IN RE: A.J.R.-H. AND I.G.R.-H.
No. 38 MAP 2017
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: July 18, 2018
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
APPEAL OF: K.J.R., MOTHER; ARGUED: March 6, 2018
Children‘s Fast Track
[J-10-2018]
Appeal from the Order of Superior 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
JUSTICE DONOHUE
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
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 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
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
- 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;
- 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; - 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
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.
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
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
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.
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
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
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
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
(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.
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
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
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
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
“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
matter asserted in the statement.”
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.
Without question, the manner in which these exhibits were admitted into evidence in the first instance failed to satisfy the requirements of the business records exception.
CYS did not present any witness in support of the exhibits’ admission, let alone “the custodian or other qualified witness.” See
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
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
dockets and court orders, none of
(records containing opinion evidence or statements of diagnoses are inadmissible under the business records exception);
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.“);
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 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
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
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 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. 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.
- 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
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
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 Mother‘s rights best served the Children‘s needs and welfare under
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
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 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
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
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 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
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 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
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
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 “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,
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 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 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
As the United States Supreme Court has
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
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.
Judgment Entered
07/18/2018
Amy L. Dreibelbis
Deputy Prothonotary
Notes
(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.
(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 parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.