J-S72040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: M.A.O.R., A/K/A M.O., A        :   IN THE SUPERIOR COURT OF
 MINOR                                 :        PENNSYLVANIA
                                       :
                                       :
 APPEAL OF: V.R.L., MOTHER             :
                                       :
                                       :
                                       :
                                       :   No. 657 MDA 2018


              Appeal from the Decree Entered, March 15, 2018,
               in the Court of Common Pleas of Berks County,
                       Orphans' Court at No(s): 85415


 IN RE: A.Y.O.R., A MINOR              :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: V.R.L., MOTHER             :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 658 MDA 2018


              Appeal from the Decree Entered, March 15, 2018,
               in the Court of Common Pleas of Berks County,
                      Orphans' Court at No(s): 85416.


 IN RE: V.O.R., A MINOR                :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
 APPEAL OF: V.R.L., MOTHER             :
                                       :
                                       :
                                       :
                                       :
                                       :   No. 659 MDA 2018
J-S72040-18



                     Appeal from the Decree, March 15, 2018,
                 in the Court of Common Pleas of Berks County,
                        Orphans' Court at No(s): 85417.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

CONCURRING STATEMENT BY KUNSELMAN, J.: FILED: MAY 20, 2019

      I join the Majority’s decision, but I write separately to comment on the

lower court’s questionable use of judicial notice and Mother’s apparent waiver

of this issue.

      To begin – and seemingly contrary to the Majority’s view – I believe

Mother meant to challenge the admission of all 80 of CYS’ exhibits, not just

the three (Exhibits 71, 79, and 80) that fell outside of the court’s judicial notice

ruling. See Mother’s Brief at 4.

      In her very first question presented, Mother asked:

           Whether the trial court erred as a matter of law and abused
           its discretion by permitting [CYS] to submit inadmissible
           hearsay evidence, to wit: a voluminous packet of
           exhibits – including various reports from service providers,
           evaluations, case notes from third parties not present at the
           hearing….

Id. (Emphasis added).

      Indeed, by specifically referencing exhibits other than numbers 71, 79,

and 80, Mother clearly believed she challenged the entirety of the “voluminous

packet.”

      I note that the orphans’ court in this case engaged in a similar

evidentiary practice as the orphans’ court in In re A.J.R.H. 188 A.3d 1157



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J-S72040-18



(Pa. 2018), a case that also involved a Berks County termination of parental

rights proceeding. (In fact, In re A.J.R.H. is the only case Mother cites in

this particular argument section of her brief.)

        At the instant termination hearing, Mother’s counsel advised the

orphans’ court that our Supreme Court had just granted the allowance of the

appeal in In re A.J.R.-H. to address the Berks County practice of en masse

admission of CYS exhibits under the business records hearsay objection.1

Mother then made the same hearsay objection when CYS moved to admit

dozens of exhibits en masse in this case. The orphans’ court entertained the

parties’ extensive arguments on admissibility under the hearsay exception,

but ultimately – and upon the request of the county solicitor – the court took

judicial notice of all but three exhibits. See N.T., at 101.

        Critically, Mother did not object to the court’s taking of judicial notice;

thus, Mother only preserved a challenge to the three CYS exhibits admitted

under the hearsay exception, namely: Exhibits 71, 79, and 80.

        I recognize, of course, that it was not the en masse admission, per se,

that troubled our Supreme Court in In re A.J.R.H.; it was the lack of proper

authentication. Still, I question whether the en masse taking of judicial notice

of exhibits is the functional equivalent of en masse admission of exhibits under

the business records exception without proper authentication. And if it is the

____________________________________________


1   I doubt Berks was the only county to have engaged in this practice.




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equivalent, wouldn’t taking judicial notice come dangerously close to

circumventing a parent’s right to due process in a termination proceeding?

See In re A.J.R.H. 188 A.3d at 1178-1179.2

       Presumably, the judicially noticed “voluminous packet of exhibits” was

admitted under Pa.R.E. 201, which provides in relevant part:

          (a)   Scope. This      rule    governs judicial notice of   an
          adjudicative fact only, not a legislative fact.

          (b) Kinds of Facts That May Be Judicially Noticed. The
          court may judicially notice a fact that is not subject to
          reasonable dispute because it:

              (1) is generally known within the trial court's territorial
              jurisdiction; or

              (2) can be accurately and readily determined from
              sources whose accuracy cannot reasonably be
              questioned.

                                           […]

Pa.R.E. 201.

       Under this rule, a court may take judicial notice of an indisputable fact.

“A fact is indisputable if it is so well established as to be a matter of common

knowledge.      Judicial notice is intended to avoid the formal introduction of

evidence in limited circumstances where the fact sought to be proved is so
____________________________________________


2 “We recognize the highly sensitive nature of a termination proceeding and
the importance of permanency for children in foster care. We also recognize,
however, that the right to make decisions concerning the care, custody, and
control of one's children is one of the oldest fundamental rights protected by
the Due Process Clause. Involuntary termination serves as the most extreme
infringement upon this right.” In re A.J.R.H. 188 A.3d at 1178-1179
(quotations and citations omitted).


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well known that evidence in support thereof is unnecessary.” See, e.g., In re

Estate of Krasinski, 188 A.3d 461, 474 (Pa. Super. 2018) (en banc) (quoting

Kinley v. Bierly, 876 A.2d 419, 421 (Pa. Super. 2005).

      In the instant matter, I seriously question whether some or any of the

judicially noticed facts were so indisputable that their admission into evidence

would have been a mere formality. Nonetheless, the judicial notice issue is

not before us, as it was not properly preserved here. The Majority is correct;

in the end, Mother only challenged the admission of three exhibits.       From

there, the Majority appropriately decides Mother’s appellate issues, and I join

in the decision.




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