In Re: A.R.-H. and I.R.-H. Appeal of: D.H., Father ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.R.-H. AND I.R.-H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.H., FATHER :
:
:
:
:
: No. 1606 MDA 2016
Appeal from the Decree August 23, 2016
In the Court of Common Pleas of Berks County
Orphans’ Court at No(s): 84695 and 84696
BEFORE: SHOGAN, MOULTON, and PLATT*, JJ.
MEMORANDUM BY MOULTON, J.: FILED MAY 01, 2017
Appellant, D.H. (“Father”), appeals from the decrees entered August
23, 2016, in the Berks County Court of Common Pleas granting the petitions
of the Berks County Children and Youth Services (“BCCYS”) and involuntarily
terminating Father’s parental rights to his daughters, A.J.R.-H.,1 born in
March 2007, and I.G.H., born in July 2010 (collectively, “Children”),
pursuant to the Adoption Act, 23 Pa.C.S. § 2511(a)(1), (2), (5), (8), and
(b).2 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
At the hearing, A.J.R.-H.’s name was corrected from A.J.H. to A.J.R.-
H. N.T., 8/12/16, at 15.
2
The parental rights of K.J.R. (“Mother”) as to Children were also
terminated on the same date by separate decrees. Mother filed a timely
(Footnote Continued Next Page)
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The trial court summarized the relevant procedural and factual history,
in part, as follows:
The family first came to the attention of BCCYS in 2007,
the day after A.[J.]R.-H. was born, as the result of a report
that alleged a lack of emotional involvement by Father,
concerns of Father’s abusiveness and alcohol use, and a
concern about where the family resided. BCCYS
determined the risk to be low and took the report as
information only.
A second report, on February 21, 2013, alleged
Mother’s daily smoking of marijuana and Father’s
incarceration for domestic violence. The report alleged
that Mother suffered from mental health issues and she
was not appropriately feeding and supervising the
Children. Again, BCCYS determined the risk to be low and
took the report as information only.
An intake investigation began on September 23, 2013
upon a third report that alleged Mother and Father were
using drugs and that Father had a history of domestic
violence and incarceration. Allegations included a 2012
assault by Father on Mother in which he broke her nose
and for which he was re-incarcerated. During Father’s
incarceration, Mother needed assistance with heat for the
home, food, diapers, and gas for her car.
The investigation revealed a lengthy history of domestic
violence and abuse between Mother and Father. Mother
revealed that Father drank beer one or two times per
week, but added that he was angry even when sober.
Mother did not want to leave Father despite his having
broken her nose and on another occasion putting a gun to
her head. There were other instances of physical abuse
and daily verbal abuse. The Children also reported the
abuse and repeated Father’s claims that he was going to
_______________________
(Footnote Continued)
appeal in this Court at Docket No. 1564 MDA 2016, which we address by
separate memorandum.
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kill Mother. BCCYS learned that Father failed to complete
counseling and other services and otherwise violated the
requirements of his parole on several occasions. Father’s
abuse of Mother led to parole violations, new charges, and
a temporary Protection From Abuse (“PFA”) order.
BCCYS filed for dependency of the Children on
December 31, 2013. Allegations included histories of
domestic violence and drug use by Mother and Father;
Mother’s needing assistance with heat, food, and diapers;
Father’s criminal history; and failure to cooperate with
offered services.
The hearing on the dependency petition, originally
scheduled for February 6, 2014 was continued to February
21, 2014, then April 3, 2014. In the interim, Mother and
Father were ordered to cooperate with domestic violence
counseling and casework services. Father had supervised
visits with the Children, and was not permitted in the
family home. There was less than full cooperation with
services and prohibition of contact. Mother and Father
demonstrated a lack of insight into why BCCYS was
involved.
On April 3, 2014, the Court found the Children to be
dependent due to severe domestic violence between
Mother and Father. Physical custody of the Children
remained with Mother. Father was to have no
unsupervised contact with the Children. Mother and Father
were ordered to participate in services such as domestic
violence counseling, drug and alcohol evaluation and
treatment, casework services, and establishing and
maintaining stable and appropriate housing and income.
On August 13, 2014, Father was permitted to have
unsupervised contact with the Children, but he remained
excluded from the family home until October 14, 2014.
During this time, Mother and Father were moderately
compliant with the permanency plan.
On November 17, 2014, the Court removed the
Children from the home and transferred legal custody to
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BCCYS for placement purposes.[3] The primary goal of
return to Mother was established, with a concurrent goal of
adoption. Mother and Father were permitted twice weekly
visits with the Children and were ordered to participate in
services including parenting education; mental health
treatment; domestic violence treatment; drug and alcohol
evaluation screening, and treatment; casework services;
visitation; and establish and maintain appropriate housing
and income. By Order dated February 11, 2015, Mother’s
visits were reduced to once per week.
At a permanency review hearing held May 5, 2015,
Mother and Father were found to be minimally compliant
with services. Visits with the Children were reduced to bi-
weekly.
After a number of continuances, the next review
hearing was held February 19, 2016. Mother and Father
were found to have been moderately compliant with the
permanency plan, but they made minimal progress toward
alleviating the circumstances that led to the Children’s
placement. No changes were made in the ordered
services. . . .
Trial Court Opinion, 10/25/16, at 4-7 (“1925(a) Op.”) (footnotes omitted).
On February 19, 2016, BCCYS filed petitions to terminate parental
rights. On August 12, 2016, the trial court held a hearing on the termination
petitions. BCCYS presented the testimony of: Andrea Karlunas, licensed
social worker, certified sex offender treatment specialist, and certified
domestic violence counselor, who treated Mother and evaluated the
Children;4 Nicole Kauffman-Jacoby, BCCYS caseworker; and Sloane
____________________________________________
3
The Children were placed in kinship care with their maternal
grandmother and her husband upon removal.
4
BCCYS presented Ms. Karlunas as an expert.
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Radcliffe, Child Prep worker.5 In addition, Mother and Father, who were
both represented by counsel, each testified on their own behalf. By decree
entered August 23, 2016, the trial court involuntarily terminated the
parental rights of Father pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), (8),
and (b). On September 21, 2016, Father, through counsel, filed a timely
notice of appeal.6, 7
____________________________________________
5
The guardian ad litem appointed to represent the Children argued in
favor of termination. N.T., 8/12/16, at 194-95.
6
The trial court entered separate decrees terminating Father’s
parental rights to Children. Father improperly filed only one notice of appeal
and one concise statement of errors complained of on appeal from the
decrees. See Pa.R.A.P. 341, Note (“Where, however, one or more orders
resolves [sic] issues arising on more than one docket or relating to more
than one judgment, separate notices of appeal must be filed.”). Because
Father’s arguments on appeal are identical as to Children, we discern no
prejudice arising from his procedural misstep. Therefore, we decline to
quash or dismiss Father’s appeal.
7
Father did not file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(a)(2)(i) and (b) with his notice appeal.
Father filed a concise statement with this Court on November 23, 2016. By
order dated November 29, 2016, Father was ordered to file a statement with
the trial court and serve the trial judge and other parties within 10 days. By
subsequent order dated December 28, 2016, after non-compliance with the
above order and another order with regard to appellate briefs, this matter
was remanded to the trial court to determine whether counsel abandoned
Father and to take further action as necessary to protect Father’s appellate
rights. On January 11, 2017, the trial court determined that counsel had
failed to comply with this Court’s order, but that counsel presented medical
excuses for some period of the time in question. Father wished for counsel
to remain, and no sanctions were imposed.
Despite Father’s procedural missteps with regard to his concise
statement, we decline to find waiver due to a lack of prejudice. See In re
(Footnote Continued Next Page)
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On appeal, Father raises the following issues for our review:
A. Whether the trial court erred in its evidentiary ruling
admitting a 1200 page packet containing 168 documents,
most of which were inadmissible hearsay?
B. Whether the lower court erred in determining that [BCCYS]
met its statutory burden of proof regarding termination of
parental rights?
C. Whether the evidence that was presented by BCCYS was not
substantial and credible evidence sufficient to support the
court’s decision?
Father’s Br. at 9 (unnecessary capitalization omitted).
We first address Father’s second and third issues, which in essence
challenge the sufficiency of the evidence in terminating his parental rights.
Father’s Br. at 22-29. In matters involving involuntary termination of
parental rights, our standard of review is as follows:
The standard of review in termination of parental rights
cases requires appellate courts “to accept the findings of
fact and credibility determinations of the trial court if they
are supported by the record.” In re Adoption of S.P., 47
A.3d 817, 826 (Pa. 2012). “If the factual findings are
supported, appellate courts review to determine if the trial
court made an error of law or abused its discretion.” Id.“[A] decision may be reversed for an abuse of discretion
only upon demonstration of manifest unreasonableness,
partiality, prejudice, bias, or ill-will.” Id. The trial court’s
decision, however, should not be reversed merely because
_______________________
(Footnote Continued)
K.T.E.L., 983 A.2d 745, 748 (Pa.Super. 2009) (holding that an appellant’s
failure to comply strictly with Pa.R.A.P. 1925(a)(2)(i) did not warrant waiver
of her claims, as there was no prejudice to any party). We observe that
Mother essentially preserved the same claims eventually raised by Father,
which were addressed by the trial court on appeal.
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the record would support a different result. Id. at 827.
We have previously emphasized our deference to trial
courts that often have first-hand observations of the
parties spanning multiple hearings. See In re R.J.T., 9
A.3d [1179, 1190 (Pa. 2010)].
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013).
As our Supreme Court has further explained:
[U]nlike trial courts, appellate courts are not equipped to
make the fact-specific determinations on a cold record,
where the trial judges are observing the parties during the
relevant hearing and often presiding over numerous other
hearings regarding the child and parents. Therefore, even
where the facts could support an opposite result, as is
often the case in dependency and termination cases, an
appellate court must resist the urge to second guess the
trial court and impose its own credibility determinations
and judgment; instead we must defer to the trial judges so
long as the factual findings are supported by the record
and the court’s legal conclusions are not the result of an
error of law or an abuse of discretion.
In re Adoption of S.P., 47 A.3d 817, 826-27 (Pa. 2012) (internal citations
omitted). “The trial court is free to believe all, part, or none of the evidence
presented, and is likewise free to make all credibility determinations and
resolve conflicts in the evidence.” In re M.G., 855 A.2d 68, 73-74
(Pa.Super. 2004) (quoting In re Diaz, 669 A.2d 372, 375 (Pa.Super.
1995)). “[I]f competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.” In re
Adoption of T.B.B., 835 A.2d 387, 394 (Pa.Super. 2003) (citation omitted).
The termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101-2938, which requires a bifurcated
analysis:
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Initially, the focus is on the conduct of the parent. The
party seeking termination must prove by clear and
convincing evidence that the parent’s conduct satisfies the
statutory grounds for termination delineated in
Section 2511(a). Only if the court determines that the
parent’s conduct warrants termination of his or her
parental rights does the court engage in the second part of
the analysis pursuant to Section 2511(b): determination of
the needs and welfare of the child under the standard of
best interests of the child.
In re L.M., 923 A.2d 505, 511 (Pa.Super. 2007) (citations omitted). We
have defined clear and convincing evidence as that which is so “clear, direct,
weighty and convincing as to enable the trier of fact to come to a clear
conviction, without hesitance, of the truth of the precise facts in issue.” In
re C.S., 761 A.2d 1197, 1201 (Pa.Super. 2000) (en banc) (quoting Matter
of Adoption of Charles E.D.M. II, 708 A.2d 88, 91 (Pa. 1998)).
In this case, the trial court terminated Father’s parental rights
pursuant to 23 Pa.C.S. § 2511(a)(1), (2), (5), and (8), as well as (b). We
have long held that, to affirm a termination of parental rights, we need only
agree with the trial court as to any one subsection of Section 2511(a), as
well as Section 2511(b). In re B.L.W., 843 A.2d 380, 384 (Pa.Super. 2004)
(en banc). Here, we analyze the court’s decision to terminate under
Sections 2511(a)(2) and (b), which provide as follows:
(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:
...
(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
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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.
...
(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.
23 Pa.C.S. § 2511(a)(2), (b).
We first address whether the trial court abused its discretion by
terminating Father’s parental rights pursuant to Section 2511(a)(2).
[T]o terminate parental rights pursuant to 23 Pa.C.S.[] §
2511(a)(2), the following three elements must be met: (1)
repeated and continued incapacity, abuse, neglect or refusal; (2)
such incapacity, abuse, neglect or refusal has caused the child to
be without essential parental care, control or subsistence
necessary for his physical or mental well-being; and (3) the
causes of the incapacity, abuse, neglect or refusal cannot or will
not be remedied.
In re Adoption of M.E.P., 825 A.2d 1266, 1272 (Pa.Super. 2003) (citation
omitted). “The grounds for termination due to parental incapacity that
cannot be remedied are not limited to affirmative misconduct. To the
contrary, those grounds may include acts of refusal as well as incapacity to
perform parental duties.” In re Adoption of C.D.R., 111 A.3d 1212, 1216
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(Pa.Super. 2015) (quoting In re A.L.D., 797 A.2d 326, 337 (Pa.Super.
2002)).
In this case, in finding sufficient evidence supporting termination, the
trial court stated as follows:
In his first domestic violence evaluation, Father
identified himself as a “woman abuser.” He struggled with
self-esteem, mood management, and the consequences of
his behaviors. Although he was able to acknowledge
certain incidents of abuse toward Mother, he lacked insight
into the danger he posed to the Children’s well-being and
why BCCYS was involved with him and his family. Through
the entire history of the underlying dependency matter,
Father minimized how his actions led to the Children’s
being adjudicated dependent and being removed from his
and Mother’s custody. At the termination hearing, Father
was unable to acknowledge the veracity of varied
allegations of abuse, and was generally incredible with his
testimony. Based upon the entire record, it appears that
at all times Father has blamed Mother and her drug use for
his actions and the break-up of the family. Father has not
provided proof that he successfully completed domestic
violence treatment, and his testimony at the termination
hearing demonstrated to the Court that he still has not
acquired insight into the causes and consequences of his
behaviors.
In short, Father has had over one year to remedy the
circumstances that led to the removal and placement of
the Children but has failed to do so. He has not fully
availed himself of the services available to him and the
continued provision of services to him does not appear to
be reasonably likely to effect a meaningful change in his
insight and behavior. His inability or refusal to change his
way of looking at the world and more specifically the
dynamic within his family has left the Children without
essential parental care, control, and subsistence necessary
for their physical, mental, and emotional well-being. All of
this further summed as a general failure to perform his
parental duties.
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1925(a) Op. at 7-8.
The record supports the trial court’s termination of Father’s parental
rights pursuant to Section 2511(a)(2). Children were removed from
parental care on November 17, 2014, a period of approximately twenty-one
months at the time of the termination hearing, due to issues of domestic
violence and substance abuse. N.T., 8/12/16, at 57, 61-62, 66, 100, 107.
Although Father attended domestic violence treatment, he was discharged
due to lack of progress. Id. at 83. Further, despite successful discharge
from dual diagnosis treatment there were concerns about Father’s ability to
exhibit and demonstrate what he learned in real life situations. Id. at 83-
84. Moreover, Andrea Karlunas, licensed social worker, certified sex
offender treatment specialist, and certified domestic violence counselor, who
treated Mother and evaluated the Children,8 testified to a lack of insight,
stating:
It’s my understanding that [Father] was never able to
move past blaming and he was never able to demonstrate any
empathy or insight into how his behavior affected his children.
There were concerns about ongoing violence despite the fact
that he was under external measures through Berks County
Adult Probation and Parole Department as well as through
[BCCYS]. And despite those external measures he continued to
act out.
____________________________________________
8
Ms. Karlunas was part of the treatment team, which would meet
weekly to discuss clinical supervision of cases, including Father’s. N.T.,
8/12/16, at 40-41.
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Id. at 41. BCCYS caseworker, Nicole Kauffman-Jacoby, confirmed Father’s
failure to accept responsibility for his behaviors and the family’s situation.
Id. at 85-86.
During casework services when I got the case I met with
[Father] [and] tried to discuss it and the history. He blamed
everything on [Mother]. He blamed her drug use for her
violence. He blamed BCCYS and law enforcement and [sic]
misunderstanding and misrepresenting him. He took no
responsibility for his actions that [led] to the placement of the
children.
Id. at 86. At the hearing, Father only admitted to one argument with
Mother regarding drug use. Id. at 145-46. Recognizing this lack of insight,
Ms. Karlunas suggested, “[N]either parent has resolved their domestic
violence issues. If they cannot resolve their own issue, this cycle is going to
continue and further traumatize these children.” Id. at 36-37. Ms.
Kauffman-Jacoby, noting a lack of progress, echoed this prediction, stating:
“There is a high likelihood the cycle will repeat and ongoing domestic
violence will be possible and will affect the children.” Id. at 85.
Therefore, the record supports the conclusion that Father’s repeated
and continued incapacity, abuse, neglect, or refusal has caused Children to
be without essential parental control or subsistence necessary for their
physical and mental well-being. See In re Adoption of M.E.P., 825 A.2d
at 1272. Moreover, Father cannot or will not remedy this situation. See id.We next determine whether termination was proper under Section
2511(b). With regard to Section 2511(b), we have stated as follows:
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Section 2511(b) focuses on whether termination of
parental rights would best serve the developmental,
physical, and emotional needs and welfare of the child. As
this Court has explained, Section 2511(b) does not
explicitly require a bonding analysis and the term ‘bond’ is
not defined in the Adoption Act. Case law, however,
provides that analysis of the emotional bond, if any,
between parent and child is a factor to be considered as
part of our analysis. While a parent’s emotional bond with
his or her child is a major aspect of the subsection 2511(b)
best-interest analysis, it is nonetheless only one of many
factors to be considered by the court when determining
what is in the best interest of the child.
[I]n addition to a bond examination, the trial court
can equally emphasize the safety needs of the child,
and should also consider the intangibles, such as the
love, comfort, security, and stability the child might
have with the foster parent. Additionally, this Court
stated that the trial court should consider the
importance of continuity of relationships and whether
any existing parent-child bond can be severed
without detrimental effects on the child.
In re Adoption of C.D.R., 111 A.3d 1212, 1219 (Pa.Super. 2015)
(quotation marks and citations omitted) (quoting In re N.A.M., 33 A.3d 95,
103 (Pa.Super. 2011)).
In determining that termination of Father’s parental rights favored
Children’s needs and welfare, the trial court concluded:
Having determined that it is clear that Mother and
Father have failed to perform their parental duties for well
more than six months, and grounds for the termination of
their parental rights exist under 2511 (a), the Court turned
its attention to the best interests of the Children. The
Children have a positive bond with their foster family.
They feel safe in the foster environment. They wish to
stay in that environment and do not want to return to
Mother and Father and their family home. The Children do
not feel safe with Mother and Father. To the extent a bond
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exists between the Children and Mother and Father, it is an
unhealthy one at best. The Children suffered significant
trauma caused by Mother and Father for which they
continue to be in counseling. The Children deserve an
opportunity to experience trauma-free life in a permanent,
healthy, safe home where their rights to the fulfillment of
their potential can be met.
For the foregoing reasons, the Court concluded that
termination of Mother and Father’s parental rights to the
Children was proper and in their best interests.
1925(a) Op. at 10.
The record supports the trial court’s finding that terminating Father’s
parental rights would best serve the needs and welfare of Children. When
questioned about psychological damage to Children as a result of the
domestic violence between their parents, Ms. Karlunas testified that Children
“suffered some definite damage due to what they have been exposed to.”
N.T., 8/12/16, at 68. Children initially presented with negative behaviors,
including avoidance, defiance and anger, as well as bed-wetting. Id. at 33-
34, 87. I.G.H. also would not sleep by herself, and exhibited stuffed animal
attachment, fears regarding her future and whether her grandparents were
going to die, and stress transitioning. Id. at 43-44, 87. However, Ms.
Karlunas observed improvement in both children since placement. Id. at
46.
Additionally, Ms. Kauffman-Jacoby recounted what can best be
described as an awkward relationship between Father and Children. As to
the bond between Father and Children, she testified as follows:
Q. And how would you describe the bond with the father?
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A. Initially they don’t want to go to visits with father.
Once they are there they are okay. But they are very off-
standish [sic] with him.
...
Q. Do [they] hug him? Do they kiss him? Do they shy
away?
A. They shy away initially. And then he is pretty
persistent. They will hug and kiss and walk away. They
will try to distract him by looking at other things in the
room.
Id. at 91-92. Ms. Kauffman-Jacoby explained that Father would press
Children during visitation, which was a concern.
There were concerns noted during visitation that he would
sort of coach, not sort of, he would coach the children to
ask for more visitation. He would kind of badger them
about, “Do you love me? You have to tell them you want
to come home.” He would make false promises to them he
would not be able to fulfill. And this has been, has been
since placement of the children.
Id. at 84. Ms. Kauffman-Jacoby also referenced inappropriate cards and
correspondence forwarded directly to Children in which Father made false
promises that they were going to come home and indicating that he would
not stop fighting until they came home which would incite fear and negative
behaviors in Children. Id. at 95.
Conversely, Ms. Karlunas stated that the Children “talk about their
grandparents as their stable support givers.” Id. 57. As to I.G.H. and her
grandparents, Ms. Karlunas indicated she was “very bonded and well[-
]adjusted and building security.” Id. at 45-46. Similarly, Ms. Kauffman-
Jacoby noted a positive relationship between the Children and their
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grandparents. Id. at 89. When asked to describe the interaction between
Children and their grandparents, she testified, “They respond very well to
their grandparents. They are easily redirected. They are very loving and
affectionate with their grandparents. Every time I am there they given them
hugs. They give them kisses. They look to them to meet their needs. If
they ask for snacks, they get snacks. They are very receptive.” Id. She
further labeled the bond between them as a “healthy[-]type bond.” Id.
Moreover, Children reported feeling unsafe with their parents and safe with
their grandparents. Id. at 117-18, 128-29. As reported by Ms. Kauffman-
Jacoby, “[Children] like living with their grandparents. We discussed safety.
And they feel safe living with their grandparents, they feel stable there.” Id.
at 117.
Ms. Karlunas opined that Children “need[] a safe, stable environment
to continue their progress” and “moving toward and proceeding toward
permanency would help the children.” Id. at 69. Further, Ms. Kauffman-
Jacoby offered that “[b]ased on therapeutic recommendation reunification is
not in the children’s best interest.” Id. at 118. She reported “no concerns”
regarding the termination of parental rights as a detriment to Children. Id.
at 92. As this Court has stated, “a child’s life cannot be held in abeyance
while a parent attempts to attain the maturity necessary to assume
parenting responsibilities. The court cannot and will not subordinate
indefinitely a child’s need for permanence and stability to a parent’s claims
of progress and hope for the future.” R.J.S., 901 A.2d at 513.
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Accordingly, based upon our review of the record, we find no abuse of
discretion and conclude that the trial court appropriately terminated Father’s
parental rights under 23 Pa.C.S. § 2511(a)(2) and (b).
Lastly, we review Father’s evidentiary claim with regard to BCCYS’
packet of 168 exhibits admitted by the trial court. Father argues that
exhibits presented contained multiple layers of hearsay and were not
appropriately authenticated to be admissible under the business records
exception to the hearsay rule. Father’s Br. at 19-20. He maintains that
“[w]ithout evidence of the sources of information and the time and manner
of preparation,” the proffered evidence did not qualify under the business
record exception. Id. at 21 (citation omitted). “Although considerable
weight is given to the findings of fact by the trial court on appeal, where the
trial court bases its findings upon such unreliable testimony, the decree of
termination should be vacated.” Id. (citation omitted).
“Our standard of review relative to the admission of evidence is for an
abuse of discretion.” Commonwealth v. Wantz, 84 A.3d 324, 336
(Pa.Super. 2014); see also In re Adoption of R.K.Y., 72 A.3d 669, 675
(Pa.Super. 2013).
Hearsay is an out-of-court statement offered for the truth of the
matter asserted. Pa.R.E. 801. Unless the statement is not being offered for
its truth or it falls within a hearsay exception, it is inadmissible. Pa.R.E.
802. As to the business records exception to the hearsay rule, Pa.R.E.
803(6) provides:
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(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if:
(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.
See also 42 Pa.C.S. § 6108(b).
An evidentiary error will be deemed harmless if:
(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.
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007). See
Foflygen v. Allegheny General Hospital, 723 A.2d 705, 708 (Pa.Super.)
(“[Evidentiary] rulings must be shown to have been not only erroneous but
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J-S22018-17
also harmful to the complaining part[y].”), appeal denied, 740 A.2d 233(Pa. 1999).
The trial court admitted the BCCYS case file under the business
records exception, but made no determination as to whether the additional
hearsay statements contained within the file also qualified for an exception
to the hearsay rule. Father argues that this packet included a typed case
summary, which was inadmissible. Father, however, does not argue that he
was harmed by the summary’s admission, particularly as the testimony
presented at the hearing provided sufficient support for the termination of
his parental rights. Further, to the extent the packet included additional
hearsay statements, Father fails to identify the inadmissible hearsay or how
its admission caused him harm.
We, therefore, affirm the decrees terminating Father’s parental rights.
Decrees affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
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