In re A.J.R.-H.

188 A.3d 1157

IN RE: A.J.R.-H. and I.G.R.-H.

Appeal of: K.J.R., Mother

No. 38 MAP 2017

Supreme Court of Pennsylvania.

Argued: March 6, 2018

Decided: July 18, 2018

Igor Litvinov, Reading, PA, for K.J.R., Appellant.

Kathleen D. Dautrich, Reading, PA, for D.H., Appellee.

Jennifer Lynn Grimes, Berks County Solicitor's Office, Reading, PA, for Berks County Children & Youth Services, Appellee.

Molly Ingram Sanders, Guardian's Office, Reading, PA, for Guardian Ad Litem, Appellee.

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

OPINION

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

• 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.

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 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,...