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lN THE SUPREME COURT OF PENNSYLVAN|A
NllDDLE DlSTRlCT

|N RE: A.J.R.~H. AND |.G.R.-H. § NO. 38 l\/lAP 2017

: Appea| from the Order of Superior
APPEAL OF: K.J.R., l\/lOTHER : Court at No. 1564 MDA 2016 dated
' May 1, 2017 Affirming the Decree of
the Berl<s County Court of Common
Pleas, Orphans’ Court, dated August
23, 2016 at Nos. 84695 and 84696.

ARGUEDZ |\/|arch 6, 2018

CONCURR|NG OP|N|ON

JUST|CE BAER DEC|DED:July18, 2018

l join the l\/lajority’s well~reasoned conclusion that the orphans’ court erred by
admitting into evidence the 167 exhibits offered by Berks County Chi|dren and Youth
Services (“CYS”) at the hearing to terminate involuntarily the parental rights of K.J.R.
(“l\/|other”) to her daughters A.J.R.-|-l and l.G.R.-H. As the l\/lajority adept|y explains, the
exhibits were hearsay that failed to satisfy the business records exception to the
prohibition against the admission of hearsay evidence |Vlajority Opinion at 15-22. |n
addition, l concur with the l\/|ajority’s determination that the orphans’ court’s error was
harmful to l\/lother, necessitating a new hearing to adjudicate CYS’s petition to terminate
l\/lother’s parental rights. /d. at 22-30. However, l write separately because l would
employ a different harmless error standard than the standard utilized by the l\/|ajority when
evaluating the error that occurred during the termination hearing.

Regarding the standard that an appellate court should apply when determining
whether an error that occurred during a termination proceeding was harmless, the

l\/lajority states that in In re Sanders Chi/dren, 312 A.2d 414, 417 (Pa. 1973), this Court

held that where “an erroneous evidentiary ruling could potentially have affected the
decision to terminate a parent’s rights to his or her child, an error is not harmless and the
parent is entitled to a new hearing and decision.”1 l\/lajority Opinion at 22. l respectfully
disagree with the l\/lajority that the Court announced a harmless error standard in ln re
Sanders Children which we are bound to follow. To be sure, in that opinion, the Court
determined that the erroneous admission of evidence during the termination hearing
required a new termination proceedingl However, in my view, the Court did not articulate
a distinct harmless error standard for purposes of evaluating errors that occur during
termination proceedings2 l\/|oreover, my research indicates that this Court has never
articulated such a standard

|n addressing whether the orphans’ court committed a harmful error in this case,
l\/lother and CYS agree as to what they believe to be the appropriate harmless error

standard in the termination setting. However, without analysis or explanation, they both

 

1 For this proposition, the l\/lajority cites to the following portion of /n re Sanders Children:

While the contested evidence discussed above constituted only a minor part
of appellee’s case, we cannot say that without this evidence the lower court
would have reached the same resu|t. Because of the serious impact
attending the termination of parental rights, it is important that a judicial
decree extinguishing such rights be based solely on competent evidence
|n light of appellants’ significant evidence of self-improvement, it is quite
possible that the incompetent evidence accepted below provided the ‘swing
factor’ in that court’s determination Appe||ants are entitled to a hearing and
decision free from such taint. Hence, we will remand this matter to the court
below for the purpose of conducting a proceeding consistent with this
opinion -

/n re Sanders Childrenl 312 A.2d at 417.

2 The l\/lajority suggests that l am advocating for the Court to overrule sua sponte ln re
Sanders Children, supra. l\/lajority Opinion at 22-23 n.19. Respectfu|ly, l am in no way
making such an argument Rather, as stated above, l am of the view that /n re Sanders
Children does not constitute binding precedent as to how appellate courts should evaluate
errors that occur in termination proceedings

[J-10-2018] [ivio; Donohue, J.] - 2

simply invoke the generic civil “harmless error” standard and the more specific criminal
“harmless error” standard. l\/lother’s Brief at 22; CYS’s Brief at 16-17. The civil “harmless
error” standard cited by the parties states, “To constitute reversible error, a ruling on
evidence must be shown not only to have been erroneous but harmful to the party
complaining An evidentiary ruling which did not affect the verdict will not provide a basis
for disturbing thejury’sjudgment.” Hart v. l/l/.H. Stewart, /nc., 564 A.2d 1250, 1252 (Pa.

1989) (p|urality) (citations omitted). The criminal “harmless error” standard is as follows:

Harmless error exists where:

(1) the error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially similar
to the erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.

Commonwealth \/. Burno, 154 A.3d 764, 796 (Pa. 2017) (citations omitted). As l will
discuss in more detail below, given the significant rights at stake in termination
proceedings, l believe that the Court should adopt a modified version of the criminal
“harmless error” standard for purposes of evaluating whether an error that occurred in a
termination proceeding requires an appellate court to vacate a decree involuntarily
terminating parental rights and remand the case for a new hearing.

important competing interests and rights are in play when an appellate court
concludes that an error occurred during a criminal tria|. On the one hand, severe
consequences flow from a criminal conviction and sentence For example, when a
criminal conviction leads to a sentence of incarceration, the defendant is substantially
deprived of his constitutionally recognized interest in liberty. See, e.g., Meachum v. Fano,
427 U.S. 215, 224 (1976) (explaining that, “given a valid conviction, the criminal defendant

has been constitutionally deprived of his liberty to the extent that the State may confine

[J-10-2018] [l\/lO: Donohue, J.] - 3

him and subject him to the rules of its prison system so long as the conditions of
confinement do not otherwise violate the Constitution”). Thus, when an error adversely
affects a fact-finder’s decision to convict a defendant, our system of justice mandates that
the defendant receive the fair trial to which he is entitled See, e.g., Commonwea/th v.
Story, 383 A.2d 155 (Pa. 1978) (awarding a defendant a new trial because the trial court
improperly allowed the Commonwealth to introduce into evidence harmful testimony
regarding the victim’s reputation). On the other hand, however, there is a societal interest
in the finality of criminal proceedingsl Commonwealth v. Sam, 952 A.2d 565, 576 (Pa.
2008). Consequent|y, “[i]f a trial error does not deprive the defendant of the fundamentals
of a fair tria|, his conviction will not be reversed.” Commonwea/th v. Wright, 961 A.2d
119, 135 (Pa. 2008).

Due to these competing interests and rights, when an appellate court concludes
that an error was committed during the prosecution of a defendant, it is necessary for the
court to assess whether the error harmed the defendant to such a degree that he was
deprived of a fair trial. Given the importance of such an assessment, this Court
endeavored to articulate a clear standard for determining whether an error was harmless
in Commonwea/th v. Sto/y, supra

ln so doing, the Story Court initially explored the proper “standard of proof” that a
court should apply when examining the harmfulness of an error that was committed in a
criminal trial.3 Story, 383 A.2d at 162-64. We concluded that the proper standard of proof
was “beyond a reasonable doubt” because “this standard is commensurate with the

standard of proof in criminal trials that an accused cannot be convicted unless the trier of

 

3 Generally speaking, “standard of proof” refers to the level of proof required in a particular
case, such as “beyond a reasonable doubt,” “c|ear and convincing,” and “preponderance
of the evidence.” See Commonwea/th v. Ma/donado, 838 A.2d 710, 714-15 (Pa. 2003)
(explaining the concept of “standard of proof").

[J-10-2018] [l\/lO: Donohue, J.] - 4

fact is convinced beyond a reasonable doubt that the accused is guilty as charged.” /d.
at 162. The Court further noted that “the burden of establishing that the error was
harmless beyond a reasonable doubt rests with the Commonwea|th.”4 /d. at n.11.

The Story Court then turned its attention to addressing the definition of
harmlessnessl Although the Court adopted the general “standard that an error cannot be
held harmless unless the appellate court determines that the error could not have
contributed to the verdict,” it observed that “the principle that an error is harmless if it did
not contribute to the verdict only sets the stage for the harmless error inquiry.” /d. at 164.
Accordingly, the Court sought to provide a thorough standard to apply when evaluating
the harmfulness of a trial error. /d. at 164-69.

The Court then discussed, in detail, circumstances in which an appellate court can
deem an error to have been harmless and, thus, should not disturb a defendant’s

conviction or sentence As this Court recently explained,

[t]his lengthy discussion [in Stoly] has been abbreviated and repeatedly
articulated in subsequent cases as follows:

 

4 Because the Commonwea|th carries this burden on appeal, l believe that the Court
intended to require the Commonwea|th to convince or persuade the appellate court, by
way of argument in its appellate brief, that an error was harmless beyond a reasonable
doubt. See Commonwea/th v. Hicks, 156 A.3d 1114, 1140 n.1 (Pa. 2017) (Baer, J.,
Concurring) (“While much of the case law in this regard states that the Commonwea|th
has a ‘burden of proof,’ in my view, it is more accurately described as a burden of
persuasion.”). This burden was placed on the Commonwea|th based primarily upon the
“common-law harmless-error rule [that] put the burden on the beneficiary of the error
either to prove that there was no injury or to suffer a reversal of his erroneously obtained
judgment.” Chapman v. Ca/ifornia, 386 U.S. 18, 24 (1967).

| further observe that, in Hicks, l acknowledged that there is tension in the law as
to whether an appellate court can raise the issue of harmless error sua sponte in a
criminal case when the Commonwea|th does not present argument on the issue Hicks,
156 A.2d at 1140. l have taken the position that, “while ordinarily the Commonwea|th has
the burden of persuasion when it asserts that a particular error was harmless, sua sponte
invocation of the harmless error doctrine is not inappropriate as it does nothing more than
affirm a valid judgment of sentence on an alternative basis.” ld. (footnote omitted).

[J~10-201s] [ivlo; Donohue, J.] - 5

Harm|ess error exists if the state proves either: (1) the error did not
prejudice the defendant or the prejudice was de minimis; or (2) the-
erroneously admitted evidence was merely cumulative of other
untainted evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so oven/vhelming and the prejudicial effect of the
error was so insignificant by comparison that the error could not have
contributed to the verdict.

Commonwea/th v. Fulton, 179 A.3d 475, 493 (Pa` 2018).

ln summary, the Story Court concluded that, when an appellate court determines
that an error occurred during a criminal trial, the Commonwea|th bears the burden of
persuading the court beyond a reasonable doubt that the error could not have contributed
to the verdict. The Commonwea|th must concentrate its argument on demonstrating that
the error in question meets one or several of the three prongs of the Story standard lf
an appellate court determines that the Commonwea|th has met its burden, then the court
should deem the error harmless However, if the court concludes that the Commonwea|th
failed in this regard, then it should grant the defendant a new trial.

Turning now to the termination of parental rights, just like in a criminal appeal,
important competing interests and rights are in play when an appellate court concludes
that an error occurred in a proceeding that culminated in the termination of a parent’s
rights. For the parent, the trial court’s decree permanently extinguishes the fundamental
rights that the parent enjoyed with respect to her child. See, e.g., Hil/er v. Fausey, 904
A.2d 875, 883 (Pa. 2006) (explaining that the United States Supreme Court has
“recognized the existence of a constitutionally protected right of parents to make
decisions concerning the care, custody, and control of their children”). Thus, when an
error negatively impacts a court’s decision to terminate parental rights, our system of
justice affords the parent a new hearing. See, e.g., /n re Sanders Childrer), supra

However, “[c]hildren are young for a scant number of years, and we have an

obligation to see to their healthy development quickly.” /n re T.S.M., 71 A.3d 251l 269

[J-10-2018] [l\/|O: Donohue, J.] - 6

(Pa. 2013). Recognizing this reality, our society strives “to expedite children’s placement
in permanent, safe, stable, and loving homes” ld. Consistent with these goals, appellate
courts should affirm decrees terminating parental rights when non-prejudicial errors occur
during termination proceedings

Given the high stakes at issue when a court terminates parental rights, it is
incumbent for this Court to provide to the bench and bar a more focused standard for
examining whether an error that occurred during a termination hearing was harmless ln
my view, the paradigm employed in Story provides an appropriate starting point for courts
to assess whether an error that occurred during a termination proceeding was harmless
Accordingly, utilizing Story as a springboard, l set forth below what l believe to be an
appropriate harmless error standard for purposes of appeals from decrees that terminate
parental rights

With respect to the proper standard of proof, it is well~sett|ed that, “in a proceeding
to involuntarily terminate parental rights, the burden of proof is upon the party seeking
termination to establish by ‘clear and convincing’ evidence the existence of grounds for
doing so.” Il/latter of Adoption of G.T.M., 483 A.2d 1355, 1356 (Pa. 1984) (citing, inter
alia, Santosky v. Kramer, 455 U.S. 745 (1982)). Accordingly, l would employ the “c|ear
and convincing” standard of proof for purposes of a harmless error analysis in the
termination setting. Further, consistent with the principle that the beneficiary of the error
bears the burden of establishing that the error caused no injury, supra at 5 n.3, the

petitioning party in termination cases, including a county agency such as CYS, should

[J-10-2018] [l\/lO: Donohue, J.] - 7

generally carry the requisite burden of persuading the appellate court that any trial error
was harmless,~‘§'6

As to the exact harmless error test to apply in the termination context, l believe
that a slightly modified version of the three areas of inquiry provided in Story in criminal
cases offers a suitable framework by which an appellate court can measure whether a
trial error adversely impacted the fact-finder’s conclusion that a parent’s rights should be
terminated See Story, 383 A.2d at 164 (stating that the “principle that an error is
harmless if it did not contribute to the verdict only sets the stage for the harmless error
inquiry"). Specifically, harmless error exists in the termination setting if the petitioning
party adequately demonstrates that: (1) the error did not prejudice the parent or the
prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted evidence that termination of
parental rights was proper was so overwhelming and the prejudicial effect of the error
was so insignificant by comparison that the error could not have contributed to the fact-
finder’s determination

Applying this test to the matter sub judice, l conclude that CYS has failed to meet
its burden of establishing that the orphans’ court’s error was harmless As noted above,
CYS invokes the above-stated criminal harmless error test. CYS’s Brief at 16-17. Yet,

CYS incorrectly suggests that it is l\/lother’s burden to prove that she was harmed by the

 

5 ln Pennsylvania, a petition to terminate involuntarily parental rights can be filed by: (1)
a parent when termination is sought with respect to the other parent; (2) an agency; (3) a
person having custody or standing in loco parentis of’a child and who has filed a report
of intention to adopt the child; and (4) an attorney representing a child or a guardian ad
litem representing a child who has been adjudicated dependent 23 Pa.C.S. § 2512(a).

6 Consistent with my position in Hicks, supra at 5 n.3, this rule would be flexible, allowing
appellate courts to raise the issue of harmless error sua sponte

[J-10-2018] [l\/lO: Donohue, J.] - 8

court’s error. See, e.g., id. at 17 (“l\/lother has failed to identify how the admission caused
harm.”). Further, although CYS baldly asserts that the error was harmless under all three
areas of inquiry provided in Story, id. at 18-19, its cursory argument focuses primarily on
its view that the properly admitted and uncontradicted evidence that termination of
parental rights was proper was so oven/vhelming and the prejudicial effect of the error
was so insignificant by comparison that the error could not have contributed to the
orphans’ court’s decision see id. at 18 (“Accordingly, [CYS] submits that the non-hearsay
testimony of l\/ls. Karlunkas, l\/ls. Kauffman-Jacoby and l\/ls. Radcliffe alone are sufficient
to warrant the termination of l\/lother’s parental rights.”).

However, the l\/lajority’s painstaking summary of the record belies CYS’s position
as the prejudicial effect caused by the erroneous admission of the 167 exhibits is
pervasive l\/lajority Opinion at 22-30. lndeed, the l\/lajority Opinion cogently
demonstrates that the error in this case could not be deemed harmless under any of the
prongs of the Story harmless error analysis, as it is manifest that “the inadmissible exhibits
provided the foundation for the orphans’ court to find clear and convincing evidence in
support of termination under subsections (a) and (b) of the termination statute.” Id at 29.
For these reasons l would: (1) vacate the Superior Court's judgment; (2) vacate the trial
court decrees terminating l\/lother’s rights; and (3) remand the matter for a new hearing

on CYS’s petition to terminate l\/lother’s parental rights.

[J-10-2018] [l\/lO: Donohue, J.] - 9

