In Re: A.J.H.- and I.G.H. Apl. of K.J.R., Mother

[J-10-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

IN RE: A.J.R.-H. AND I.G.R.-H. : No. 38 MAP 2017

:

: Appeal from the Order of Superior

APPEAL OF: K.J.R., MOTHER : Court at No. 1564 MDA 2016 dated

: May 1, 2017 Affirming the Decree of

: the Berks County Court of Common

: Pleas, Orphans’ Court, dated August

: 23, 2016 at Nos. 84695 and 84696

:

: ARGUED: March 6, 2018

OPINION

JUSTICE DONOHUE DECIDED: July 18, 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. (“Mother”) and

D.W.H. (“Father”) to their minor daughters, A.J.R.-H. and I.G.R.-H. (collectively, the

“Children”).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, I.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 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

that this error was harmless. We therefore vacate the decrees terminating Mother’s

parental rights and remand the matter to the orphans’ court for a new termination

proceeding.3

I. Facts and Procedural History

On February 19, 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 to justify

its admission.” Similarly, 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 In re: A.R.-H and I.R.-H, 1606 MDA 2016 (Pa. Super. May

1, 2017) (unpublished decision). Like Mother, Father also challenged the admission of

the documentary evidence, and the Superior Court affirmed on the same basis as it did

in Mother’s case. Father, however, did not seek further review before this Court,

rendering the termination of his parental rights final.

[J-10-2018] - 2

section 2511(a)(1), (2), (5), (8) and (b) of the Adoption Act.4 As to Mother, 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.

* * *

(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 placement, 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.

* * *

(b) Other considerations.--The court in terminating the rights of a parent

shall give primary consideration to the developmental, physical and

emotional needs and welfare of the child. 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 Parental

Rights, 2/19/2016, ¶ 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

 referrals made by anonymous reporting sources to CYS about the family

dating back to 2007;

 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 International, Inc. (“ODI”), Berks Counseling Associates, P.C.,

and Commonwealth Clinical Group;

 drug and alcohol treatment evaluations pertaining to Mother and Father

from Treatment Access and Services Center, Inc. (“TASC”);

 substance abuse monitoring and urinalysis reports for Mother 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(a)(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 ODI;

 reports documenting supervised visits between the Children and each

parent conducted by various caseworkers from ODI;

 reports from domestic violence counseling sessions with Father by ODI;

 reports from counseling sessions with Father by Pennsylvania Counseling

Services;

 treatment progress summaries and reports from counseling sessions with

Mother by Andrea Karlunas of Commonwealth Clinical Group;

 reports from counseling sessions for Mother from Pennsylvania Counseling

Services;

 reports regarding Mother’s inpatient drug treatment at Gaudenzia Fountain

Springs (“Gaudenzia”);

 emails sent and received by various CYS caseworkers from third-party

service providers working with the family;

 notes from telephone conversations that various CYS caseworkers had with

third-party service providers;

 police reports and affidavits of probable cause involving Father and Mother;

 court orders from the dependency case involving the family;

 printouts of criminal, civil and traffic dockets detailing the outcome of various

court actions brought against Mother and Father;

 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 Mother in

2013, the temporary PFA order that resulted, and the order subsequently

dismissing it based on Mother’s failure to appear for the final hearing;

 PFA violation notices, arrest warrants, 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-MISC) 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 Mother 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 March 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 July 12, 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, M.A., of

Commonwealth Clinical Group.

Mother 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 dismissed.6 The orphans’ court sustained the objection to Exhibit

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

summary of the 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 file, 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,

at 18.

[J-10-2018] - 6

with regard to this case?” to which the solicitor responded, “They are business records,

Your Honor, yes.” Id. at 19. On that basis, and without inquiring about or otherwise

discussing the content, timing of the preparation of the documents, author or subject

matter of any of the exhibits, the orphans’ court overruled the parents’ objections “as to

the remaining exhibits.” Id.

The orphans’ court then entertained additional argument regarding the

admissibility of Exhibit 161, which the county solicitor referred to as “termination

testimony.” Id. 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.” Id. 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 (“Karlunas”)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 Mother 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 grandparents.

It was Karlunas’ expert opinion that Mother “would have to demonstrate long term

sustainability in substance abuse, mental health, employment and housing before she

could parent her children.” Id. 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. Id. 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.” Id. 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 Mother’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 family, including referrals received between 2007 and 2013, the 2013

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

[J-10-2018] - 8

parents’ care.8 She testified regarding Mother’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 income, 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 place,” and the absence of progress

observed by either Mother or Father, particularly concerning domestic violence. Id. 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].”

Id. 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.

8 We 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 April 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 May 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 testified, 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.” Id. at 132.

Father and Mother also testified at the termination hearing. As discussed in

greater detail later in this Opinion, Mother 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 Mother, but denied

others, in particular, the incident allegedly recounted by the Children when he held a gun

to Mother. He stated that he and Mother have not had any problems since the Children’s

removal from their care. He attributed the violence to his use of alcohol, but testified that

he has been sober since 2014. He admitted to continuing to see Mother, testifying that

9 According to Radcliffe’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-10-2018] - 10

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

158.

Mother testified regarding her fulltime employment, 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. Mother 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

Mother, the last episode of domestic violence between the parties occurred prior to the

Children’s removal, and although she agreed that they had made mistakes in the past, it

was her desire to “forgive and forget.” Id. at 170-71.

At the conclusion of the hearing, the orphans’ court took the matter under

advisement. On August 23, 2016, following its “review [of] the testimony and voluminous

exhibits,” the orphans’ court filed decrees terminating Mother’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. Final Decree, 9/23/2016; Orphans’ Court

Opinion, 10/25/2016, at 1. Following Mother’s appeal to the Superior Court, the orphans’

court issued an opinion pursuant to Pa.R.A.P. 1925(a) addressing Mother’s challenges

to the sufficiency of the evidence to support termination and the court’s decision to admit

the 167 documents into evidence.

Regarding Mother’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-10-2018] - 11

of each individual report, evaluation, progress note, or drawing is not required.” Orphans’

Court Opinion, 10/25/2016, at 10.

It 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. Moreover, the law does not require that a

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.

Id. at 11 (quoting Commonwealth v. Wood, 637 A.2d 1335, 1350 (Pa. Super. 1994)

(ellipses supplied). Based on “the caseworker’s identification of the exhibits as well as

the entirety of the record,” the orphans’ court found that there was a sufficient basis for it

to conclude that all of the exhibits, which were part of CYS’s records, “were prepared

simultaneously with the information being obtained and maintained as business records.”

Id.

In a unanimous, unpublished memorandum decision, the Superior Court affirmed.

See In re A.J.H. and I.G.H., 1564 MDA 2016, 2017 WL 1573229 (Pa. Super. May 1, 2017)

(non-precedential decision). Reviewing Mother’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)). It 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 overwhelming 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

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

Although Mother 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 all 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 Mother

failed to establish that she was prejudiced by the admission of these documents. The

Superior Court recognized that the orphans’ 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.” Id. It therefore concluded

that Mother was not entitled to relief.

II. Issues and Arguments

We granted Mother’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.”

In re A.J.H. and I.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-10-2018] - 13

the law by concluding that admission of these exhibits constituted harmless error. Id. at

1079.

Mother asserts that CYS failed to establish the prerequisites for admission of the

167 exhibits under the business records exception. According to Mother, 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 goals, which was the basis for termination. Mother states that

much of the 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, Mother states that a court must base a decree terminating parental rights

solely on competent evidence. Mother’s Brief at 20 (citing In 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, Mother 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 Mother’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.e., the remaining exhibits) was admissible under the business records

exception of Rule 803(6).

Echoing the Superior Court, CYS argues that even if admitting the exhibits was

error, Mother failed to show that she was harmed by this error, as the testimony presented

by the witnesses, including Mother, 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.” Id.

III. Admissibility of the Exhibits

We 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 127, 143 n.14 (Pa. 2017), cert. denied sub. nom, Johnson v.

Pennsylvania, 138 S. Ct. 508 (2017). A reviewing court will not disturb these rulings

absent an abuse of discretion. Id. Discretion is abused if, inter alia, the orphans’ court

overrides or misapplies the law. Commonwealth v. Batts, 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

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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 case, is commonly

known as the business records exception, which permits the admission of:

A record (which includes a memorandum, report, or data

compilation in any form) of an act, event or condition if:

(A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a “business”, which term includes business,

institution, association, profession, occupation, and calling of

every kind, whether or not conducted for profit;

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

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness, or by a certification

that complies with Rule 902(11) or (12) or with a statute

permitting certification; and

(E) 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) (“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.”).

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.

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CYS did not present any witness in support of the exhibits’ admission, let alone “the

custodian or other qualified witness.” See 42 Pa.C.S. § 6108(b); Pa.R.E. 803(6)(D).

Instead, all of the exhibits were presented to the court for admission, in bulk, by the county

solicitor prior to calling any witnesses to testify. N.T., 8/12/2016, 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 of the various

agencies from which the documents came. See 42 Pa.C.S. § 6108(b); Pa.R.E. 803(6)(A),

(C). Additionally, none of the documents were certified copies. See Pa.R.E. 803(6)(D),

902(11).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 Rule 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. Millan, 2/21/2013, and Maureen Majka, 9/23/2013, respectively),

10-11 (petitions for dependency drafted by Cecily Pachuilo, 2/31/2013), 32, 48, 52, 137

(telephone conversations memorialized by Cecily Pachulio, 4/15/2014, 6/26/2014,

8/26/2014, 6/2/2015, and respectively), 44 (motion seeking removal of Children verified

[J-10-2018] - 17

events, observations and conversations that occurred over several weeks or months.12

Several of the exhibits contained documents composed by multiple authors, 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.14 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 Mother, 12/17/2014,

and Father, 3/20/2015, authored by Ashlea Mellinger), 137, 148-49 (telephone

conversations memorialized by Kauffman-Jacoby, 4/10/2016, 5/3/2016, 6/21/2016), 142

(telephone conversation memorialized by Ashlea Mellinger, 6/2/2015), 161 (summary

created by Kauffman-Jacoby), 162-64 (family service and child permanency plans signed

by Kauffman-Jacoby, 5/20/2016). Most of the exhibits were not authored by Kauffman-

Jacoby and all contained additional hearsay.

12 See, e.g., Exhibits 7 (ODI 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 (ODI quarterly visitation reports

for Mother 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 2/1/2016-

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 ODI in-home casework services reports authored by either

Samantha Rechieru or Emmanuel Vazquez, from 2/11/2014-8/9/2014), 110 (series of

ODI visitation reports for Mother and Children authored by either Robyn Battle, Ana

Sulivera or Staci Kachel, from 9/26/2015-2/3/2016).

14 See, e.g., Exhibits 56 (urine collection results for Mother, 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 Mother 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 I.G.H.-R.).

15See, e.g., Exhibits 33 (email sent 6/26/2014 by Samantha Rechieru of ODI to Cecily

Pachuilo of CYS), 55 (email sent by 11/5/2014 Samantha Rechieru of ODI to Kimberly

Reinert of CYS), 69-70 (emails sent 11/5/2014 and 11/11/2014, respectively, by Gerald

Menaquale of CCG to a employees of CCG and Kimberly Reinert of CYS), 107 (ODI

[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 Williams v.

quarterly visitation report for Mother and Children from 11/24/2014-2/21/2015, authored

by Avion Onyeka and documenting some visits that were supervised by Dennisse Ayala),

111 (same, from 2/26/2016-5/26/2016, authored by Rachel Leonardziak and

documenting some visits that were supervised by Staci Kachel), 138 (series of emails

sent 4/23/2016-4/26/2016 between Rachel Leonardziak of ODI and Kauffman-Jacoby),

146 (series of emails sent 1/18/2016-1/19/2016, between Julie Karaisz and Gerald

Menaquale of CCG and Ashlea Mellinger 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 (same,

10/14/2014, giving Father permission to return home), 71-72 (same, 11/17/2014,

removing Children), 73-74 (same, 2/11/2015, reducing Mother’s visitation rights), 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 Mother), 95-96,

98-100 (printouts of traffic court dockets regarding Mother), 97 (printout of civil docket

regarding Mother from 2013), 103 (summary of Mother’s appearances in Magisterial

District Court 23-1-05, 2004-2014), 104 (Lancaster County Court of Common Pleas court

summary regarding Mother, 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), 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 Mother by Kristen Hunzinger

from ODI, 11/24/2015), 119 (monthly reports on Mother’s treatment through Pennsylvania

Counseling Services by various therapists, 11/2015-3/2016), 167-168 (reports from

Cherrie Sage, M.A., Children’s mobile therapist).

[J-10-2018] - 19

McClain, 520 A.2d 1374, 1376-77 (Pa. 1987) (records containing opinion evidence or

statements of diagnoses are inadmissible under the business records exception); Pa.R.E.

803(6), Comment. See also In 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.

Where 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) (“Double 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

18 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 otherwise support their admissibility.

[J-10-2018] - 20

it is.”); Commonwealth v. Zook, 615 A.2d 1, 10 (Pa. 1992) (“Generally, 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. It 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.” Id. We found that “the ‘business records’ exception, though it may

[J-10-2018] - 21

be factually applicable,” 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.” Id. at

121.

As in Jones, 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.

IV. Harmless Error and Right for Any Reason

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 In 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). We 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 Mother 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 In re Sanders Children Court did not

articulate a standard for determining whether the erroneous admission of evidence in a

[J-10-2018] - 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.” Id.

In its written opinion, 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), 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. While

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.

While 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 self-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. Hence, 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 all other evidence in the case before us and thus reversal is required.

[J-10-2018] - 23

the decision reached by the orphans’ court to terminate Mother’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 In 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 Mother’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 decision, the orphans’ court relied

upon information presented solely through the exhibits:

 It 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 Mother’s PFA petition (as well

as noting Mother’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.

 It described the content of numerous court orders issued by the juvenile court,

including the specific findings reached regarding Mother’s compliance with her

court ordered goals. Orphans’ Court Opinion, 10/25/2016, at 6-7; Exhibits 16-17,

21-22, 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 Mother’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 Mother 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. Orphans’ Court Opinion,

10/25/2016, at 9; Exhibits 12, 18, 25, 56, 120-121.

[J-10-2018] - 24

 It found that Mother “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 ODI, none of whom

testified. Orphans’ Court Opinion, 10/25/2016, at 9; Exhibits 7-8, 15, 23, 39, 54,

65, 105-111.

While 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.”

Id.

In In 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. In 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 “only testifying from

her records.” Id. 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.” Id. “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.” Id. 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. Id.

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 family, and instead that she relied on reports from prior CYS caseworkers and

third-party service providers. It 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 Mother’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 statute. 20 It

20 The orphans’ court did not specify under which subsections of 2511(a) it was

terminating Mother’s parental rights to Children. In its decree, the court simply found that

CYS has established “the facts alleged” in its petition to terminate Mother’s parental rights

by clear and convincing evidence. Final 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 Mother’s rights under all subsections alleged by CYS.

[J-10-2018] - 26

concluded that Mother 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.

It further found that CYS had met its burden of proving that termination of Mothers’

rights best served the Children’s needs and welfare under 2511(b). 21 Specifically, 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 Mother …, it is

an unhealthy one at best.” Id. at 10. It concluded that the Children had “suffered

significant trauma caused by Mother 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.” Id.

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 Mother, 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 Radcliffe testified regarding drawings completed by the Children with a non-testifying

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

21 A “needs and welfare” 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.” In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).

[J-10-2018] - 27

the Children were reportedly asked to identify a “safe house” and an “unsafe house.” Id.

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 activity, 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.” Id. The exhibit included a number of fears that the child

involved in the activity reportedly expressed, including worries she had about Mother,

Father, domestic violence, drug use, Mother’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 that individual did not testify. N.T., 8/12/2016, at 88. While

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

[J-10-2018] - 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

Mother 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 Mother before and

after dependency hearings. Id. 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 Mother. Karlunas further testified that Mother expressed to her that she loves

the Children and wants to keep them safe. Id. at 48, 56, 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

Mother’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 In 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 In 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 of the mere possibility

that the evidence could have impacted the decision of the orphans’ court. Id. 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 Mother’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. Moreover, 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

orphans’ court’s decision to terminate Mother’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 Mother’s parental rights to the Children. See In 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 In re A.J.H. and I.G.H., 2017 WL 1573229,

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

[J-10-2018] - 30

been sufficient evidence presented at the hearing to support termination is not, alone, a

basis for finding harmless error.23 As stated above, the standard for finding harmlessness

in a termination case requires us to conclude that the evidentiary error could not have

had any impact upon the orphans’ court’s decision. 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 Micro, Inc., 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. Bullock, 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 Mother’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. In re A.J.H.

and I.G.H., 2017 WL 1573229, at *6.

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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 lower tribunal.” Id. (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 Helvering v. Gowran, 302 U.S. 238, 245 (1937)).

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., Inc., 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.”

Id. See also Chenery 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 of the jury”). The doctrine

thus may be applied by a reviewing court if the established facts support a legal

conclusion producing the same outcome. It 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

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CYS witness to testify regarding Mother’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 Moreover, in their testimony, Mother and

Father challenged or disputed much of the evidence presented by CYS regarding

Mother’s failings.

Based entirely on the inadmissible records, Kauffman-Jacoby testified that Mother

failed to complete her drug and mental health treatment goals. She acknowledged that

Mother 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 Mother failed to comply with urine screens beginning in March 2016 (she

otherwise 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. Id. at 113.

Mother, 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. Id. 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 Ashland) and was concerned that living in a new city and the clientele in the Lancaster

25 Karlunas testified that Mother was unsuccessfully discharged from domestic violence

counseling at CCG, but that occurred prior to the Children’s removal from Mother’s care.

N.T., 8/12/2016, at 38, 65.

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programs could compromise her recovery. Id. 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. Id. at 165.

Mother testified that following her successful discharge from Gaudenzia, she

temporary obtained employment, typically working until 4:30 p.m., and this allowed her to

attend counseling and urine screens. Id. at 167. In March 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. Id. at 167-68. She relied on the bus for transportation, which did not

get her to the bus station until around 7:00 p.m. Id. 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. Id. at 168-69. Mother admitted that her drug of

choice in the past was K2 (synthetic marijuana), but testified that she has been drug-free

for sixteen months. Id.

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

Mother and Father’s failure to make progress. Id. 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

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“real life situations.” Id. at 83. Kauffman-Jacoby further testified that in a conversation

she had with Father, he did not take responsibility for his actions, blaming Mother’s drug

use for his violence. Id. 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.” Id. at 85.

Father, however, testified that he successfully completed domestic violence

counseling through ODI. Id. at 135. He expressed to the orphans’ court that he

understood, based on the services he had received, how his actions hurt Mother and the

Children and learned new methods to control his anger. Id. He 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. Id. at 137. Thereafter, he engaged a private

therapist for counseling. Id. at 137-38. Father stated that alcohol was a trigger for his

violence, and that he has been sober since October 2014. Id. 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. Id. at 139-40.

Both Mother and Father testified that there have been no incidents of domestic

violence since the Children’s removal from their care. Id. at 150, 173. Mother 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.” Id. at 170-71. Mother admitted that she continued to maintain a friendship with

Father, and that their relationship was “at times” of a sexual nature. Id. 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,” Mother testified that it is clean and “really no place can be ideal.”

Id. at 169-70. Kauffman-Jacoby acknowledged that Mother reported that she had moved

out, but stated that she has not seen Mother’s new residence “[b]ecause we have been

focusing on permanency for the children,” and based on the size of Mother’s apartment

alone, Kauffman-Jacoby concluded that “it won’t be appropriate for two young children.”

Id. at 80.

Kauffman-Jacoby expressed no concerns about Mother’s attendance at visits or

her behavior there, testifying that Mother 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. Id. at 108-09. She confirmed that Mother successfully completed parenting classes.

Id. 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.” Id. at 117.

As we stated in In 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.

In 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 Mother and Father were believed by the orphans’ court, there would be no basis to

[J-10-2018] - 36

find that CYS had satisfied its burden to terminate Mother’s parental rights to the Children,

as she would have been compliant with all of her court ordered goals.26

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. Conclusion

We recognize the highly sensitive nature of a termination proceeding and the

importance of permanency for children in foster care. We also recognize, however, that

“the right to make decisions concerning the care, custody, and control of one’s children

is one of the oldest fundamental rights protected by the Due Process Clause.” Hiller v.

Fausey, 904 A.2d 875, 885 (Pa. 2006) (citing Troxel v. Granville, 530 U.S. 57, 67 (2000)).

Involuntary termination serves as “the most extreme infringement” upon this right. In 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 Mother’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.

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rights to her Children, we vacate that decision. We 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 Wecht join the opinion.

Justice Baer files a concurring opinion.

Justice Mundy files a concurring opinion in which Justice Dougherty joins.

27Under the circumstances of the case and the expedited timeframe for the new hearing

and decision, CYS need not undertake reunification efforts in this interim. We 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).

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