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In the Interest of E.A.K. - 192 S.W.3d 133 (Tex. App. 2006)

Rule:

Tex. R. Evid. 803(6), the business records exception, provides that evidence meeting the following criteria should not be excluded under the hearsay rule: 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 affidavit that complies with Tex. R. Evid. 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not. Thus, the foundation for the business records exception has four requirements: (1) the records were made and kept in the course of a regularly conducted business activity, (2) it was the regular practice of the business activity to make the records, (3) the records were made at or near the time of the event that they record, and (4) the records were made by a person with knowledge who was acting in the regular course of business. 

Facts:

The Department of Family and Protective Services  (DFPS) sought to terminate the parental rights of both Mustofa and Stacey in regards to their child,  E.A.K., because of sexual assault allegations against Mustofa involving Stacey's nine-year-old daughter. However, DFPS did not introduce the allegations through the victim's live or videotaped testimony or even through the live testimony of anyone to whom the victim made an outcry statement. Instead, DFPS offered several documents purportedly memorializing the victim's outcry statements and contained in the DFPS case file, which was admitted over hearsay objections. The trial court entered an order terminating the parental rights. The parents appealed, arguing that the trial court erred in admitting certain documents over his hearsay objections.

Issue:

Did the trial court err in admitting certain documents over his hearsay objections?

Answer:

Yes

Conclusion:

The court reversed the trial court's judgment and remanded the case for further proceedings. The court found that documents relating to the purported touching were erroneously admitted, including the written statements by the mother and neighbor, a child abuse protocol from a physical examination, and an arrest warrant with an affidavit containing hearsay reports of the purported assault. Those documents were not admissible under the business-records or public-records exceptions of Tex. R. Evid. 803 because petitioner, the Department of Family and Protective Services, failed to lay a proper predicate. Further, there were not sufficient indicia of reliability to support admission under Tex. Fam. Code Ann. § 104.006 of the daughter's statements to a caseworker. The error was harmful under Tex. R. App. P. 44.1, even though there was other evidence of the allegations that could properly be considered, because the erroneously-admitted evidence was more detailed, focused, and closer to the source. The allegations of abuse were legally sufficient to justify the termination.

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