J-A21011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: T.T., A                  :   IN THE SUPERIOR COURT OF
    MINOR                                        :        PENNSYLVANIA
                                                 :
                                                 :
    APPEAL OF: A.T., MOTHER                      :
                                                 :
                                                 :
                                                 :
                                                 :   No. 615 EDA 2019

                Appeal from the Order Entered January 22, 2019
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                        No(s): CP-51-DP-0002665-2018


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED NOVEMBER 27, 2019

       A.T. (“Mother”) appeals from the January 22, 2019 order of adjudication

and disposition that granted the dependency petition filed by the Philadelphia

Department of Human Services (“DHS”) and deemed Mother a perpetrator of

child abuse against her son, T.T.1             Mother challenges the juvenile court’s

determination of child abuse. We affirm in part, vacate in part, and remand

for further proceedings.

       T.T. was born during April 2011. He suffers from mental and behavioral

health problems, including homicidal and suicidal ideations, attention deficit

hyperactivity disorder (“ADHD”) and oppositional defiant disorder (“ODD”).

____________________________________________


1 While the order did not expressly identify Mother as a perpetrator of child
abuse, it stated the court’s finding of child abuse and its conclusion that the
child protective service report, which implicated Mother as the perpetrator,
was founded under the Child Protective Service Law.
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He has endured multiple hospitalizations, some of which were triggered by

tantrums and aggressive behavior toward Mother, who is his biological aunt.

T.T. receives mobile therapy through Citizens Acting Together Can Help

(“CATCH”), who previously interceded in T.T.’s contentious, sometimes

combative, relationship with Mother.

     The certified record reveals the following facts. On December 17, 2018,

Adrienne Cox, T.T.’s CATCH therapist, intervened in an altercation between

Mother and T.T. that erupted at the family residence after the then-seven-

year-old child broke a window in the home. Mother expelled T.T. from the

home and refused entry when the child attempted to reenter the residence.

At some point, Mother engaged the assistance of Ms. Cox, who, upon her

arrival at the residence, observed T.T. outside of the home.    A neighbor

informed Ms. Cox that T.T. had been left outside unattended for at least two

hours without a hat or jacket. The neighbor also indicated to Ms. Cox that

Mother has engaged in similar behavior in the past.     Even after Ms. Cox

arrived, Mother refused to permit T.T. entry, and she clashed with the child

verbally. That argument escalated to a point where Ms. Cox was required to

restrain Mother physically before twice calling the Philadelphia Police

Department for assistance. When the police arrived, Mother was adamant

that T.T. could not return inside the home. Accordingly, the child was taken

to DHS, who obtained an order of protective custody (“OPC”).




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      Following the ensuing shelter care hearing on December 19, 2018, the

juvenile court lifted the OPC, and temporarily committed T.T. to DHS’s legal

and physical custody. The court permitted Mother to participate in supervised

visitation with her son at the agency. Meanwhile, on December 18, 2018,

DHS opened a child protective service (“CPS”) report alleging that Mother’s

actions during the December 17, 2018 incident were tantamount to child

abuse, i.e., a repeated, prolonged, or egregious failure to supervise.    See

N.T., 1/22/19, DHS Exhibit 1; CPS Report #8382193, 12/18/18, at 2. Three

days later, DHS filed a dependency petition alleging that T.T. was both (1) a

dependent child due to a lack of proper care or control and/or abandonment

and (2) a victim of child abuse in relation to the December 17, 2018 ordeal.

      At the outset of the dependency hearing, the parties stipulated to the

finding of dependency due to Mother’s present inability to parent.       N.T.,

1/22/19, at 5-6. Specifically, DHS recommended “an open petition with the

understanding that once the child is ready for discharge from the hospital that

he may be returned to [M]other’s care with supervision.” Id. at 6. Mother

agreed with the dependency adjudication, but contested the allegation that

she perpetrated child abuse.

      During the ensuing hearing, DHS presented the testimony of Gabriel Li,

the DHS social worker who investigated the CPS report. Mr. Li testified that

he interviewed T.T., Ms. Cox, and Mother, and reviewed the police report,

which was neither admitted into evidence nor included in the certified record.


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Id. at 8, 9, 16. In summary, Mr. Li testified that T.T. admitted that he broke

a window and that Mother would not allow him to reenter the home. Id. at

8-9. As it relates to physical abuse, T.T. indicated that he was not subject to

abuse while in Mother’s care. Id. at 15. Likewise, Mother admitted to Mr. Li

that she prohibited the child from entering the home, that she regretted her

decision, and that she wanted the child to return home. Id. at 9, 15. Mr. Li

also testified that Mother “confirm[ed] the facts of the [CPS] report.” Id. at

9.   As it relates to Ms. Cox, the primary witness to the incident, Mr. Li

recounted that Mother called Ms. Cox to the home, and Ms. Cox eventually

observed T.T. outside of the home. Id. at. 17-18.

      Over Mother’s hearsay objection, Mr. Li also recounted the allegations

outlined in the CPS report which was subsequently admitted into the record

as substantive evidence.    Id. at 7, 13, DHS Exhibit 1.    In relation to the

hearsay arguments that Mother asserts in her brief, the CPS report included

two overlapping sets of allegations. The first statement, designated as the

“State Narrative,” provided as follows:

      Type and Nature of Maltreatment

        [T.T.]’s case manager called [the Reporting Source] to come
        get [T.T.] because [he] had a tantrum and was out of control.
        [T.T.] was outside by himself with no hat or jacket. [T.T.] had
        been out for a couple hours. [Mother] left him there alone.
        [Mother] came back and got in a verbal altercation and
        attempted to become aggressive with [T.T.]. [Ms. Cox]
        restrained [Mother]. [Ms. Cox] called police twice. Police came
        and took [T.T.]. [Child] has been hospitalized in the past for
        aggression towards [Mother] and tantrums. . . . .


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DHS Exhibit 1 at 3.        The second, largely duplicative, description is styled

“Philadelphia DHS Narrative.” Id. In pertinent part, that statement reads,

        . . . Reporting source states [T.T.’s] (7 yrs old) Case Manager
        [(Ms. Cox) was] called . . . because [T.T.] had a tantrum and was
        out of control. [The reporting source] states[: T.T.] was outside
        by himself with no hat or jacket on[;] . . . [T.T.] had been out for
        a couple hours[;] . . . [Mother] left him there alone[;] . . . Mother
        came back and got in a verbal altercation and attempted to
        become aggressive with [T.T.;] . . . [Ms. Cox] restrained Mother[;]
        . . . and [Ms. Cox] called the [p]olice twice[, who] . . . came and
        took [T.T.]. . . . [The reporting source] states a neighbor had
        informed [Ms. Cox] that [T.T.] had been outside [and that] . . .
        Mother has done this in the past.

Id. at 4. The record does not reveal who compiled the CPS report or authored

either of the foregoing narratives.

        After Mr. Li testified as to all of the preceding evidence, the juvenile

court entered the above-referenced adjudication and disposition determining,

inter alia, that T.T. was a victim of child abuse and that the CPS report was

founded pursuant to the Child Protective Services Law (“CPSL”).2 Mother filed

____________________________________________


2   The CPSL defines a founded report, in pertinent part, as:

        A child abuse report involving a perpetrator that is made pursuant
        to this chapter, if any of the following applies:

          (1) There has been a judicial adjudication based on a finding
          that a child who is a subject of the report has been abused and
          the adjudication involves the same factual circumstances
          involved in the allegation of child abuse. The judicial
          adjudication may include any of the following:

             ....




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a timely notice of appeal and a concomitant concise statement of errors

pursuant to Pa.R.A.P. 1925(b).          The statement of errors raised two issues

which Mother reiterates in her brief as follows:

       1.     Did the trial court err as a matter of law and abuse its
       discretion when it made a finding of child abuse where the
       Philadelphia Department of Human Services failed to prove by
       clear and convincing evidence that the child was abused as defined
       by 23 Pa.C.S. § 6303[?]

       2.    Did the trial Court err as a matter of law and abuse its
       discretion when it based its finding of child abuse under the Child
       protective Services law on hearsay statements in violation of 23
       Pa.C.S.A. §§ 5985.1 and 5986; [of] the Juveniles Act; the
       Pennsylvania Rules of Evidence; and Appellant’s rights to due
       process[?]

Mother’s brief at 5.

       Our standard of review of a finding of child abuse in a dependency case

is as follows:

         The standard of review in dependency cases requires an
         appellate court to accept the findings of fact and credibility
         determinations of the trial court if they are supported by the
         record, but does not require the appellate court to accept the
         lower court’s inferences or conclusions of law. Accordingly,
         we review for an abuse of discretion.

       In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted);
       see also In the Interest of L.Z., 111 A.3d 1164, 1174 (Pa.
       2015). “The trial court is free to believe all, part, or none of the
       evidence presented and is likewise free to make all credibility

____________________________________________


            (iii) A finding of dependency under 42 Pa.C.S. § 6341
            (relating to adjudication) if the court has entered a finding
            that a child who is the subject of the report has been
            abused.

23 Pa.C.S. § 6303(a).

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       determinations and resolve conflicts in the evidence.” In re M.G.,
       855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).

       While dependency proceedings are governed by the Juvenile Act,
       42 Pa.C.S. §§ 6301–6375, the [CPSL] controls determinations
       regarding findings of child abuse, which the juvenile courts must
       find by clear and convincing evidence. See In the Interest of
       J.R.W., 631 A.2d 1019 (Pa.Super. 1993). As the Supreme Court
       explained in In the Interest of L.Z., supra at 1176, “[as] part
       of [a] dependency adjudication, a court may find a parent to be
       the perpetrator of child abuse,” as defined by the CPSL.

In The Interest of T.G., 208 A.3d 487, 490 (Pa.Super. 2019).

       Instantly, DHS’s petition for an adjudication of dependency asserted

that Mother committed child abuse by failing to supervise T.T. during the two-

hour period he was banished from the family residence. In pertinent part, the

CPSL defines child abuse as follows:

       (b.1) Child abuse.— The term “child abuse” shall mean
       intentionally, knowingly, or recklessly[3] doing any of the
       following:

       ....

       (7) Causing serious physical neglect.

23 Pa.C.S. § 6303(b.1)(7). As it relates to the case at bar, serious physical

neglect is defined as “[a] repeated, prolonged or egregious failure to supervise

a child in a manner that is appropriate considering the child’s developmental

age and abilities[,]” when the neglect “endangers a child’s life or health,


____________________________________________


3 The CPSL incorporates the statutory definitions of intentionally, knowingly,
and recklessly that our legislature outlined in § 302(b)(3) of the Crimes Code
relating to the general requirements of culpability. See 23 Pa.C.S. § 6303(a).


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threatens a child's well-being, causes bodily injury or impairs a child’s health,

development[,] or functioning[.]” 23 Pa.C.S. § 6303(a).

      The crux of Mother’s first issue is that “[t]he entirety of the non-hearsay

evidence against Mother” is insufficient to demonstrate by clear and

convincing evidence that she intentionally, knowingly, or recklessly caused

serious physical neglect by precluding T.T. from re-entering the home.

Mother’s brief at 9. Primarily, Mother asserts that the Commonwealth’s only

witness, Mr. Li, lacked first-hand knowledge of the incident and engaged in

conjecture about the duration of the child’s exile, the extent of Mother’s

supervision of the child while he was outside, the weather conditions on the

day of the altercation, and the child’s proximity to a hazardous public roadway.

Id. at 10, 13-15. In sum, she concludes that Mr. Li’s testimony, “in addition

to being inadmissible hearsay, did not provide any detailed information so as

to make [it] clear and convincing evidence of abuse.”        Id. at 10. For the

following reasons, we find that no relief is due.

      Mother’s argument that DHS failed to prove its case by clear and

convincing evidence ignores the applicable standard of review. Thus, while

Mother proffers a cogent claim challenging the admissibility of various aspects

of DHS’s evidence, her assertion that DHS adduced insufficient evidence to

support its allegation of abuse fails. It is a well-ensconced legal principle that

appellate courts do not review sufficiency claims on a diminished record. See

e.g., D’Alessandro v. Pennsylvania State Police, 937 A.2d 404, 410 (Pa.

2007) (plurality) (quoting Commonwealth v. Lovette, 450 A.2d 975, 977

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(Pa. 1982)) (“A sufficiency claim will not be reviewed on a diminished record,

‘but rather on the evidence actually presented to the finder of fact rendering

the questioned verdict.’”); Commonwealth v. Weaver, 76 A.3d 562, 569

(Pa.Super. 2013) (law is clear that we are required to consider all evidence

that was actually received without consideration as to admissibility of evidence

or whether court’s evidentiary rulings were correct).

      Moreover, notwithstanding Mother’s protestations challenging the

propriety of Mr. Li’s testimony about the weather conditions on the date of the

incident, the Court views the evidence actually adduced in a light most

favorable to DHS as the prevailing party and giving it the benefit of all

reasonable and logical inferences that can be drawn from the evidence. See

e.g., S.W. v. S.F., 196 A.3d 224, 230 (Pa.Super. 2018) (in reviewing

challenge to sufficiency of the evidence, appellate court must view evidence

in light most favorable to verdict winner, giving prevailing party the benefit of

all reasonable inferences). As the incident occurred during mid-December in

Pennsylvania, it is reasonable to infer that it was cold outside when Mother

expelled her son from the house for two hours without a coat or hat.

      Similarly, our standard of review precludes this Court from adopting

Mother’s supposition that she supervised the child personally from inside the

home, that she enlisted the assistance of a neighbor to watch over T.T. while

he was outside, or that the eventual arrival of Ms. Cox and the police officer

eased her burden of supervisor. We address these points seriatim. First, the

certified record casts doubt on Mother’s assertion that she engaged the

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assistance of a neighbor. On cross-examination, Mr. Li rebuffed counsel for

Mother’s suggestion that a neighbor was reported to have aided Mother during

the event. He testified, “No. That neighbor was not mentioned,” and when

counsel subsequently revisited the topic, Mr. Li reiterated, “I can’t confirm the

neighbor.” N.T. 1/22/19, at 17. Hence, the record does not support Mother’s

contention that her neighbor supervised the outcast child.

       Moreover, the record does not sustain Mother’s theory that either the

police or Ms. Cox supervised the child during this period.     Recall that Mr. Li

specifically testified that Ms. Cox eventually located T.T. outside of the home,

presumably upon her response to Mother’s beckoning.           Furthermore, the

police did not arrive until Ms. Cox twice requested police assistance because

Mother became aggressive with T.T., and Ms.Cox had to restrain her.            It

strains credulity for Mother to attribute supervision to Ms. Cox or the

responding police officer when it is clear from the certified record that neither

arrived until sometime after Mother expelled her son from the home.

       Finally, while Mother very well could have monitored T.T. throughout his

two-hour banishment, there is no evidence to support that notion and, though

logical, we cannot reach such an inference because Mother was not the

prevailing party. See S.W., supra at 230. Thus, when viewed in a light most

favorable to DHS, the evidence fails to support Mother’s assertion that either

she, Ms. Cox, a police officer, or a neighbor supervised T.T. for the two hours

that he was banished from the home without a hat or coat on that December

day.

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      In sum, contrary to Mother’s assertion, DHS adduced clear and

convincing evidence that Mother perpetrated child abuse pursuant to

§ 6303(b.1)(7).   At a minimum, the facts of record establish that Mother

became angry with T.T. following one of the child’s tantrums and made him

stay outside of the home, alone, for at least two hours, during mid-December.

Mother acknowledged these actions and noted her regret to Mr. Li. Moreover,

as it relates to whether Mother’s failure to supervise the child while he was

forced to remain outside of the house for two hours was either repeated,

prolonged or egregious, the evidence reveals that this is not the first time

Mother reacted to T.T.’s behavior by banishing him from the home, as reported

by a neighbor in the CPS report that was admitted into evidence at trial. In

this vein, the facts that T.T. was seven years old and suffered from severe

mental health problems, including suicidal and homicidal ideations, are

particularly relevant to whether Mother’s behavior constitutes serious physical

neglect.   See 23 Pa.C.S § 6303 (“‘Serious physical neglect’ [includes] [a]

repeated, prolonged or egregious failure to supervise a child in a manner that

is appropriate considering the child's developmental age and abilities.”). Since

the clear and convincing evidence actually presented during the trial supports

the juvenile court’s finding of child abuse, we do not disturb its determination

on this basis. Mother’s contrary interpretation, which examines a diminished

record and relies upon inferences favorable to her, ignores the applicable

standard of review.




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      Next, we address Mother’s claim that the juvenile court erred in

admitting hearsay evidence over her objections, an evidentiary issue that is

separate and distinct from Mother’s initial challenge to the sufficiency of the

evidence that DHS actually adduced.          Specifically, Mother asserts that the

juvenile court erred in admitting the CPS report as a business record without

requiring DHS to lay a proper foundation to any noted hearsay exceptions.

Mother also challenges the juvenile court’s decision to admit into evidence Mr.

Li’s testimony reiterating the hearsay from the CPS report, or the statements

proffered to him by T.T., Mother, and Ms. Cox, some of which contains hearsay

within hearsay, i.e., the entire CPS report and Ms. Cox’s reference to the

neighbor who noted that Mother has engaged in similar behavior in the past.

For the following reasons, we agree with Mother’s argument that the evidence

was inadmissible and remand for a new hearing.

      In In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018), our Supreme

Court restated that appellate court’s review a trial court’s decision to admit or

exclude evidence for an abuse of discretion. “An abuse of discretion exists

where the trial court has rendered a judgment that is manifestly unreasonable,

arbitrary, or capricious, has failed to apply the law, or was motivated by

partiality, prejudice, bias, or ill will.”    In re Duran, 769 A.2d 497, 506

(Pa.Super. 2001) (cleaned up).

      As noted, supra, the gravamen of Mother’s complaint is that the CPS

report is barred by the rule against hearsay. Hearsay is defined as an “extra

judicial declaration offered to prove the truth of the matter asserted.”

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Keystone Dedicated Logistics, LLC v. JGB Enterprise, Inc., 77 A.3d 1

(Pa.Super. 2013) (quoting Aldridge v. Edmunds, 750 A.2d 292, 296 (Pa.

2000)).   Pennsylvania Rule of Evidence 802 precludes the admission of

hearsay unless an exception applies. In its Rule 1925(a) opinion, the juvenile

court observed that the CPS report was hearsay that was admissible under

the business record exception outlined in Pa.R.A.P. 803(6), which provides, in

pertinent part:

      Records of a Regularly Conducted Activity. A record (which
      includes a memorandum, report, or data compilation in any form)
      of an act, event or condition if,

            (A) the record was made at or near the time by—or from
      information transmitted by—someone with knowledge;

             (B) the record was kept in the course of a regularly
      conducted activity of a “business”, which term includes business,
      institution, association, profession, occupation, and calling of
      every kind, whether or not conducted for profit;

            (C) making the record was a regular practice of that activity;

             (D) all these conditions are shown by the testimony of the
      custodian or another qualified witness, or by a certification that
      complies with Rule 902(11) or (12) or with a statute permitting
      certification; and

            (E) neither the source of information             nor   other
      circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).

      In explaining its decision to admit the CPS report, the juvenile court

concluded, “These are Child Protective Services Reports (CPS) of incidents

reported to DHS, which are kept in the normal course of business and are self-



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authenticating and are used by social worker investigators to interview and

gather more information.” Trial Court Opinion, 4/2/19, at 12. Significantly,

however, while the juvenile court outlined the five requirements of the

business records exception and recited that the report was compiled “was kept

in the normal course of business,” it admitted the document into evidence

without requiring DHS to provide a proper foundation to support that finding

or confirm the fidelity of the report’s preparation.

      The High Court’s discussion in In re A.J.R.-H. informs our review of

Mother’s assertion that the juvenile court erred in admitting the CPS report as

a business record. In that case, our Supreme Court rejected the orphans’

court’s rote admission of a collection of exhibits under the business records

exception without a proper foundation. It reasoned,

             Without question, the manner in which these exhibits were
      admitted into evidence in the first instance failed to satisfy the
      requirements of the business records exception. CYS did not
      present any witness in support of the exhibits’ admission, let alone
      “the custodian or other qualified witness.” See 42 Pa.C.S.
      § 6108(b); Pa.R.E. 803(6)(D). Instead, all of the exhibits were
      presented to the court for admission, in bulk, by the county
      solicitor prior to calling any witnesses to testify. . . . There was
      also no testimony of record that someone with knowledge created
      any of the 167 exhibits at or near the time of the event or that
      they were created in the regular practice of the various agencies
      from which the documents came. See 42 Pa.C.S. § 6108(b);
      Pa.R.E. 803(6)(A), (C). Additionally, none of the documents were
      certified copies. See Pa.R.E. 803(6)(D), 902(11).           The only
      information provided at the time of the exhibits’ admission was
      the county solicitor’s assurance, in response to the leading
      question posed by the orphans’ court, that the exhibits were
      contained in CYS’s files and “were collected in the ordinary course
      of business with regard to this case.” N.T., 8/12/2016, at 18-19;
      see 42 Pa.C.S. § 6108(b); Pa.R.E. 803(6)(B).

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Id. at 1167-68 (footnote omitted). Thus, the High Court held that it was error

for the orphans’ court to admit the exhibits without first establishing the

proper foundation to support the business records exception. As the exhibits

were not prepared by the testifying witnesses, and CYS neglected to lay a

foundation with regard to their preparation, the exhibits were held to be

inadmissible.

      Furthermore, as it relates to whether the evidentiary error was harmless

in light of the concurrent testimony that CYS adduced at the evidentiary

hearing, the Supreme Court stressed, “the standard for finding harmlessness

in a termination case requires us to conclude that the evidentiary error could

not have had any impact upon the orphans’ court’s decision.” Id. at 1175.

Notably, it continued, “[t]hat there may have been properly admitted evidence

sufficient to support termination does not render the orphans’ court’s

substantial evidentiary error harmless.” Id.

      Thereafter, the In re A.J.R.-H. Court clarified that, while couched as

harmless error, this Court’s practice of affirming a trial court decision on any

basis supported by the certified record is, in reality, an application of the “right

for any reason” doctrine. Id. at 1176. Importantly, the Court observed that

this doctrine is inappropriate where an unresolved dispute of fact exists. It

explained, “appellate courts should refrain from assuming the role of a fact-

finder in an attempt to sustain the action of the court below.” Id. (quoting

Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974)).                Hence,

according to the High Court, the right for any reason doctrine “may not be

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used to affirm a decision when the appellate court must weigh evidence and

engage in fact finding or make credibility determinations to reach a legal

conclusion.” In re A.J.R.-H., supra at 1176.

      While the Supreme Court’s discussion In re A.J.R.-H. addressed the

evidentiary issues in the context of an involuntary termination of parental

rights proceeding in the orphans’ court, the identical principles of evidence

and harmless error apply to the juvenile court’s child abuse hearing. Instantly,

we concluded that the juvenile court abused its discretion in admitting the CPS

report. Notwithstanding the juvenile court’s declaration that the document

was self-authenticating and fashioned in the normal course of DHS business,

there is no evidence in the record to support his finding. While counsel for

DHS responded to Mother’s objection by claiming, “It’s just the [CPS] report,

Your Honor,” there was no testimony by a custodian or other qualified witness

to support the notion that the report was made and kept in the course of

regularly conducted activity. Nor was evidence presented that the report was

either a self-authenticating certified public record pursuant to Pa.R.A.P.

902(1), certified copy of a public record pursuant to Pa.R.A.P. 902(4), or a

certified domestic record of a regularly conducted activity in compliance with

Pa.R.E. 902(11).

      Likewise, DHS did not present even a rudimentary foundation that its

sole witness, Mr. Li, either prepared the CPS report or was its custodian. In

fact, DHS neglected to establish that the person who actually drafted the

report created it at the time of the incident. Although the childline operator

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who received the information from the unidentified reporter ostensibly

collected the underlying information contemporaneous with that telephone

call, there is no testimony to establish when the call was received in relation

to the allegations of abuse and the operator is not identified as the person

who actually drafted the CPS report. In sum, because the CPS report, marked

DHS Exhibit 1, was not prepared by the testifying witnesses and DHS

neglected to lay a foundation with regard to its preparation pursuant to Rule

803(8) (A-D), the exhibit is inadmissible as substantive evidence and the

juvenile court erred in overruling Mother’s hearsay objection.

      Furthermore, since the majority of Mr. Li’s in-court testimony was

founded on the same out-of-court statements compiled in the CPS report, his

testimony parroting those allegations is insufficient to cure the juvenile court’s

error in admitting the inadmissible hearsay. See In re A.J.R.-H., supra at

1172-73 (caseworker could not testify to the substance of inadmissible

documentary evidence); see also In re Sanders Children, 312 A.2d 414,

416 (Pa. 1973) (“The witness’[s] first-hand knowledge of some of the facts

contained in the report cannot justify the admission of otherwise incompetent

hearsay testimony drawn from the same report.”). Presently, the sum total

of Mr. Li’s testimony relevant to abuse that did not flow from the inadmissible

CPS report is that the child broke a window, Mother reacted by prohibiting him

from reentering the home, she subsequently regretted that decision, and by

the time of the interview with Mr. Li, Mother welcomed her son’s return. Mr.

Li continued that Ms. Cox informed him that Mother called her to the home for

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assistance, and upon arrival observed T.T. outside. While Mr. Li also testified

that Mother confirmed the facts of the CPS report, that ratification does not

negate the remaining unresolved disputes of fact concerning, inter alia, (1)

the precise duration of the incident; (2) the temperature and weather

conditions that day; (3) the child’s proximity to the roadway; and (4) Mother’s

supervision from inside the home or her awareness that a neighbor was

monitoring the situation. As Mr. Li’s testimony does not resolve any of these

material factual disputes, the juvenile court’s error cannot be deemed

harmless.   See In re A.J.R.-H., supra at 1176 (the right for any reason

doctrine “may not be used to affirm a decision when the appellate court must

weigh evidence and engage in fact finding or make credibility determinations

to reach a legal conclusion.”).

      For all of the foregoing reasons, we affirm the portion of the January 22,

2019 order of adjudication and disposition that adjudicated T.T. dependent

and vacate the portion of the order that found that T.T. was the victim of child

abuse as defined at 23 Pa.C.S. § 6303(b.1)(7), and we remand the case to

the juvenile court for a new hearing and decision on DHS’s CPS report.

      Order affirmed in part, vacated in part, and remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.




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J-A21011-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/19




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