 N.W.2d 628. In a bench trial, we presume the court only considered competent evidence, and it is not reversible error to admit incompetent evidence unless the evidence induced an improper finding. Id.

[¶ 11] Although the juvenile court erred in admitting the hearsay statements in the report, we conclude the error was harmless because, as we discuss later, we conclude there was enough other admissible evidence without the hearsay statements to support the finding of deprivation and the hearsay statements did not induce an improper finding.

III

[¶ 12] S.B. argues his Sixth Amendment confrontation rights were violated because he was not allowed to cross-examine B.B.'s maternal grandfather and because the sources of some of the allegations and statements in the child protection service assessment report were not identified.

A

[¶ 13] S.B. claims his Sixth Amendment confrontation rights were violated because he was not able to cross examine B.B.'s maternal grandfather. He argues he has a statutory right to cross-examine adverse witnesses in juvenile court proceedings under N.D.C.C. § 27-20-27(1) and that statutory right incorporates Sixth Amendment confrontation rights. He also claims juvenile deprivation proceedings are quasi-punitive in nature, and therefore Sixth Amendment confrontation rights apply.

[¶ 14] The Sixth Amendment to the United States Constitution provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." We have previously said, "[t]he sixth amendment right to confront and...