Kozec v. Murphy, 287 N.C. App. 241 (2022)

Vacated and Remanded
  • Facts: Mother filed a motion to modify a permanent custody order seeking father’s prohibition from having contact with the children. DSS child protective records were obtained and placed under a protective order allowing the parties’ attorneys to review them after the court determined under G.S. 7B-302(a1) that the records were relevant and necessary to the trial and were unavailable from another source. At the hearing, father sought the admission of those records, which mother objected to. The court sustained her objection after determining live witness testimony was required to authenticate the DSS records. The court modified the custody order and father appealed, challenging the exclusion of the DSS records based on the court’s misapprehension of law.
  • Standard of review is whether the court abused its discretion when excluding the DSS records.
  • The court misapprehended the law when determining DSS records must be authenticated by a live witness testimony, rather than determine whether the records qualify as public records under Rule 902(4) of the Rules of Evidence, which allows for certified copies of public records. Despite mother’s argument that there was no authenticating affidavit to the CPS records, the authenticating affidavit is part of the record on appeal. The trial court did not consider the affidavit based on its misapprehension of the law that live witness testimony to authenticate the records was required. This misapprehension of law is an abuse of discretion requiring the order be vacated and remanded. On remand, the parties shall have an opportunity to present arguments on whether the DSS records fall under the hearsay exception from Rule 803(8) or whether they are public record that can be authenticated by affidavit under Rule 902(4).
Civil Cases with Application to Child Welfare
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