In re K.C.P.

• Decision Date: 09 August 2004
• Docket Number: No. 06-04-00009-CV.,06-04-00009-CV.
• Citation: 142 S.W.3d 574
• Parties: In the Interest of K.C.P. and J.D.P., Children.
• Court: Texas Court of Appeals

142 S.W.3d 574

In the Interest of K.C.P. and J.D.P., Children.

No. 06-04-00009-CV.

Court of Appeals of Texas, Texarkana.

Submitted July 28, 2004.

Decided August 9, 2004.

Appeal from the County Court at Law, Lamar County, Deane A. Loughmiller, J R. Wesley Tidwell, Ellis, Young & Tidwell, LLP, Paris, for appellant.

John M. Gascoigne, Regional Atty., DFPS, Beaumont, Cynthia L. Braddy, Asst. County Atty., Paris, for appellee.

George L. Preston, Paris, for ad litem.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice CARTER.

A jury found that Cynthia Parker's parental rights to her children, K.C.P. and J.D.P., should be terminated. She argues that several errors were committed at the trial and requests this Court to reverse the order of termination. The issues are:

1. Were records of drug tests improperly admitted as business records?

2. Were drug treatment records improperly admitted, violating a federal statute?

3. Was the guardian ad litem properly excused from the rule concerning separation of witnesses?

4. Should an assistant county attorney have been allowed to testify as a legal expert?

5. Should a drug rehabilitation counselor have been excluded from testifying due to an attorney-client privilege?

The evidence showed that Parker had a history of drug abuse. It was alleged she left her two young children with her adoptive parents for extended periods of time. Her sister ultimately contacted Child Protective Services (CPS), which obtained temporary custody and placed the children in foster care. Eventually, CPS filed suit to terminate Parker's parental rights. A major portion of the trial concerned Parker's alleged drug abuse. The first issue concerns admission of records of drug tests.

1. Were records of drug tests improperly admitted as business records?

Exhibit 14 was a record from Dr. Kyle Jones revealing the result of drug tests. Exhibits 15 through 17 are records of drug tests from the Texas Alcohol and Drug Testing Services. Attached to each of these records was an affidavit from the custodian stating the records were business records. The first complaint is that a proper predicate was not laid for the introduction of the records.

The Texas Rules of Evidence allow the admission of records kept in the course of regularly conducted business activities. TEX.R. EVID. 803(6). To be properly admitted under this rule, the proponent must prove that the document was made at or near the time of the events recorded, from information transmitted by a person with knowledge of the events, and made or kept in the course of a regularly conducted business activity unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Id. The predicate for admission of a business record may be established by an affidavit that complies with TEX.R. EVID. 902(10). Id. The predicate witness does not have to be the record's creator or have personal knowledge of the contents of the record. Brooks v. State, 901 S.W.2d 742, 746 (Tex.App.-Fort Worth 1995, pet. ref'd). The witness is only required to have personal knowledge of the manner in which the records were prepared. Id. Rule 902(10)(b) provides a sample form of an affidavit that complies with the rule and states that "an affidavit which substantially complies with the provisions of this rule shall suffice." TEX.R. EVID. 902(10)(b). The affidavit provided here is substantially the same as the form provided in the rule.

a. Preservation

Parker objected, as follows, to the records:

[W]e object although they—she's filing them as business records, she still has to satisfy all the other evidentiary requirements including hearsay, foundation, chain of custody, 702, 703 I believe also should be included. Just throwing the documents up is not a proper foundation for these matters, and we would strenuously object to their admission.

The father's counsel objected as follows:

Join in that objection and would add that some of these testing [sic] once again is off-site testing. So the chain of custody is very relevant, and there's not an agency relationship established although it's alleged. Those obviously are subcontractors or people they're contracting that matter out to. So just because you say it's a business record and you have somebody sign a piece of paper, that doesn't make the grade.

Parker's counsel:

I'd also point out that these are being proposed as business records but not as medical records. And looking at the affidavit, it's not a proper affidavit in regards to any of the qualifications especially delivering a medical opinion as to whether or not a person has passed a drug test.

Clearly, the exhibits complained of are business records from Dr. Jones and the Texas Alcohol and Drug Testing Services. On appeal, Parker is complaining that the drug tests were not actually conducted by the entities that provided the records, that the custodian could not testify the tests were standard for the field, that he had personal knowledge of the tests and results, and that there was an insufficient chain of custody to show the tests were actually of Parker's hair or urine. The initial question is whether these complaints have been preserved for appeal.

TEX.R.APP. P. 33.1 requires a complaint be made to the trial court that states the grounds of the complaint with sufficient specificity to make the trial court aware of the complaint unless it is apparent from the context. The complaint on appeal essentially is that of hearsay within hearsay or "layered hearsay."

Although the objections were somewhat imprecise, we believe they are sufficient to bring this matter to the attention of the trial court. Counsel brought to the court's attention that the four complained-of exhibits were medical test records not prepared by the particular entities that produced them, and that there was no evidence to show how the drug tests were conducted or that the methods used were reliable and that they contained medical opinions.

b. Trustworthiness Requirement— Civil vs. Criminal Standard

Counsel argues that the trial court abused its discretion by admitting the evidence when the State failed to provide any evidence showing either the types of tests administered or whether they were properly administered. Counsel's factual assertions are accurate. We are now left to address the question of whether a court could conclude over objection that drug test results are admissible—when there is nothing proffered beyond the bare results themselves. The critical question is whether the statements (the drug test results) showed sufficient indicia of trustworthiness or reliability to bring them within an exception to the hearsay rule.

There is a distinction in the treatment of this issue based on whether the case is civil or criminal in nature. Some civil cases have found business records containing laboratory tests are admissible by showing where the specimen was drawn, that it was sent to a laboratory, and that a medical doctor analyzed it and reported the results. March v. Victoria Lloyds Ins. Co., 773 S.W.2d 785, 788 (Tex.App.-Fort Worth 1989, writ denied) (citing Missouri-Kansas-Texas R.R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980)). This distinction in criminal and civil cases was noted in Lynch v. State, 687 S.W.2d 76, 77 (Tex. App.-Amarillo 1985, pet. ref'd).

Criminal cases require more, as evidenced by cases such as Philpot v. State, 897 S.W.2d 848, 852 (Tex.App.-Dallas 1995, pet. ref'd), and Strickland v. State, 784 S.W.2d 549, 553 (Tex.App.-Texarkana 1990, pet. ref'd).

In Strickland, we found that test results were admissible as business records— when the testifying witness was able to testify that the tests

were standard tests for a particular substance, made by a person who had personal knowledge of the test and test results, and that the results of the tests were recorded on records kept in the usual course of business of the laboratory.

Strickland, 784 S.W.2d at 553.

In Scherl, we recognized that intoxilyzer test results are admissible when it is shown that they were performed in accordance with statutory guidelines. Scherl v. State, 7 S.W.3d 650, 652 (Tex.App.-Texarkana 1999, pet. ref'd). We have thus previously recognized the need to show, not merely that the test results had been properly preserved or generated, but also that they were produced by the use of proper procedures and methods. In this case, none of those requirements were met.

Here, there is no evidence to show that the sponsoring witness had personal knowledge of how the tests were conducted, or even to clearly show which variation of drug test was used. There is nothing to show whether there were devices used in conducting the tests, or whether they were properly supervised or maintained, whether they were operated by a person who was competent to do so, or whether these were standard tests for the substance.

There is no evidence about the types of machines used to conduct the tests or the methods used by the independent laboratories that conducted the tests. The representatives of the business entities who held the records admitted that they had no knowledge of these matters, and there was no effort made to provide any such information to the court through any other method.

In Philpot, the State introduced a parole file containing laboratory tests, which were sponsored only by the parole officer. In holding the tests inadmissible, the court found that there was no evidence establishing reliability of the tests from the laboratory. Specifically, there was no evidence that the tests were standard tests for this controlled substance. Philpot, 897 S.W.2d at 852. The Dallas court cited this Court's opinion in Strickland, where we held that one predicate for admission of laboratory tests was that the tests were standard tests for a particular substance. In Strickland, the witness, a qualified chemist, testified that standard procedures...