                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  October 28, 2004 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES v.
                        B.F., ET AL.

                       Appeal from the Juvenile Court for Sevier County
                         No. 94-M3-496     Dwight E. Stokes, Judge



                No. E2004-00338-COA-R3-PT - FILED DECEMBER 2, 2004


This parental termination case presents the Court with two issues: (1) whether a case manager can
testify regarding facts about which she has no personal knowledge but which are documented in a
case file not made an exhibit, and (2) whether the guardian ad litem of a minor child can testify as
a witness. At the trial of this case, the State of Tennessee, Department of Children’s Services
presented only two witnesses: the case manager who had only been working on the file for six
months and the child’s guardian ad litem. The case manager had no firsthand knowledge of the facts
except what she had read in the case file which was not present at the trial and not introduced into
evidence. The defendant objected on the basis of hearsay and the trial court allowed the case
manager to testify under the business records exception to the hearsay rule. The guardian ad litem
testified concerning her investigation into the matter over the Defendant’s objection. We hold that
the case manager’s testimony was hearsay and was not admissible under the business records
exception to the hearsay rule. We hold that the guardian ad litem’s testimony was not admissible
pursuant to Tennessee Supreme Court Rule 40 which forbids such testimony. Because of the
exclusion of the testimony of these witnesses, the trial court should have granted Defendant’s motion
for a directed verdict. Accordingly, we vacate the judgment of the trial court and remand to the
Juvenile Court for Sevier County for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Vacated; Cause
Remanded

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D.
MICHAEL SWINEY , J., joined.

James R. Hickman, Jr., Sevierville, Tennessee, for the Appellant, B.F.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee.
                                               OPINION

         In January of 2002, the Appellee, State of Tennessee, Department of Children’s Services,
(hereinafter “DCS”) filed a petition in the Juvenile Court for Sevier County, Tennessee, to terminate
the parental rights of the Appellant, B.F., (hereinafter “the father”), and L.F. (hereinafter “the
mother”) with respect to their minor son, D.F. (hereinafter “the child”). A hearing was held on the
petition to terminate the mother’s rights in April of 2002. Thereafter, an order was entered granting
the petition as to her and no appeal was taken. On March 5, 2003, a hearing was held on the petition
as to the father and the trial court entered its order terminating the father’s parental rights on October
8, 2003. The father appealed.

           We address the following issues in this case:

      1) Whether a case manager can testify regarding facts about which she has no personal
knowledge but which are documented in a case file that is not made an exhibit.

           2) Whether the guardian ad litem of a minor child can testify as a witness.

      3) Whether the trial court erred in failing to grant the father’s motion to dismiss at the close
of DCS’s proof.

       The issues presented in this appeal are matters of law, not fact, and are reviewed de novo with
no presumption as to the correctness of the trial court’s decision. Campbell v. Florida Steel Corp.,
919 S.W.2d 26, 35 (Tenn. 1996).

           The first issue we address is whether the trial court erred in allowing the case manager to
testify.

        At the hearing on the petition to terminate the father’s parental rights, DCS called its
employee, Laura Sane, as the first of two witnesses testifying in support of the petition. Ms. Sane
attested that she had been the child’s case manager for approximately six months and that she was
“the keeper of the records . . .” for the child. When the case manager was questioned as to
information contained in the child’s file, counsel for the father objected as follows:

                    MR. HICKMAN: Your Honor, I think I’m going to have to object to this
            Witness’s entire testimony. She’s testified that she’s only been the case manager
            for the last six months, and as the termination proceeding is in relation to
            activities within the four months preceding the filing, which was January of last
            year, this Witness has no knowledge of the relevant information regarding the
            termination.




                                                   -2-
                MS. RUSHING [DCS counsel]: Your Honor, she is the keeper of the
         business record. As the business-record exception, the Court is aware and
         understands that she can testify about the contents of the file.

                 THE COURT: It does appear that your objection is based upon her having
         no knowledge. Based on the business-records exception, it’s her testimony that
         she is the keeper of those records, then that objection would be overruled.

                 MR. HICKMAN: Well, Your Honor, I would ask, though, if she’s going
         to be testifying from the record and that’s going to be the basis of her testimony,
         she doesn’t have any record with her today. She certainly would need it. If she’s
         going to testify as the records-keeper she would need to have the records.

                THE COURT: You can take up any objection specifically to any
         testimony, but as far as the testimony at this point in time is established everything
         is competent at this point.


        The case manager then proceeded to testify from her memory as to notations in the file
regarding such matters as the father’s failure to visit the child, pay child support, and send cards and
gifts. The case manager did not have firsthand knowledge of these facts since she was not working
as case manager when the events occurred. The only facts the case manager had personal knowledge
of all occurred after the termination petition was filed.

       The Father argues that the case manager’s testimony regarding case file information as to
matters of which she had no personal knowledge should have been excluded as inadmissible hearsay.
We agree.

        Hearsay is defined in Tenn. R. Evid. 801(c) as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 802 provides that hearsay is “not admissible except as provided by these
rules or otherwise by law.”

        The case manager’s testimony was hearsay and therefore only admissible under an exception
to the hearsay rule. DCS argues that the case manager’s testimony is admissible hearsay under the
business records exception which is set forth in Tenn. R. Evid. 803(6):

         (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 and a business duty to record or transmit 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


                                                  -3-
         as shown by the testimony of the custodian or other qualified witness or by
         certification that complies with Rule 902(11)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, profession, occupation, and calling of every kind,
         whether or not conducted for profit.

        The purpose of the rule is to facilitate the use of business records by eliminating the expense
and inconvenience of calling numerous witnesses involved in the preparation and maintenance of
the records. Alexander v. Inman, 903 S.W. 2d 686 (Tenn Ct. App. 1995).

        First, we observe that this exception specifically refers to “records” and indicates that a
“record” consists of “[a] memorandum, report, record or data compilation, in any form.” It is clear
from this language that this exception pertains solely to the admission of information in the form of
tangible documentation. The rule provides for the admission of records. It does not provide for the
admission of the testimony of a witness as to his or her memory of what the record stated. The
ground for this exception to the hearsay rule is “the fact that regularly kept records typically have a
high degree of accuracy.” MCCORMICK ON EVIDENCE §286 (John W. Strong, ed. 1999).

       A respected treatise on evidence law in Tennessee elaborates as follows:

                 Historically, business records have been admissible as a hearsay exception
         because they are viewed as sufficiently trustworthy to be used by the trier of fact
         as evidence. They are considered reliable because businesses rely on them in their
         day to day business decisions, clerical employees’ jobs hinge on their capacity to
         keep accurate records, and the business has countless opportunities to receive
         feedback on the accuracy of its records and to make the necessary changes to
         ensure the records are correct.

NEIL P. COHEN , SARAH Y. SHEPPEARD & DONALD F. PAINE , TENNESSEE LAW OF EVIDENCE § 8.11
(4th ed. 2000).

       It is not reasonable to assume that a witness testifying from memory exhibits the “high degree
of accuracy” attributed to a regularly kept record.

        Further, even had the records been present in the trial court and been offered as an exhibit,
the proper foundation pursuant to Tenn. R. Evid. 803(6) was not laid by the offering party. The only
foundation presented was the following which was not sufficient:

               Q. Okay. And are you the keeper of the records for Daniel Floyd?

               A. Yes, I am.



                                                 -4-
               Q. And do you record case recordings in his file on a regular basis?

               A. Yes.

               Q. And are those reviewed by your supervisor on a regular basis?

               A. Yes, they are.

               Q. Are you disciplined to accurately record?

               A. Yes.

               Q. And is this the policy that is followed by previous case managers?

               A. Yes.

               Q. And you reviewed their case files?

               A. Yes.

        DCS contends that in State v. Haynes, No. 01C01-9611-CC-00494, 1998 WL 307949 (Tenn.
Crim. App. at Nashville, June 12, 1998) the Tennessee Court of Criminal Appeals “has ruled that
there is no distinction in the business records hearsay exception between admission of the actual
records and admission of testimony based on the records.” The court in that case did state that its
review of the relevant case law indicated that courts do not make a distinction under the business
records exception between the admission of records and testimony based upon those records.
However, the Haynes court did not address the merits of the business records issue because the
Appellant waived the issue by failing to make appropriate references to the record. Therefore,
because the court in Haynes did not address the issue now before us, any comments it made in that
regard are obiter dictum and as such, do not constitute binding precedential authority. Shepherd
Fleets, Inc. v. Opryland USA, 759 S.W.2d 914 (Tenn. Ct. App. 1988). In any event, we have
reviewed the cases relied on by the Haynes court and find that those cases are factually
distinguishable from the case before us.

       Our determination that the trial court should have excluded the case manager’s testimony
with respect to the content of records that were not brought to the hearing is supported by our
decision in Perlberg v. Brencor Asset Management, Inc., 63 S.W.3d 390 (Tenn. Ct. App. 2001). In
that case, an employee whose job was terminated sued his former employer for handicap
discrimination alleging that the employer had violated the Tennessee Human Rights Act by not
reasonably accommodating him in employment which was compatible with his condition after he
suffered an on-the-job injury. The trial court concluded that the employer had not violated Tenn.
Code Ann. § 8-50-103 as alleged by the Plaintiff because the statute was not applicable when the
handicap prevented the employee from performing the duties required by the employment or


                                               -5-
impaired the performance of the work in question. The trial court’s determination that the plaintiff
employee did not meet the physical qualifications for the job was based upon an affidavit of the
employer’s district manager which purported to establish that physical problems suffered by the
plaintiff prevented him from performing duties required by the job or impaired his performance of
the work. The affidavit included by attachment a letter from the district manager to the plaintiff
referencing a letter from a doctor which allegedly indicated the plaintiff’s permanent restrictions.
The doctor’s letter was not in the record and the plaintiff contended that the alleged statements of
the doctor as set forth in the absent letter were inadmissible hearsay. The trial court decreed that the
attestation as to what the doctor’s letter indicated was admissible under the business records
exception. We disagreed with the trial court and held that the business records exception did not
apply based upon the following analysis:

         The affidavit includes as an attachment a letter from [the district manager] to [the
         plaintiff] stating again that [the employer] “has received the doctor’s letter
         indicating permanent restrictions ....” This is the totality of the evidence relating
         to [the plaintiff’s] alleged restrictions; the doctor’s letter is not in the record.
         Hence, there is no “memorandum, report, record, or data compilation” from the
         doctor. Obviously, such a document must exist to implicate the provisions of
         Rule 803(6).

Perlberg, 63 S.W.3d at 396. (Emphasis in original.)

        The case manager was not assigned the child’s case until after the petition to terminate
parental rights was filed. There is no indication that she has personal knowledge of what transpired
in the case before the petition was filed. Accordingly, it is our determination that the only evidence
she could have offered in support of the petition at the hearing consisted of inadmissible hearsay.

       The next issue presented for our review is whether the trial court erred in admitting the
testimony of the child’s guardian ad litem.

        At the conclusion of the testimony of the case manager, DCS called the child’s guardian ad
litem, Rebecca McCoy, as an additional witness in support of its petition to terminate the father’s
parental rights.

        Tennessee Supreme Court Rule 40, adopted on February 5, 2002, provides in pertinent part
as follows:

         (f) Guardian ad litem to function as lawyer, not as a witness or special master.
         (1) A guardian ad litem may not be a witness or testify in any proceeding in which
         he or she serves as guardian ad litem, except in those extraordinary circumstances
         specified by Supreme Court Rule 8, §§ EC 5-9, 5-10 and DR 5-101.




                                                  -6-
        DCS does not allege that extraordinary circumstances existed which would have authorized
testimony by the guardian ad litem. Accordingly, we hold that the testimony of the child’s guardian
ad litem was improperly admitted and should have been excluded as evidence in this matter.

       The final issue addressed is whether the trial court should have granted the father’s oral
motion to dismiss at the close of DCS’s proof.

         The sole proof offered by DCS in support of its petition to terminate the father’s parental
rights consisted of the testimony of the case manager and the guardian ad litem. As we have noted,
this testimony was erroneously admitted into evidence and should have been excluded. Upon our
determination that all evidence supporting the petition to terminate parental rights should have been
excluded, we are compelled to the necessary conclusion that the trial court erred in not granting the
father’s motion to dismiss at the close of proof by DCS.

       Although the father raises additional issues in his brief, we find it unnecessary to address
these upon our determination that they are pretermitted by our decision herein.

        For the foregoing reasons, the judgment of the trial court is vacated and the case is remanded
to the Juvenile Court for Sevier County for a new trial. Costs of appeal are adjudged against the
State of Tennessee, Department of Children’s Services.


                                               ___________________________
                                               SHARON G. LEE, JUDGE




                                                 -7-
