“[T]he circumstantial trustworthiness arises from the regularity with which business records are kept and the reliance that businesses place on the accuracy of those records.”
How later courts described this case
- “[T]he circumstantial trustworthiness arises from the regularity with which business records are kept and the reliance that businesses place on the accuracy of those records.”
Written by the judges who cited it.
The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: RELINQUISHMENT OF: T.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: A.P., MOTHER : No. 556 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0049
IN RE: RELINQUISHMENT OF: S.B., : IN THE SUPERIOR COURT
A MINOR : OF PENNSYLVANIA
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APPEAL OF: A.P., MOTHER : No. 557 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0050
IN RE: RELINQUISHMENT OF: E.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: A.P., MOTHER : No. 558 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0051
J-S26005-21
J-S26006-21
IN RE: RELINQUISHEMENT OF: A.B., : IN THE SUPERIOR COURT
A MINOR : OF PENNSYLVANIA
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APPEAL OF: A.P., MOTHER : No. 559 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0052
IN RE: RELINQUISHMENT OF: M.B., : IN THE SUPERIOR COURT
A MINOR : OF PENNSYLVANIA
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APPEAL OF: A.P., MOTHER : No. 560 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0053
IN RE: RELINQUISHMENT OF: T.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: M.B. SR., FATHER : No. 561 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0049
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IN RE: RELINQUISHMENT OF: S.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: M.B., FATHER : No. 562 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0050
IN RE: RELINQUISHMENT OF: E.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: M.B., FATHER : No. 563 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0051
IN RE: RELINQUISHMENT OF: A.B., A : IN THE SUPERIOR COURT
MINOR : OF PENNSYLVANIA
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APPEAL OF: M.B., FATHER : No. 564 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0052
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IN RE: RELINQUISHMENT OF: M.B., : IN THE SUPERIOR COURT
A MINOR : OF PENNSYLVANIA
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APPEAL OF: M.B. SR., FATHER : No. 565 MDA 2021
Appeal from the Decree Entered April 5, 2021
In the Court of Common Pleas of Lackawanna County
Orphans’ Court at No: 2020-0053
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 05, 2021
A.P. (“Mother”) and M.B., Sr. (“Father”) (collectively, the “Appellants”),
appeal from the decrees entered April 5, 2021, which terminated their parental
rights to their children involuntarily. Following careful review, we vacate and
remand for a new hearing.
The record reveals Appellants are the parents of five dependent children,
including T.B., a male born in January 2013, S.B., a female born in May 2014,
E.B., a female born in November 2015, A.B., a female born in June 2017, and
M.B., a male born in May 2018 (collectively, “the Children”). The Lackawanna
County Office of Youth and Family Services (“the Agency”) filed petitions to
terminate Appellants’ parental rights to the Children involuntarily on October
30, 2020. The orphans’ court held a hearing on the petitions on November
12, 2020, December 3, 2020, February 11, 2021, and March 4, 2021.1
____________________________________________
1 The hearing occurred remotely due to the COVID-19 pandemic.
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Relevant to this appeal, the Agency caseworker testifying at the hearing,
Danielle Taylor, began working at the Agency in June 2020 and only became
assigned to the Children’s case in approximately August or September 2020.
N.T., 11/12/20, at 4, 43, 48-49; N.T., 2/11/21, at 8. As a result, Ms. Taylor
had no personal knowledge regarding anything that occurred during much of
the Children’s dependency, which reportedly began in 2018. N.T., 11/12/20,
at 17-20, 49. Her knowledge regarding the early years of the case resulted
from her review of the Agency’s case files and from conversations with other
caseworkers. Id. at 48-49. When Ms. Taylor began testifying as to events
outside her personal knowledge on the first day of the hearing, November 12,
2020, Mother’s counsel objected and argued that the testimony was hearsay.
Id. at 10. The orphans’ court overruled counsel’s objection, explaining it had
also served as the juvenile court in the Children’s dependency proceeding. Id.
at 11. The court continued:
THE COURT: . . . . I conducted all the previous hearings,
and I am going to take judicial notice of all those previous hearings
and make it part of the record.
But as we indicated, also, I think, when you look back at it,
we’re going to be introducing the entire record, we have to go
back and maybe even get the transcripts and make them part of
the record of those previous hearings for purposes of an appeal,
if the [c]ourt rules in favor of the [termination of parental rights],
that we’re going to have to get those dates and times and get
those transcripts and make it part of the record.
Also, it could be overruled, the objection on hearsay basis,
because these records are kept in the ordinary course of business,
and Ms. Taylor has reviewed those records and can give testimony
regarding her review of the record.
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But, as [the Children’s legal counsel and guardian ad litem2]
indicated, most of the stuff she’s testifying to has already been
found as findings of the fact [sic] in the previous hearings, so I’m
going to allow the testimony.
Id. at 11-12.
Mother’s counsel responded to this ruling by making an oral motion in
limine requesting that the orphans’ court exclude any testimony by Ms. Taylor
regarding events prior to August 2020. Id. at 13. The court denied counsel’s
motion, and the hearing proceeded. Id. at 16 (the court explaining, “We’re
considering the totality of the record and everything else that’s going to be
included. So, again, I’m going to deny the motion in limine for the reasons I
indicated and we’ll go forward.”). At the conclusion of testimony on November
12, 2020, the court requested that the paralegal assigned to the case “get a
hard copy down to my chambers of the exhibits that are going to be entered,
like the file with all the previous court orders and my findings of fact[.]” Id.
at 68. When counsel for the Agency noted she had requested the transcripts
from the juvenile court proceedings as well, the court added, “All right. And
they’ll be marked. If we do get them by that time, we’ll mark them as exhibits
and we’ll enter them as part of the docket.” Id. at 68-69.
____________________________________________
2 The orphans’ court appointed a single attorney to act as both the Children’s
legal counsel and guardian ad litem during the termination proceedings. The
attorney indicated at the hearing he did not believe a conflict existed between
the Children’s legal interests and best interests that would prevent him from
serving in both roles. N.T., 11/12/20, at 13.
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Significantly, despite the statements by the orphans’ court that it would
admit the juvenile court record into evidence, our review of the certified record
on appeal does not reveal that this ever occurred. At no point during the four
days of testimony did the court or the Agency mark, introduce, or admit the
juvenile court record or any portion of its contents as exhibits. Instead, by
the second day of the hearing, December 3, 2020, the court and the parties
were seemingly operating under the belief that the juvenile court record was
already admitted, except for the transcripts. See N.T., 12/3/20, at 18-19 (the
court agreeing with counsel for Mother that the prior “10 or 12 hearings” were
“already admitted into the record[,]” but that “[t]he [A]gency intends to admit
all those transcripts as exhibits[.]”).3
On March 30, 2021, the orphans’ court and the parties reconvened, and
the court announced its decision to terminate Appellants’ rights to the Children
involuntarily. N.T., 3/30/21, at 6-7. After announcing this decision, the court
excused Appellants and their attorneys, and the remaining parties proceeded
to a goal change hearing at the juvenile court docket. Id. at 11-17. It appears
that only then, after the termination hearing was over and the matter decided,
did the court and counsel for the Agency attempt to admit the juvenile court
record into evidence. The record reveals the following exchange:
[Counsel for the Agency]: Also, I just want to make sure
that all of the exhibits from the petition, the birth certificates and
____________________________________________
3 Following completion of the Agency’s case in chief, counsel for both parties
made what they characterized as a demurrer on behalf of their clients, which
the orphans’ court denied. N.T., 3/4/21, at 3.
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the paternity, all of the information that was attached as exhibits
are being admitted.
THE COURT: Attached to the petition, yeah, they’re
admitted.
[Counsel for the Agency]: Okay. Thank you, Your Honor.
COURT REPORTER: Not in this hearing. They’re admitted in
the other one, correct?
THE COURT: Yes.
***
COURT REPORTER: This is the goal change.
THE COURT: Right. Not to the goal change, but to the
[termination of parental rights]. That’s what she’s referring to.
COURT REPORTER: Okay. Well, what were they, so I know?
Did you mention them?
THE COURT: Yeah. It was at the beginning. It was the
entire --
[Counsel for the Agency]: The certified record, the birth
certificate.
[Legal counsel/guardian ad litem]: [Court Appointed Special
Advocates] report.
[Counsel for the Agency]: And the --
COURT REPORTER: I wasn’t sure if you mentioned that in
the beginning but maybe --
THE COURT: Maybe not today, I know I didn’t mention it.
At the end of the last hearing, we did. All those exhibits will be -
-
[Counsel for the Agency]: Entered in the petition as well.
So the certified record was sent separately. But then the petition
has the birth certificate attached and I don’t have --
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THE COURT: Whatever was attached to the petition has to
be admitted into record. [sic]
[Legal counsel/guardian ad litem]: Yeah. And there was --
and all that stuff would have been referenced also to the
[termination of parental rights] hearing, which was held on March
4th. You didn’t hear it here.
COURT REPORTER: You didn’t admit them there. But you
want to admit them all here, is that what’s happening?
THE COURT: I think we admitted them at the beginning,
when we started the [termination of parental rights] when
[counsel for the Agency] --
[Counsel for the Agency]: I just wanted to make sure that I
did it.
COURT REPORTER: Well, I need to know what they are, so
I want you to be specific about it.
THE COURT: The entire certified record, Janet, with all the
previous Court Orders, review Orders and everything else, that
was part of the petition.
So, whatever what [sic] was attached to the petition for
termination of parental rights are all part of the record as exhibits.
LAW CLERK: Janet, I’ll find it all in my e-mail and I’ll send it
to you, just so you have it.
COURT REPORTER: That’s it, because I need to list them on
what they are and the numbers, so.
[Paralegal]: This is Tricia. On the November TPR date, the
certified records were admitted and you took judicial notice of the
entire record.
THE COURT: Okay.
(Agency Exhibits from [termination of parental rights]
hearings were admitted into evidence.)
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Id. at 18-21. Despite this exchange, neither the juvenile court record nor the
transcripts associated with it appear in the certified record on appeal that this
Court received.4
On April 5, 2021, the orphans’ court entered decrees, which terminated
Appellants’ parental rights to the Children involuntarily. Both Appellants filed
separate notices of appeal for each child on April 30, 2021, along with concise
statements of errors complained of on appeal. This Court listed Appellants’
appeals consecutively, and we now consolidate them for disposition.
Mother raises the following claims in her brief:
1. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Mother’s [m]otion in
[l]imine seeking to exclude any testimony from the current
Agency caseworker about any statements contained in the Agency
casefile which were outside the scope of the caseworker’s personal
knowledge?
2. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Mother’s demurrer at
the close of the Agency’s case-in-chief contending the Agency
failed to present competent, non-hearsay evidence to support the
termination of Mother’s parental rights without affording Mother
the opportunity to confront and cross-exam[ine] the witnesses
who made those statements?
3. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Mother’s [m]otion for
[m]istrial following the Agency’s attempt to reopen the evidentiary
record and, in so-moving, publishing the unfairly prejudicial
evidence sought to be admitted to the [orphans’ c]ourt who was
sitting as both the trier of fact and law in the instant matter?
____________________________________________
4 To ensure that no exhibits were omitted from the certified record on appeal
by mistake, we contacted our Prothonotary’s Office. Prothonotary staff then
contacted orphans’ court staff, who verified that no exhibits were omitted.
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4. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in determining the Agency
presented sufficient evidence to satisfy the grounds for
termination of Mother’s parental rights under Sections
2511(a)(2), 2511(a)(5) and/or 2511(a)(8) of the Adoption Act?
5. Even if this Court determines the Agency presented sufficient
evidence to satisfy the grounds for termination of Mother’s
parental rights under Sections 2511(a)(2), 2511(a)(5) and/or
2511(a)(8) of the Adoption Act, whether the [orphans’ c]ourt
nevertheless erred as a matter of law and/or manifestly abused
its discretion in determining termination of Mother’s parental
rights is in the best interests of the minor children?
Mother’s Brief at 5-6 (suggested answers and underlining omitted).
In addition, Father raises the following claims, which are substantively
identical to Mother’s claims:
1. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Father’s [m]otion in
[l]imine seeking to exclude any testimony from the current
Agency caseworker about any statements contained in the Agency
casefile which were outside the scope of the caseworker’s personal
knowledge?
2. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Father’s demurrer at
the close of the Agency’s case-in-chief contending the Agency
failed to present competent, non-hearsay evidence to support the
termination of Father’s parental rights without affording Father the
opportunity to confront and cross-examine the witnesses who
made those statements?
3. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in denying Father’s [m]otion for
[m]istrial following the Agency’s attempt to reopen the evidentiary
record and, in so moving, publishing the unfairly prejudicial
evidence sought to be admitted to the [orphans’ c]ourt who was
sitting as both the trier of fact and law in the instant matter?
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4. Whether the [orphans’ c]ourt erred as a matter of law and/or
manifestly abused its discretion in determining the Agency
presented sufficient evidence to satisfy the grounds for
termination of Father’s parental rights under Sections 2511(a)(2),
2511(a)(5) and/or 2511(a)(8) of the Adoption Act?
5. Even if this Court determines the Agency presented sufficient
evidence to satisfy the grounds for termination of Father’s
parental rights under Sections 2511(a)(2), 2511(a)(5) and/or
2511(a)(8) of the Adoption Act, whether the [orphans’ c]ourt
nevertheless erred as a matter of law and/or manifestly abused
its discretion in determining termination of Father’s parental rights
is on the best interests of the [m]inor [c]hildren?
Father’s Brief at 5-6 (suggested answers omitted).
We focus our attention on the first and second claims in both Appellants’
briefs, as they are dispositive of these appeals. Appellants assail the decision
of the orphans’ court to admit and rely on Ms. Taylor’s disputed testimony.
Mother’s Brief at 10-15; Father’s Brief at 10-12. They contend the testimony
was hearsay without an exception because Ms. Taylor did not possess personal
knowledge regarding much of what she was discussing and merely relayed
what she read in the Agency’s files, and because the Agency failed to meet
the requirements of the “business record” exception to the hearsay rule.5 Id.
____________________________________________
5 Our review of the record does not support Father’s assertion in his brief that
he objected to Ms. Taylor’s testimony and joined the motion in limine counsel
for Mother made to exclude the testimony. See Father’s Brief at 10. However,
even accepting for the sake of argument that Father waived any challenge to
Ms. Taylor’s testimony by failing to make a timely objection separately from
Mother, we would conclude that vacating the termination decrees as to Father
is still appropriate. Father preserved a challenge to the sufficiency of the
evidence supporting the termination of his parental rights, and, as we detail
below, the orphans’ court terminated Father’s rights based in significant part
on juvenile court evidence not properly admitted into the record during the
termination hearing.
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We consider Appellants’ evidentiary challenges mindful of our standard
of review, which provides that “the decision of whether to admit or exclude
evidence is within the sound discretion of the orphans’ court. A reviewing
court will not disturb these rulings absent an abuse of discretion. Discretion
is abused if, inter alia, the orphans’ court overrides or misapplies the law.” In
re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018) (citations omitted); see
also Davis v. Borough of Montrose, 194 A.3d 597, 606 (Pa. Super 2018)
(citing Turner v. Valley Housing Development Corp., 972 A.2d 531, 535
(Pa. Super. 2009), reargument denied (June 23, 2009)) (“When reviewing a
. . . determination on motions in limine, we apply an abuse of discretion
standard.”).
Our Rules of Evidence define “hearsay” as “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 matter asserted in
the statement.” Pa.R.E. 801(c). Hearsay is generally inadmissible. Pa.R.E.
802. At issue is the exception to the hearsay rule found at Rule 803(6), which
provides as follows:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
***
(6) 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:
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(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).
Notably, the exception memorialized at Rule 803(6) also is found within
the Uniform Business Records as Evidence Act, which provides the following:
(b) General rule.--A record of an act, condition or event shall,
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 tribunal, the sources of information, method and
time of preparation were such as to justify its admission.
(c) Definition.--As used in this section “business” includes
every kind of business, profession, occupation, calling, or
operation of institutions whether carried on for profit or not.
42 Pa.C.S.A. § 6108(b)-(c).
The orphans’ court discussed Appellants’ claims in its opinion, explaining
the relevant law and the circumstances surrounding its decision to admit Ms.
Taylor’s disputed testimony. The court reasoned, in relevant part, that “[t]he
Agency’s casefiles contain a litany of records kept in the regular course of its
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business. This [c]ourt permitted Caseworker Taylor to testify as to her own
impressions upon her necessary review of the casefiles after inheriting the
same. Thus, the [c]ourt’s ruling . . . should be affirmed.” Orphans’ Court
Opinion, 6/1/21, at 10.
We are constrained to conclude the orphans’ court committed an abuse
of its discretion. Ms. Taylor’s disputed testimony was clearly hearsay, as it
consisted of out-of-court statements from the Agency’s files and from Ms.
Taylor’s conversations with other caseworkers. It also is apparent that the
Agency was offering those statements to prove the truth of the matter they
asserted, which related to the background of the case and Appellants’ progress
toward reunification.
Moreover, the “business record” exception to hearsay rule did not apply
under these circumstances. Rule 803(6) permits the admission of a “record,”
such as a “memorandum, report, or data compilation[.]” Pa.R.E. 803(6). The
Uniform Business Records as Evidence Act, similarly, permits the “admission”
of a “record.” 42 Pa.C.S.A. § 6108(b). Neither authority permits a witness to
testify as to the contents of a record that is not present, or being offered for
admission, merely because he or she purports to have read that record at an
unspecified time in the past. See Pa.R.E. 1002-1004 (providing that a party
must generally produce an original or duplicate to prove the contents of a
document). The premise underlying the “business record” exception is that
the statements in a record are reliable despite their hearsay character when
the record satisfies certain conditions. See Bayview Loan Servicing LLC v.
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Wicker, 206 A.3d 474, 483 (Pa. 2019) (“[T]he circumstantial trustworthiness
arises from the regularity with which business records are kept and the
reliance that businesses place on the accuracy of those records.”). Clearly,
the testimony of a witness merely relaying his or her interpretation of what a
record said lacks the same indicia of reliability.
We also find persuasive Appellants’ reliance on A.J.R.-H., supra. In
that case, our Supreme Court held an orphans’ court abused its discretion by
admitting one hundred and sixty-seven exhibits without presenting testimony
to establish that any of them met the requirements of the “business record”
exception. A.J.R.-H., 188 A.3d at 1167-70. The Court explained, in relevant
part:
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. [The agency] did
not present any witness in support of the exhibits’ admission, let
alone “the custodian or other qualified witness.” 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. Additionally, none of
the documents were certified copies. 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 [the
agency’s] files and “were collected in the ordinary course of
business with regard to this case.”
Id. at 1167-68 (citations and footnote omitted). As Appellants contend, the
Agency in this matter likewise presented no testimony to establish that any of
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the documents from which Ms. Taylor was testifying were “business records.”
Mother’s Brief at 12; Father’s Brief at 11. The orphans’ court simply seems to
have assumed that the exception applied, based on its belief that the Agency’s
files were “kept in the ordinary course of business[.]” N.T., 11/12/20, at 12.
Having concluded the orphans’ court abused its discretion by admitting
Ms. Taylor’s disputed testimony based on the “business record” exception, we
consider the two other justifications the court offered on November 12, 2020,
for admitting the testimony. First, the court explained it would “take judicial
notice of all those previous hearings” about which Ms. Taylor was testifying
“and make it part of the record.” Id. at 11. Second, the court explained that
“we’re going to be introducing the entire record,” and “most of the stuff she’s
testifying to has already been found as findings of the fact [sic] in the previous
hearings[.]” Id. at 12.
Regarding the assertion that the orphans’ court could take judicial notice
of the juvenile court proceedings, our Rules of Evidence permit a court to take
judicial notice of “an adjudicative fact.” Pa.R.E. 201(a). This includes any fact
“that is not subject to reasonable dispute because it: (1) is generally known
within the [] court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.”
Pa.R.E. 201(b). Contrary to the court’s apparent determination here that the
contents of the juvenile court record qualified as adjudicative facts, our case
law provides a “‘court may not ordinarily take judicial notice in one case of the
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records of another case, whether in another court or its own, even though the
contents of those records may be known to the court.’” 220 Partnership v.
Philadelphia Elec. Co., 650 A.2d 1094, 1097 (Pa. Super. 1994) (quoting
Naffah v. City Deposit Bank, 160, 13 A.2d 63, 64 (Pa. 1940)). Thus, we
conclude the court’s assertion that it could take judicial notice was improper
and does not overcome or excuse its misapplication of the “business record”
exception to the hearsay rule.
As for the assertion that the orphans’ court would introduce the juvenile
court record and admit it into evidence, our review of the certified record on
appeal does not reveal that this ever occurred. At no point during the four
days of testimony did the court or the Agency mark, introduce, or admit the
juvenile court record or any portion of its contents as exhibits. It appears that
the court and the Agency first attempted to admit the juvenile court record on
March 30, 2021, after the court already ended the termination hearing,
announced it would terminate Appellants’ rights, excused Appellants from the
proceeding, and completed a goal change hearing at the juvenile court docket.
Even then, the juvenile court record did not become part of the certified record
on appeal received by this Court. Our law is clear that “[a] trial court may not
consider evidence outside of the record in making its determination. Nor may
this [C]ourt uphold a trial court’s order on the basis of off-the-record facts.”
M.P. v. M.P., 54 A.3d 950, 955 (Pa. Super. 2012) (quoting Ney v. Ney, 917
A.2d 863, 866 (Pa. Super. 2007)) (citations and quotation marks omitted).
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It is important to recognize that the presence of evidence in the juvenile
court record does not excuse an agency from admitting that evidence into the
orphans’ court record during a termination hearing. As this Court explained
in a recent opinion addressing a similar problem, “[t]ermination proceedings
often occur simultaneously with dependency proceedings, but these two types
of proceedings remain distinct, with their own docket numbers, records, and
divisions within the Court of Common Pleas.” In the Interest of S.S., 252
A.3d 681, 688 (Pa. Super. 2021). In S.S., we held an orphans’ court erred
by considering sua sponte a psychiatrist’s report that had been admitted into
the juvenile court record but not the orphans’ court record. We reasoned that
the absence of the report from the orphans’ court record prevented this Court
from reviewing it and ensuring it supported the court’s termination decision,
since the appellant did not appeal any order entered in his child’s dependency
matter, and we did not have access to the juvenile court record. Id.
The same rationale applies to this case. Appellants did not appeal any
order entered in the Children’s dependency proceedings, neither the orphans’
court nor the Agency admitted the juvenile court records into evidence at the
termination hearing, and this Court did not receive any portion of the juvenile
court record as part of the certified record on appeal. As a result, we cannot
review the juvenile court record to confirm it supports Ms. Taylor’s disputed
testimony or the decision of the orphans’ court.
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Finally, we cannot conclude that the abuses of discretion by the orphans’
court were harmless. “[F]inding harmlessness in a termination [of parental
rights] case requires us to conclude that the evidentiary error could not have
had any impact upon the orphans’ court’s decision.” A.J.R.-H., 188 A.3d at
1175. It is apparent the court’s missteps in this matter had a significant
impact on its termination decision. Indeed, the court relied on Ms. Taylor’s
improperly admitted testimony and the juvenile court record when explaining
its decision in its opinion. See generally Orphans’ Court Opinion, 6/1/21, at
3-21.
We hold, therefore, that the orphans’ court committed an abuse of its
discretion by admitting Ms. Taylor’s disputed testimony. We further hold that
the court committed an abuse of its discretion by purporting to take judicial
notice of the juvenile court record and by relying on portions of the juvenile
court record that it did not properly admit into evidence during the termination
proceedings. Because we conclude the court’s missteps were not harmless,
we vacate the decrees terminating Appellants’ rights to the Children
involuntarily and remand for a new hearing to be held as soon as possible.
See S.S., 252 A.3d at 689. Following the hearing, the orphans’ court must
enter a new decision granting or denying termination. The court must base
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its decision on evidence properly admitted during the termination
proceedings.6
Decrees vacated. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/05/2021
____________________________________________
6 Based on our disposition, we need not consider the remainder of Appellants’
arguments, including their argument that the orphans’ court erred by failing
to grant a mistrial due to the Agency’s attempt to present evidence regarding
new criminal charges Father incurred after the record was closed.
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