Byrd v. Hunt Tool Shipyards Inc

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IN THE SUPREME COURT

STATE OF NORTH DAKOTA

Interest of B.B.

CARMELL MATTISON Grand Forks County Assistant States Attorney Plaintiff/Appellee v. B.B., B.J.F., Respondents and S.L.B., Respondent and Appellant

Supreme Court No. 20060322 Grand Forks Co. No. 06-R-327


Appellants Brief

Daniel J. Borgen (#06007) Borgen Law Office 300 North 5th Street, Suite 4 Grand Forks, ND 58203 Phone: (701) 775-8891 Fax: (701) 775-8896 Attorney for Defendant


TABLE OF CONTENTS:

Table of Authorities..2 Questions Presented...3 Standard of Review...3 Facts....4 Law and Argument...6 Conclusion..12 Appendix....14


TABLE OF AUTHORITIES:

Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44. E.E.E. Inc. v. Hanson, 318 N.W.2d 101 (N.D. 1982). Fed.R.Ev.803(6). Hogan v. Hogan, 2003 ND 105, 665 N.W.2d 672. In Interest of Kupperion, 331 N.W.2d 22 (N.D. 1982). In Interest of P.W.N., 301 N.W.2d 636 (1981). In re Adoption of S.R.F., 2004 ND 150, 683 N.W.2d 913. In re R.O., 2001 ND 137, 631 N.W.2d 159. In re T.T., 2004 ND 138, 681 N.W.2d 789. Kent v. United States, 383 U.S. 541 (1966). McKeiver v. Pennsylvania, 403 U.S. 528 (1971). N.D.C.C. º 27-20. N.D.R.Civ.P. 52. N.D.R.Ev.803(6). Roviaro v. U.S., 353 U.S. 53 (1957). Satterwhite v. Texas, 486 U.S. 249 (1988). Slope County, etc. v. Consolidation Coal Co., 331 N.W.2d 124 (N.D. 1979). Smith v. Daily Mail Pub. Co., 443 U.S. 97 (1979). Transcript of Deprivation Hearing.


QUESTIONS PRESENTED:

1. Did the trial court err in admitting Social Services assessment records as a "business records" exception to the hearsay rule, when the source of the information's trustworthiness cannot be verified?

2. Did the trial court violate S.B.'s 6th amendment constitutional right to confront and cross-examine Mr. K?

3. Did the trial court violate S.B.'s 6th amendment constitutional right to confront and cross-examine adverse witness(es) when it refused to compel Social Services to disclose the source(s) of the information contained in it report(s)?

4. Did the trial court make "clearly erroneous" findings of fact in deciding B.B. was a deprived child? To wit, did the court err in failing to address which reports, out of a potential 18, it found probative; failing to note that in several instances it was unknown whether Respondents had in fact followed through with recommended services; failing to note the lapse of time between which the allegations of deprivation occurred and the deprivation petition being filed; and failing to discern which reports would not be relied on, because of recantations by parties relied on by Social Services in making their reports?

STANDARD OF REVIEW:

The North Dakota Supreme Court reviews questions of fact in juvenile deprivation appeals under the "clearly erroneous" standard of review. Questions of law are fully reviewable.

FACTS:

( 1) The Order of Disposition found that S.B. was a deprived child because of "repeated domestic violence, substance abuse issues and failure to follow through with appropriate rehabilitative treatment/counseling regimens by both Respondents . . ." Appendix at 13-14. At the Dispositional hearing, the court heard testimony from a Social Services employee, Ms. Koop, who helped prepare and review the reports prior to the Adjudication and Dispositional hearings. Transcript of Deprivation Hearing at 27. The court heard testimony from Ms. Koop that in making reports, Social Services relies on "collateral contacts," who are persons who make reports concerning the welfare of the children. Transcript of Deprivation Hearing at 30. One of the primary collateral contacts in this case was Mr. K, B.B.'s grandfather. Transcript of Deprivation Hearing at 33. Ms. Koop testified that Mr. K's veracity or motive in making his reports was never investigated because he was the children's maternal grandfather. Transcript of Deprivation hearing at 34-35. It was brought to Ms. Koop's attention on cross-examination that Mr. K has a criminal history of fraud and potentially had ulterior motives in making his reports to Social Services. Transcript of Deprivation Hearing at 36.

( 2) Ms. Pettit objected to the use of Mr. K's reports because his reports were such a substantial factor in the reports of Social Services, and yet he was unavailable for confrontation and cross-examination. Transcript of Deprivation Hearing at 37. See Transcript of Dispositional Hearing at 75 (noting Ms. Koop testified that generally investigation into the status of children is not investigated unless there is a complaint). Ms. Pettit objected to the admission of Mr. K's reports, arguing it was "hearsay within hearsay." Transcript of Deprivation Hearing at 37. Ms. Pettit's rationale was that Mr. K's records were hearsay (out-of court statement offered to prove that B.B. was a deprived child), and, subsequently, because the Social Services worker who prepared the actual report(s) was not Ms. Koop, the reports themselves were hearsay. Id. The court overruled Ms. Pettit's objection, apparently on the basis of the "business records" exception to the hearsay rule. Id.

(3) The court heard through cross-examination of Dan Heibreder, S.B.'s probation officer, that two primary reasons were proffered for determining S.B. was not upholding his parental responsibilities: a charge of violating a no-contact order in December, 2005, and an amphetamine positive urinary analysis test in March, 2006. Transcript of Deprivation Hearing at 14-15; 21. Mr. Heibreder testified under cross-examination that the no-contact order relied upon by the state in bringing the deprivation petition was specifically not proven. Transcript of Deprivation Hearing at 20. Mr. Heibreder testified under cross-examination that despite a battery of urinalysis tests being run in March 2006, he could not testify that there was more than one positive test. Transcript of Deprivation Hearing at 20.

( 4) Ms. Koop testified under cross examination that after B.B. was placed under supervision of foster care she was unaware whether the services recommended had been complied with by Respondents. Transcript of Deprivation Hearing at 65. She also testified that Social Services had had no contact with any of the allegedly deprived children since March, 2006. Transcript of Deprivation Hearing at 67. Ms. Koop testified that she was unable to say for certain whether the children were reporting new incidents of alleged deprivation or were simply recounting old allegations. Transcript of Deprivation Hearing at 73-75. Ms. Koop testified that no one was able to verify B.B.'s elder sisters' allegations of sexual misconduct. Transcript of Deprivation Hearing at 76-79. Finally, Ms. Koop testified that B.B. himself had fabricated or recanted his reports to Social Services over the years. Transcript of Deprivation Hearing at 79.

LAW AND ARGUMENT:

Standard of Review

( 5) Juvenile court proceedings in North Dakota are governed by N.D.C.C. º 27-20. N.D.C.C. º 27-20 (codifying North Dakota's version of the Uniform Juvenile Court Act). In order to find a child is deprived within the meaning of the statute, the trial court must find evidence of deprivation by "clear and convincing" evidence. In re T.T., 2004 ND 138, 5, 681 N.W.2d 789, 781. The standard of review on appeal from a juvenile court decision is not explicitly defined by the statute. Rather, the statute directs the appellate body to give "appreciable weight" to the findings of the juvenile court. N.D.C.C. º 27-20-27(1).

(6) The common law rule is that findings of fact will not be set aside on appeal unless "clearly erroneous." In re Adoption of S.R.F., 2004 ND 150, 7, 683 N.W.2d 913, 916 (citing N.D.R.Civ.P. 52(a)). A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, the court is left with a definite and firm conviction a mistake has been made. Id. (citing Hogan v. Hogan, 2003 ND 105, 6, 665 N.W.2d 672, 674.

( 7) In cases tried without a jury, under the "clearly erroneous" standard of N.D.R.Civ.P. 52, there is a legal distinction between findings of fact and conclusions of law. In Interest of Kupperion, 331 N.W.2d 22, 26-27 (N.D. 1982). Findings of fact are "realities as disclosed by the evidence as distinguished from their legal effect or consequences." Id. (citing Slope County, etc. v. Consolidation Coal Co., 331 N.W.2d 124, 127 (N.D. 1979). Conclusions of law, then, are the underlying legal framework of findings of fact; they can only be arrived at by applying rules of law. In Interest of Kupperion, 331 N.W.2d at 27. Conclusions of law are not fortified by the "clearly erroneous" standard of N.D.R.Civ.P. 52, and are fully reviewable on appeal. In Interest of Kupperion, 331 N.W.2d at 27 (citing E.E.E. Inc. v. Hanson, 318 N.W.2d 101, 104, n. 3 (N.D. 1982).

I.) The trial court erred in admitting Mr. K's reports under the "business records" exception to the rule against hearsay.

( 8) The trial court made a mistake of law in admitting Mr. K's reports under the "business records" exception. The "business records" exception to the hearsay rule is N.D.R.Ev. 803(6). The exception allows hearsay to be introduced, despite the availability of an affiant who is not present, if the material is collected in the course of ordinary business, and in the manner normally used by the business in collecting the record. N.D.R.Ev. 803(6). The exception does not contemplate, however, the use of such a record if "the source of information or the method or circumstances of preparation indicate lack of trustworthiness." N.D.R.Ev. 803(6). The general rule is that in order to present hearsay evidence under 803(6) the proponent must provide some circumstantial guarantees of trustworthiness. Byrd v. Hunt Tool Shipyards, Inc., 650 F.2d 44, 46 (citing Fed.R.Ev. 803(6)).

( 9) In this case, the frequency and apparent detail of Mr. Knutson's complaints to Social Services about the living conditions of his grandchildren warranted some investigation by Social Services into his veracity and motive. See Transcript of Deprivation Hearing at 33 (noting Ms. Koop noted Mr. K contacted her "frequently" throughout the assessment process). The transcript of the deprivation hearing reveals no indication that the trustworthiness of Mr. K was ever investigated by Social Services prior to the preparation of the deprivation petition. Since not even circumstantial showings of Mr. K's trustworthiness were shown, it was error to allow any records based upon Mr. K's reports in under N.D.R.Ev. 803(6). The district court made a mistake of law in overruling Ms. Pettit's objection to "hearsay within hearsay" under the "business records" exception.

II.) The trial court violated S.B.'s 6th amendment constitutional rights to confront and cross-examine of Mr. K.

( 10) The district court violated S.B.'s 6th amendment constitutional right to confront and cross-examine Mr. K. Codified as a basic right in North Dakota juvenile court proceedings is the ability to cross examine adverse witnesses. N.D.C.C. º 27-20-27(1). The North Dakota Supreme Court has never ruled on whether the statutory right to cross-examine adverse witnesses causes the 6th amendment confrontation clause to attach in the context of a juvenile deprivation hearing. See In re T.T., 2004 ND 138, 18-20, 681 N.W.2d 789, 784 (noting the court neglected to hold on whether the constitutional right attaches because the petitioner failed to provide relevant citation or reasoning). The nature of juvenile deprivation proceedings is quasi-punitive in nature; the state is terminating parental rights because the child is adjudicated deprived. Therefore, the 6th amendment right to confrontation should apply in the deprivation context. See McKeiver v. Pennsylvania, 403 U.S. 528, 533 (1971) (holding that while juvenile hearings need not conform identically to ordinary criminal trials, some of the basic constitutional rights, including the right to confrontation, are applicable in juvenile proceedings). Constitutional rights trump the state interest in protecting its juvenile citizens. See Smith v. Daily Mail Pub. Co., 443 U.S. 97, 104 (1979) (holding State's policy of protecting juveniles' anonymity was subordinate to the 6th amendment right to confrontation). It is the common law rule that in a juvenile proceeding the presiding Judge must maintain the integrity of due process and fair treatment of all parties involved, indicating that other constitutional rights also attach. In Interest of P.W.N., 301 N.W.2d 636, 639 (1981) (citing Kent v. United States, 383 U.S. 541, 562 (1966)).

( 11) S.B. had a constitutional right to confront and cross-examine Mr. K, and the failure to justify the absence of such a material witness is reversible error. See Satterwhite v. Texas, 486 U.S. 249, 256-57 (1988) (holding that reversible constitutional error is found where the constitutional error pervades entire trial process, and the court is unable to segregate the impact of the error from the final result). In this case, the admission of Mr. K's hearsay reports pervaded the entire hearing because they lent apparent outside legitimacy to the reports of Social Services. A reading of the entire record reveals that it is impossible to discern the precise impact of the state's reliance on the reports of Mr. K in proving deprivation. S.B. argued that the 6th amendment right to confrontation applied during the hearing, and therefore he is not precluded from raising the issue on appeal. In re R.O., 2001 ND 137, 10, 631 N.W.2d 159, 165. Accordingly, the admission of Mr. K's records, without affording S.B. his 6th amendment right to confront and cross-examine him, constitutes reversible error.

III.) The trial violated S.B.'s 6th amendment constitutional right to confront and cross-examine adverse witnesses by refusing to disclose the source(s) of adverse information contained in Social Services' reports.

( 12) The trial court violated S.B.'s 6th amendment right to confront adverse witnesses when it refused to disclose who(m) had provided Social Services with information about the children and the household. See Transcript of Deprivation Hearing at 34 (noting the trial Judge refused to disclose the identit(ies) of adverse informers). The rule regarding disclosure of informers is that a privilege of non-disclosure applies unless and until the underlying purpose of non-disclosure is defeated. See Roviaro v. U.S., 353 U.S. 53, 59-60 (1957) (noting that was a criminal proceeding). In the context of a deprivation hearing the underlying purpose is the state's interest in determining whether children are deprived. There is no rational reason to keep identities of informers a secret in this context. The non-disclosure of such informers violated S.B.'s 6th amendment constitutional right to confront adverse witnesses, as well as undercutting due process truth-seeking. The trial court's failure to compel disclosure of these informer(s) constituted reversible constitutional error.

IV.) The trial court made clearly erroneous findings of fact.

( 13) The trial court made "clearly erroneous" findings of fact. These findings of fact constituted a mistake of law because taken together they do not support the trial court's conclusion that deprivation of B.B. was proven by "clear and convincing" evidence. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, the court is left with a definite and firm conviction a mistake has been made. In re Adoption of S.R.F., 2004 ND 150, 7, 683 N.W.2d 913, 916.

( 14) The court heard testimony from S.B.'s probation officer tending to show that the two primary reasons offered to show S.B.'s neglect of parental duties were in fact very tenuous. The allegation of violating a no-contact order was specifically not proven in a separate criminal proceeding. Transcript of Deprivation Hearing at 14-15. The failed urinary analysis test was an aberration in a history of clean tests. Transcript of Deprivation Hearing at 21.

( 15) The court heard testimony tending to show that in many instances of alleged neglect, Social Services was in fact unaware whether Respondents had followed through with their recommendations. Transcript of Deprivation Hearing at 65. The court heard testimony tending to show that the allegedly deprived children, perhaps as a result of their lifelong involvement with government services, fabricated and recanted many of their reports. Transcript of Deprivation Hearing at 79. The court heard testimony that many of the alleged incidents of deprivation occurred years ago. Transcript of Deprivation Hearing at 73-79. Nevertheless, the court made general and cursory findings in its Order of Disposition that the children were deprived. Appendix at 13-14.

( 16) "Clearly erroneous" findings of fact can occur merely when, on the entire record, the court is left with a definite and firm conviction a mistake has been made. The record in this case reveals a consistent failure by the state to connect specific incidents of misconduct by the Respondents to negative impacts on the children. Instead, the record reveals an attempt to show deprivation by a general amalgamation of negative inferences. The findings did not show deprivation by "clear and convincing" evidence, and should be found "clearly erroneous" by this court.

CONCLUSION:

( 17) The trial court erred in finding B.B. was a deprived child. First, the trial court erred in holding that records of reports made by Mr. K were admissible under the "business records" exception of N.D.R.Ev.803(6). No circumstantial indications of the trustworthiness of the reports were ever made, and accordingly it was error to admit any records containing reports of Mr. K under the exception. Next, the trial court violated S.B.'s 6th amendment constitutional right to confront Mr. K and other adverse witnesses. The constitutional right to confront and cross-examine adverse witnesses attaches in North Dakota juvenile deprivation proceedings. The denial of this constitutional right by the trial judge constituted reversible error. Finally, the trial Judge made "clearly erroneous" findings of fact. A reading of the entire record reflects an attempt to show deprivation by implication, rather than concrete testimony and evidence. This falls short of showing deprivation by the required "clear and convincing" evidence. Accordingly, for the foregoing reasons, S.B. prays this court reverse the Order of Disposition.

Dated this ___ day February, 2007.

_ Daniel J. Borgen N.D. Bar I.D. (#06007) Borgen Law Office 300 North 5th Street, Suite 4 Grand Forks, ND 58203 Phone: (701) 775-8891 Fax: (701) 775-8896 Attorney for Defendant


sources: http://www.court.state.nd.us/court/briefs/20060322.atb.htm

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