In re B.B., No. 20060322.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtKapsner
Citation735 N.W.2d 855,2007 ND 115
Decision Date25 July 2007
Docket NumberNo. 20060322.
PartiesIn 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.
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.

[735 N.W.2d 857]

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

735 N.W.2d 858

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

735 N.W.2d 859

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...

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14 practice notes
  • Rath v. Rath, No. 20170239
    • United States
    • United States State Supreme Court of North Dakota
    • June 5, 2018
    ...deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence.’ " Interest of B.B. , 2007 ND 115, ¶ 10, 735 N.W.2d 855 (quoting McKechnie v. Berg , 2003 ND 136, ¶ 7, 667 N.W.2d 628 ). "In a bench trial, we presume the court only cons......
  • State v. Keener, No. 20070252.
    • United States
    • United States State Supreme Court of North Dakota
    • August 28, 2008
    ...44, and we may look to the federal courts' interpretation of the federal rule as a guide in interpreting our rule. See In re B.B., 2007 ND 115, ¶ 7, 735 N.W.2d 855. The Advisory Committee comments to the federal rule state that a failure to comply with the rule by itself does not constitute......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...the court to make an essential finding which would not otherwise have been made." Id. (citations omitted). See also In re B.B., 2007 ND 115, ¶ 11, 735 N.W.2d 855 ("Although the juvenile court erred in admitting the hearsay statements in the report, we conclude the error was harmle......
  • Rudnick v. Rode, No. 20120076.
    • United States
    • United States State Supreme Court of North Dakota
    • August 16, 2012
    ...Grabar's letter. The letter is not a sworn affidavit and it included hearsay statements, which may not be admissible. Cf. In re B.B., 2007 ND 115, ¶ 8, 735 N.W.2d 855 (child protection service report contained hearsay statements, which were not admissible). Rode did not submit any other evi......
  • Request a trial to view additional results
14 cases
  • Rath v. Rath, No. 20170239
    • United States
    • United States State Supreme Court of North Dakota
    • June 5, 2018
    ...deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence.’ " Interest of B.B. , 2007 ND 115, ¶ 10, 735 N.W.2d 855 (quoting McKechnie v. Berg , 2003 ND 136, ¶ 7, 667 N.W.2d 628 ). "In a bench trial, we presume the court only cons......
  • State v. Keener, No. 20070252.
    • United States
    • United States State Supreme Court of North Dakota
    • August 28, 2008
    ...44, and we may look to the federal courts' interpretation of the federal rule as a guide in interpreting our rule. See In re B.B., 2007 ND 115, ¶ 7, 735 N.W.2d 855. The Advisory Committee comments to the federal rule state that a failure to comply with the rule by itself does not constitute......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...the court to make an essential finding which would not otherwise have been made." Id. (citations omitted). See also In re B.B., 2007 ND 115, ¶ 11, 735 N.W.2d 855 ("Although the juvenile court erred in admitting the hearsay statements in the report, we conclude the error was harmle......
  • Rudnick v. Rode, No. 20120076.
    • United States
    • United States State Supreme Court of North Dakota
    • August 16, 2012
    ...Grabar's letter. The letter is not a sworn affidavit and it included hearsay statements, which may not be admissible. Cf. In re B.B., 2007 ND 115, ¶ 8, 735 N.W.2d 855 (child protection service report contained hearsay statements, which were not admissible). Rode did not submit any other evi......
  • Request a trial to view additional results

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