J-S19018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: G.V.K.                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
APPEAL OF: D.M.F.
                                                      No. 1912 MDA 2016


                Appeal from the Order Entered October 21, 2016
                 In the Court of Common Pleas of Berks County
                         Orphans' Court at No(s): 84539


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 17, 2017

        D.M.F. (Mother) appeals from the October 21, 2016 order that granted

the petition filed by the Berks County Children & Youth Services (BCCYS) to

involuntarily terminate her parental rights to G.V.K. (Child), born in April of

2008.1 We affirm.

        On appeal, Mother presents the following issues for our review:

        A. Whether the trial court erred as a matter of law and/or
        abused its discretion by admitting the [BCCYS] summary packet
        which included eighty[-]three (83) exhibits because the exhibits
        were submitted for the truth of the matter asserted therein,
        contained medical/psychiatric opinions and diagnosis, and did
        not fall under any hearsay exceptions?

        B. Whether the trial court erred and/or abused its discretion in
        terminating [Mother’s] parental rights in that [BCCYS] failed to
        show that [it] made reasonable effort to work toward the goal of


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*
    Former Justice specially assigned to the Superior Court.
1
 It appears that J.K. (Father) has signed a consent to the termination of his
parental rights. He is not a party to this appeal.
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      reunification and provide sufficient support for [Mother] to
      enable reunification?

      C. Whether [BCCYS] failed to prove by clear and convincing
      evidence the elements of 23 [Pa.C.S. §] 2511(a)(2) because the
      evidence submitted at the termination hearings was insufficient
      to prove the statutory requirements of the section listed above?

      D. Whether the trial court erred as a matter of law and/or
      abused its discretion by terminating [Mother’s] parental rights in
      that the evidence at the termination hearings failed to show that
      the needs and welfare of the Child are best served by the
      termination especially where BCCYS failed to submit any
      evidence regarding the bond between Mother and Child?

Mother’s brief at 5.

      We review an order terminating parental rights in accordance with the

following standard:

            When reviewing an appeal from a decree terminating
      parental rights, we are limited to determining whether the
      decision of the trial court is supported by competent evidence.
      Absent an abuse of discretion, an error of law, or insufficient
      evidentiary support for the trial court's decision, the decree
      must stand. Where a trial court has granted a petition to
      involuntarily terminate parental rights, this Court must accord
      the hearing judge's decision the same deference that we would
      give to a jury verdict. We must employ a broad, comprehensive
      review of the record in order to determine whether the trial
      court's decision is supported by competent evidence.

In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) (quoting In re S.H., 879

A.2d 802, 805 (Pa. Super. 2005)).      The burden is upon the petitioner to

prove by clear and convincing evidence that its asserted grounds for seeking

the termination of parental rights are valid.     R.N.J., 985 A.2d at 276.

Moreover, we have explained that:




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      The standard of clear and convincing evidence is defined as
      testimony that is so “clear, direct, weighty and convincing as to
      enable the trier of fact to come to a clear conviction, without
      hesitance, of the truth of the precise facts in issue.”

Id. (quoting In re J.L.C. & J.R.C., 837 A.2d 1247, 1251 (Pa. Super. 2003)).

The trial court is free to believe all, part, or none of the evidence presented

and is likewise free to make all credibility determinations and resolve

conflicts in the evidence.   In re M.G., 855 A.2d 68, 73-74 (Pa. Super.

2004).   If competent evidence supports the trial court’s findings, we will

affirm even if the record could also support the opposite result.       In re

Adoption of T.B.B., 835 A.2d 387, 394 (Pa. Super. 2003).

      With regard to her first issue, Mother contends that the trial court

committed reversible error when, over a general hearsay objection, it

granted the admission of BCCYS’s summary packet that contained 83

exhibits, including medical/psychiatric opinions and diagnosis, which do not

come within any hearsay exceptions. In response to this argument, the trial

court stated:

      Mother challenged the entire packet of exhibits on the grounds
      of hearsay. We took judicial notice of the [c]ourt orders in this
      case. We admitted the documents from BCCYS as the agency’s
      business records and we had testimony from the BCCYS
      caseworker. We did not abuse our discretion in admitting this
      evidence. See generally Commonwealth v. Wood, 637 A.2d
      1335, 1349 (Pa. Super. 1994). As for the expert report, Dr.
      Larry Rotenberg testified during the October 21, 2016 hearing.




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Trial Court Opinion (TCO), 12/8/16, at 1 n.2.2

       When reviewing an issue concerning the admissibility of evidence, we

are guided by the following:

       Admission of evidence is within the sound discretion of the trial
       court and will be reversed only upon a showing that the trial
       court clearly abused its discretion. Admissibility depends on
       relevance and probative value. Evidence is relevant if it logically
       tends to establish a material fact in the case, tends to make a
       fact at issue more or less probable or supports a reasonable
       inference or presumption regarding a material fact.

       Judicial discretion requires action in conformity with law, upon
       facts and circumstances judicially before the court, after hearing
       and due consideration. An abuse of discretion is not merely an
       error of judgment, but if in reaching a conclusion the law is
       overridden or misapplied or the judgment exercised is manifestly
       unreasonable, or the result of partiality, prejudice, bias or ill will,
       as shown by the evidence or the record, discretion is abused.

Commonwealth v. Schoff, 911 A.2d 147, 154 (Pa. Super. 2006) (quoting

Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006) (en

banc) (internal citations omitted)).

       Our review reveals that as to the medical reports contained in the

packet, the trial court indicated that it was only relying on Dr. Rotenberg’s

medical report in light of the doctor’s testimony and that it was not

considering other medical reports submitted. See N.T., 10/21/16, at 5; TCO
____________________________________________


2
 The guardian ad litem points out in his brief that the trial court appeared to
admit the entire packet of exhibits at the first hearing which was held on
September 19, 2016, see N.T., 9/19/16, at 35, but that at the second
hearing on October 21, 2016, the court indicated that it would only consider
Dr. Rotenberg’s expert testimony and report and no other medical reports
contained in the packet, see N.T., 10/21/16, at 5.



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at 1 n.2.    Interestingly, in her brief Mother acknowledges Dr. Rotenberg’s

testimony and states that she “did not object to the admission of his report,

marked Exhibit 80.” Mother’s brief at 22 n.5. Thus, the trial court’s reliance

on only Dr. Rotenberg’s testimony and report and on no other medical

evidence undercuts Mother’s assertions about errors in the admission of

medical opinions and reports. Thus, we conclude that the trial court did not

commit an error in this regard.

      As for the court’s taking judicial notice of the exhibits that are court

orders, a court may take judicial notice “of an adjudicative fact[.]” Pa.R.E.

201(a). Moreover, a “court may judicially notice a fact that is not subject to

reasonable dispute because it: … (2) can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.”

Pa.R.E. 201(b)(2).      Court orders fall within this category, particularly

because if Mother, who was a party to the prior proceedings, had questioned

the prior orders she could have raised her objections in an appropriate

appeal.     See V.B. v. J.E.B., 55 A.3d 1193, 1206 (Pa. Super. 2012) (this

Court found “no basis to disturb the [trial] court’s decision to take judicial

notice of the fact that it ruled against [s]tepmother in a prior custody

dispute”) (emphasis in original). Thus, we conclude that the trial court did

not abuse its discretion by taking judicial notice of the court orders

contained in BCCYS’s packet of documents.




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      Next, we consider the court’s admission of some of the exhibits as

business records. See Pa.R.E. 803(6) (“Records of a Regularly Conducted

Activity”).   Mother recognizes that some of the exhibits were reports from

providers contracting with Berks County to provide services and, as such,

they could have been authenticated by certification.       See Pa.R.E. 902

(“Evidence That is Self-Authenticating”). Although we do not disagree that

certification is a proper avenue to authenticate documents, Mother has failed

to identify any of the 83 exhibits that were submitted for admission that she

claims could have been certified for admission.         In fact, other than

identifying Dr. Rotenberg’s report as Exhibit 80, Mother’s discussion does not

identify any particular exhibit; nor does she name the basis or reason why

any specific exhibit or part thereof should be deemed hearsay and should

not have been considered as evidence in this matter. Copies of the exhibits

are contained in the record by attachment to the transcript of the October

21, 2016 hearing and run from page 54 to page 127 of that transcript. It is

not this Court’s duty to comb the record and identify the reason why each

exhibit should or should not have been admitted. Moreover, a careful review

of these exhibits reveals that a large number of the 83 exhibits are not

contained in the record, namely, Exhibits 1-4, 18-48, 52-69, and 82. “It is

[an a]ppellant’s duty to ensure that this Court is provided a complete

certified record to ensure proper appellate review; a failure to ensure a

complete certified record may render the issue waived.”     Commonwealth


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v. Whitaker, 878 A.2d 914, 922 (Pa. Super. 2005). Therefore, based upon

both Mother’s failure to ensure the inclusion of many of the exhibits and to

identify more specifically the basis for her objections as to each exhibit, we

are compelled to conclude that she has waived this issue. We will not act as

counsel for Mother or attempt to ensure that missing evidence in the record

is recovered to aid in our ability to conduct a meaningful review of this issue.

See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012); see also

Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007).

      We have reviewed the certified record, the briefs of the parties, the

applicable law, and the comprehensive opinion authored by the Honorable

Jill Gehman Koestel of the Court of Common Pleas of Berks County, filed on

December 8, 2016. We conclude that Judge Koestel’s well-reasoned opinion

correctly disposes of the second, third and fourth issues raised by Mother in

this appeal and we discern no abuse of discretion or error of law.

Accordingly, we adopt Judge Koestel’s opinion as our own and affirm the

October 21, 2016 order on that basis.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017

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