The defendant-Mother sought a custody modification based on her accusation that the plaintiff-Father had abused their children. Father sought admission of Child Protective Services records under N.C. R. Evid. 902(4) “Certified Copies of Public Records.” Where the trial court excluded the CPS documents on the basis that there was no live witness present to authenticate them without first determining whether the documents fell under Rule 902(4) (which would have allowed them to be authenticated by the affidavit accompanying them), the trial court abused its discretion.
We vacate the trial court’s custody modification order and remand to allow the parties an opportunity to present arguments as to whether the CPS records (1) are hearsay not falling under N.C. R. Evid. 803(8) and (2) constitute certified public records that can be authenticated by affidavit under Rule 902(4).
Kozec v. Murphy (Lawyers Weekly No. 011-242-22, 12 pp.) (Hunter Murphy, J.) Appealed from Wake County District Court (Brian Ratledge, J.) Michael Harrell for plaintiff; David Schiller for defendant. 2022-NCCOA-902