DuBray v. DEPT. OF SOCIAL SERVICES, 23241.
| Decision Date | 15 December 2004 |
| Docket Number | No. 23241.,23241. |
| Citation | 2004 SD 130,690 N.W.2d 657 |
| Court | South Dakota Supreme Court |
| Parties | Noelle DUBRAY, Appellee, v. SOUTH DAKOTA DEPARTMENT OF SOCIAL SERVICES, Appellant. |
Neil Carsrud, Dakota Plains Legal Services, Mission, South Dakota, Attorney for appellee.
Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dakota, Attorney for appellant. ZINTER, Justice.
[¶ 1.] Noelle DuBray challenged a Department of Social Services (DSS) decision to place her name on the Central Registry of Child Abuse and Neglect. An administrative decision was entered in favor of DSS, and DuBray appealed to circuit court. The circuit court reversed, concluding that DuBray had been deprived of a meaningful due process hearing because DSS's case was based entirely upon three documents that were hearsay. DSS appeals. We affirm the circuit court.
[¶ 2.] On August 12, 2000, the Rosebud Sioux Tribal police were dispatched to an apartment complex where DuBray lived. When the officers arrived at DuBray's unlocked apartment, they found her one-and-a-half year old child asleep in the bedroom. No one else was present. Law enforcement took the child to the police department until DSS arrived. When DuBray was located, she was intoxicated. DuBray was arrested for child neglect and was later charged with underage consumption of alcohol and open container.
[¶ 3.] On July 21, 2002, DuBray was informed that DSS had "substantiated [a] report of abuse and neglect" by her because of the August 12, 2000 incident of leaving her daughter alone.1 DuBray was also informed that she had 30 days to request an informal review of DSS's proposal to place her name on the Central Registry. DuBray requested and received an informal review. Her request to be removed from the Central Registry was denied because "the department [had] investigated and substantiated, by a preponderance of the evidence, a report of abuse or neglect." DuBray then requested a formal administrative hearing. In that formal proceeding, the hearing examiner admitted three documents into evidence over DuBray's hearsay objection. The documents were the sole evidence used to prove the alleged abuse and neglect. The documents were a DSS intake worksheet, a Rosebud Sioux Police Department's Offense/Incident report, and a DSS narrative outline of its involvement in this case. Based upon these three documents, the hearing examiner upheld DuBray's placement on the Central Registry.
[¶ 4.] DuBray appealed to circuit court. DSS later filed a motion to dismiss because DuBray failed to serve her brief in a timely manner. DuBray moved to excuse the default, alleging that an error occurred when her file was placed in Dakota Plains Legal Services' tickler system. The circuit court excused the default, finding that good cause had been established.
[¶ 5.] Following the submission of briefs and argument, the circuit court entered findings of fact and conclusions of law reversing the administrative decision. The circuit court noted that the sole evidence admitted at the administrative hearing was "hearsay and multiple hearsay." Considering this method of proof, the circuit court concluded that DuBray had been deprived of a meaningful due process hearing in which she could have cross-examined the witnesses against her.
[¶ 6.] DSS appeals raising three issues, which we consolidate into:
1. Whether DuBray was deprived of a meaningful due process hearing because DSS's sole evidence was inadmissible hearsay.
2. Whether the circuit court erred in excusing the default and not dismissing DuBray's appeal because her appellate brief was not timely.
[¶ 7.] DSS contends that the circuit court erred in reversing the hearing examiner's decision to admit the three documents. DSS argues that the documents were either: (1) admissible under an Administrative Procedures Act statute (SDCL 1-26-19) that waives the rules of evidence when the documents are "of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs," or (2) were admissible under the business records (SDCL 19-16-10, Rule 803(6)) and public records (SDCL 19-16-12, Rule 803(8)) exceptions to the hearsay rule.
[¶ 8.] Evidentiary rulings are reviewed under an abuse of discretion standard. State v. Milk, 519 N.W.2d 313, 315 (S.D.1994) (citing Zens v. Chicago, Milwaukee, St.Paul and Pac. R.R. Co., 479 N.W.2d 155, 159 (S.D.1991)). However, admission of evidence in violation of a rule of evidence is an error of law that constitutes an abuse of discretion. Sawyer v. Farm Bureau Mut. Ins. Co., 2000 SD 144, ¶ 26, 619 N.W.2d 644, 651 (citation omitted).
[¶ 9.] The rules of evidence generally apply in administrative proceedings. SDCL 1-26-19 provides in relevant part:
In contested cases:
Thus, unless it falls within an exception, hearsay is not admissible in administrative proceedings. Dail v. South Dakota Real Estate Commission, 257 N.W.2d 709, 712 (S.D.1977).
[¶ 10.] DSS first argues that the general exception in the foregoing provision of the Administrative Procedures Act applies. "To come within [that] exception, hearsay must meet a two-pronged test: It must be probative of a fact not reasonably susceptible of proof under normal rules, and it must be of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs." Dail, 257 N.W.2d at 712; SDCL 1-26-19. However, on appeal, DSS only addresses the second prong, arguing that "the three exhibits were a type of document commonly relied upon by reasonably prudent persons in the conduct of their affairs." DSS fails to even address the first prong, requiring a showing that the hearsay must be probative of a fact not reasonably susceptible of proof under normal rules. Because this first prong disposes of this issue, we address it first.2 [¶ 11.] At the hearing, Mimi Olson, a DSS supervisor, provided the only foundational testimony for the exhibits. She indicated that a social worker, Forest Keefe, prepared the intake worksheet and the narrative outline, while the Rosebud Police Department prepared the investigative report. However, Olson failed to establish that the facts within the exhibits were not reasonably susceptible of proof under the normal rules of evidence. While there was testimony that Keefe was no longer employed by the Department, there was no evidence that either Keefe or the investigating police officer were unavailable to testify. Because DSS failed to make the foundational showing that the hearsay was probative of facts not reasonably susceptible of proof under normal rules, the exhibits were erroneously admitted under the Administrative Procedures Act exception in SDCL 1-26-19.
[¶ 12.] We also note that there is a third Administrative Procedures Act requirement that DSS failed to meet. SDCL 1-26-19 provides that "subject to" the two foundational prongs, written evidence may be submitted if the interests of the parties are not substantially prejudiced. DSS argues there was no prejudice because "the admission of the exhibits in their written form would have been identical to the testimony that the police officer or social worker would have presented." DSS also argues that DuBray was not prejudiced because she was given the opportunity to rebut the documentary evidence. However, both arguments fail to acknowledge that the use of hearsay constituted substantial prejudice because it deprived DuBray of any opportunity to confront and cross-examine the only witnesses who made substantive allegations of abuse and neglect against her. Therefore, DSS also failed to satisfy this prejudice test, and SDCL 1-26-19 did not authorize admission of the documents.
[¶ 13.] Alternatively, DSS argues that the exhibits were admissible under the rules of evidence. DSS first contends that all three exhibits "clearly fall within the business records exception to the hearsay rule...." We disagree.
[¶ 14.] The business records exception, found in SDCL 19-16-10 (Rule 803(6)), provides:
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, is not excluded by § 19-16-4, [(Rule 802),] even though the declarant is available as a witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this section includes business, institution, association, profession, occupation, and calling of every...
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