Attorneys for Appellants Attorney for Appellee
Richard L. Williams Stephen P. Griebel
Fort Wayne, Indiana Van Gilder & Trzynka, P.C.
Attorney for Mother, Caroline Taylor Fort Wayne, Indiana
Robert J. Bishop
Fort Wayne, Indiana
Attorney for Father, Leroy Taylor
Indiana Supreme Court
In Re: The Matter Of The Termination
Of The Parent-Child Relationship Of
E.T. and B.T.
Appeal from the Allen Superior Court,
The Honorable Charles Pratt, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 02A03-0209-JV-294
May 20, 2004
We conclude that reports compiled by a social services agency describing home visits
and supervised visitations do not qualify as business records and thus are not
admissible as an exception to the hearsay rule.
The Allen County Office of Family and Children (OFC) removed E.T. and B.T.
from their parents care in August 1999 after the children were found wandering
from their home for the second time in a month. After unsuccessfully
working with the parents toward reunification, OFC filed a petition for involuntary termination
of parental rights in late 2000 or early 2001.
The trial courts original dispositional decree required parents to enroll in a program
offered by SCAN, Inc. Although not included in the record before us,
the public record shows that SCAN, Inc. is a non-profit corporation whose mission
is to prevent child abuse and neglect through direct service, education, coordination and
advocacy. See http://www.scanfw.org/ whoweare.html. To accomplish its mission SCAN, Inc. offers
a variety of services, which it identifies as: Prevention Through Education (PTE); Parenting
Classes; Specialty Parenting Classes; Intensive Intervention Team (IIT); Parents and Partners; Supervised Visitation;
and Healthy Families. See http://www.scanfw.org/page/historyprogramlisting.html.
The specific program to which parents were directed to enroll was SCAN, Inc.s
Parents and Partners program. Among other things the program included home visits
and supervised visitation. At the termination hearing, over the parents objection, reports
from these supervised visits were introduced into evidence. The trial court ultimately
inated the parents parental rights. On review a divided panel of the
Court of Appeals affirmed, determining (1) the reports of SCAN, Inc. were admissible
under the business records exception to the hearsay rule, (2) admission of the
reports did not violate the parents rights under the Confrontation Clause of the
United States Constitution, and (3) any error in admitting the reports was harmless.
In re E.T., 787 N.E.2d 483, 486-87 (Ind. Ct. App. 2003).
In their Petition To Transfer the parents do not challenge the Court of
Appeals harmless error determination. Therefore on this issue we summarily affirm the
Court of Appeals opinion. However we grant transfer and hold that the
reports at issue in this case do not qualify as business records within
the meaning of the business records exception to the hearsay rule.
Every second-year law student and perhaps first-year law student as well, depending on
the law school curriculum, can recite the general definition of hearsay: an out
of court assertion offered in court to prove the truth of the matter
asserted. Also well known is the corollary that absent an exception to
the rule, hearsay is inadmissible as evidence. Not so universally recited or
well known are the numerous exceptions to the rule. Indeed precisely because
of its numerous exceptions, some scholars have argued in favor of abolishing the
rule altogether. See, e.g., Paul S. Milich, Hearsay Antinomies: The Case for
Abolishing the Rule and Starting Over, 71 Or. L. Rev. 723 (1992); Eleanor
Swift, Abolishing the Hearsay Rule, 75 Cal. L. Rev. 495 (1987). In
any event, the exceptions to the rule have been generally based upon some
combination of the unavailability of the declarant, the reliability of the declaration, or
the presumed inefficiency of any possible cross-examination. See generally 5 John Henry
Wigmore, Evidence §§ 1420-27 (Chadbourn rev. 1974); 2 John W. Strong, McCormick on
Evidence § 253 (5th ed. 1999).
An outgrowth of the English common law shop book rule, the business records
exception is one of the oldest exceptions to the rule against the admissibility
of hearsay. In England, the custom emerged of courts receiving the shop
books of businessmen as evidence of goods sold or services rendered. The
purpose was to circumvent the prohibition against a party appearing as its own
witness. By 1832, the shop book rule was firmly grounded in English
common law, and its scope included all entries made in the ordinary course
McCormick on Evidence § 285.
Today, either by statute, court rule, or both, every American jurisdiction has adopted
rules governing the admission of business records.
See 5 Wigmore, Evidence §
1561a, at n.6 (Supp. 1991). Like Indiana, most state business records exceptions
closely track Rule 803(6) of the Federal Rules of Evidence.
F. Binder, Hearsay Handbook § 16:2 (4th ed. 2001). Indianas rule provides:
The following are not excluded by the hearsay rule, even though the declarant
is available as a witness. . . . 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
the information or the method or circumstances of preparation indicate a lack of
trustworthiness. The term business as used in this Rule includes business, institution,
association, profession, occupation, and calling of every kind, whether or not conducted for
Ind. Evidence Rule 803(6). Prior to the 1994 codification of Rule 803(6),
Indiana common law provided in general terms that in order to come within
the business records exception to the hearsay rule the following requirements had to
be met: (1) the records offered must have been the original entries; (2)
the records must have been made in the regular course of business at
or near the time of the event recorded; (3) the facts must have
been within the first-hand knowledge of someone whose business duty it was to
observe and report the facts; and (4) the witness who had knowledge of
the facts must be unavailable.
Smith v. State, 455 N.E.2d 606, 607
(Ind. 1983); Wells v. State, 254 Ind. 608, 261 N.E.2d 865, 870 (1970).
With few exceptions, Evidence Rule 803(6) is generally consistent with longstanding Indiana
precedent on the admissibility of business records.
Like the common law shop book rule, the business records exception to the
hearsay rule is based on the fact that the circumstances of preparation assure
the accuracy and reliability of the entries.
Wells, 261 N.E.2d at 870.
As we have observed more recently, the reliability of business records stems
in part from the fact that the organization depends on them to operate,
from the sense that they are subject to review, audit, or internal checks,
[and] from the precision engendered by the repetition . . . .
Stahl v. State, 686 N.E.2d 89, 92 (Ind. 1997); see also Advisory Committees
Note to Fed. R. of Evid. 803(6) (observing that 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 an accurate record as part of a continuing job or occupation).
In essence, the basis for the business records exception is that reliability is
assured because the maker of the record relies on the record in the
ordinary course of business activities. The regular course of business must find
its meaning in the inherent nature of the business in question and in
the methods systematically employed for the conduct of the business as a business.
Palmer v. Hoffman, 318 U.S. 109, 115 (1943). Thus where a
company does not rely upon certain records for the performance of its functions
those records are not business records within the meaning of the exception to
the hearsay rule. See, e.g., id. at 114 (noting that accident reports
prepared by railroad were not business records because they were not prepared for
the systematic conduct of the enterprise as a railroad business; rather, [t]heir primary
utility is in litigating, not in railroading). It is not enough to
qualify under the business records exception to show that the records are made
regularly; rather, the court must also look to the character of the records
and their earmarks of reliability acquired from their source and origin and the
nature of their compilation. Id. (citation omitted).
Discussion and Decision
The States exhibits 20 and 21 are reports of home visits and supervised
visitations. The State offered them into evidence during the testimony of Karen
Emery, the supervisor of SCAN, Inc.s Parents and Partners Program. According to
Emery, the reports were compiled by staff members based upon their first-hand observations
and were made in the regular course of business.
We first observe that not all of the information contained in the reports
was the result of first-hand observations. Rather, the reports also contain third-party
statements concerning events not observed by the SCAN, Inc. staff members that compiled
the reports. For instance, The receptionist stated that [Father] was in the
waiting area and stated he didnt have to sit in these f---in
chairs and stated he was in prison. The receptionist stated [Father] was
loud and angry while mumbling to himself. Ex. 21. 3/7/02. The
foster parent reported . . . that since [E.T.] heard his father state
on a previous visit that he did not wipe himself after [going to
the bathroom] that they are having problems with [E.T] wiping himself. Ex.
21. 10/11/01. It was reported from the aunt that she offered the
client 2 love seats and [Father] refused them. Ex. 21. 10/4/01.
We have no doubt that the SCAN, Inc. staff members compiling the reports
had a duty to do so and did so on a regular basis.
However that does not automatically transform the reports into business records within
the meaning of the exception to the hearsay rule. As one court
[T]he mere fact that the recording of third-party statements by the caseworker might
be routine, imports no guarantee of the truth, or even reliability, of those
statements. To construe these statements as admissible simply because the caseworker is
under a business duty to record would be to open the floodgates for
the introduction of random, irresponsible material beyond the reach of the usual tests
for accuracycross-examination and impeachment of the declarant.
Matter of Leon R.R.,
48 N.Y.2d 117, 123
N.Y. 1979) (termination of parental
rights proceeding in which court held portions of childs case file inadmissible because
of third-party statements); accord Matter of Huitt, 571 P.2d 571, 573 (Or. Ct.
App. 1977) (holding Childrens Services Division case file inadmissible under business records exception
except those portions the official making the entry had personal knowledge of).
Just as important, the reports also contain conclusory lay opinions. Examples include: [Father]
appears to undermine all efforts of [Mother] to gain control of the children.
Ex. 20. 8/3/01. [The Taylors] remain inconsistent in dealing with the
children and appear unwilling to take suggestions from the FSC. Ex. 20.
1/4/02. These supervised visit reports include a section for Observations and another
for Impressions. Entries under the section for Impressions include: The FSC feels
the clients love their children but is concerned that they may not be
able to care for them on a long term basis. Ex. 21.
3/14/01. FSC felt as though the parents had a very difficult time
redirecting the children and keeping them under control. Ex. 21. 11/15/01.
Although Rule 803(6) accommodates the inclusion of opinions in business records our courts
have long recognized, at least in the context of medical or hospital records,
that the expertise of the opinion giver must be established. See Fendley
v. Ford, 458 N.E.2d 1167, 1171 n.3 (Ind. Ct. App. 1984) (Expressions of
opinion within medical or hospital records historically have not been admissible under the
business records exception because their accuracy cannot be evaluated without the safeguard of
cross-examination of the person offering the opinion.); accord Brooks v. Friedman, 769 N.E.2d
696, 701 (Ind. Ct. App. 2002), trans. denied; Schaefer v. State, 750 N.E.2d
787, 793 (Ind. Ct. App. 2001); Schloot v. Guinevere Real Estate Corp., 697
N.E.2d 1273, 1277 (Ind. Ct. App. 1998). We believe no less is
required when the decision of the trial court to terminate one of the
most valued relationships in our culture, Neal v. Dekalb County Div. of
Family & Children, 796 N.E.2d 280, 285 (Ind. 2003), could very well rest
on the opinion of a person who has never been placed under oath
and whose expertise and opinion have never been subjected to the crucible of
Further, it does not appear to us that SCAN, Inc. depends on the
reports to operate its business. Rather, forwarded to OFC by SCAN, Inc.
on a monthly basis, the reports appear to be compiled for the sole
benefit of OFC. In fact the only clients of SCAN, Inc.s Parents
and Partners program are those referred by OFC. It may be the
case that the records serve to advance SCAN, Inc.s mission to prevent child
abuse and neglect. However nothing in the record supports the view that
these reports are prepared for the systematic conduct of SCAN, Inc. as a
non-profit corporation. In fact, a survey of Indiana cases reveals that nothing
similar to the reports of SCAN, Inc. has ever been included by our
courts within the business records exception.
Unlike financial statements, inventory records, or
other administrative or operational documents traditionally allowed under the business records exception, the
SCAN, Inc. reports appear to be substantive end products of a service offered
by SCAN, Inc. solely for an external government agency, to become the permanent
property of that agency. In sum, the reports did not qualify as
business records. They were inadmissible as hearsay and should not have been
introduced over the parents timely objection. The trial court thus erred by
allowing the reports into evidence.
However, not all trial court error is reversible. See Ind. Trial Rule
The improper admission of evidence is harmless error when the judgment
is supported by substantial independent evidence to satisfy the reviewing court that there
is no substantial likelihood that the questioned evidence contributed to the judgment.
v. L.D.S. , 654 N.E.2d 1170, 1173 (Ind. Ct. App. 1995).
of Appeals in this case determined that the evidence to support the termination
of the parents parental rights was sufficient even absent the questioned documents.
The parents make no claim to the contrary. Therefore, on this point
we summarily affirm the Court of Appeals.
Except as otherwise provided, we vacate the opinion of the Court of Appeals
and affirm the judgment of the trial court.
Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., not participating.
The federal rule provides:
The following are not excluded by the hearsay rule, even though the declarant
is available as a witness:
. . . .
(6) Records of Regularly Conducted Activity. 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, or by certification that complies with Rule
902(11), Rule 902(12), or a statute permitting certification, 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
For example, there is no longer an original record requirement; nor is
there a requirement that the witness be unavailable. In addition, unlike the
common law rule, Evidence Rule 803(6) permits the use of an affidavit in
laying the foundation for business records.
This view is also consistent with that of other jurisdictions. See,
Prater v. Cabinet for Human Res.
, 954 S.W.2d 954, 958
parental rights termination proceeding in which court held that
recorded opinions and conclusions
of social workers are not admissible, because the persons offering those opinions are
insufficiently qualified to render expert opinions);
In re Child of Simon
Minn. Ct. App. 2003)
(in parental rights termination proceeding, court held
that a business record containing an opinion on an ultimate issue is admissible
only if the witness offering the opinion is available [for] cross-examination);
re Wildoner ,
407 A.2d 1351, 1354 (Pa. Super. Ct. 1979) (finding in parental
rights termination proceeding
nothing inherently reliable in reports on the condition of a
persons household prepared by a social agency [because such] reports invariably contain certain
subjective evaluations of the person preparing the report and, as such, should not
be admitted into evidence [without] cross-examination
Cases from the Indiana Supreme Court and Court of Appeals reveal that
evidence held as admissible include: arrest records and arrest reports, including fingerprint cards
(Boarman v. State, 509 N.E.2d 177 (Ind. 1987); Lyons v. State, 506 N.E.2d
813 (Ind. 1987); Prentice v. State, 474 N.E.2d 496 (Ind. 1985); Landers v.
State, 464 N.E.2d 912 (Ind. 1984); McBrady v. State, 459 N.E.2d 719 (Ind.
1984); Belcher v. State, 453 N.E.2d 214 (Ind. 1983); Pitts v. State, 439
N.E.2d 1140 (Ind. 1982); Underhill v. State, 428 N.E.2d 759 (Ind. 1981); Jennings
v. State, 723 N.E.2d 970 (Ind. Ct. App. 2000); Payne v. State, 658
N.E.2d 635 (Ind. Ct. App. 1995); Knuckles v. State, 549 N.E.2d 85 (Ind.
Ct. App. 1990)); ATM photos and audit sheets (Stark v. State, 489 N.E.2d
43 (Ind. 1986)); autopsy reports (Thompson v. State, 270 Ind. 442, 386 N.E.2d
682 (1979)); blood alcohol test results (Reeves v. Boyd & Sons, 654 N.E.2d
864 (Ind. Ct. App. 1995)); blood and DNA test results (Fowler v. Napier,
663 N.E.2d 1197 (Ind. Ct. App. 1996); Humbert v. Smith, 655 N.E.2d 602
(Ind. Ct. App. 1995); Burp v. State, 612 N.E.2d 169 (Ind. Ct. App.
1993)); certifications of mailing (Collins v. State, 567 N.E.2d 798 (Ind. 1991)); check
vouchers and deposit slips (McDonough v. State, 242 Ind. 376, 175 N.E.2d 418
(1961); Cobb v. State, 585 N.E.2d 40 (Ind. Ct. App. 1992)); commitment orders
(Funk v. State, 427 N.E.2d 1081 (Ind. 1981)); financial statements (Williams v. Hittle,
629 N.E.2d 944 (Ind. Ct. App. 1994)); insurance policies (Willoughby v. State, 660
N.E.2d 570 (Ind. 1996)); inventory records (Schneider v. State, 220 Ind. 28, 40
N.E.2d 322 (1942)); job logs tracking performance (Brant Constr. Co. v. Lumen Constr.,
515 N.E.2d 868 (Ind. Ct. App. 1987)); log sheets of police evidence (Perry
v. State, 541 N.E.2d 913 (Ind. 1989); Reynolds/Herr v. State, 582 N.E.2d 833
(Ind. Ct. App. 1991)); marriage licenses (Smith v. State, 455 N.E.2d 346 (Ind.
1983)); medical reports (Brooks v. Friedman, 769 N.E.2d 696 (Ind. Ct. App. 2002);
Nash v. State, 754 N.E.2d 1021 (Ind. Ct. App. 2001); Schaefer v. State,
750 N.E.2d 787 (Ind. Ct. App. 2001); Schloot v. Guinevere Real Estate Corp.,
697 N.E.2d 1273 (Ind. Ct. App. 1998); Carmichael v. Kroger Co., 654 N.E.2d
1188 (Ind. Ct. App. 1995)); motel reservation entries (Smith v. State, 455 N.E.2d
606 (Ind. 1983)); motor vehicle registrations and driving records (Allen v. State, 439
N.E.2d 615 (Ind. 1982); Dumes v. State, 718 N.E.2d 1171 (Ind. Ct. App.
1999); Ruby v. State, 549 N.E.2d 379 (Ind. Ct. App. 1990); Chambers v.
State, 547 N.E.2d 301 (Ind. Ct. App. 1989)); pawn tickets (Darnell v. State,
435 N.E.2d 250 (Ind. 1982)); police technicians reports on blood type (Clark v.
State, 436 N.E.2d 779 (Ind. 1982)); prison conduct records (Games v. State, 743
N.E.2d 1132 (Ind. 2001)); records of telephone calls (Brandon v. State, 272 Ind.
92, 396 N.E.2d 365 (1979); Floyd v. Jay County Rural Elec. Membership Corp.,
405 N.E.2d 630 (Ind. Ct. App. 1980)); school attendance records (J.L. v. State,
789 N.E.2d 961 (Ind. Ct. App. 2003); L.H. v. State, 682 N.E.2d 795
(Ind. Ct. App. 1997)); security agreements (Greco v. KMA Auto Exch., Inc., 765
N.E.2d 140 (Ind. Ct. App. 2002)); time cards (Wiseman v. State, 521 N.E.2d
942 (Ind. 1988)); working papers of audits (Brane v. Roth, 590 N.E.2d 587
(Ind. Ct. App. 1992)).