author: TOUSSAINT, Chief Judge.

text:
    Scott D. AUGUSTINE, M.D., Respondent, v. ARIZANT INC., et al., Appellants.
    No. A06-1238.
    Court of Appeals of Minnesota.
    July 24, 2007.

      David R. Marshall, Emily E. Duke, Theresa M. Weber, Fredrikson Byron, P.A., Minneapolis, MN for respondent.
    David B. Potter, Bret A. Puls, Adam C. Trampe, Oppenheimer Wolff Donnelly LLP, Minneapolis, MN, for appellants.
    Lori Swanson, Attorney General, Michael J. Vanselow, Deputy Attorney General, St. Paul, MN, for amicus curiae State of Minnesota.
    Alberto R. Gonzales, United States Attorney General, Peter D. Keisler, Assistant Attorney General, Randy G. Massey, Acting United States Attorney for the Southern District of Illinois, Douglas N. Letter, Michael E. Robinson, Appellate Staff Attorneys, Civil Division, Washington, D.C.; and Rachel K. Paulóse, United States Attorney for the District of Minnesota, James E. Lackner, First Assistant United States Attorney, United States Attorney’s Office, Minneapolis, MN, for amicus curiae United States Department of Justice.
    Considered and decided by KALITOWSKI, Presiding Judge; TOUSSAINT, Chief Judge; and ROSS, Judge.
   OPINION

TOUSSAINT, Chief Judge.

Appellant corporations were sued by respondent former chief executive officer of one of the corporations, who alleged that he was entitled both to indemnification for his criminal fine and attorney fees and to damages caused by appellants’ breach of the bonus provision in the parties’ separation agreement. The district court denied appellants’ motions for summary judgment, and the matter proceeded to trial. The district court adopted the jury’s findings, entered judgment for respondent, and awarded respondent attorney fees. The district court denied appellants’ motion for judgment notwithstanding the verdict or, in the alternative, a new trial. We reverse and remand.

FACTS

Appellants Augustine Medical, Inc. and Arizant Healthcare, Inc. were subsidiaries of appellant Arizant, Inc. Respondent Scott D. Augustine, M.D., was the chief executive officer of Augustine Medical, Inc. Appellants manufactured and sold WarmUp Active Wound Therapy.

TriSpan Health Services, a fiscal intermediary of the federal Medicare program, initially approved coverage for Warm-Up but later assigned it investigational, rather than approval, status in a letter to respondent. In 2003, appellants, respondent, and several others were charged by federal indictment with crimes related to having concealed that letter from Southern Medical Distributors, an entity operating as a medical-device distributor that was, in fact, an undercover business front created by the federal government to investigate Medicare fraud. In May 2004, appellants pleaded guilty to the charge of conspiring to defraud the United States by impairing, impeding, and obstructing the administration of the Medicare program in violation of 18 U.S.C. §§ 2, 371 (2000). Thereafter, respondent pleaded guilty to “knowingly and intentionally aid[ing] and abett[ing] the offense ... by causing to be withheld from Southern Medical Distributors a material fact for use in determining rights to benefits and payments under ... the Medicare program” in violation of 42 U.S.C. § 1320a-7b(a)(2) (2000) and 18 U.S.C. § 2. The federal district court sentenced respondent to a three-year probationary term and ordered him to pay a $2,000,025 fine.

Respondent brought suit against appellants, seeking indemnification for his criminal fine and attorney fees and damages caused by appellants’ breach of the stock-bonus provision in the parties’ separation agreement.

ISSUES

1. Did the district court err by failing to rule, as a matter of law, that respondent is not entitled to indemnification because he did not act in good faith and denying appellants’ motion for summary judgment?

2. Did the district court err as a matter of law by awarding respondent attorney fees for his indemnification claim?

3. When the contract provided that an appraisal be made independently by a non-party to the contract, but did not stipulate that the appraisal was binding and conclusive, did the district court err in submitting to the jury the question of whether a party breached the contract by challenging the appraisal?

4.Did the district court err by failing to instruct the jury that it must determine whether the parties intended the independent appraisal of the value of stock prescribed by their agreement to be binding and conclusive?

ANALYSIS

1. Indemnification

The jury found, and the district court held, that appellants must indemnify respondent for his criminal fine and attorney fees. Appellants argue that the district court erred by denying their motion for summary judgment and submitting this issue to the jury. We may review nonap-pealable interlocutory orders, such as an order denying summary judgment, on appeal from a judgment if that order involves the merits or affects the judgment. Schoer v. W. Bend Mut. Ins. Co., 473 N.W.2d 73, 75 (Minn.App.1991). We review a denial of a motion for summary judgment to determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Zank v. Larson, 552 N.W.2d 719, 721 (Minn.1996).

Appellants argue that respondent’s conviction of knowingly and intentionally aiding and abetting others in withholding a material fact from another for use in determining the other’s rights to Medicare benefits and payments in violation of 42 U.S.C. § 1320a-7b(a)(2) (2000) and 18 U.S.C. § 2 (2000) precludes his indemnification under Minn.Stat. § 302A.521, subd. 2(a) (2006) because that conviction establishes that respondent did not act in good faith. “[A] corporation shall indemnify a person made ... a party to a proceeding by reason of the former or present official capacity of the person ... if, with respect to the acts or omissions of the person complained of in the proceeding, the person ... acted in good faith.” Minn.Stat. § 302A.521, subd. 2(a). “Good faith” is defined as “honesty in fact in the conduct or the act or transaction concerned.” Minn.Stat. § 302A.011, subd. 13 (2006).

A determination of whether someone acted in good faith necessarily involves factual findings. Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (Minn.1985). “It is for the trier of fact to evaluate the credibility of a claim of ‘honesty in fact’ and, in doing so, to take account of the reasonableness or unreasonableness of the claim.” Id. When the evidence is dispositive of this issue, a district court may find that no questions of fact exist and decide the issue as a matter of law. See Menard, Inc. v. King De Son, Co., 467 N.W.2d 34, 37-38 (Minn.App.1991) (affirming grant of summary judgment on claim that defendant was holder in due course of letters of credit because “there is no question of fact, and [non-moving party] fail[ed] to show [moving party] lacked good faith”).

The acts of a person whom a defendant aids and abets become the acts of the defendant. United States v. Delpit, 94 F.3d 1134, 1152 (8th Cir.1996). Respondent was convicted of aiding and abetting violations of 42 U.S.C. § 1320a-7b(a)(2). Conviction under 42 U.S.C. 1320a-7b(a)(2) requires proof beyond a reasonable doubt that the defendant (1) knowingly and willfully (2) made or caused to be made (3) a false statement or representation (4) of a material fact (5) for use in determining rights to a benefit or payment under a federal healthcare program.

Respondent affirmed under oath that he “knowingly and [willfully] aided and abetted the offense of 42 U.S.C., Section 1320a-7b(a)(2).” As such, he “cannot fairly be said to have acted in good faith.” See United States v. Rice, 449 F.3d 887, 896 (8th Cir.2006) (holding that “defendant who ... acted with intent to defraud cannot fairly be said to have acted in good faith”), cert. denied, — U.S. —, 127 S.Ct. 601, 166 L.Ed.2d 446 (2006); see also United States v. Brown, 478 F.3d 926, 928 (8th Cir.2007) (holding that, based on district court’s instruction on willfulness and intent, jury’s finding of guilt necessarily indicated that it had found that defendants “did not act with honest intentions in their transactions”); United States v. Jain, 93 F.3d 436, 440-41 (8th Cir.1996) (holding that conviction of violating 42 U.S.C. § 1320a-7b, which makes it unlawful to “knowingly and willfully” receive kickbacks for referring individual to another for Medicare-paid services, requires proof that defendant knew conduct was wrongful, which is higher standard than general requirement that defendant have mere consciousness of act).

Because both the undisputed evidence of respondent’s sworn admission that he acted with fraudulent intent and respondent’s conviction conclusively establish that he did not act in good faith and because good faith is an essential element of an indemnification claim, respondent’s indemnification claims fail as a matter of law. Therefore, the district court erred in denying appellants’ motion for summary judgment.

2. Attorney fees.

Our conclusion that appellants did not violate Minn.Stat. § 302A.521, subd. 2(a), by refusing to indemnify respondent compels the conclusion that respondent was not entitled to attorney fees under Minn. Stat. § 302A.467 (2006) (providing that a court may award attorney fees if a corporation has violated Minn.Stat. §§ 302A.001-302A.92 (2006)). The district court erred in awarding attorney fees.

3. Effect of independent appraisal.

Because it found genuine issues of material fact as to whether the parties’ separation agreement stipulated that a third party’s independent appraisal of stock was to be conclusive, the district court denied appellants’ motion for summary judgment on respondent’s claim that appellants breached the agreement.

“[U]nder Minnesota law, as well as generally, the result of an appraisal which the parties have thus contracted to have made is ... conclusive upon them ... if they have expressly stipulated that it shall be so conclusive, or if the intention to be so bound is fairly inferable from the language which they have used.” Sanitary Farm Dairies v. Gammel, 195 F.2d 106, 113 (8th Cir.1952) (citing Nelson v. Charles Betcher Lumber Co., 88 Minn. 517, 521, 93 N.W. 661, 662 (1903)). The parties’ agreement did not expressly stipulate that the independent appraisal was to be binding and conclusive. Therefore, unless the language of the agreement supports a fair inference that the parties intended the appraisal to be binding and conclusive, the appraisal is not conclusive or binding on the parties.

“An intent to be ... bound is determined by the objective manifestations of the parties’ words, conduct, and documents, and not by their subjective intent.” Norwest Bank Minn. N., N.A. v. Beckler, 663 N.W.2d 571, 578 (Minn.App.2003). Whether such an intent exists is a question of fact that must be resolved by the jury. See Metro Office Parks Co. v. Control Data Corp., 295 Minn. 348, 355, 205 N.W.2d 121, 125 (1973) (holding that parties’ intent to be bound by letter of intent is “matter of fact”). Therefore, the district court properly submitted respondent’s breach-of-contract claim to the jury,

4.Jury Instructions

Appellants argue that the jury instructions on respondent’s breaeh-of-con-tract claim did not fairly or correctly state the law. When jury instructions do not fairly and correctly state the law, the objecting party is entitled to a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn.App.1990) (holding that appellate court will not grant new trial when jury instructions fairly and correctly state law), review denied (Minn. May 11, 1990). The jury was instructed only that the “separation agreement between [respondent] and [appellants] ... is a contract. A contract is breached when there is a failure to perform a substantial part of the contract.” The jury was not instructed on or asked to determine whether the parties’ intent to be bound by the independent appraisal could be fairly inferred from the separation agreement. Thus, because the district court’s instruction did not fairly or correctly state the applicable law, a new trial on this issue is necessary. See id.

DECISION

The undisputed evidence that respondent acted with fraudulent intent conclusively establishes that he did not act in good faith and is not entitled to indemnification under Minn.Stat. § 302A.521, subd. 2(a) (2006). Because appellants did not violate Minn.Stat. § 302A.521, subd. 2(a), respondent is not entitled to attorney fees based on that violation under Minn.Stat. § 302A.467 (2006). We therefore reverse the awards of indemnification and attorney fees. Because the jury instruction did not fairly or correctly state the applicable law on whether an independent appraisal mandated by a contract is binding and conclusive, we reverse the award of contractual damages and remand for a new trial.

Reversed and remanded.

      . Respondent brought a statutory-indemnification claim based on Minn.Stat. § 302A.521, subd. 2(a) (2006), and a contractual-indemnification claim based on the parties’ December 31, 2002 separation agreement, which requires Augustine Medical to indemnify respondent for "all attorney’s fees, costs, disbursements and damages that he may incur as a result of and relating to any act or omission that he allegedly committed while serving as an officer, director and/or employee ... to the extent, and subject to the exceptions, that Minnesota law provides.” Because the separation agreement provides that appellants’ contractual indemnification obligation is “to the extent ... that Minnesota law provides,” we analyze respondent's statutory and contractual indemnification claims identically-

      . Because we reverse the district court’s denial of summary judgment on this ground, we need not consider appellants' arguments that the district court's evidentiary rulings and jury instructions were erroneous.

      . The district court did not err, however, in rejecting appellants’ argument that collateral estoppel mandates summary judgment on respondent's indemnification claims. Collateral estoppel requires a final judgment on the merits in the prior adjudication. Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn.2004). Respondent’s guilty plea in the criminal prosecution was not a final judgment on the merits. See Ohio v. Johnson, 467 U.S. 493, 500 n. 9, 104 S.Ct. 2536, 2541 n. 9, 81 L.Ed.2d 425 (1984) (noting that “the taking of a guilty plea is not the same as an adjudication on the merits after full trial"). Thus, this requisite for collateral estoppel was not satisfied.

      . Having resolved the attorney fee issue on this basis, we do not reach appellants' argument that Minn.Stat. § 302A.466 does not apply to indemnification claims brought by corporate officers against a corporation.

      . Because the absence of a stipulation is readily discerned by examining the agreement, the district court erred in finding genuine issues of material fact as to whether the agreement contained a stipulation.


source: Caselaw Access Project

author: DIETZEN, Judge.

license: Public Domain

text:
    CITY OF WYOMING, et al., petitioners, Appellants, v. MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS, Respondent, City of Chisago City, intervenor, Respondent, City of Stacy, intervenor, Respondent.
    No. A06-1594.
    Court of Appeals of Minnesota.
    July 24, 2007.

      Timothy A. Sime, Rinke-Noonan, St. Cloud, MN, for appellants.
    Lori Swanson, Attorney General, Kenneth E. Raschke, Jr., Assistant Attorney General, St. Paul, MN, for respondent Minnesota Office of Administrative Hearings.
    Christopher M. Hood, Brandon M. Fitz-simmons, Flaherty & Hood, P.A., St. Paul, MN, for respondent City of Chisago City.
    George C. Hoff, Daphne A. Lundstrom, Hoff, Barry & Kozar, P.A., Eden Prairie, MN, for respondent City of Stacy.
    Considered and decided by DIETZEN, Presiding Judge; TOUSSAINT, Chief Judge; and HALBROOKS, Judge.
   OPINION

DIETZEN, Judge.

Appellants City of Wyoming and Wyoming Township challenge the district court’s order denying their petition for a writ of mandamus compelling respondent Minnesota Office of Administrative Hearings (OAH) to order annexation of Wyoming Township into the City of Wyoming, arguing that the OAH is required by Minn. Stat. § 414.0325 (2006) to grant their petition. Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

Wyoming Township (Township) is located in Chisago County and is surrounded by the cities of Stacy, Wyoming, and Chis-ago City. Respondent Minnesota Office of Administrative Hearings — Municipal Boundaries Adjustment Unit (OAH) is an agency of the State of Minnesota authorized by Minn.Stat. § 14.48 (2006) to perform the duties and responsibilities assigned to the director of the Office of Strategic and Long-Range Planning under Minn.Stat. ch. 414. See Minn.Stat. § 414.01, subd. 1 and 414.011, subd. 11 (2006). The director’s duties include the duty to conduct proceedings, make determinations, and issue orders for the creation of a municipality, the combination of two or more governmental units, or the alteration of a municipal boundary.

On December 6, 2005, the Wyoming City Council and the Wyoming Town Board each approved a joint resolution and orderly annexation agreement (Wyoming agreement) to annex the entire Township into the City of Wyoming. The Wyoming agreement was filed with the OAH on December 7, 2005.

The Wyoming agreement provided, among other things, that the entire Township was in need of orderly annexation and conferred jurisdiction upon the “director” of the Office of Strategic and Long-Range Planning to “review and comment” on the proposed annexation, but “not alter the boundaries” of the orderly annexation area. Because of holiday schedules and the 30-day limit contained in Minn.Stat. § 414.0325, subd. 1(g) (2006), for the OAH to act, appellants and the OAH agreed that the matter would be considered at its regular monthly meeting in January 2006.

On January 4, 2006, the City of Chisago City filed a resolution with the OAH, petitioning to annex 3,300 acres of the Township. The next day, the City of Stacy also filed a resolution with the OAH, petitioning to annex 777.6 acres of the Township.

The OAH did not act on appellant’s joint resolution to annex the Township into the City of Wyoming at its January meeting. But in February 2006, the OAH issued orders setting a date for opening the hearing record for a contested case hearing on the Stacy and Chisago City petitions in accordance with the requirements of Minn. Stat. §§ 414.031, .09 (2006). The hearings were opened by the OAH and continued indefinitely. Subsequently, in March 2006, the OAH issued an order consolidating the Stacy and Chisago City petitions for purposes of a contested case hearing and stayed a decision on appellants’ annexation petition pending resolution of the Stacy and Chisago City petitions.

Appellants then petitioned the Ramsey County District Court for a writ of mandamus compelling the OAH to order the annexation of the Township into the City of Wyoming, claiming that the OAH was required to do so by Minn.Stat. § 414.0325. Following a hearing on stipulated facts, the district court denied the petition for a writ of mandamus. This appeal follows.

ISSUE

Did the district court err by refusing to issue a writ of mandamus compelling the OAH to order the annexation of Wyoming Township into the City of Wyoming?

ANALYSIS

Appellants argue that the district court erred by denying their petition for a writ of mandamus compelling the OAH to grant their petition for annexation under Minn. Stat. § 414.0325 (2006). Initially, the OAH argues that a writ of mandamus is not the proper procedural mechanism for judicial review of its actions under chapter 414. We turn to that issue first.

A. Availability of Mandamus Relief Under Chapter 414

Minn.Stat. § 414.07, subd. 2 (2006), provides that:

(a) Any person aggrieved by any order issued under this chapter may appeal to the district court upon the following grounds:
(1) that the order was issued without jurisdiction to act;
(2) that the order exceeded the order-er’s jurisdiction;
(3) that the order is arbitrary, fraudulent, capricious or oppressive or in unreasonable disregard of the best interests of the territory affected; or
(4) that the order is based upon an erroneous theory of law.

The OAH argues that Minn.Stat. § 414.07 is the exclusive mechanism of judicial review for any party aggrieved by an order of the OAH. Appellants argue that a writ of mandamus is not governed by Minn. Stat. § 414.07, but rather is a separate proceeding governed by Minn.Stat. §§ 586.01-.12 (2006).

We review questions of statutory interpretation de novo. Hyatt v. Anoka Police Dep’t, 691 N.W.2d 824, 826 (Minn.2005). The object of all statutory interpretation “is to ascertain and effectuate the intention of the legislature.” MinmStat. § 645.16 (2006). Thus, we construe words according to their common and approved usage. MinmStat. § 645.08 (2006). Further, “[ejvery law should be construed, if possible, to give effect to all its provisions.” Minn.Stat. § 645.16. If the meaning of the law is free of ambiguity, then we apply the law according to the plain and ordinary meaning of its terms. Id. (stating that when the words of a statute are clear and free of ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit).

Minn.Stat. § 586.01 provides that: “[t]he writ of mandamus may be issued to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” The purpose of the writ is to compel a government official to perform a duty that the law enjoins him to do. State ex rel. Schmidt v. Youngquist, 178 Minn. 442, 445, 227 N.W. 891, 892 (1929). Mandamus is a special proceeding. Ullrich v. Newburg Twp. Bd., 648 N.W.2d 743, 744 (Minn.App.2002).

For two reasons, we conclude that MinmStat. § 414.07 does not preclude a separate mandamus proceeding under MinmStat. §§ 586.01-586.12. First, Minn. Stat. § 414.07 does not expressly prohibit a mandamus proceeding under Minn.Stat. §§ 586.01-586.12. Second, the purpose of a mandamus proceeding is not to appeal a decision of a government official, but rather is a special proceeding to compel a government official to perform an act required by law. In short, appellants’ petition is not an “appeal” and, therefore, is not governed by Minn.Stat. § 414.07.

The OAH suggests that our decision in Rockford Twp. v. City of Rockford, 608 N.W.2d 903 (Minn.App.2000), supports its argument. We disagree. In Rockford Twp., we stated that MinmStat. § 414.07 was the “exclusive” mechanism for obtaining judicial review of boundary adjustment “orders.” Id. at 907. But the availability of mandamus was not raised in that case.

B. Writ of Mandamus

We turn then to whether the district court erred by denying appellants’ petition for a writ of mandamus. When a decision on a writ of mandamus is based solely on a legal determination, we review that decision de novo. Breza v. City of Minnetrista, 725 N.W.2d 106, 110 (Minn.2006). “Mandamus is an extraordinary legal remedy.” State v. Pero, 590 N.W.2d 319, 323 (Minn.1999). To be entitled to mandamus relief, appellants must show that: (1) the OAH failed to perform an official duty clearly imposed by law; (2) appellants suffered a public wrong and were specifically injured by the OAH’s failure to order annexation; and (3) appellants have no other adequate legal remedy. See Breza, 725 N.W.2d at 109-110.

Appellants argue that Minn.Stat. § 414.0325, subd. 1, provides that upon receipt of a joint resolution designating an area as in need of orderly annexation, the director may “review and comment,” but the annexation is mandated and must be ordered within 30 days. Thus, appellants argue that the OAH failed to exercise a duty imposed by law.

Minn.Stat. § 414.0325 sets forth the procedure that governs appellants’ joint resolution to designate the unincorporated area of Wyoming Township as in need of orderly annexation. It provides that annexation of any part of the designated area may be initiated by the director or by submitting to the director a joint resolution. Id. at subd. 1(d). Appellants rely on subdivision 1, subparts (f) and (g), which provide as follows:

(f) If a joint resolution designates an area as in need of orderly annexation and states that no alteration of its stated boundaries is appropriate, the director may review and comment, but may not alter the boundaries.
(g) If a joint resolution designates an area as in need of orderly annexation, provides for the conditions of its annexation, and states that no consideration by the director is necessary, the director may review and comment, but shall, within 30 days, order the annexation in accordance with the terms of the resolution.

Respondents argue that subparts (f) and (g) must be read in the context of the entire statute. Specifically, respondents argue that subparts (f) and (g) apply to a proceeding in which the only parties are the signatories to the joint resolution and do not apply when there is a competing petition for annexation. Respondents point to subdivision 6, which provides: “An orderly annexation agreement is a binding contract upon all parties to the agreement and is enforceable in the district court in the county in which the unincorporated property in question is located.” Minn. Stat. § 414.0325, subd. 6. We agree that an orderly annexation agreement is not binding on respondents Stacy and Chisago City, but we do not view that conclusion as dispositive of the legislative intent behind subdivision 1, subparts (f) and (g).

Respondents next argue that the filing of petitions for annexation by Stacy and Chisago City of portions of the area sought to be annexed by the City of Wyoming created a “statutory conflict” between MinmStat. § 414.0325, subd. 1(f), (g), and MinmStat. § 414.031 (2006), which governs the procedure for petitions for annexation. MinmStat. § 414.031, subd. 3, provides: “Upon receipt of a petition or resolution initiating an annexation, the director shall designate a time and place for a hearing in accordance with section 414.09.” And MinmStat. § 414.09 (2006) requires that the hearing must occur within 30 to 60 days after the filing of the petition. Thus, respondents argue that both statutes, namely, Minn.Stat. §§ 414.0325 and 414.031, require a hearing, and the director has the statutory authority to decide which annexation proposal proceeds first. The OAH agreed, stayed appellants’ joint resolution, and ordered that the petitions of Stacy and Chisago City be consolidated and proceed to hearing first. The OAH reasoned that:

[T]o order the Wyoming annexation ... would foreclose the opportunity for a hearing on the merits of the respective annexation petitions of the cities of Chis-ago and Stacy.... On the other hand, conducting hearings on the Chisago and Stacy petitions will not, in itself, foreclose annexation of some or all of the disputed property to Wyoming.

The district court denied appellants’ petition for a writ of mandamus, reasoning that:

[Pjublic policy and the law supports the proposition that the OAH has the authority, under Minn.Stat. § 414 to act upon conflicting annexation petitions by conducting public hearings on the various petitions. The orderly process will assure that the complex issues involved in annexation, which have regional effect, will be openly discussed and resolved.

We agree that the competing proposals for annexation create a statutory conflict between Minn.Stat. § 414.0325, subd. 1, and Minn.Stat. § 414.031. Both statutes require that hearings be held on two different types of annexation proceedings. But we do not read Minn.Stat. § 414.0325 to require the director to order that a petition under that statute to proceed first. Rather, we read Minn.Stat. ch. 414 to authorize the director to exercise discretion in determining how competing proposals for annexation may proceed in a manner that satisfies the purposes of chapter 4Í4. Specifically, the director has the authority to conduct hearings and to consolidate proceedings. Minn.Stat. §§ 414.01, subds. 1, 5 and 414.09, subd. 1. The authority to conduct hearings necessarily includes the authority to stay hearings. See Minn.Stat. § 414.01, subd. 16 (outlining the director’s authority to compel meetings to address the issues in a petition); Minn.Stat. § 414.09 (outlining procedures for proceedings initiated by the submission of an initiation document such as an annexation petition); see also Hagen v. Civil Serv. Bd., 282 Minn. 296, 300, 164 N.W.2d 629, 632 (1969) (stating that an administrative body acting quasi-judicially is not bound by the strict procedural rules that circumscribe the action of a court). Minn.Stat. § 414.0325, subd. 1(d), explicitly authorizes the director to initiate the annexation of any part of the designated area.

Thus, we read Minn.Stat. § 414.0325 to authorize the director to proceed either on the joint resolution, or on a proceeding initiated by the director. We conclude that the director had no legal duty to order the annexation of Wyoming Township into the City of Wyoming under Minn. Stat. § 414.0325. Consequently, the district court did not err in denying the writ of mandamus.

Existing case law supports our conclusion. In Village of Farmington v. Minn. Mun. Corp., our supreme court addressed the jurisdiction of the now-defunct Minnesota Municipal Commission, the Municipal Boundary Adjustment Unit’s predecessor, in a dispute involving competing petitions. 284 Minn. 125, 170 N.W.2d 197 (1969). The Farmington court stated:

[Chapter] 414 authorizes the chairman of the commission to consolidate “separate hearings in the interest of economy and expedience” and vests in the commission broad powers to increase or decrease the area proposed for annexation. These provisions contemplate that the commission will be confronted with conflicting petitions. It is clear therefore that the legislature necessarily intended to authorize simultaneous consideration of such petitions. Such authority not only is consistent with the legislative purpose and design of c. 414 when considered as a whole, but also appears necessary if the commission is to fulfill its intended role and function of aiding, advancing, and authoritatively controlling the orderly expansion of existing municipalities and the incorporation of new municipalities.

Id. at 132, 170 N.W.2d at 202 (citations omitted).

Our conclusion is also supported by the reasoning of Ashbacker Radio Corp. v. FCC, 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108 (1945). In Ashbacker, the United States Supreme Court addressed the agency’s grant of a radio-station license to one competing applicant and the scheduling of a pro forma hearing on the second application with intent to deny the application because the law forbade denial of an application without a hearing. The Ashbacker Court stated that “where two bona fide applications are mutually exclusive the grant of one without a hearing to both deprives the loser of the opportunity which [the legislature] chose to give him.” Id. at 333, 66 S.Ct. at 151. Likewise, in this case there are three bona fide petitions. Approving the annexation of the Township into the City of Wyoming would deny Stacy and Chisago City the opportunity for a hearing on their respective petitions afforded to them by the legislature.

Appellants also argue that statutory rules of construction provide that when two laws passed in different sessions of the legislature are irreconcilable, the law later in date of final enactment shall prevail. See Minn.Stat. § 645.26, subd. 4 (2006). Specifically, appellants point out that Minn.Stat. § 414.031, requiring the OAH to set a hearing once it receives a resolution from an annexing municipality, was adopted in 1969, and the applicable provisions of Minn.Stat. § 414.0325 were adopted by the legislature in 1983 and amended in 2002. See 1969 Minn. Laws ch. 1146, § 10; 1983 Minn. Laws ch. 18, § 1; 2002 Minn. Laws ch. 236, § 1. Therefore, appellants argue, the later-adopted provisions of Minn.Stat. § 414.0325 must prevail over the older provisions found in Minn.Stat. § 414.031. We disagree.

But Minn.Stat. § 645.26 does not apply unless the provisions of two or more laws “are irreconcilable.” Here, the director has the authority to initiate the annexation of any portion of the area designated for orderly annexation by appellants, and has the authority to consolidate proceedings in order to adjudicate disputes and oversee the orderly adjustment of municipal boundaries. Minn.Stat. §§ 414.0325; 414.01, subds. 1, 5; and 414.09, subd. 1. Thus, we conclude that the provisions of Minn.Stat. § 414.0325 and Minn.Stat. § 414.031, applied to the competing petitions at issue, are not irreconcilable.

Finally, appellants argue that the OAH’s interpretation of the statutes frustrates one of the purposes of chapter of 414, which is to encourage long-range planning powers or other cooperative efforts among governmental bodies. See LaCrescent Twp. v. City of LaCrescent, 515 N.W.2d 608, 610 (Minn.App.1994) (“section 414.0325 allows cities and townships to plan for the future”). We disagree. Here, the director has ordered that the Stacy and Chisago City petitions proceed to a hearing and that appellants are parties to the proceeding, and, therefore, appellants will have the right to participate in the hearings and present evidence. Clearly, appellants’ cooperative efforts that culminated in an annexation agreement and joint resolution filed with the OAH may be considered under the statute in determining the “best interest” of the area. See Minn.Stat. § 414.031, subd. 4(b)(3) (stating that in arriving at a decision on a petition or resolution for annexation, the director shall consider the best interest of the area).

Respondents make further arguments on statutory construction that are not necessary for us to reach, and, therefore, we decline to do so.

DECISION

Under Minn.Stat. ch. 414, the director of the Office of Strategic and Long-Range Planning has the discretion to determine which of two competing petitions for annexation, namely, a joint petition under Minn.Stat. § 414.0325 and a petition under Minn.Stat. § 414.031, should proceed first. Because the OAH had no legal duty to order the annexation of Wyoming Township into the City of Wyoming, the district court did not err by refusing to issue a writ of mandamus compelling annexation.

Affirmed.

      . Appellants have separately appealed the orders of the OAH, the appeal of which is currently pending in Chisago County District Court.


author: CROTHERS, Justice.

text:
    2007 ND 107
    In the Matter of the ESTATE OF Gilbert ELKEN, Jr., Deceased. Lorry Larson, Petitioner and Appellant v. Mark Fraase, Personal Representative of the Estate of Gilbert Elken, Jr., Respondent and Appellee.
    No. 20060331.
    Supreme Court of North Dakota.
    July 2, 2007.

      Brett A. Brudvik (argued), Sara K. Sor-enson (appeared) and William J. Brudvik (on brief), Ohnstad Twiehell, P.C., May-ville, N.D., for petitioner and appellant.
    Bruce H. Carlson, McNair, Larson & Carlson, Ltd., Fargo, N.D., for respondent and appellee.
   CROTHERS, Justice.

[¶ 1] Lorry Larson appeals from a district court order denying his claims against the estate of Gilbert Elken, Jr. We conclude the district court misapplied the law in deciding Larson’s claims against the estate were untimely because he was not a reasonably ascertainable creditor under N.D.C.C. § 30.1-19-01. We hold Larson was a reasonably ascertainable creditor, and we remand for further proceedings on his claims.

I

[¶ 2] In February 1999, the trustees of the Orrie E. Larson and Dorothy E. Larson Trust granted Elken a life estate in a house in Mayville, with a remainder to Lorry Larson, Joan Tryhus, and Sandra Bloomquist. According to Lorry Larson, Elken lived in the house until July 2002, when he entered a nursing home in May-ville, where he lived until his death on February 16, 2005. During this time, Suzanne Rickards, a California resident, was acting as Elken’s guardian. According to the personal representative of Elken’s estate, he learned Rickards was Elken’s guardian after Elken’s death and before being appointed personal representative. The personal representative indicated he had limited contact with Rickards after his appointment. The record also reflects the personal representative mailed Rickards a “notice of information to heirs and devi-sees,” informing her that she had an interest in Elken’s estate as a devisee under his will. According to Larson, he made repairs to the house in 2004 after a pipe broke in a bathroom and caused extended water damage, he submitted a bill to Rick-ards and told her that not all the necessary repairs had been made, and Rickards had always indicated a willingness to pay for any additional damages. After Elken’s death, the personal representative published a notice to creditors in the Traill County Tribune for three successive weeks in April 2005, which required Elken’s creditors to present their claims to the personal representative within three months of the publication or those claims would be barred. The personal representative did not mail Larson, a California resident, a copy of the notice to creditors. More than a year later, Larson filed claims against Elken’s estate on May 12, May 23, June 26, and June 30, 2006, seeking compensation for repairs to the house. The personal representative denied Larson’s claims.

[¶ 3] Larson petitioned the district court for allowance of the claims. At a hearing on Larson’s claims, the parties submitted affidavits by Larson and by the personal representative, and the parties agreed the district court could decide the case on the record presented to the court. The court denied Larson’s claims, concluding they were not submitted to the personal representative within three months after the publication of the notice to creditors under N.D.C.C. § 30.1-19-03(1). The court decided Larson was not a known or reasonably ascertainable creditor under N.D.C.C. § 30.1-19-01, and the personal representative was not required to mail Larson a copy of the notice to creditors, stating:

Under N.D.C.C. § 30.1-19-01, the legislature of the State of North Dakota has decided that “a reasonably ascertainable creditor includes a creditor who regularly submits billings to the decedent or the decedent’s estate and to whose billings the Personal Representative has had access.” The Court further looks, for example at the common definition of regular, according to Merriam-Webster dictionary, regular means, “recurring, attending or functioning at a fixed uniform or normal intervals.” Therefore, based upon that and in regards to this matter, the Court would find and conclude and state that a reasonably ascertainable creditor, a regular creditor who regularly submits billings would be someone like the power company, the water company or the like. In regards to this matter, there was a pipe break, that’s undisputed and the Court already indicated that and found and concluded that, but the Court does not believe that that was a regular billing or the type considered by the North Dakota Legislature as it’s [sic] definition as set forth in 30.1-19-01, to be a reasonably ascertainable creditor. It’s a very narrow definition the Court would find, the Court assumes that the legislature did what it meant to do in regards to the matter in it’s [sic] definition of a reasonably ascertainable creditor, is one who regularly submits billings, so that is not the case here. There may have been, you know more than one phone call, for example to the Guardian, but that is not akin to the power company or the like— regular monthly type billing, therefore the Court finds and concludes as stated on the record.
In regards to this matter further, the Personal Representative through his affidavit indicated at no time prior to July 9, 2005 was he made aware of the claim in regards to this matter in July 9, 2005, the Court will find and conclude was the cut off for presentment in this case based upon the non-claim statute.

The court also declined to adopt a “good cause” exception for filing claims and found there was no evidence of fraud or affirmative deception to support Larson’s equitable estoppel argument.

II

[¶ 4] At the district court hearing, the parties agreed the court could decide the issues on the affidavits of Larson and the personal representative, and the court treated the proceeding as a bench trial. See Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, ¶ 9, 583 N.W.2d 817; Roeders v. City of Washburn, 298 N.W.2d 779, 781 (N.D.1980); George v. Compson, 251 N.W.2d 743, 744-46 (N.D.1977). In actions tried without a jury, a district court’s findings of fact are governed by the clearly erroneous standard of review under N.D.R.Civ.P. 52(a). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, we are left with a definite and firm conviction the trial court made a mistake.” Edward H. Schwartz Constr., Inc. v. Driessen, 2006 ND 15, ¶ 6, 709 N.W.2d 733 (quoting Brandt v. Somerville, 2005 ND 35, ¶ 12, 692 N.W.2d 144). A district court’s conclusions of law, however, are fully reviewable on appeal. H-T Enters. v. Antelope Creek Bison Ranch, 2005 ND 71, ¶ 6, 694 N.W.2d 691.

Ill

[¶ 5] Larson argues the district court erred in deciding his claims against Elken’s estate were not timely. Under N.D.C.C. § 30.1-19-03(1), all claims against a decedent’s estate which arose before the decedent’s death are barred unless presented within three months after the first publication and mailing of notice to creditors if notice is given under N.D.C.C. § 30.1-19-01, and within three years after the decedent’s death if notice to creditors has not been published and mailed. Section 30.1-19-01, N.D.C.C., outlines the requirements for notice to creditors and provides:

Unless notice has already been given under this section, a personal representative upon appointment may publish a notice to creditors whose identities are not reasonably ascertainable. The notice must be published once a week for three successive weeks in a newspaper of general circulation in the county. If the personal representative elects to publish a notice to creditors then, in addition to publishing the notice to creditors, the personal representative shall mail a copy of the notice to those creditors whose identities are known to the personal representative or are reasonably ascertainable and who have not already filed a claim. The notice must announce the personal representative’s appointment and address and notify creditors of the estate to present their claims within three months after the date of the first publication or mailing of the notice or be forever barred. For the purpose of this section, a reasonably ascertainable creditor includes a creditor who regularly submits billings to the decedent or the decedent’s estate and to whose billings the personal representative has had access.

[¶ 6] Larson argues the district court erred in deciding he was not entitled to actual notice because the court erroneously limited a reasonably ascertainable creditor to a person who regularly submitted billing statements to Elken. Larson argues the court erred in interpreting the term “includes” to be a term of limitation and the court’s interpretation ignores the due process requirement that a personal representative must make reasonably diligent efforts to uncover the identities of creditors under Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988).

[¶ 7] Statutory interpretation is a question of law, fully reviewable on appeal. GO Comm. ex rel. Hale v. City of Minot, 2005 ND 136, ¶ 9, 701 N.W.2d 865. The primary objective in interpreting a statute is to determine legislative intent. Amerada Hess Corp. v. State ex rel. Tax Comm’r, 2005 ND 155, ¶ 12, 704 N.W.2d 8. Words in a statute are given their plain, ordinary, and commonly understood meaning, unless defined by statute or unless a contrary intention plainly appears. N.D.C.C. § 1-02-02. Statutes are construed as a whole and are harmonized to give meaning to related provisions. N.D.C.C. § 1-02-07. If the language of a statute is clear and unambiguous, “the letter of [the statute] is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1-02-05. The language of a statute must be interpreted in context and according to the rules of grammar, giving meaning and effect to every word, phrase, and sentence. N.D.C.C. §§ 1-02-03 and 1-02-38(2). We construe statutes to give effect to all of their provisions, so that no part of the statute is rendered inoperative or superfluous. N.D.C.C. § 1-02-38(2) and (4). We also construe statutes to avoid constitutional infirmities. E.g., City of Belfield v. Kilkenny, 2007 ND 44, ¶ 8, 729 N.W.2d 120; In re G.R.H., 2006 ND 56, ¶ 15, 711 N.W.2d 587.

[¶ 8] Use of the term “includes” in a statutory definition is a word of enlargement and not a term of limitation. Amerada Hess Corp., 2005 ND 155, ¶ 13, 704 N.W.2d 8; Hilton v. North Dakota Educ. Ass’n, 2002 ND 209, ¶ 12, 655 N.W.2d 60; Estate of Leier, 524 N.W.2d 106, 110 (N.D.1994); Americana Healthcare Ctrs. v. North Dakota Dep’t of Human Servs., 510 N.W.2d 592, 594 (N.D.1994); State v. Vermilya, 423 N.W.2d 153, 154-55 (N.D.1988); Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D.1980). See also North Dakota Legislative Drafting Manual 95 (2007) (“[a]n exhaustive definition uses the word ‘means’ while a partial definition uses the word ⅛-cludes’[;] ... ‘[ijncludes’ is not a term of limitation”). Under our rules of construction, the definition of reasonably ascertainable creditor to “include” a creditor who regularly submits billings to the decedent and to whose billings the personal representative has had access is a definition of enlargement and not of limitation.

[¶ 9] The statutory mandate in N.D.C.C. § 30.1-19-01 for mailed notice to a known or reasonably ascertainable creditor was in response to the due process requirements announced by the United States Supreme Court in Pope, 485 U.S. 478, 108 S.Ct. 1340. See Hearing on HB 1054 Before House Judiciary Comm. 51st N.D. Legis. Sess. (Jan. 11, 1989) (testimony of Jim Ganje, Staff Attorney for Legislative Council and member of Interim Judiciary Committee). In Pope, at 489-90, 108 S.Ct. 1340, the Court held that a probate provision for notification of a claim period solely by publication failed to satisfy due process, which requires actual notice to known or reasonably ascertainable creditors. The Court “disavowed any intent to require ‘impracticable and extended searches ... in the name of due process.’” Pope, at 490, 108 S.Ct. 1340 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 317-18, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The Court indicated “all that the [personal representative] need do is make ‘reasonably diligent efforts,’ ... to ‘uncover the identities of creditors’ [and f]or creditors who are not ‘reasonably ascertainable,’ publication notice can suffice.” Pope, at 490, 108 S.Ct. 1340 (quoting Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 798 n. 4, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983)). The Court explained “it [was] reasonable to dispense with actual notice to those with mere ‘conjectural’ claims.” Pope, at 490, 108 S.Ct. 1340 (quoting Mullane, at 317, 70 S.Ct. 652). The Court remanded to the Oklahoma courts for further proceedings to determine whether reasonably diligent efforts would have identified a hospital that had provided services to a decedent during the decedent’s last illness. Pope, at 491, 108 S.Ct. 1340. Under Pope and our rules of statutory construction, we hold a known or a reasonable ascertainable creditor under N.D.C.C. § 30.1-19-01 is an entity that can be uncovered with reasonably diligent efforts.

[¶ 10] Here, the district court construed reasonably ascertainable creditor under the “very narrow definition” in N.D.C.C. § 30.1-19-01 to be an entity who regularly submits billings “like the power company, the water company or the like.” The court decided Larson was not a reasonably ascertainable creditor entitled to a mailed copy of the notice to creditors, because he had not regularly submitted billings to Elken or the estate. However, the court’s interpretation is contrary to the due process requirements of Pope and to the principle that a definition that uses the term “includes” is a word of enlargement and not a term of limitation. E.g., Amerada Hess Corp., 2005 ND 155, ¶ 13, 704 N.W.2d 8. The district court’s determination that Larson was not a reasonably ascertainable creditor is based upon its erroneous and limiting interpretation of the definition of that term in N.D.C.C. § 30.1-19-01. We therefore conclude the court misapplied the law in interpreting reasonably ascertainable creditor.

[¶ 11] Larson argues the district court’s misapplication of the law does not require a remand for factual determinations because the undisputed facts establish Elken had an appointed guardian, the guardian knew about Larson’s claims, and the personal representative knew Elken had a guardian. Larson thus claims the undisputed facts establish the personal representative could have discovered Larson by due diligence and Larson therefore was a reasonably ascertainable creditor entitled to actual notice that he must submit his claims to the personal representative. The personal representative responds the court did not err in deciding Larson was not a reasonably identifiable creditor, because the record shows the personal representative had no notice of circumstances that would have lead the personal representative to discover Larson’s claim before the non-claim period expired. The personal representative argues that the facts failed to show the personal representative acted unreasonably or that he could have discovered Larson’s claim through reasonable diligence. The personal representative argues he had no actual knowledge of any circumstances that would lead a prudent person to further inquiry.

[¶ 12] The parties’ arguments recognize that the issue of whether an entity is a reasonably ascertainable creditor involves a factual inquiry. Here, the district court decided the factual issues on the affidavits of Larson and the personal representative. The personal representative’s affidavit indicates that after Elken’s death and before he was appointed personal representative, he learned Suzanne Rickards was Elken’s guardian. The affidavit also indicates the personal representative had had limited contact with Rickards since his appointment. This record reflects that the personal representative mailed a “notice of information to heirs and devisees” to Rick-ards, informing her that she had an interest in Elken’s estate as a devisee under his will. According to the uncontroverted statements in Larson’s affidavit, he made repairs to the house in 2004 after a pipe broke in a bathroom, causing extended water damage, and he submitted a bill to Rickards. According to Larson, he told Rickards that not all the necessary repairs had been made, and Rickards had always indicated a willingness to pay for any additional damages. Elken died in February 2005, and the personal representative published notice to creditors in April 2005.

[¶ 13] Under our law, a guardian may have authority to deal with the ward’s property, see N.D.C.C. § 30.1-28-12, and a personal representative has a duty to satisfy and settle any claims against an estate. N.D.C.C. § 30.1-18-15(27). Those provisions, when read together, obligate a personal representative to inquire about the state of a decedent’s financial affairs, which includes contacting a known guardian about the decedent’s affairs. On this record, that inquiry would have uncovered Larson as a potential creditor. We therefore conclude the un-controverted facts presented to the district court about the personal representative’s knowledge of Elken’s guardian and Larson’s submission of a bill to that guardian leads to only one conclusion: Larson was a reasonably ascertainable potential creditor that could have been uncovered with reasonably diligent efforts by contacting Rickards. Although we express no opinion on the merits of Larson’s claims, we conclude Larson’s claims are not time barred, and we remand for further proceedings on his claims.

IV

[¶ 14] We reverse the district court’s order and remand for further proceedings.

[¶ 15] GERALD W. VANDE WALLE, C.J., LAWRENCE A. LECLERC, S.J., MARY MUEHLEN MARING, and CAROL RONNING KAPSNER, JJ„ concur.

[¶ 16] The Honorable LAWRENCE A. LECLERC, S.J., sitting in place of SANDSTROM, J., disqualified.


author: MARING, Justice.

text:
    2007 ND 108
    STATE of North Dakota, Plaintiff and Appellee v. Lenora M. FRIEDT, Defendant and Appellant.
    No. 20060276.
    Supreme Court of North Dakota.
    July 5, 2007.

      Brandi Sasse Russell, Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
    Mandy R. Maxon (argued), Timothy Q. Purdon, and Mark A. Friese, of Vogel Law Firm, Bismarck, N.D., for defendant and appellant.
   MARING, Justice.

[¶ 1] Lenora Friedt appeals a criminal judgment convicting her of driving a vehicle with an alcohol concentration of at least .08 percent by weight as measured by a chemical test performed within two hours after driving. We affirm the criminal judgment.

I

[¶ 2] On May 21, 2006, Friedt was arrested for driving under the influence of alcohol (“DUI”). The arresting officer, Steven Mayer, testified that he transported Friedt to a hospital to have her blood drawn, and once at the hospital, obtained a sealed blood sample kit.

[¶ 3] Officer Mayer testified that he witnessed Suzette McCall, a registered nurse, draw Friedt’s blood. On the submission for blood form, Form 104, Nurse McCall marked that she used an intact blood sample kit; used the disinfectant, needle, guide, and blood tube provided in the blood sample kit; observed powder in the blood tube; and drew blood into the blood tube and inverted the blood tube several times. Nurse McCall recorded the date and time she drew Friedt’s blood and signed the form.

[¶ 4] On Form 104, Officer Mayer recorded Friedt’s personal information, noted that blood was drawn from Friedt’s left arm after her arrest for DUI, and noted Friedt’s blood would be submitted to the North Dakota State Crime Laboratory. Officer Mayer completed the bottom portion of Form 104 that was to be completed by the individual submitting the blood, detached, and retained for his records. He recorded the date and times the blood was obtained and sealed. Officer Mayer marked that an intact blood sample kit was used; a completed seal was placed over the top and down the sides of the blood tube; the blood tube was placed inside a protective container and then placed in a plastic bag; the plastic bag and the completed top portion of Form 104 were placed in the blood sample kit box, which was closed; and a tamper-evident shipping seal was placed on the blood sample kit box. Officer Mayer testified that he mailed the blood sample kit to the North Dakota State Crime Laboratory.

[¶ 5] Michelle Burkett, the forensic scientist who analyzes blood samples for the North Dakota State Crime Laboratory, marked on Form 104 that Friedt’s blood arrived in a labeled blood tube in a sealed container. Burkett recorded the. time and date Friedt’s blood was received and signed the form. The North Dakota State Crime Laboratory’s blood analysis results, Form 107, indicated Friedt had an alcohol concentration of .11 percent by weight and that an approved method was used to conduct the blood analysis. Burkett signed Form 107.

[¶ 6] At trial, the State presented the testimony of Officer Mayer and Burkett, and offered into evidence State’s Exhibit 4, which consisted of Form 104 and Form 107, and a certification of those forms. The detached bottom portion of Form 104 was offered and received into evidence as State’s Exhibit 3. Friedt objected to the admission of State’s Exhibit 4 on the grounds she was not given the opportunity to confront Nurse McCall at trial. The trial court overruled Friedt’s objection. The jury found Friedt guilty of driving a vehicle with an alcohol concentration of at least .08 percent by weight as measured by a chemical test performed within two hours after driving. Friedt appeals.

II

[¶ 7] On appeal, Friedt argues State’s Exhibit 4 was inadmissible because Form 104 contained hearsay that was testimonial and, therefore, improperly admitted because she was not given her Sixth Amendment right to confront Nurse McCall. Friedt also argues the State bears the burden to establish an affirmative waiver of a constitutional right, and that a waiver theory is inapplicable in this case. Questions, the answers to which are not necessary to the determination of an appeal, will not be considered by this Court. State v. Waters, 542 N.W.2d 742, 745 (N.D.1996). This Court will refrain from deciding constitutional questions if it can decide a dispute on other grounds. Id. We are able to decide on evidentiary grounds whether State’s Exhibit 4 was properly admitted. Therefore, it is not necessary to decide Friedt’s constitutional claims. The evidentiary issue is whether the State established proper foundation for the admission of Form 104.

III

[¶ 8] A trial court has broad discretion when deciding evidentiary matters. Davis v. Killu, 2006 ND 32, ¶ 6, 710 N.W.2d 118. On appeal, this Court will not overturn the trial court’s admission or exclusion of evidence unless the trial court has abused its discretion. Id. Abuse of discretion occurs when a trial court acts arbitrarily, unconscionably, or unreasonably, or when a decision is not based on a rational mental process. Id.

[¶ 9] Section 39-20-07, N.D.C.C., governs the evidentiary use of blood analysis results. State v. Jordheim, 508 N.W.2d 878, 881 (N.D.1993). “The State has the burden to prove the blood test was collected following the proper procedures set forth by the state toxicologist.” State v. Lynch, 2001 ND 173, ¶ 12, 635 N.W.2d 164. The statute lessens the State’s burden in laying an evidentiary foundation for the admission of the blood analysis results. Jordheim, at 881. Under N.D.C.C. § 39-20-07(5), blood analysis results must be received in evidence when compliance with the methods approved by the state toxicologist have been shown. First, the blood sample must be properly obtained; second, the blood analysis must be fairly administered; third, the method and devices used to analyze the blood must be approved by the state toxicologist; and fourth, the blood analysis must be performed by an authorized individual or by an individual certified by the state toxicologist as qualified to perform the test. Id.

[¶ 10] Form 104 was drafted by the state toxicologist to be used when blood is drawn for blood analysis. State v. Steier, 515 N.W.2d 195, 196 (N.D.App.1994). In Jordheim, 508 N.W.2d at 881, this Court reviewed the use of Form 104 to satisfy the foundational elements of N.D.C.C. § 39-20-07(5).

Form 104 has three sections that correspond to the conduct of the three people who normally participate in administering the blood test. The top half of the form includes the name of the person whose blood is drawn, and a list of directions for both the specimen collector and the recipient of the sample at the laboratory. The bottom half of the form contains a similar list for the specimen submitter. The submitter, who will usually be a police officer, is directed to retain this half of Form 104 in police records, undoubtedly for later evidentia-ry use.

Id. at 881-82. “Given the detailed directions in Form 104, it is difficult to imagine a case when certified compliance with them will not also furnish facial evidence that the sample was properly obtained and the test fairly administered.... ” Id. at 882.

[¶ 11] Although Friedt’s argument on appeal was framed as a constitutional issue, the crux of her assertion is that, without presenting the testimony of Nurse McCall, the State did not show Friedt’s blood was properly obtained, and therefore, State’s Exhibit 4 was inadmissible. Friedt did not take issue with the satisfaction of the remaining foundational requirements of N.D.C.C. § 39-20-07(5).

[¶ 12] “An adequate foundation may be established by testimony that identifies the evidence and establishes the competency, materiality, and relevancy of the evidence.” State v. Noorlun, 2005 ND 189, ¶ 15, 705 N.W.2d 819. The State presented the testimony of Officer Mayer to show that Friedt’s blood was properly obtained and thereby lay the foundation for the admission of Form 104:

Q. Who did you make contact with on this particular occasion to do the blood draw?
A. It would have been Nurse McCall.
Q. What do you have the nurse do when you start to do this blood test?
A. First I take a blood sample box which contains all the necessary supplies to take the blood test, and I show the suspect the box.
Q. What type of items are in this kit or box?
A. There would be a sterile needle, a collection needle, and then also a glass vial that the blood goes into as well as a bubble wrap, and it would — like, a little small Ziploc bag.
Q. And are you familiar with these kits?
A. Yes, I am.
Q. How are you familiar with them?
A. Through training, and also I’ve seen them numerous times.
Q. And is the kit sealed in any manner when you first get it?
A. Yes, it is.
Q. How is it sealed?
A. It is sealed with — it’s, like, and evidence tape that can show if it’s been tampered with at all.
Q. Was the kit that you obtained in this particular case, was it sealed?
A- Yes, it was.
Q. Did you then inspect the contents of the kit to make sure that everything was there?
A. Yes, I did.
Q. How were the items in this particular kit packaged?
A. The entire kit was intact and verified by the nurse.
Q. So you basically go over and make sure that every single thing is inside this kit that’s to be utilized by the nurse, correct?
A. That is correct.
Q. You inspect it?
A. Yes, I do.
Q. How do you know that everything is inside the kit that’s supposed to be there?
A. There is a checklist that we follow that shows the procedure, and then also the nurse will also tell us if there’s something missing, which at this time there was nothing missing in the kit.
Q. What did you then do with the kit once it’s been verified that it has everything it needs?
A. Then I open the kit and the nurse takes the blood vial and the needle, and I proceed to fill out the 104 form, which is asking for — asking the state crime lab to do a blood test, and it also has the suspect’s information on it.
Q. Just going back to the registered nurse we talked about here, you said it was a Nurse McCall, correct?
A. Yes.
Q. How-do you know that she’s a registered nurse?
A. She signs the 104 form as to the time that she took the blood draw, and she signed her name as Nurse McCall, RN, Suzette.
Q. Was any blood drawn from the defendant?
A. Yes, it was.
Q. Were you present the entire time that this blood was taken from the defendant?
A. Yes, I was.
Q. You actually observed the blood being drawn from the defendant?
A. Yes, I did.
Q. What exactly did you see the nurse do?
A. The nurse — if I may refer to my notes real quick. I believe she took the blood draw, and what I’m referring to is the 104 form. She took the blood draw from the left arm of Ms. Friedt.
Q. And did she use the materials to do so that was provided for in the kit?
A. Yes, she did.
Q. And after the blood draw is done, what does — what happens with the needle or the blood at that point?
A. The needle is usually disposed of, or I shouldn’t say usually, is disposed of in a biohazard container, and the glass bottle containing the blood is then handed to me.
Q. And what do you then do with that vial as far as the kit?
A. What I do is I fill out the sealed label that goes over the top of the vial so that when the crime lab gets it, they can see that it has not been tampered with, and then the nurse also signs that seal. And it shows up as the — again, on the 104 form, that time that it was sealed.
Q. So this vial is labeled, is that correct, or the kit is labeled?
A. Yes, it is.
Q. Is there information inside this kit with the blood identifying whose blood it was that was taken?
A. Yes.
Q. What type of information is that?
A. It gives the person’s name, their date of birth, their weight, and what you’re requesting. If the person has been arrested for a DUI or actual physical control, if you’re requesting a blood sample for alcohol or if you’re requesting a blood sample for drug use.
Q. And so you then packaged this blood up to be sent to the state crime lab; is that correct?
A. Yes.
Q. And you make sure that the information is contained in this kit when it goes back to them; is that correct?
A. That is correct.
Q. What paperwork is filled out to insure that you have everything in that kit and everything is basically marked as valid?
A. What I fill out — I fill the 104 form out, and then I also on the bottom of the 104 form is what’s called a blood checklist, collection checklist.
Q. Now, just going back to the blank Form 104 here that you indicated was filled out on May 21st, what parts are filled out by whom?
A. The top part, I fill out. It’s asking the subject’s name, date of birth, weight, gender. Again, if they’re arrested for DUI or personal request for the reason for the blood draw. It also lists their driver’s license number, if it’s a specimen of blood or urine, and who the specimen is submitted by and the submitting agency, our agency’s address. And then also where it says remarks, that’s where I write in which arm that the draw was taken off of.
Included in this is the checklist that the collector or the nurse uses to make sure that an intact kit has been used, and also to check to make sure that there’s powder in the vial. And the other side is for laboratory use, which it’s assigned a case number, and they also ask where the — how the vial has been received or how the specimen has been received, the time it’s been received, and if it was in the sealed container and in a sealed blood tube.
Q. So basically you fill out a portion of this, the nurse fills out a portion of this, correct?
A. That’s correct.
Q. And then it goes to the state lab who also completes a portion of this once they receive it?
A. That’s correct.
Q. And just going back to the kit itself briefly, you indicated there was a vial that the blood goes into; is that correct?
A. That’s correct.
Q. What does that vial contain?
A. It contains a light pinkish powder.
Q. Do you know what that is for?
THE WITNESS: It’s to help the blood from coagulating.
Q. And you’re able to observe this vial when you open up the kits, correct?
A. Yes.
Q. Did you observe it in this particular case?
A. Yes, I did.
Q. What exactly did you observe about that vial?
A. The vial was — the glass vial did have the light pinkish-colored powder inside the vial.
Q. Is this the same observations you make of all the kits, or was it any different?
A. No, it’s the same.
Q. Then once you’ve completed this whole process, done your checklist, sealed and packaged your bag or the box, the kit with the blood in it, what happens next?
A. It’s mailed to the state crime lab.
Q. Then at some point in time do you receive anything back from the state crime lab?
A. Yes. Depending on how busy they are, sometimes two to three weeks later we’ll receive results back showing the actual alcohol content in the blood.
Q. And in this case, did you receive something back from the crime lab?
A. Yes, I did.
Q. And according to the lab results that you received back, what was the blood alcohol concentration of the defendant on May 21st, 2006?
A. The alcohol concentration came back at a .11.

[¶ 13] Officer Mayer’s testimony laid the foundation for the admission of Form 104. Officer Mayer testified that he witnessed the entire blood draw. Officer Mayer personally observed the blood draw by the registered nurse and, based on his personal observations, he was able to testify how Friedt’s blood was obtained. Officer Mayer testified that he inspected the contents of the blood sample kit to ensure it contained all the necessary supplies. He testified that everything that was supposed to be in the blood sample kit was found in the kit used to draw Friedt’s blood. He testified that the nurse used the materials in the kit to take the blood draw. Officer Mayer testified that the blood tube used when drawing Friedt’s blood contained a pink powder. Further, Burkett testified that Friedt’s blood sample, on arrival at the State Crime Laboratory, was healthy, whole blood, which indicated powder was properly used to preserve it. Burkett was available for cross-examination to elicit whether Friedt’s blood sample was properly preserved. Officer Mayer was also available for cross-examination about his personal observations of the blood draw. Officer Mayer’s testimony showed that Friedt’s blood was properly obtained, and laid the foundation for the admission of Form 104.

IV

[¶ 14] We conclude the trial court did not abuse its discretion in admitting State’s Exhibit 4, Form 104. We affirm the criminal judgment.

[¶ 15] GERALD W. VANDE WALLE, C.J., BRUCE E. BOHLMAN, S.J., DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ.

[¶ 16] The Honorable BRUCE E. BOHLMAN, S.J., sitting in place of KAPSNER, J., disqualified.


author: KAPSNER, Justice.

text:
    2007 ND 115
    In the Interest of B.B., a child. Carmell F. Mattison, Grand Forks County Assistant State’s Attorney, Petitioner and Appellee, v. B.B., B.J.F., Respondents, and S.L.B., Respondent and Appellant.
    No. 20060322.
    Supreme Court of North Dakota.
    July 25, 2007.

      Carmell Faye Mattison, Assistant State’s Attorney, Grand Forks, N.D., for petitioner and appellee.
    Daniel James Borgen, Grand Forks Public Defender Office, Grand Forks, N.D., for respondent and appellant.
   KAPSNER, Justice.

[¶ 1] S.B., the father of nine-year-old B.B., appeals a juvenile court order finding B.B. is a deprived child and placing him in the custody of the Department of Human Services. We affirm.

I

[¶ 2] In April 2006, the State filed a deprivation petition, alleging B.B. was deprived under N.D.C.C. § 27 — 20—02(8)(a) because of psychological maltreatment by his parents, S.B. and B.F. At the time of the petition, S.B. had physical custody of B.B., and B.B.’s mother, B.F., had visitation. B.B. has three half-siblings, who are minors and were living with their mother, B.F. The deprivation petition also alleged B.B.’s three half-siblings were deprived.

[¶ 3] At the deprivation hearing, S.B.’s probation officer testified about S.B.’s criminal history and that S.B. had recently violated his probation by testing positive for methamphetamine. Serena Koop, a licensed social worker with Grand Forks County Social Services (“Social Services”), testified about her investigation of the abuse and neglect allegations involving B.B.’s family and her preparation of a child protection service assessment report detailing her investigation and findings. Koop’s report was admitted into evidence. The report contained statements from B.F., B.B., B.B.’s half-siblings, B.B.’s maternal grandfather, other family members, and other unidentified people who reported neglect or abuse or spoke with Koop during her investigation. S.B. objected to the report, arguing it contained hearsay within hearsay, but the juvenile court concluded the report was a business record and admitted it into evidence under N.D.R.Ev. 803(6). Koop also testified that since 1996, Social Services had received 29 separate abuse or neglect reports regarding this family, which resulted in 18 investigations and assessments, and five determinations by Social Services that the children were deprived and services were required to ensure the children’s safety. Koop testified B.B. had been placed in the custody of the Department of Human Services on two separate occasions, July 2000 to April 2002 and September 2004 to September 2005. Koop testified the family has been offered ■a variety of services since 1996, the parents have not followed through with many of the services, and the parents have not shown a willingness to change.

[¶ 4] The juvenile court found B.B. was deprived because of repeated exposure to domestic violence between his parents, the parents’ substance abuse, and the parents’ failure to follow through with appropriate rehabilitative treatment. After a disposi-tional hearing, the court placed B.B. in the care, custody and control of the Department of Human Services for a period of twelve months.

II

[¶ 5] S.B. argues the juvenile court erred in admitting the child protection service assessment report into evidence under N.D.R.Ev. 803(6), the business records exception to the hearsay rule. He claims the report should not have been admitted because it contained hearsay within hearsay. He asserts he specifically objected to statements in the report from B.B.’s maternal grandfather, arguing those statements were not reliable because Social Services did not investigate the grandfather’s trustworthiness.

[¶ 6] A district court has broad discretion on evidentiary matters, and we will not reverse a court’s decision to admit or exclude evidence absent an abuse of discretion. Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶ 40, 689 N.W.2d 366. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or if it misinterprets or misapplies the law. State v. Woinarowicz, 2006 ND 179, ¶ 14, 720 N.W.2d 635.

[¶ 7] The juvenile court admitted Koop’s child protection service assessment report under N.D.R.Ev. 803(6), the business record exception to the hearsay rule. The business record exception to the hearsay rule provides for the admission of:

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, 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, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

N.D.R.Ev. 803(6). Rule 803, N.D.R.Ev., is an adoption of Fed.R.Evid. 803, and we may look to federal courts’ interpretations of the federal rule as a guide in construing our rule. N.D.R.Ev. 803 Explanatory Note. See State v. Fischer, 2007 ND 22, ¶ 9, 727 N.W.2d 750 (when a state rule is derived from a federal rule, we may look to the interpretation of the federal rule as a guide).

[¶ 8] The child protection service assessment report does not meet the criteria set out in N.D.R.Ev. 803(6) to qualify as a business record. The information in the report includes out-of-court statements by B.B., B.B.’s half-siblings, B.B.’s maternal grandfather, and other reporters. Business records are made reliable “by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing job or occupation.” Fed.R.Evid. 803(6) Advisory Comm. Note. To satisfy the business records exception, each participant in the creation of the record must be acting in the course of regularly conducted business to ensure the trustworthiness and reliability of the information. N.D.R.Ev. 803(6); Cameron v. Otto Bock Orthopedic Indus., Inc., 43 F.3d 14, 16 (1st Cir.1994). Although Koop may have been acting in the regular course of business when she prepared the report, the report also includes statements by others who were not acting in the regular course of business, and Koop did not have personal knowledge about the events detailed in their testimony, therefore, there are no guarantees of the reliability or trustworthiness of their statements. See, e.g., Fed.R.Evid. 803(6) Advisory Comm. Note (bystanders’ statements in a police report are inadmissible); In re Termination of Parent-Child Relationship of E.T., 808 N.E.2d 639, 643-44 (Ind.2004) (simply because a caseworker may have a duty to record a third-party statement does not guarantee the accuracy or reliability of those statements). The report contained hearsay within hearsay, and those additional levels of hearsay are not admissible unless they are admissible under another hearsay exception. N.D.R.Ev. 805. See also Zimmerman v. Zimmerman, 1997 ND 182, ¶ 12, 569 N.W.2d 277 (out-of-court statements from persons other than the author contained in a child abuse investigation report were inadmissible hearsay). We conclude the hearsay statements in the report were not admissible under the business records exception.

[¶ 9] Social Services argues even if the report was not admissible as a business record, it was admissible under N.D.R.Ev. 803(8), the public records exception to the hearsay rule. While the report may be admissible as a public record, the State did not offer the report as a public record and we will not decide issues raised for the first time on appeal. See Heng v. Rotech Medical Corp., 2006 ND 176, ¶ 9, 720 N.W.2d 54.

[¶ 10] We have said in a non-jury case the court should “admit all evidence which is not clearly inadmissible because a judge, when deliberating the ultimate decision, is capable of distinguishing between admissible and inadmissible evidence.” McKechnie v. Berg, 2003 ND 136, ¶ 7, 667 N.W.2d 628. In a bench trial, we presume the court only considered competent evidence, and it is not reversible error to admit incompetent evidence unless the evidence induced an improper finding. Id.

[¶ 11] Although the juvenile court erred in admitting the hearsay statements in the report, we conclude the error was harmless because, as we discuss later, we conclude there was enough other admissible evidence without the hearsay statements to support the finding of deprivation and the hearsay statements did not induce an improper finding.

Ill

[¶ 12] S.B. argues his Sixth Amendment confrontation rights were violated because he was not allowed to cross-examine B.B.’s maternal grandfather and because the sources of some of the allegations and statements in the child protection service assessment report were not identified.

A

[¶ 13] S.B. claims his Sixth Amendment confrontation rights were violated because he was not able to cross examine B.B.’s maternal grandfather. He argues he has a statutory right to cross-examine adverse witnesses in juvenile court proceedings under N.D.C.C. § 27-20-27(1), and that statutory right incorporates Sixth Amendment confrontation rights. He also claims juvenile deprivation proceedings are quasi-punitive in nature, and therefore Sixth Amendment confrontation rights apply.

[¶ 14] The Sixth Amendment to the United States Constitution provides, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” We have previously said, “[t]he sixth amendment right to confront and cross-examine witnesses applies to criminal prosecutions, not to civil proceedings for termination of parental rights.” Matter of Adoption of J.S.P.L., 532 N.W.2d 653, 660 (N.D.1995). Other courts that have addressed this issue have reached similar conclusions and held the Sixth Amendment does not apply to child protection proceedings because they are civil proceedings. See, e.g., Cabinet for Health and Family Servs. v. A.G.G., 190 S.W.3d 338, 345 (Ky.2006); In re D.R., 172 N.C.App. 300, 616 S.E.2d 300, 303 (2005); In re S.A., 2005 SD 120, ¶ 17, 708 N.W.2d 673. We conclude the Sixth Amendment does not apply to juvenile deprivation proceedings.

[¶ 15] However, rights similar to those granted by the Sixth Amendment may exist in civil cases if required by a statute or fundamental fairness. J.S.P.L., 532 N.W.2d at 660. Section 27-20-27(1), N.D.C.C., applies to deprivation proceedings and provides, “[a] party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine adverse witnesses.”

[¶ 16] S.B. objected to the admission of the report containing B.B.’s maternal grandfather’s statements. S.B. claimed he had the right to confront and cross-examine the grandfather. S.B.’s objection was sufficient to raise the right to cross-examine the grandfather under N.D.C.C. § 27-20-27(1). However, N.D.C.C. § 27-20-27(1) only entitles a party in a juvenile hearing to the opportunity to cross-examine an adverse witness. S.B. was provided with Koop’s report before the deprivation hearing, and was aware of the grandfather’s allegations. After S.B. objected to the admission of the report because it contained the grandfather’s hearsay statements and argued he had a right to confront the grandfather, the court overruled the objection and informed S.B. that he could subpoena the grandfather if he wanted to question him. The record reflects that S.B. did not subpoena the grandfather. S.B. had the opportunity to cross-examine B.B.’s maternal grandfather, but chose not to do so. Cf. In re S.A., 2005 SD 120, ¶ 20, 708 N.W.2d 673 (parents were not deprived of opportunity to cross-examine when they were aware before the hearing that the State intended to offer hearsay statements but the parents failed to call the witness for cross-examination, not a due process violation). We conclude S.B. was not deprived of the opportunity to cross-examine B.B.’s grandfather, and the statutory requirements of N.D.C.C. § 27-20-27(1) were satisfied.

B

[¶ 17] S.B. argues his right to cross-examine adverse witnesses was violated because he was not allowed to confront and cross-examine the unidentified individuals who reported allegations of abuse or neglect or made statements to Koop. Koop’s report included statements from these unidentified reporters. S.B. argues the identities of these reporters should have been disclosed to him.

[¶ 18] All child abuse or neglect reports made under N.D.C.C. ch. 50-25.1 are confidential. N.D.C.C. § 50-25.1-11. A copy of an abuse or neglect report, and any other information obtained, must be made available to any person who is the subject of a report, provided the identity of an individual who made a report or supplied information under N.D.C.C. ch. 50-25.1 is protected. N.D.C.C. § 50-25.1-11(4).

[¶ 19] During the deprivation hearing, S.B. asked the juvenile court to order Social Services to disclose whether B.B.’s maternal grandfather was a reporter. The court denied S.B.’s request. As we have previously stated, S.B. was aware of the allegations and statements the grandfather made to Social Services and he had an opportunity to confront and cross-examine the grandfather but he chose not to.

[¶ 20] S.B. did not ask the juvenile court to order the disclosure of any other unidentified reporters or argue that he had a right to confront any other reporters. S.B. did not appropriately raise this issue in the juvenile court, and we will not address issues raised for the first time on appeal. See Heng, 2006 ND 176, ¶ 9, 720 N.W.2d 54.

IV

[¶ 21] S.B. claims the court’s finding of deprivation is not supported by the evidence.

[¶ 22] A child is deprived if the child “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health, or morals, and the deprivation is not due primarily to the lack of financial means of the child’s parents. ...” N.D.C.C. § 27 — 20—02(8)(a). The court’s finding of deprivation must be supported by clear and convincing evidence, and the court’s findings will not be set aside on appeal unless they are clearly erroneous. In re T.T., 2004 ND 138, ¶ 5, 681 N.W.2d 779. A finding is clearly erroneous “if there is no evidence to support it, if the reviewing court is left with a definite and firm conviction a mistake has been made, or if the finding is induced by an erroneous view of the law.” Id.

[¶23] The juvenile court found B.B. was deprived as alleged in the petition, specifically citing “repeated domestic violence, substance abuse issues and failure to follow through with appropriate rehabilitative treatment/counseling regimens by both [parents].” Although the court’s findings are minimal, they are sufficient to understand the basis for the court’s deprivation finding.

[IT 24] We have concluded the court erred in admitting Koop’s child protection service assessment report under the business records exception, but we presume the court only considered competent evidence. While the hearsay statements contained in the report were not admissible, not all the information contained in the report was hearsay and therefore the court could consider that evidence. Excluding the hearsay statements, we conclude there is sufficient evidence to support a finding of deprivation. At the time of the April 2006 petition, S.B. had physical custody of B.B. At the deprivation hearing, S.B.’s probation officer testified S.B. recently tested positive twice for methamphetamine. S.B.’s probation officer also testified S.B. called him in March 2006 and was talking very rapidly and excitedly about people setting him up, about drug activity in the area, and accusing the probation officer of sending people to his home. The probation officer testified that based on the phone conversation, he believed S.B. was either using drugs or had some type of mental health problem. There was also evidence that S.B.’s probation was revoked in May 2006, as a result of his positive drug tests and other violations, and he was. required to undergo a substance abuse evaluation and serve 90 days imprisonment. Koop testified Social Services has a long history of involvement with B.B.’s family and has required or recommended various services in the past to help the family, but B.B.’s parents have failed to show a willingness to change. She testified that Social Services has completed 18 assessments, and five times Social Services determined the children were deprived and services were required to ensure the children’s safety. There is evidence B.F. and S.B. have a history of engaging in domestic violence. Koop testified that B.B. has been negatively impacted by witnessing his parents’ domestic violence and being placed in the middle of their disputes. B.B. was previously placed in the custody of Social Services from September 5, 2004 through September 5, 2005. We conclude the evidence supports the court’s finding that B.B. is deprived, and the court’s finding is not clearly erroneous.

V

[¶ 25] We affirm.

[¶ 26] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MAKING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.