Prater v. Cabinet for Human Resources, Com. of Ky.

• Decision Date: 02 October 1997
• Docket Number: No. 95-SC-413-DG,95-SC-413-DG
• Citation: 954 S.W.2d 954
• Parties: Charles PRATER, Appellant, v. CABINET FOR HUMAN RESOURCES, COMMONWEALTH OF KENTUCKY; Daisy Prater Jayne; C.C.P.; B.L.P.; and C.L.P., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 954

954 S.W.2d 954

Charles PRATER, Appellant, v. CABINET FOR HUMAN RESOURCES, COMMONWEALTH OF KENTUCKY Daisy Prater Jayne; C.C.P.; B.L.P.; and C.L.P. Appellees.

No. 95-SC-413-DG.

Supreme Court of Kentucky.

Oct. 2, 1997.

Stephen A. Sanders, Appalachian Research & Defense Fund of Ky., Inc., Prestonsburg, for Appellant.

W. Kimble Moore, Jr. Cabinet for Human Resources, Terry L. Morrison, Cabinet for Human Resources, Frankfort, Timothy Parker, Prestonsburg, Gordon B. Long, Salyersville, for Appellees.

OPINION

COOPER, Justice.

Appellant and Daisy Prater Jayne are the natural parents of C.C.P., d.o.b. December 3, 1983, B.L.P., d.o.b. December 12, 1984, and C.L.P., d.o.b. April 8, 1986. The children were removed from the custody of Appellant and his wife by the Cabinet for Human Resources (CHR) on October 4, 1986. The Cabinet subsequently filed a petition in the Magoffin Circuit Court for involuntary termination of parental rights. Following an evidentiary hearing held on November 12, 1992, judgment was entered granting the petition for termination and awarding permanent custody to the Cabinet. Appellant appealed to the Court of Appeals, which affirmed the trial court's decision. We granted discretionary review primarily to clarify the application and relationship of two provisions of the Kentucky Rules of Evidence, viz: KRE 803(8), the public records exception to the hearsay rule, and KRE 803(6), the records of regularly conducted activities exception, more often referred to as the business records exception, to the hearsay rule.

The Circuit Court's judgment was predicated upon findings (1) that the children were abused and neglected as defined in KRS 600.020(1), i.e., the parents had failed or refused to provide essential care for the children and there was no reasonable expectation of significant improvement in parental conduct in the foreseeable future; (2) that the termination was in the best interests of the children; and (3) that the Cabinet was the best qualified to receive custody. Appellant raises two preliminary issues which should be addressed before proceeding to the evidence issues.

First, Appellant claims the trial court failed to make independent findings of fact as required by CR 52.01. He bases this allegation on the fact that the trial court adopted the Cabinet's proposed findings of fact without correction or change. The trial court requested both parties to submit proposed findings of fact, which both did. It is not error for the trial court to adopt findings of fact which were merely drafted by someone else. Bingham v. Bingham, Ky., 628 S.W.2d 628 (1982).

Next, Appellant asserts that the Cabinet failed to provide services to Appellant pursuant to its duty as set forth in KRS 625.090(2)(c). The Cabinet's treatment plan provided for a five day initial foster care conference after the children were placed in its care. At this meeting, the various problems which led to the children's removal were discussed. The parents were advised of a plan, but they refused to cooperate or take advantage of the services, which included counseling. Appellant was enrolled in an alcohol treatment program, but was discharged following a determination that he was not cooperating. Appellant then entered and completed a thirty-five day program, but refused to release the results to the Cabinet. He was incarcerated for a substantial period during the time after the children were removed and before the hearing on the petition for termination. Thus, services were offered to the extent possible, but Appellant failed to avail himself of them.

The Cabinet's evidence consisted of its own case report and the testimony of three social workers. Sandra McGuire conducted case conferences with Appellant and his wife but did not come into direct contact with the family until 1990. She qualified the Cabinet's case report on the family as having been prepared in accordance with the requirements of KRE 803(6) and was permitted to introduce the report over Appellant's objection. In addition to factual observations made by social workers assigned to the case, the case report includes hearsay statements made by Daisy Prater Jayne's niece, M.A., accusing Appellant and Daisy of physically and sexually abusing all three children. In addition, the report contains a letter from Lane J. Veltkamp, certified clinical social worker and director of the child abuse clinic at the University of Kentucky Medical Center Hospital, describing his examination of M.A. The record also contains the medical records of Dr. Charles Hardin, who conducted physical examinations of C.C.P., B.L.P. and C.L.P. at the Cabinet's request.

In his report, Veltkamp repeats M.A.'s allegations that Appellant and his wife sexually abused their children. Dr. Hardin's records also repeat M.A.'s allegations with respect to the alleged abuse of each respective child and contain the results of Dr. Hardin's examinations. Although Dr. Hardin's handwritten records are difficult to decipher, Sandra McGuire testified without objection that they contain findings that all three children had rectal infections and that C.C.P. had rectal abrasions. The records also reflect that when questioned as to the cause of half-inch second degree burns to the third and fourth digits of his right hand, C.C.P. responded "mommy burned;" and when questioned about a half-inch by three centimeter abrasion on his face, C.C.P. responded "mommy hit."

Brenda Campbell, the social worker who first interviewed M.A., testified that the Cabinet's report accurately reflects the statements made to her by M.A. Finally, Kathy Plummer, who had been the children's foster care worker for approximately six months before the final hearing, testified to her personal observation of the children's fears of dark rooms, hot baths, other person's hands, and having their diapers changed.

Appellant argues that the CHR case report should have been excluded pursuant to KRE 803(8)(B), which provides that investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party "are not within this exception to the hearsay rule." The Cabinet argues that even if its case report is not admissible under KRE 803(8), the report was properly admitted under KRE 803(6).

Prior to the 1992 adoption of the Kentucky Rules of Evidence, there existed in the common law of Kentucky both a public records exception and a business records exception to the hearsay rule. In addition, there were statutory provisions providing for the admissibility of public records, KRS 422.020 and KRS 422.050, which were repealed concomitantly with the adoption of the new rules. 1990 Ky. Acts ch. 88, § 92; 1992 Ky. Acts ch. 324, § 33. The common law and statutory exceptions for public records were seldom used and only to justify the admissibility of such documents and records as city maps, Hines v. May, 191 Ky. 493, 230 S.W. 924 (1921), income tax returns, Curd v. Commonwealth, 312 Ky. 457, 227 S.W.2d 1003 (1950), deeds, Culton v. Simpson, 277 Ky. 808, 127 S.W.2d 826 (1939), and tax assessment records, Voorhes v. City of Lexington, Ky., 377 S.W.2d 57 (1964). R. Lawson, The Kentucky Evidence Law Handbook, § 8.80, at 284 (2nd ed., Michie, 1984). No cases are found where the pre-code public records exceptions were used to admit investigative reports.

The common law business records exception was well developed and was used to justify the admission of records not only of private businesses, but also of public agencies. Garner v. Commonwealth, Ky., 645 S.W.2d 705 (1983); O.C.E. v. Department for Human Resources, Ky.App., 638 S.W.2d 282 (1982). Specifically, the business records exception was used to allow introduction of records compiled by social workers in proceedings for termination of parental rights, L.K.M. v. Department for Human Resources, Ky.App., 621 S.W.2d 38 (1981), subject to exceptions pertaining to specific entries in those records. Cabinet for Human Resources v. E.S., Ky., 730 S.W.2d 929 (1987); G.E.Y. v. Cabinet for Human Resources, Ky., 701 S.W.2d 713 (1985).

The drafters of the Kentucky Rules of Evidence used the Uniform Rules of Evidence rather than the Federal Rules of Evidence as the model for KRE 803(8). The Kentucky rule is more restrictive than FRE 803(8). For example, FRE 803(8) admits records of the "activities of the office or agency," whereas KRE 803(8) requires that the records be of the agency's "regularly conducted and regularly recorded activities." The Federal rule admits factual findings resulting from investigations made pursuant to authority granted by law in any civil action, but only against the government in a criminal action. KRE 803(8) also admits factual findings resulting from an investigation made pursuant to authority granted by law, but identifies three types of records and reports that "are not within this exception to the hearsay rule":

(A) Investigative reports by police and other law enforcement personnel;

(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and

(C) Factual findings offered by the government in criminal cases.

Thus, while FRE 803(8) is available to admit investigative reports of public agencies in any civil action, KRE 803(8) is available to admit such reports only if the agency is not a party or if the report is offered by another presumably adverse party.

Appellant asserts that since the records and reports described in (A), (B) and (C) above are not within the public records exception to the hearsay rule, such records and reports are never admissible, even if they satisfy the requirements of some other exception to the hearsay rule. Thus, CHR case records could never be used in an action for termination of parental rights. However, Appellant's interpretation overlooks the fact that KRE 803(8) does not purport to exclude these types...