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` "“""`[10 2018]
iN THE suPRElle couRT oF PENNsYLvANlA
ivllDDLE DlsTRlcT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

|N RE: A.J.R.-H. AND |.G.R.-H. : No. 38 l\/lAP 2017
: Appeal from the Order of Superior
APPEAL OF: K.J.R., I\/lOTHER : Court at No. 1564 l\/lDA 2016 dated
' l\/lay 1, 2017 Affirming the Decree of
the Berks County Court of Common
Pleas, Orphans’ Court, dated August
23, 2016 at Nos. 84695 and 84696

AR_GUED: |\/larch 6, 2018

OP|N|ON

JUST|CE DONOHUE DEC|DED:July18, 2018

This discretionary appeal involves the propriety of the en masse admission of 167
exhibits at a hearing to involuntarily terminate the parental rights of K.J.R. (“|V|other”) and
D.VV.H. (“Father”) to their minor daughters, A.J.R.-H. and |.G.R.-H. (col|ective|y, the
"Chi|dren”).1 As the record in this matter fails to support a finding that the exhibits satisfied
the business records exception to the prohibition against the admission of hearsay, we
conclude that the orphans’ court erred by admitting them on this basis. See 42 Pa.C.S.

§ 6108(b); Pa.R.E. 803(6).2 We further conclude that the Superior Court incorrectly found

 

1 At the time of the termination, |.G.H.-R. Was seven and A.J.H.-R. Was nine years old.

2 Section 6108(b) provides: “A record of an act, condition or event sha||, insofar as
relevant, be competent evidence if the custodian or other qualified Witness testifies to its
identity and the mode of its preparation, and if it Was made in the regular course of
business at or near the time of the act, condition or event, and if, in the opinion of the

that this error was harmless VVe therefore vacate the decrees terminating |\/|other’s
parental rights and remand the matter to the orphans’ court for a new termination
proceeding.3
|. Facts and Procedural l-_listory
On February 197 2016, Berks County Children and Youth Services (“CYS”) filed

petitions to terminate the parental rights of Mother and Father to the Children pursuant to

 

tribunal, the sources of information, method and time of preparation were such as tojustify
its admission." Simi|ar|y, Rule 803(6) allows the admission of a record of a regularly
conducted activity 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) the opponent does not show that the source of information or other
circumstances indicate a lack of trustworthiness

Pa.R.E. 803(6)_

3 The orphans’ court also involuntarily terminated the parental rights of Father at the
same proceeding Father appealed the decree to the Superior Court, which affirmed in
an unpublished decision. See /n re.'A.R.-H and /.R.-H, 1606 |\/lDA 2016 (Pa. Super. lVlay
1, 2017) (unpublished decision). Like l\/|other, Father also challenged the admission of
the documentary evidence, and the Superior Court affirmed on the same basis as it did
in l\/|other’s case. Father, however, did not seek further review before this Court,
rendering the termination of his parental rights fina|.

[J-10-2018] - 2

section 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.4 As to l\/lother, CYS alleged

that termination was warranted because of her inability to appropriately parent the

 

4 The pertinent provisions of the statute provide:

(a) General rule.--The rights of a parent in regard to a child may be
terminated after a petition filed on any of the following grounds:

(1) The parent by conduct continuing for a period of at least six months
immediately preceding the filing of the petition either has evidenced a
settled purpose of relinquishing parental claim to a child or has refused or
failed to perform parental duties.

(2) The repeated and continued incapacity, abuse, neglect or refusal of the
parent has caused the child to be without essential parental care, control or
subsistence necessary for his physical or mental well-being and the
conditions and causes of the incapacity, abuse, neglect or refusal cannot or
will not be remedied by the parent.

'k ~k 'k

(5) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency for a period of at least six
months, the conditions which led to the removal or placement of the child
continue to exist, the parent cannot or will not remedy those conditions
_ within a reasonable period of time, the services or assistance reasonably
available to the parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable period of time and
termination of the parental rights would best serve the needs and welfare of
the child.
(8) The child has been removed from the care of the parent by the court or
under a voluntary agreement with an agency, 12 months or more have
elapsed from the date of removal or placementl the conditions which led to
the removal or placement of the child continue to exist and termination of
parental rights would best serve the needs and welfare of the child.

'k ~k 'k

(b) Other considerations.--The court in terminating the rights of a parent
shall give primary consideration to the developmenta|, physical and
emotional needs and welfare of the chi|d. The rights of a parent shall not be
terminated solely on the basis of environmental factors such as inadequate
housing, furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition filed pursuant
to subsection (a)(1), (6) or (8), the court shall not consider any efforts by the

[J-10-2018] - 3

Children; her failure to obtain and maintain appropriate and stable housing; her failure to
obtain and maintain a stable and legal source of income; her failure to remediate her
substance abuse problems; ongoing concerns about her mental health; and ongoing
concerns regarding domestic violence. Petition for involuntary Termination of Parenta|
Rights, 2/19/2016, ii 10.

The orphans’ court convened a hearing on the petitions on August 12, 2016. At
the inception of the proceeding, prior to calling any witnesses to testify, the county solicitor
representing CYS moved for the admission of Exhibits 1 through 168. The exhibits,
spanning more than 1230 pages, covered a wide range of subjects from an array of
sources and authors included were

o referrals made by anonymous reporting sources to CYS about the family
dating back to 2007;

o dependency petitions filed by CYS on December 31, 2013 regarding the
Children;

¢ numerous psychological and domestic violence evaluations of Mother,
Father and the Children conducted by a variety of licensed psychiatrists,
psychologists, professional counselors and clinical social workers from
Open Door lnternational, lnc. (“OD|”), Berks Counseling Associates, P.C.,
and Commonwealth Clinical Group;

o drug and alcohol treatment evaluations pertaining to l\/lother and Father
from Treatment Access and Services Center, lnc. (“TASC”);

o substance abuse monitoring and urinalysis reports for l\/|other and Father
from an unidentified agency5 documenting attendance and results;

 

parent to remedy the conditions described therein which are first initiated
subsequent to the giving of notice of the filing of the petition.

23 Pa.c.s. § 2511(3)(1), (2), (5), (8), (b).

5 Some of the entries in the docket, as well as the CYS-created summary of exhibits
contained in Exhibit 161, indicate that the urinalysis reports were from TASC. The reports

[J-10-2018] - 4

» reports documenting observations and conversations by several different
in-home services caseworkers from ODl;

o reports documenting supervised visits between the Children and each
parent conducted by various caseworkers from ODl;

o reports from domestic violence counseling sessions with Father by ODl;

o reports from counseling sessions with Father by Pennsylvania Counseling
Services;

o treatment progress summaries and reports from counseling sessions with
l\/lother by Andrea Karlunas of Commonwealth Clinical Group;

o reports from counseling sessions for l\/iotherfrom Pennsylvania Counseling
Services;

o reports regarding l\/lother’s inpatient drug treatment at Gaudenzia Fountain
Springs (“Gaudenzia”);

o emails sent and received by various CYS caseworkers from third-party
service providers working with the family;

o notes from telephone conversations that various CYS caseworkers had with
third-party service providers;

o police reports and affidavits of probable cause involving Father and l\/lother;
v court orders from the dependency case involving the family;

o printouts of criminal, civil and traffic dockets detailing the outcome of various
court actions brought against l\/lother and Father;

o a typed summary of Father’s criminal history spanning from 1987 through
2014 complied by an unknown author using unlisted sources;

» a protection from abuse (“PFA”) petition filed against Father by l\/lother in
2013, the temporary PFA order that resulted, and the order subsequently
dismissing it based on l\/lother’s failure to appearfor the final hearing;

o PFA violation notices, arrest warrantsl and adjudications from 1990 and
1994 wherein Father was the defendant but Mother was not the victim;

 

themselves, however, contain no notation as to the agency involved or the individual that
tested the specimens and/or authored the reports.

[J-10-2018] - 5

tax documents for Father (Forms 1099-l\/l|SC) for 2014 and 2015;
letters and cards Father sent to the Children and to their caregiver;

writings and drawings by the Children regarding their safety and their
observations of drug/alcohol use by l\/lother and Father and domestic
violence, with no indication as to who worked with the Children on these
projects or, in some instances, which child completed the work;

a seventy-three-page summary of all of the exhibits as well as events
related to the family ranging from l\/larch 24, 2007 through July 11, 2016
and impressions of the case, authored by CYS caseworker Nicole
Kauffman-Jacoby (“Kauffman-Jacoby”), prepared for the termination
hearing on July12, 2016;

CYS’s family service and permanency plans for the family;

handwritten and unsigned “resource parent monthly reports,” detailing the
Children’s activities, medical visits, and behaviors; and

reports from the Children’s mobile therapist, Cherrie A. Sage, l\/l.A., of
Commonwealth Clinical Group.

l\/lother and Father both objected to the admission of the documents on grounds

of hearsay, confrontation, relevance, and absence of certification. Father additionally

objected to the admission of evidence regarding the 1994 PFA violation (Exhibit 124), as

the charges had been dismissed6 The orphans’ court sustained the objection to Exhibit

124 and also initially sustained the hearsay objection to Exhibit 161, the CYS-created

summary ofthe exhibits and of the case as a whole.

As to “[t]he rest of the exhibits,” the orphans’ court asked the solicitor whether they

were contained in CYS’s fi|e, and the solicitor said that they were. N.T., 8/12/2016, at 18-

19. The court then questioned, “They were collected in the ordinary course of business

 

6 The solicitor representing CYS was aware that the charges had been dismissed, but
stated that CYS included the documents “to make the [c]ourt aware of it.” N.T., 8/12/2016,

[J-10-2018] - 6

with regard to this case?” to which the solicitor responded, “They are business records,
Your Honor, yes.” /d. at 19. On that basis, and without inquiring about or othen/vise
discussing the content, timing of the preparation of the documents, author or subject
matter of any of the exhibits, the orphans’ court overruled the parents7 objections “as to
the remaining exhibits.” /d. .

The orphans’ court then entertained additional argument regarding the
admissibility of Exhibit 161, which the county solicitor referred to as “termination
testimony.” /d. at 21. The county solicitor argued that because Kauffman-Jacoby, the
caseworker who had authored the document, was going to testify, the exhibit was
admissible She further stated that the orphans’ court routinely allowed the admission of
“termination testimony" exhibits in other cases. The orphans’ court agreed with the county
solicitor, and stated its belief that an unnamed decision by the Superior Court had recently
held that such a CYS-created summary was admissible in a termination proceeding The
guardian ad litem (“GAL”) representing the Children added that some of the exhibits date
back to 2013, and the caseworkers who were working with the family at that time were no
longer employed by CYS, making it “obvious [that] the information was contained in
business records." ld. at 22. Thereafter, the orphans’ court changed its ruling regarding
Exhibit 161 and found it to be admissible

The hearing then proceeded CYS called three witnesses in support of its petition.
First, Andrea Karlunas (“Kar|unas”)7 of Commonwealth Clinical Group (“CCG”) testified

as an expert in domestic violence treatment and mental health. She testified regarding

 

7 Karlunas is a licensed clinical social worker, certified sex offender treatment specialist,
and a certified domestic violence counselor.

[J-10-2018] - 7

her treatment of l\/iother as her domestic violence counselor, which ceased prior to
Children’s removal from her care in November 2014. She also testified regarding her
evaluation of the Children and her recommendation that they receive behavioral health
services based on the trauma they had witnessed. She stated that she observed
improvements in the Children following their receipt of behavioral health services and
continued placement with their maternal grandparentsl

lt was Karlunas’ expert opinion that i\/lother “would have to demonstrate long term
sustainability in substance abuse, mental health, employment and housing before she
could parent her children.” ld. at 66. Based on unidentified reports that were provided to
her on the day of the hearing, Karlunas expressed concern regarding the parents‘ failure
to resolve their domestic violence issues, the recurrence of which she said would “further
traumatize” the Children. /d. at 36-37. She testified that it is “critical” for the Children to
live “in a safe, secure environment” so that they can “learn to bond and to trust again,”
and to “develop healthy relationships later on in their own life [sic] and that they are able
to identify what is healthy vs. unhealthy in their lives as well.” /d. at 47.

The second witness to testify was CYS caseworker Kauffman-Jacoby. Kaufmann-
Jacoby was assigned as the agency caseworker for the family around the time CYS filed
the petitions to terminate l\/lother’s and Father’s parental rights to the Children. Thus, as
of the termination hearing, she had been working with the family for approximately six
months.

Nonetheless, Kauffman-Jacoby provided testimony regarding CYS’s involvement
with the famiiy, including referrals received between 2007 and 2013, the 2013

dependency petitions filed by CYS, and the 2014 removal of the Children from their

[J-io-zots] - 8

parentsl care.8 She testified regarding l\/iother’s failure to fully comply with all of her court
ordered goals - which included cooperation with mental health services, drug and alcohol
treatment, domestic violence therapy, casework services, maintaining legal and stable
housing and income7 parenting classes, and visitation with the Children - following the
Children’s removal from her care. She also testified that although Father had cooperated
with most of the required services, including dual diagnoses treatment, domestic violence
counseling, urinalysis, and parenting classes, CYS remained concerned that he had not
changed or made sufficient progress According to Kauffman-Jacoby, CYS was
requesting to terminate the parents’ rights “[b]ased on the length of time this case has
been open and all the services that have been put in piace,” and the absence of progress
observed by either l\/iother or Father, particularly concerning domestic violence. ld. at 85.

Kauffman-Jacoby acknowledged that much of her testimony was “based on reports
from prior caseworkers as well as casework providers not associated with [CYS].”
ld. at 102. At various points throughout her testimony, Kauffman-Jacoby referred to her
written summary of the case (Exhibit 161) to answer questions posed to her about the
family. She provided very little testimony based on her interactions with or firsthand
knowledge of the members of the family and the events that had occurred that formed the

basis of the termination petition.

 

3 VVe note that during her testimony, Kauffman-Jacoby incorrectly stated that CYS filed
the petitions for dependency in December 2014 and that the Children were removed from
their parents’ care in Apri| 2015. Compare N.T., 8/12/2016, at 79, with Exhibits 10-11;
compare N.T., 8/12/2016, at 79, with Exhibits 71-72. `

[J-10-2018] - 9

The last witness to testify on behalf of CYS was Sloane Radcliffe, a Child Prep
worker from Diakon.9 Although she was the supervisor of the prior Child Prep worker,
Radcliffe did not work directly with the Children until i\/lay of 2016. She testified regarding
drawings and collages the Children had made with their prior Child Prep worker depicting
a safe home (their grandparents’ home) and an unsafe home (their parents’ home) and
things they experienced that made them feel safe or unsafe. She further testified7 based
on her conversations with the Children, that they did not feel safe living with their parents,
explaining that the Children were afraid of certain situations that occurred “and an
unstable household.” /o'. at 132.

Father and l\/iother also testified at the termination hearing As discussed in
greater detail later in this Opinion, l\/lother and Father contested and attempted to refute
much of Kauffman-Jacoby’s testimony regarding their compliance with their court ordered
goals. Father testified that he successfully completed of all of his court ordered goals,
cooperated with every service provider, and about the love he has for his daughters. He
acknowledged some incidents of domestic violence and arguing with i\/lother, but denied
others, in particular, the incident allegedly recounted by the Children when he held a gun
to |\/lother. He stated that he and i\/lother have not had any problems since the Children’s
removal from their care. He attributed the violence to his use of aicohol, but testified that

he has been sober since 2014. He admitted to continuing to see l\/iother, testifying that

 

9 According to Radc|iffe’s testimony, “Child Prep is brought to foster homes to specifically
work with the children to help them understand how they entered care, process their
thoughts and feelings about that[,] when the time comes to talk about what comes next in
their case,” and “address some of the trauma they incurred in the past as well.” N.T.,
8/12/2016, at 123-24.

[J-10-201s] - 10

they were “trying to co-parent together," and that they were “somewhat friends.” ld. at
158.

i\/lother testified regarding her fulltime employmentl her cooperation with domestic
violence and mental health counseling, her completion of drug and alcohol treatment and
her compliance with urine screens. She acknowledged her prior substance abuse
problem (admitting that her drug of choice was K2), but stated that she has been clean
for sixteen months. i\/lother further testified that she now lives on her own, away from
Father, but stated that she continued to maintain a relationship with Father. According to
l\/lother, the last episode of domestic violence between the parties occurred prior to the
Children’s removai, and although she agreed that they had made mistakes in the past, it
was her desire to “forgive and forget." /d. at 170-71.

/-\t the conclusion of the hearing, the orphans’ court took the matter under
advisementl On August 23, 2016, following its “review [of] the testimony and voluminous
exhibits,” the orphans’ court filed decrees terminating i\/iother’s parental rights to the
Children, finding that CYS had satisfied its burden of proving the facts alleged in the
petition by clear and convincing evidence Finai Decree, 9/23/2016; Orphans’ Court
Opinion, 10/25/2016, at 1. Foilowing i\/iother’s appeal to the Superior Court, the orphans’
court issued an opinion pursuant to Pa.R.A.P. 1925(a) addressing i\/|other’s challenges
to the sufficiency of the evidence to support termination and the court’s decision to admit
the 167 documents into evidence

Regarding l\/iother’s challenge to the admission of the exhibits proffered by CYS,

the court justified its evidentiary ruling on the basis that “[a]uthentication by the scrivener

[J-10-20181- 11

of each individual report, evaluation, progress notel or drawing is not required.” Orphans’
Court Opinion, 10/25/2016, at 10.

lt is not essential to produce either the person who made
the entries or the custodian of the records at the time the
entries were made i\/loreover, the law does not require that a

j witness qualifying business records even have personal
knowledge of the facts of the reported As long as the
authenticating witness can provide sufficient information
relating to the preparation and maintenance of the records to
justify a presumption of trustworthiness

/d. at 11 (quoting Commonwealth v. i/l/Ood, 637 A.2d 1335, 1350 (Pa. Super. 1994)
(ellipses supplied). Based on “the caseworker’s identification of the exhibits as weil as
the entirety of the record,” the orphans’ court found that there was a sufficient basis for it
to conclude that ali of the exhibits, which were part of CYS’s records, “were prepared
simultaneously with the information being obtained and maintained as business records.”
/d.
in a unanimous, unpublished memorandum decision, the Superior Court affirmed

See in re A.J.H. and l.G.H., 1564 i\/iDA 2016, 2017 VVL1573229(Pa.Super. i\/lay1,2017)
(non-precedential decision). Reviewing l\/lother’s evidentiary claim, the Superior Court
began by reciting the business records exception to the prohibition against the
introduction of hearsay. Id. at *9 (citing Pa.R.E. 803(6); 42 Pa.C.S. 6108(b)). lt then set
forth the following standard for finding harmless error:

(1) the error did not prejudice the defendant or the prejudice

was de minimus; 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 was

so oven/vheiming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have
contributed to the verdict.

[J-10-2018] - 12

ld. (quoting Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007)).

Although l\/lother challenged the admission of all of the exhibits based on the
absence of any showing of compliance with the prerequisites for admission under the
business records exception, the Superior Court disregarded the claim as to ali but a few
of the documents Limiting its focus to two types of documents that potentially contained
hearsay statements - the CYS-created summary and documents that contained
statements of diagnosis and opinion -the intermediate appellate court found that l\/lother
failed to establish that she was prejudiced by the admission of these documents. The
Superior Court recognized that the orphans7 court made no determination as to whether
hearsay statements appearing within the documents qualified for an exception to the
prohibition against hearsay Nonetheless, without conducting an analysis of whether
admission of the exhibits was proper, and without discussing any of the bases for finding
harmless error, the Superior Court instead found that Mother failed to establish “how she
was harmed” by the admission of the documents, “particularly as the testimony presented
at the hearing provided sufficient support for termination.” ‘/d. lt therefore concluded
that i\/lother was not entitled to relief.

ll. issues and Arguments

VVe granted i\/lother’s petition for allowance of appeal to address whether the 167
exhibits were admissible where the documents comprising the exhibits “were not
authenticated submitted for the truth of the matter asserted therein, contained
medical/psychiatric opinions and diagnosis and did not fall under any hearsay exception."
/n re A.../.H. and /.G.H., 169 A.3d 1078 (Pa. 2017) (per curiam). if the exhibits were

improperly admitted we must further determine whether the Superior Court misapplied

[J-10-201s] - 13

the law by concluding that admission of these exhibits constituted harmless error. /d. at
1079.

l\/lother asserts that CYS failed to establish the prerequisites for admission of the
167 exhibits under the business records exception. According to l\/lother, many of the
documents contained multiple levels of hearsay, as well as statements of diagnosis and
opinion, none of which fall under the business records exception, and which CYS failed
to address in its proffer to the orphans’ court.

She further argues that the error of admitting these exhibits was not harmless, and
their admission prejudiced her, as the exhibits detailed her noncompliance with services
and her family service plan goa|s, which was the basis for termination i\/lother states that
much ofthe live testimony provided by CYS was based upon the exhibits themselves, as
the witnesses did not have firsthand knowledge of this information. Relying on precedent
from this Court, i\/lother states that a court must base a decree terminating parental rights
solely on competent evidence l\/lother’s Brief at 20 (citing /n re Sanders Children, 312
A.2d 414, 417 (Pa. 1973)). Because the 1925(a) opinion authored by the orphans’ court
reveals that it did not base its decision only on testimony by witnesses with firsthand
knowledge of the events to which they testified, i\/iother states that we must reverse its
decision.

CYS counters that the testimony by the witnesses it presented satisfied its burden
of proving that termination of i\/lother’s parental rights was warranted in so arguing, CYS
contends that the CYS-created summary (Exhibit 161) was not hearsay because it was
prepared by Kauffman-Jacoby, she testified to its contents and was available for cross-

examination. CYS further asserts, without explanation, that the information contained in

[J-10-2018] - 14

the summary (i.el the remaining exhibits) was admissible under the business records
exception of Rule 803(6). t

Echoing the Superior Court, CYS argues that even if admitting the exhibits was
error, l\/iother failed to show that she was harmed by this error, as the testimony presented
by the witnesses, including i\/iother, supported termination. Further, CYS states that the
witnesses provided testimony that was “substantially similar” to the information contained
in the documents which also rendered the error harmless CYS’s Brief at 19.

The Children’s GAL agrees with CYS that the exhibits were properly admitted as
business records, stating that CYS “identified the documents as having been made and
kept by it in the ordinary course of its business and as being part of its files on these
particular cases.” GAL’s Brief at 10 (citing N.T., 8/12/2016, at 19). The GAL further
asserts that denying admission of the CYS file “would unrealistically hamper” termination
proceedings, as “welfare agencies unfortunately have a high worker turnover.” ld.

|ll. Admissibi|ity of the Exhibits

VVe begin our discussion by acknowledging that the decision of whether to admit
or exclude evidence is within the sound discretion of the orphans’ court. Commonwealth
v. Johnson, 160 A.3d 1277 143 n.14 (Pa. 2017), cert. denied sub. nom, Johnson v.
Pennsy/vania, 138 S. Ct. 508 (2017). A reviewing court will not disturb these rulings
absent an abuse of discretion. /d. Discretion is abused if, inter alia, the orphans’ court
overrides or misapplies the law. Commonwealth v. Bafts, 163 A.3d 410, 434 n.9 (Pa.
2017).

“Hearsay” is “a statement that (1) the declarant does not make while testifying at

the current trial or hearing; and (2) a party offers in evidence to prove the truth of the

[J-10-201s]-15

matter asserted in the statement.” Pa.R.E. 801(c). Under the Pennsylvania Rules of
Evidence, hearsay evidence is incompetent and inadmissible unless it meets an
exception set forth in the Rules or one prescribed by this Court or statute Pa.R.E. 802.
One such exception to the prohibition against hearsay, at issue in this casel is commonly
known as the business records exception, which permits the admission of:

A record (which includes a memorandum7 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) the opponent does not show that the source of information
or other circumstances indicate a lack of trustworthiness

Pa.R.E. 803(6). See also 42 Pa.C.S. § 6108(b) (“/-\ record of an act, condition or event
shali, insofar as reievant, be competent evidence if the custodian or other qualified
witness testifies to its identity and the mode of its preparation, and if it was made in the
regular course of business at or near the time of the act, condition or event, and if, in the
opinion of the tribunal, the sources of information, method and time of preparation were
such as to justify its admission.”).

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.

[J-10-201s]-16

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 ali of the exhibits were presented to the court for admission, in bulk, by the county
solicitor prior to calling any witnesses to testify. N.T., 8/12/2016l at 16. 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 ofthe 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).10 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).

Our review of the record also does not support the orphans’ court’s conclusion that
Kauffman-Jacoby or any of the other witnesses remedied this initial failure during their
testimony A great majority of the exhibits originated from an agency or individual other

than CYS.11 Some of the exhibits were comprised of multiple documents that recounted

 

10 Ru|e 902 provides that certain documents are “self-authenticating,” and thus “require
no extrinsic evidence of authenticity to be admitted,” including, inter alia, “The original or
a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown
by a certification of the custodian or another qualified person that complies with Pa.R.C.P.
[] 76. Pa.R.E. 902(11).

11 The only CYS-created exhibits included Exhibits 1-3 (CYS incident sheets created by
K. High, 3/24/2007, C. i\/iillan, 2/21/2013, and i\/laureen i\/iajka, 9/23/2013, respectiveiy),
10-11 (petitions for dependency drafted by Cecily Pachui|o, 2/31/2013)7 32, 48, 52, 137
(teiephone conversations memorialized by Cecily i:’achulio7 4/15/2014, 6/26/2014,
8/26/2014, 6/2/2015, and respective|y), 44 (motion seeking removal of Children verified

[J-10-2018] - 17

events, observations and conversations that occurred over several weeks or months12
Several of the exhibits contained documents composed by multiple authorsl none of
whom testified at the hearing.13 Others contained no notation as to the agency from which
the document originated or who authored the document.1“' There were emails and reports
that documented conversations that occurred between individuals who did not testify

and/or who did not author the document in question.15 And there were printouts of court

 

by Kimberly Reinert, 10/24/2014), 48 (telephone conversation memorialized by Cecily
Pachuilo, 4/15/2014), 113, 150 (drug assessment referral forms for l\/lother, 12/17/2014,
and Father, 3/20/2015, authored by Ashlea i\/leliinger), 137, 148-49 (telephone
conversations memorialized by Kauffman-Jacoby, 4/10/2016, 5/3/2016, 6/21/2016), 142
(telephone conversation memorialized by Ashlea l\/iellinger, 6/2/2015), 161 (summary
created by Kauffman-Jacoby), 162-64 (family service and child permanency plans signed
by Kauffman-Jacoby, 5/20/2016). l\/iost of the exhibits were not authored by Kauffman-
Jacoby and ali contained additional hearsay.

12 See, e.g., Exhibits 7 (ODl in-home casework services reports from 10/8/2013-
10/12/2013), 8 (same from 10/22/2013-11/19/2013), 15 (same from 11/27/2013-
1/14/2014), 36 (same from 7/21/2014-10/21/2014), 105-06 (same from 10/22/2014-
1/22/2015 and 1/23/2015-4/4/2015, respectively), 108-09 (ODl quarterly visitation reports
for i\/lother and Children from 2/22/2014-5/22/2015 and 5/23/2015-8/23/2015,
respectively), 165-166 (series of resource parent monthly reports from 2l1/2016-
5/31/2016).

13 See, e.g., Exhibits 63 (series of reports from Pennsylvania Counseling Services
authored by either Jorge Acevedo or Gregg Hummel, from 5/1/2014-10/31/2014), 65
(nearly 200 pages of ODl in-home casework services reports authored by either
Samantha Rechieru or Emmanuel Vazquez, from 2/11/2014-8/9/2014), 110 (series of
ODl visitation reports for i\/lother and Children authored by either Robyn Battie, Ana
Sulivera or Staci Kachel, from 9/26/2015-2/3/2016).

14 See, e.g., Exhibits 56 (urine collection results for l\/lother, 8/18/2014-9/16/2014), 64,
154 (same for Father, 2/11/2017-8/9/2014 and 4/1/2015-1/6/2016, respectively), 120-121
(same, for i\/iother and Father, 12/5/2014-3/23/2015), 127 (a five-page typed summary of
Father’s criminal history from 1987-2014) 157-158 (drawings by A.J.R.-H. with additional
writing from an unlisted source/agency), 160 (same, for l.G.H.-R.).

15 See, e.g., Exhibits 33 (emaii sent 6/26/2014 by Samantha Rechieru of ODl to Cecily
Pachuilo of CYS), 55 (emaii sent by 11/5/2014 Samantha Rechieru of ODl to Kimberly
Reinert of CYS), 69-70 (emai|s sent 11/5/2014 and 11/11/2014, respectivelyl by Gerald
i\/ienaqua|e of CCG to a employees of CCG and Kimberly Reinert of CYS)l 107 (ODl

[J-10-2018] - 18

dockets and court orders none of which were certified copies.16 Neither Kauffman-
Jacoby nor any other witness testified to being the custodian of any of the records
admitted from the various sources and authors No witness stated that she was able to
speak to the mode of each of the documents` preparation, testify that the documents were
created at or near the time of the documented event or conversation, or made in the
regular practice of the activity involved in fact, several of the documents were` ineligible
for admission under the business records exception at all, as they contained statements

of diagnosis and/or opinion, thus requiring the scrivener to testify.17 See i/l/i/liams v.

 

quarterly visitation report for i\/lother and Children from 11/24/2014-2/21/2015, authored
by Avion Onyeka and documenting some visits that were supervised by Dennisse Ayala)l
111 (same, from 2/26/2016-5/26/2016, authored by Rache| Leonardziak and
documenting some visits that were supervised by Staci Kachel), 138 (series of emails
sent 4/23/2016-4/26/2016 between Rachei Leonardziak of ODl and Kauffman-Jacoby),
146 (series of emails sent 1/18/2016-1/19/2016, between Juiie Karaisz and Gerald
l\/lenaquale of CCG and Ashlea Meliinger of CYS).

16 See, e.g., Exhibits 6 (temporary PFA order, 10/11/2013), 9 (order dismissing PFA,
12/27/2013), 21-22 (juvenile court orders in dependency case, 2/21/2014, rescheduling
hearing and ordering parents’ compliance), 26-31 (same, 4/3/2014, 6/10/2014, and
6/11/2014, respectively, addressing CYS request for removal of Children), 34-35 (same,
8/13/2014, regarding unsupervised contact between Father and Children), 42-43 (samel
10/14/2014, giving Father permission to return home), 71-72 (same7 11/17/2014,
removing Children), 73-74 (same, 2/11/2015, reducing i\/iother’s visitation rights)l 75-76
(same, 5/5/2015, permanency review orders), 87-88 (same 2/19/2016, permanency
review orders), 90-94, 101-102 (printouts of criminal dockets regarding i\/lother), 95-96,
98-100 (printouts of traffic court dockets regarding i\/lother), 97 (printout of civil docket
regarding i\/lother from 2013), 103 (summary of l\/lother’s appearances in i\/lagisterial
District Court 23-1-05, 2004-2014), 104 (Lancaster County Court of Common Pleas court
summary regarding i\/lother, including withdrawn, dismissed and nol prossed charges
from 2004-2016) 123 (PFA violation notice, warrant for indirect criminal contempt, and
sentencing order for Father from June 1990)l 128 (a 110-page printout of criminal,
miscellaneous and traffic dockets regarding Father dating back to 1987).

17 See, e.g., Exhibits 112 (domestic violence evaluation for l\/lother by Kristen Hunzinger
from ODl, 11/24/2015), 119 (rnonthly reports on l\/iother’s treatmentthrough Pennsylvania
Counseling Services by various therapists 11/2015-3/2016), 167-168 (reports from
Cherrie Sage, i\/i.A., Children’s mobile therapist).

[J-10-2018] - 19

ll/lcC/a/`n, 520 A.2d 1374, 1376-77 (Pa. 1987) (records containing opinion evidence or
statements ofdiagnoses are inadmissible under the business records exception); Pa.R.E.
803(6), Comment. See also /n re involuntary Termination of Parental Rights (Jones), 297
A.2d 117, 121 (Pa. 1972) (“Jones”) (holding that the admission of a written statement
prepared by a non-testifying physician regarding the mother’s parental incapacity at a
termination hearing was inadmissible hearsay and that the business records exception
was inapplicable).

Furthermore, a large number of the exhibits contained multiple levels of hearsay
VVhere a hearsay document contains additional hearsay within it (often referred to as
“double hearsay"), each level of hearsay must satisfy an exception to the rule prohibiting
the admission of hearsay evidence Commonwealth v. Ogrod, 839 A.2d 294, 327 n.23
(Pa. 2003) (“Doubie hearsay is permissible if there is a hearsay exception for each
statement in the chain.”); Pa.R.E. 805. There was no testimony providing a basis for the
admission of each level of hearsay contained within the individual documents Further,
even if CYS could overcome the hearsay barriers no witnesses provided testimony that
would authenticate the majority of the exhibits.18 See Pa.R.E. 901(a) (“To satisfy the
requirement of authenticating or identifying an item of evidence, the proponent must

produce evidence sufficient to support a finding that the item is what the proponent claims

 

13 The only exceptions are Exhibits 140, 155, 156 and 159. Exhibit 140 was a series of
cards and letters authored by Father and sent to the Children and their caregiver, and
Father authenticated them during his testimony See N.T., 8/12/2016, at 140. Karlunas
authored and authenticated Exhibits 155, 156 and 159 during her testimony See id. at
31-33, 42-44. Karlunas did nothing more than authenticate them, and provided no
testimony that would othen/vise support their admissibility

[J-10~2o1s] - 20

it is."); Commonwealth v. Zook7 615 A.2d 1, 10 (Pa. 1992) (“Generaliy, for a document to
be admissible it must be relevant and authenticated.”).

CYS’s contention that Exhibit 161 was properly admitted because Kauffman-
Jacoby was its author and available for cross-examination is legally unsupportable
Exhibit 161 is a seventy-three-page document that contains (1) several summaries of the
case and the parties involved obtained from unknown sources; (2) summaries of
activities conducted by other caseworkers previously assigned to work with the family
(with no corresponding documentation); and (3) a description of each of the exhibits
entered into evidence at the termination hearing (as well as Exhibit 124, which the
orphans’ court excluded) and a summary of many of them from Kauffman-Jacoby’s
viewpoint. See Exhibit 161. lt is comprised almost exclusively of additional hearsay
statements (some with multiple levels of hearsay), for which no exception to the
prohibition against hearsay was offered before the orphans’ court.

indeed we have long recognized that summaries of this nature are not admissible
at termination proceedings in Jones, the county agency entered a document into
evidence setting forth the family’s history with the child welfare agency that was created
by a testifying caseworker, but which summarized information that had been accumulated
by others Jones, 297 A.2d at 120. As in the case at bar, the caseworker that authored
the report was present and available for cross-examination, but we held that this was
insufficient to render the report admissible “The report escaped the test of cross-
examination with respect to the ‘facts’ which underpin its conclusions a test designed to
probe sources of error and untrustworthiness lying beneath the untested assertions of the

absent witnesses.” ld. We found that “the ‘business records’ exception, though it may

[J~10-2018] - 21

be factually applicabie,” could not be applied to the summary because of the absence of
“evidence of the sources of information and the time and manner of preparation.” ld. at
121 ..

As in Jor)es, while it is possible that some of the exhibits could have qualified as
business records, CYS failed to present any testimony to establish that any of the 167
exhibits, or the numerous separate documents contained therein, satisfied any of the
prerequisites for admission under Rule 803(6). We therefore conclude that the orphans’
court abused its discretion by admitting the exhibits into evidence

lV. Harmiess Error and Riqht for Any Rea_son

We further find, based on our assessment of the record and the written opinion
provided by the orphans’ court, that this error was not harmless in the context of a
termination proceeding, we have held that where, in light of the record as a whole, 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.19 ln re Sanders Children, 312 A.2d at 417. We arrived at this

 

19 The Superior Court erroneously set forth the test for harmless error applicable to
criminal matters See supra, p. 12; see also Commonwealth v. Story, 383 A.2d 155, 162-
68 (Pa. 1978) (establishing the standard of proof and bases for determining whether a
non-constitutional error in a criminal prosecution is harmless). VVe note, however, that to
the extent the criminal standard for harmlessness could have applied to this case, the
Superior Court also improperly placed the burden on i\/iother to prove that she was
harmed by the erroneous admission of the exhibits See Commonwealth v. Fulton, 179
A.3d 475, 493 (Pa. 2018) (stating that the proponent of the evidence has the burden of
proving that the erroneous admission was harmless beyond a reasonable doubt).
Nonetheless, as our procedural rules permit a court “at every stage of any action or
proceeding” to assess whether an error was harmless we apply the correct test in our
review. Pa.O.C.R. 1.2(a).

Justice Baer, in concurrence contends that the /n re Sanders Children Court did not
articulate a standard for determining whether the erroneous admission of evidence in a

[J-10-201s] _ 22

standard “[b]ecause of the serious impact attending the termination of parental rights,”
finding that “it is important that a judicial decree extinguishing such rights be based solely
on competent evidence.” ld.

in its written opinion7 the orphans’ court included no citations to the record to
indicate what sources of information it relied on in making its findings of fact. However, it
did make several general references to its review and reliance upon the exhibits entered
at the termination hearing. See Orphans’ Court Opinion, 10/25/2016 at 1 (reaching its
decision from its review of the testimony and exhibits)l 7 (basing its conclusion on “the

entire record”). These references alone provide a basis for this Court to conclude that

 

termination of parental rights case was harmless Concurring Op. (Baer, J.) at 2. Whiie
that opinion does not use the terminology “harmless error,” the holding cannot be read as
anything other than the standard by which to measure the impact of erroneously admitted
evidence on the outcome of the case

VVhile the contested evidence discussed above constituted
only a minor part of [the agency’s] case, we cannot say that
without this evidence the lower court would have reached the
same result. 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 in light of [the parents’] significant
evidence of seif-improvement, it is quite possible that the
incompetent evidence accepted below provided the ‘swing
factor’ in that court's determination. [Parents] are entitled to a
hearing and decision free from such taint. Hencel we will
remand this matter to the court below for the purpose of
conducting a proceeding consistent with this opinion,

In re Sanders Children, 312 A.2d at 417.

Given that neither the Superior Court nor the parties even recognize this binding
precedent, let alone articulate a rationale for overruling it, there is no basis for us to do so
here Such a sua sponte abrogation of precedent is particularly inappropriate in this case
where the adoption of a different standard would not be outcome determinative By any
standard including the one espoused by Justice Baer, the erroneously admitted evidence
dwarfs ali other evidence in the case before us and thus reversal is required

[J-1o-2018] - 23

the decision reached by the orphans’ court to terminate i\/lother’s parental rights to her

Children could very well have been affected by the improperly admitted exhibits, requiring

us to vacate its decision and remand the matter for a new hearing See ln re Sanders

Children, 312 A.2d at 417. Because the orphans’ court, by its own express

acknowledgement, relied on the inadmissible exhibits, we cannot permit its decision to

form the basis for the termination of i\/lother’s parental rights

But we need not base our decision on these general references alone, as our

studied review of the record reveals that in reaching its decision7 the orphans’ court relied

upon information presented solely through the exhibits:

lt recounted the substance of the initial referrals made to CYS about the family
beginning in 2007 and the particulars of the investigation performed by prior CYS
caseworkers Orphans’ Court Opinion, 10/25/2016, at 5; Exhibits 1-3, 161.

The court included the specific allegations made in l\/lother’s PFA petition (as well
as noting i\/iother’s failure to appear in court to finalize the PFA) and portions of
Father’s criminal history Orphans’ Court Opinion, 10/25/2016, at 5 & n.3; Exhibits
6,127-128,161.

it detailed the content of (and correct date of filing for) the 2013 dependency
petitions Orphans’ Court Opinion, 10/25/2016, at 5-6; Exhibits 10-11.

lt described the content of numerous court orders issued by the juvenile court,
including the specific findings reached regarding i\/lother’s compliance with her
court ordered goals Orphans’ Court Opinion, 10/25/2016, at 6-7; Exhibits 16-17,
21-22l 26-29, 34-35, 42-43, 71-88, 161.

The orphans’ court found that Mother failed to comply with counseling and mental
health services, but documentation of l\/lother’s level of compliance with counseling
and mental health services following the Children’s removal from her care came
from reports provided by non-testifying third-party agencies and providers
Orphans’ Court Opinion, 10/25/2016, at 9; Exhibits 114-119.

The court found that l\/iother did not consistently attend-the court ordered drug
screens information that was documented in unidentified unlabeled and unsigned
urinalysis reports the author(s) of which did not testify Orphans7 Court Opinion,
10/25/2016, at 9; Exhibits12, 18, 25, 56, 120-121.

[J-10-201s] - 24

o lt found that l\/lother “had a less than perfect attendance record" for casework
sessions and visitation with the Children, both of which, again, were documented
solely through reports authored by various caseworkers from ODl, none of whom
testified Orphans’ Court Opinion, 10/25/2016, at 9; Exhibits 7-8, 15, 23, 39, 54,
65, 105-111.

Whiie Kauffman-Jacoby touched upon some (but not all) of this information during
her testimony, this does not render the evidence competent or admissible in Jones, we
held that an agency caseworker could not testify to the substance of otherwise
inadmissible documentary evidence The two caseworkers in Jones testified that their
knowledge regarding the family’s history with the child welfare agency was “secondhand,"
based on their review of information accumulated by others as “neither was personally
involved in this matter until after the children were taken from their mother.” Jones, 297
A.2d at 120 & n.3. On that basis we found the caseworkers to be “patently incompetent
to testify as to the continuous and irremedial nature of [the mother’s] parental incapacity.”
/d.

in /n re Sanders Children, we held that absent compliance with the prerequisites
of the business records exception, a testifying caseworker could not rely on reports
contained in the CYS file to support her testimony in that case, the testifying caseworker
“mentioned a report of child neglect which was handled by two other employees of the
[agency]” while providing testimony regarding the child welfare agency’s history with the
family /n re Sanders Children, 312 A.2d at 416. The parents objected to her testimony
about this report, and the agency responded that the caseworker was “oniy testifying from
her records.” ld. The orphans’ court allowed the testimony and ultimately terminated the
parents’ rights to their children.

On appeal to this Court, we vacated the decree, finding the above-referenced

testimony to be “classic hearsay.” /d. “The witness' first-hand knowledge of some of the

[J-10-2018] - 25

facts contained in the report cannot justify the admission of otherwise incompetent
hearsay testimony drawn from the same report.” ld. Although we acknowledged that the
agency may have been able to overcome the hearsay objection by complying with the
business records exception, “it failed to do so,” rendering the evidence inadmissible ld.
at 416-17.

As in Jones and in re Sanders Children, Kauffman-Jacoby in the case at bar
admitted that the majority of her testimony was not based on her firsthand knowledge
about the fami|y, and instead that she relied on reports from prior CYS caseworkers and
third-party service providers lt could not have been otherwise as Kauffman-Jacoby only
assumed responsibility for the case in February 2016, around the time that CYS filed the
petitions to terminate l\llother’s parental rights to the Children. See N.T., 8/12/2016, at
115. Throughout her testimony, Kauffman-Jacoby regularly had to refer to the exhibits
(in particular, Exhibit 161) to provide answers to questions posed to her regarding the
history of CYS’s involvement with the family and the parties’ compliance with the court
ordered services See, e.g., id. at 84, 107, 113, 115. No other witness provided any
testimony in support of the above-findings made by the orphans’ court in support of
termination.

The orphans’ court relied on all of this information to support its decision that CYS

had satisfied its burden of proof under section 2511(a) of the termination statute20 lt

 

20 The orphans’ court did not specify under which subsections of 2511(a) it was
terminating l\llother’s parental rights to Children. in its decree, the court simply found that
CYS has established “the facts aileged” in its petition to terminate l\llother’s parental rights
by clear and convincing evidence Finai Decree, 8/25/2016. As stated hereinabove CYS
filed its petition under 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8). A close reading of the
language used in the orphans’ court’s Rule 1925(a) opinion, in conjunction with the
decree, suggests that it terminated l\llother’s rights under all subsections alleged by CYS.

[J-10-2018] - 26

concluded that i\/iother had failed to perform her parental duties failed to remedy the
conditions that led to the Children’s removal from her care more than a year prior, and
failed to avail herself of the various services provided to her such that the continuation of
services would not likely effect a change in her insight or in her behaviors Orphans’
Court Opinion, 10/25/2016, at 9.

lt further found that CYS had met its burden of proving that termination of l\/lothers1
rights best served the Children’s needs and welfare under 2511(b).21 Specificaily, the
court found that the Children felt safe and had a positive bond with their foster parents
but felt unsafe and “to the extent a bond exists between the Children and i\/lother it is
an unhealthy one at best.” ld. at 10. lt concluded that the Children had “suffered
significant trauma caused by l\/iother and Father,” and that they “deserve an opportunity
to experience a trauma-free life in a permanent, healthy, safe home where their rights to
the fulfillment of their potential can be met.” ld.

Our review of the record reveals that although there was some testimony provided
by Radcliffe that the Children told her they wished to remain with their maternal
grandparents and did not feel safe living in their old home with i\/iother, see N.T.,
8/12/2016, at 129, this testimony followed and was bolstered by testimony regarding
erroneously admitted exhibits See id. at 124-27. in particular, both Kauffman-Jacoby
and Radc|iffe testified regarding drawings completed by the Children with a non-testifying

Child Prep worker. ln one set of drawings completed with the prior Child Prep worker,

 

21 A “needs and weifare” analysis under 2511(b) includes considering “[i]ntangibles such
as love, comfort, security, and stability," as well as “the emotional bonds between the
parent and child,” with “[t]he utmost attention paid to discerning the effect on the child
of permanently severing the parental bond.” /n re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

[J-10-201s] - 27

the Children were reportedly asked to identify a “safe house” and an “unsafe house” ld.
at 118, 126; see Exhibits 158, 160. One of the Children - Radcliffe “believe[d]” it was
A.J.H.-R. - wrote her parents’ address on the picture depicting the unsafe house N.T,,
8/12/2016, at 126; Exhibit 158. Though Radcliffe testified that this activity was “very
typical in Child Prep,” and she provided information as to how the exercise “typically”
proceeded she was incapable of giving any information about what specifically occurred
while the Children completed this task, what, if any, questions were posed to or by the
Children during the activity7 what, if any, information was provided to the Children by the
Child Prep worker, or what the drawings necessarily depicted See N.T., 8/12/2016, at
125-27.

There was also a fourteen-page series of writings and drawings entered into
evidence some of which included A.J.H.-R.’s name others of which provided no
identifying information as to who created the document See Exhibit 157. The documents
detailed episodes of domestic violence drug use and other events labeled by an
unknown person as “trauma.” ld. The exhibit included a number of fears that the child
involved in the activity reportedly expressed including worries she had about i\/lother,
Father, domestic violence drug use l\llother’s friends the family’s finances and the like
The writings and drawings appear to have been completed in response to questions
posed but the specifics of it are not apparent from the record See id. There was no
testimony provided to explain or give context to the exhibit. The only information provided
about Exhibit 157 was from Kauffman-Jacoby, who stated that the exhibit “came from the
mobile therapist at [CCG],” but thatindividual did nottestify. N.T., 8/12/2016, at 88. Whiie

there was some competent testimony provided by Karlunas and Kauffman-Jacoby that

[J-10-201s] - 28

the Children had been exposed to trauma while in their parents’ care no testimony came
close to the detail that the lists and drawings in Exhibits 157, 158 and 160 provided

The testimony not based on the inadmissible exhibits in support of termination
under section 2511(b) was scant. Kauffman-Jacoby termed the Children’s bond with
l\/lother as “protective,” but she admitted that she based this belief on reports from other
service providers as she had only ever seen the Children interact with i\/lother before and
after dependency hearings ld. at 90-91. There was no testimony that the bond was
“unhealthy,” as the orphans’ court concluded,22 nor was there any testimony regarding
what, if any, effect severing the bond with Mother would have on the Children in fact,
Karlunas testified at the termination hearing that both Children told her that they are very
close to l\/lother. Karlunas further testified that i\/lother expressed to her that she loves
the Children and wants to keep them safe /d. at 48, 567 59-60, 64.

Based on the record before us we simply cannot conclude that the erroneous
admission of the exhibits played no role in the orphans’ court’s decision to terminate
l\/lother’s parental rights Quite to the contrary, 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 We reiterate that
while it is possible that some of the improperly admitted documents including those
supporting the testimony of Kauffman-Jacoby and Radcliffe, may have qualified as

business records under Rule 803(6), CYS did not introduce the testimony necessary to

 

22 The record reflects that the county solicitor asked Kauffman-Jacoby whether she
believed the bond between Mother and the Children was “unhealthy,” but the orphans’
court sustained an objection to the question and did not allow the Kauffman-Jacoby to
answer the question. N.T., 8/12/2016, at 119.

[J-10-2018] - 29

satisfy the prerequisites for admission of these documents under the rule including that
of a records custodian. See ln re Sanders Children, 312 A.2d at 416-17. CYS further
presented no testimony that would allow the admission of the multiple levels of hearsay
upon which the aforementioned testimony relied

Notably, in ln re Sanders Children, “the contested evidence constituted only a
minor part of [the agency’s] case,” consisting of testimony regarding a single hearsay
document, but this Court nonetheless vacated the decree because ofthe mere possibility
that the evidence could have impacted the decision of the orphans7 court. ld. at 417. in
the present matter, the contested evidence was unquestionably a much greater part of
CYS’s case in support of its petition to terminate l\llother’s parental rights to the Children,
consisting of over 1230 pages of material in 167 exhibits that furnished a great deal of
information to the orphans’ court in support of termination. i\/ioreover, in the case at bar,
as demonstrated hereinabove the orphans’ court plainly relied on the hearsay exhibits in
support of its termination decree Because the erroneous evidentiary ruling affected the
orphans7 court’s decision to terminate l\/lother's parental rights to the Children, and the
decrees were not based solely on competent evidence the error of admitting the 167
exhibits was not harmless and we must remand the case for a new hearing on CYS’s
petition to terminate l\llother’s parental rights to the Children. See /n re Sanders Children,
312 A,2d at 417.

The Superior Court did not conduct a harmless error analysis nor did it explain the
basis for finding harmlessness other than its bald statement that the evidence presented
was “sufficient" to support termination. See ln re A.J.H. and /.G.H.l 2017 WL 1573229,

at *9. Contrary to the Superior Court’s conciusion, however, the fact that there may have

[J-10-2o1sj - 30

been sufficient evidence presented at the hearing to support termination is not, alone a
basis forfinding harmless error.23 As stated above the standard forfinding 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, See supra, p. 22. That there may
have been properly admitted evidence sufficient to support termination does not render
the orphans’ court’s substantial evidentiary error harmless

Though couching its decision in terms of harmless error, it appears that the
Superior Court may have instead been invoking the “right for any reason” doctrine to
affirm the orphans’ court’s decision.24 The “right for any reason” doctrine allows an
appellate court to affirm the trial court’s decision on any basis that is supported by the
record See Ario v. ingram ll/licro, /nc., 965 A.2d 1194, 1200 (Pa. 2009) (“an appellate
court may uphold an order of a lower court for any valid reason appearing from the

record”). Under the circumstances of this case, however, that doctrine is inapplicable

 

23 This is true as well for the criminal standard for evaluating harmless error, upon which
the Superior Court relied See, e.g., Commonwealth v. Bu//ock, 913 A.2d 207, 217-18
(Pa. 2006) (“Evidentiary sufficiency, however, is not the correct standard where the trial
court errs Rather, under the harmless error doctrine the judgment of sentence will be
affirmed in spite of the error only where the reviewing court concludes beyond a
reasonable doubt that the error did not contribute to the verdict.”).

24 We observe that in affirming the orphans’ court’s decree terminating l\llother’s parental
rights the Superior Court also relied in part, on the inadmissible exhibits to find that CYS
satisfied its burden of proof. in concluding that the evidence supported termination under
section 2511(a)(2), the Superior Court pointed to evidence that Mother failed to follow
recommendations following her discharge from Gaudenzia; was unsuccessfully
discharged from mental health counseling; failed to attend urine screens; twice failed to
complete domestic violence therapy; continued to have a relationship with Father; and
failed to comprehend the impact that domestic violence had on the Children. /n re A.J.H.
and /.G.H., 2017 VVL1573229, at *6.

[J-10-201s] - 31

The rationale behind the “right for any reason” doctrine is that appellate review is
of “the judgment or order before the appellate court, rather than any particular reasoning
or rationale employed by the lowertribunal.” ld. (citing Hader v. Coplay Cement Mfg. Co.,
189 A.2d 271, 274-75 (Pa. 1963)). As the United States Supreme Court has explained
“The reason for this rule is obvious it would be wasteful to send a case back to a lower
court to reinstate a decision which it had already made but which the appellate court
concluded should properly be based on another ground within the power of the appellate
court to formulate" Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80, 88 (1943)
(citing Heli/ering v. Gowran, 302 U.S. 238, 245 (1937)).

1 This Court has stated that an appellate court may apply the right for any reason
doctrine “where the correct basis for the ruling, order, decision, judgment or decree is
clear upon the record" Bearoff v. Bearoff Bros., lnc., 327 A.2d 72, 76 (Pa. 1974).
However, “where disputed facts must be resolved[,] appellate courts should refrain from
assuming the role of a fact-finder in an attempt to sustain the action of the court below.”
ld. See also Chenen/ Corp., 318 U.S. at 88 (“where the correctness of the lower court’s
decision depends upon a determination of fact which only a jury could make but which
has not been made the appellate court cannot take the place ofthe jury”). The doctrine
thus may be applied by a reviewing court if the established facts support a legal
conclusion producing the same outcome lt 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

As our discussion of the orphans’ court’s opinion reveals many of its findings of

fact were heavily premised on the inadmissible exhibits Kauffman-Jacoby was the only

[J~10-2018] - 32

CYS witness to testify regarding l\llother’s failure to remedy the conditions that led to the
Children’s removal and as stated hereinabove her testimony was based almost
exclusively on the inadmissible exhibits.25 i\/loreover, in their testimony, l\llother and
Father challenged or disputed much of the evidence presented by CYS regarding
l\/lother’s failingsl

Based entirely on the inadmissible records, Kauffman-Jacoby testified that Mother
failed to complete her drug and mental health treatment goals She acknowledged that
l\/iother completed a six-month inpatient drug treatment program at Gaudenzia, but that
she then failed to attend aftercare treatment in Lancaster (as recommended by her
treatment team), and then was unsuccessfully discharged from the dual diagnosis
program at Pennsylvania Counseling Services N.T., 8/12/2016, at 82. She further
testified that l\/lother failed to comply with urine screens beginning in |\/larch 2016 (she
othen/vise had complied and tested negative following her completion of Gaudenzia in
November 2015), attending only two of sixteen scheduled screens both of which tested
negative ld. at 113. 7

l\/iother, on the other hand testified that she had complied with both the drug and
alcohol treatment and mental health treatment goals She stated that she was
successfully discharged from Gaudenzia, a dual diagnosis program. ld. at 162. She
explained that she chose to pursue aftercare treatment in Reading instead of Lancaster
because she did not want to remain so far away from the Children (Gaudenzia is located

in Ashiand) and was concerned that living in a new city and the clientele in the Lancaster

 

25 Karlunas testified that l\llother was unsuccessfully discharged from domestic violence
counseling at CCG, but that occurred prior to the Children’s removal from l\llother’s care
N.T., 8/12/2016, at 38, 65.

[J-10-2018] - 33

programs could compromise her recovery ld. at 164. Thereafter, she stated that she
completed a three-session~per-week aftercare program with Aaron Smith at Pennsylvania
Counseling Services and began working with another counselor for weekly sessions but
because of a change in her work schedule she could not reliably make it to counseling
on time which resulted in her discharge ld. at 165.

l\llother testified that following her successful discharge from Gaudenzia, she
temporary obtained empioyment, typically working until 4:30 p.m., and this allowed her to
attend counseling and urine screens ld. at 167. in l\/larch 2016, however, she received
a new, permanent position within the company, and her work schedule changed to 6:00
a.m. until 6:00 p.m. /d. at 167-68. She relied on the bus for transportation, which did not
get her to the busvstation until around 7:00 p.m. ld. at 167. She testified that the facility
CYS used for urinalysis closed at 6:00 p.m. She stated that she offered to go elsewhere
or to attend screens on her days off, but Kauffman-Jacoby told her it would not suffice
as the screens would not be “random,” and instead told her it was not necessary for her
to continue attending urine screens ld. at 168-69. l\llother admitted that her drug of
choice in the past was K2 (synthetic marijuana), but testified that she has been drug-free
for sixteen months ld.

Regarding the domestic violence between the parties Kauffman-Jacoby testified
again based on the hearsay exhibits that it was an ongoing concern based on both
l\llother and Father’s failure to make progress /d. at 85. Father was reportedly
unsuccessfully discharged from CCG because of his lack of progress and although he
successfully completed the dual diagnosis program through Pennsylvania Counseling

Services there were reported concerns about his inability to translate his treatment to

[J-10-2018] - 34

“real life situations.” /d. at 83. Kauffman-Jacoby further testified that in a conversation
she had with Father, he did not take responsibility for his actions blaming l\/iother’s drug
use for his violence ld. at 86. Without providing a basis in fact or experience for her
opinion, Kauffman-Jacoby stated “There’s a high likelihood the cycle will repeat and
ongoing domestic violence will be possible and will affect the children.” ld. at 85.

Father7 however, testified that he successfully completed domestic violence
counseling through ODl. ld. at 135. He expressed to the orphans7 court that he
understood based on the services he had received how his actions hurt l\llother and the
Children and learned new methods to control his anger. ld. i-ie stated that he participated
in further counseling through CCG for eight months and that he was not informed that he
was going to be discharged unsuccessfully /d. at 137. Thereafter, he engaged a private
therapist for counseling ld. at 137-38. Father stated that alcohol was a trigger for his
violence and that he has been sober since October 2014. ld. at 139. He testified that
he knew his actions hurt his Children, and he sent them cards following their removal
from his home asking for their forgiveness /d. at 139-40.

Both l\llother and Father testified that there have been no incidents of domestic
violence since the Children’s removal from their care /d. at 150, 173. l\/lother testified
that she recognized their history of domestic violence but stated “Everybody makes
mistakes and things Everyone did things in their life that they regret, you know. You
move forward and you know you forgive and forget. You try to move on and better
yourself.’7 ld. at 170-71. l\llother admitted that she continued to maintain a friendship with
Father, and that their relationship was “at times” of a sexual nature ld. She testified

however, that she does not live with Father anymore and has a place of her own. Though

[J-10-2018] - 35

it is small and not “ideal,” l\llother testified that it is clean and “reaily no place can be ideal."
ld. at 169-70. Kauffman-Jacoby acknowledged that Mother reported that she had moved
out, but stated that she has not seen i\/iother's new residence “[b]ecause we have been
focusing on permanency for the children,” and based on the size of l\llother’s apartment
alone Kauffman-Jacoby concluded that “it won’t be appropriate for two young children.”
ld. at 80.

Kauffman-Jacoby expressed no concerns about l\llother’s attendance at visits or
her behavior there testifying that l\llother was reportedly appropriate and loving with the
Children and they were happy to be with her, running to hug and kiss her when they saw
her. ld. at 108-09. She confirmed that l\llother successfully completed parenting classes
ld. at 105. She further testified that A.J.R.-H. had asked her “for more time with her
parents during visits because it was fun." ld. at 117.

As we stated in ln re Sanders Children, where as here there is conflicting
testimony regarding a parent’s compliance with court ordered goals the erroneously
admitted evidence could have affected the credibility determinations made by the
orphans’ court and ultimately served as the tipping point or “swing factor” in its decision.
/n re Sanders Children, 312 A.2d at 417. We are unable to discern whether and to what
extent the content of the exhibits influenced the credibility determinations made by the
orphans’ court. in fact, in the absence of the offending exhibits, if the testimony presented

by l\llother and Father were believed by the orphans’ court, there would be no basis to

[J-10-201s] ~ 36

find that CYS had satisfied its burden to terminate l\/lother’s parental rights to the Children,
as she would have been compliant with all of her court ordered goals26

Therefore, in order to affirm its decision on another basis (i.e., based on testimony
that was untainted by the erroneous admission of the exhibits), we would have to engage
in fact finding weigh the competent (non-hearsay) testimony presented and make our
own credibility determinations As this is far afield of our appellate court function, we
cannot affirm under the right for any reason doctrine

V. Conc|usion

VVe 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.” Hiller v.
Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxe/ v. Granvi/le, 530 U.S. 57, 67 (2000)).
involuntary termination serves as “the most extreme infringement” upon this right ln re
D.C.D., 105 A.3d 662, 676 (Pa. 2014).

As the United States Supreme Court has long held due process requires that the
county agency present clear and convincing evidence in support of its petition to terminate
a parent’s rights to his or her child 'Santosky v. Kramer, 455 U.S. 745, 747-48 (1982).
The evidence that clearly and convincingly supports the termination of this fundamental
right must necessarily be competent As the evidence presented in the case at bar was

not competent to support the orphans’ court’s decision to terminate l\/lother’s parental

 

26 There is nothing in the record indicating that the dependency court prohibited or even
discouraged Mother and Father from having contact with each other following the
Children’s removal from their care

[.r_1o-201s] - 37

rights to her Children, we vacate that decision V\le remand the case to the orphans’ court
for a new.hearing and decision on CYS’s'petition to terminate Mother’s parental rights, to
occur within 45 days of this decision.27
Chief Justice Saylor and Justices Todd Dougherty and V\lecht join the opinion
Justice Baer files a concurring opinion

Justice l\/lundy-files a concurring opinion in which Justice Doughertyjoins.

Judgment Entered
07/18/2018

omaosww

Deputy F`>r'othonotary

 

 

27 Under the circumstances of the case and the expedited timeframe for the new hearing
and decision, CYS need not undertake reunification efforts in this interim. VVe note that
on remand the appointment of counsel to represent the Children’s legal interests will be
controlled by in re L.B.M., 161 A.3d 172 (Pa. 2017).

rJ-10_2o1sj - 36

