Jennifer Crissman, Attorney, Woodruff Family Law Group
In this part of our continuing practical series, we will address the issues family law attorneys face when trying to admit DSS records and social worker’s testimony into evidence in Guilford and surrounding counties. Matter of Smith is a particularly useful case for when the child has made statements to one social worker, but that worker is not available to testify on the day of the hearing. As most attorneys who have needed a social worker’s testimony can attest, these are very busy people with important jobs. It is hard to get a social worker in court as they are usually dashing from one case to the next. Also, the social worker who initially receives the case may not keep the case in the long run. This is where the holdings of Smith can be applied.
The case of Matter of Smith is a termination of parental rights case. Matter of Smith, 287 S.E.2d 440, 56 N.C. App. 142 (1970). The children in Smith were removed from the mother’s care due to neglect and were placed in foster care system nearly ten years before the petition for termination of parental rights being filed. Within that almost ten-year time span, DSS provided services to the mother. However, the mother failed to maintain contact with the children and did not make sufficient progress towards correcting the conditions that initially led to the children’s removal. As a result of the mother’s lack of action, the Department of Social Services filed the Petition for Termination of Parental Rights.
At the termination hearing, the Department offered the testimony of two social workers. The two social workers who testified did not work on the Smith case until after the petition was filed, so they did not have personal knowledge regarding the initial removal of the children and the children’s initial placement into foster care. However, these social workers had familiarized themselves with the case history of the children by reviewing the records kept by DSS, and the same records were produced and introduced as evidence. During the testimony, one of the workers testified that the records were made at or near the time of the transactions involved and in the regular course of the Department’s business.
The Court in Smith held that the Department of Social Services’ records were admissible under the business records exception. Further, the court determined that since the workers were familiar with the case history contained in the DSS records they could testify as to those facts. Ultimately the court concluded that the case “could not be decided in a vacuum” and that the children’s case history is needed for the court to form a full and fair understanding of the issues involved.
This applies directly to situations where there are allegations of abuse. The Department of Social Services records can be admitted as business records so long as they are authenticated by either the records custodian or a worker who is familiar with the record keeping process. Also, if a social worker has familiarized themselves with the case history through these records, they will be able to testify about that knowledge. This is extremely helpful where there have been interviews with the child, and the case is passed on to a different social worker.
In the next part of our series we will review the case of In re C.R.B., another case regarding the use of Department of Social Services records and the business records hearsay exception under Rule 803(6).
He Said, She Said Series