D.W.S. v. L.D.S.

Decision Date28 August 1995
Docket NumberNo. 02A03-9412-CV-442,02A03-9412-CV-442
Citation654 N.E.2d 1170
PartiesD.W.S., Appellant-Respondent, v. L.D.S., Appellee-Petitioner.
CourtIndiana Appellate Court

Harry W. Foster, III, Fort Wayne, for appellant.

C. David Peebles, Fort Wayne, for appellee.

OPINION

HOFFMAN, Judge.

Appellant-respondent D.W.S. appeals from the trial court's award of custody of his minor daughter, B.M.S., to her mother, L.D.S. The facts most favorable to the judgment are set forth below.

On the night of February 6, 1994, L.D.S. attempted to put B.M.S. to bed. B.M.S. began to cry and L.D.S. was unable to quiet her. D.W.S. was in another part of the home and heard the crying. When he investigated, L.D.S. indicated that she could not coax B.M.S. to sleep. L.D.S. informed D.W.S. that she would play a tape to soothe B.M.S. L.D.S. left the room. D.W.S. attempted to verbally correct B.M.S. but when she did not heed his command, he spanked her on her buttocks. B.M.S. continued to ignore him. Then, L.D.S. saw D.W.S. raise his hand to B.M.S. and immediately thereafter, heard a slapping noise. L.D.S. saw D.W.S. leave the room as B.M.S. wept.

The next morning, February 7, 1994, when L.D.S. woke B.M.S. she noticed a red bruise on the child's face in the shape of a hand print. Later that day, L.D.S. revealed to her therapist what she observed the night before and earlier that morning. L.D.S. was told her therapist had a duty to report the incident to the Office of Family and Children of Allen County, a division of the Allen County Department of Public Welfare (DPW). L.D.S. was advised to do the same. Later, L.D.S. took pictures of B.M.S.'s bruised face, and contacted the DPW. On February 9, 1994, L.D.S. gave her photographs of B.M.S. to a caseworker for the DPW who initiated an investigation.

Subsequently, L.D.S. filed for a divorce and petitioned the trial court for temporary custody of B.M.S. At a hearing to determine the issues of temporary custody and support, the trial court found D.W.S. used punishment severe enough to bruise B.M.S.'s face. As such, the trial court awarded L.D.S. temporary custody of the child. Further, the trial court suspended the visitation rights of D.W.S. pending further review. However, after finding L.D.S. took action to protect the well-being of B.M.S., the DPW discontinued its own investigation.

D.W.S. later petitioned for supervised visitation with B.M.S. Both parties stipulated to supervised visitation with the child and agreed to undergo psychological evaluations through CASI Center. 1 The trial court accepted the parties' stipulations and awarded D.W.S. supervised visitation through SCAN. 2 The trial court also ordered that both parties undergo psychological evaluations at CASI Center. L.D.S. and D.W.S. complied with the trial court's order.

The trial court conducted another hearing in which it awarded L.D.S. custody of B.M.S. Although D.W.S. received visitation rights, they were limited to 9:00 A.M. to 6:00 P.M. on either Saturday or Sunday on alternating weekends and to two hours one day during the week. D.W.S. appeals the trial court's order.

D.W.S. raises two issues for review:

(1) whether the trial court erred in admitting two reports prepared by the DPW; and

(2) whether the trial court abused its discretion in awarding custody of B.M.S. to L.D.S.

The trial court has broad discretion in ruling on the admissibility of evidence. Gentry v. State (1993), Ind.App., 625 N.E.2d 1268, 1275, trans. denied. On the review, this Court will only disturb the trial court's ruling upon a showing of abuse of discretion. Id.

D.W.S. argues the DPW's reports, admitted over objection, did not fall under any business or official record exceptions to the hearsay rule. In support of his argument, he states that the reports do not meet the requirements for either exception because the preparers had no first-hand knowledge of the alleged abuse. Additionally, he claims the reports were not properly authenticated under Ind. Evidence Rules 803(6) or 803(8).

Ind.Evid.R. 803(6) states in pertinent part:

"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 information or the method or circumstances of preparation indicate a lack of trustworthiness...."

The requirement that the facts be observed and recorded by someone, in the regular course of business at or near the time of occurrence, who has knowledge of the incident, insures the accuracy and reliability that justifies the exception to the hearsay rule. Williams v. Hittle (1994), Ind.App., 629 N.E.2d 944, 947.

In the instant case, the preparers of the proffered reports did not see D.W.S. hit B.M.S. They prepared the reports based upon accounts of individuals who had no business duty to observe and report the facts of the alleged abuse. The DPW's reports were hearsay inasmuch as they were out-of-court statements offered to prove the truth of the matters asserted. To the extent that parts of the reports establish that an incident was reported by L.D.S. and her therapist, and contain the preparers' direct observations of B.M.S, those parts are admissible.

The official record exception to the hearsay rule Ind.Evid.R. 803(8) allows a statement to be admitted if a report or statement is made by:

"a public office or agency, setting forth its regularly conducted and...

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16 cases
  • In re Termination of the Parent-Child Relationship of ET
    • United States
    • Indiana Supreme Court
    • May 20, 2004
    ...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 rig......
  • In re Matter of E.T., No. 02S03-0308-JV-367 (IN 5/20/2004)
    • United States
    • Indiana Supreme Court
    • May 20, 2004
    ...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 Cou rt of Appeals in this case determined that the evidence to support the termination of the parents' parenta......
  • Stahl v. State
    • United States
    • Indiana Supreme Court
    • September 24, 1997
    ...course of business must also have personal knowledge of the information recorded in order to make it reliable. D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995) (the event recorded must have been within the personal knowledge of someone acting in the course of regularly conducted bu......
  • In re Termination of the Parent–Child Relationship v. Ind. Dep't of Child Servs.
    • United States
    • Indiana Appellate Court
    • May 30, 2013
    ...reversible, however. In re Termination of Parent–Child Relationship of E.T., 808 N.E.2d 639, 646 (Ind.2004) (citing D.W.S. v. L.D.S., 654 N.E.2d 1170, 1173 (Ind.Ct.App.1995)). “The improper admission of evidence is harmless error when the judgment is supported by substantial independent evi......
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