In the Interest of: E.M.A., a Minor

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: E.M.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: E.F.A., MOTHER :
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: No. 573 EDA 2018
Appeal from the Decree January 17, 2018
In the Court of Common Pleas of Lehigh County Orphans’ Court at No(s):
A2017-0032
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 09, 2018
E.F.A. (“Mother”) appeals from the decree filed on January 17, 2018, in
the Court of Common Pleas of Lehigh County, which involuntarily terminated
her parental rights to her daughter (“Child”), who was born in April of 2009.
After careful review, we vacate and remand.
The record reveals that on July 3, 2017, the Lehigh County Office of
Children and Youth Services (“CYS”) filed a petition for the involuntary
termination of Mother’s parental rights to Child. A hearing was held on
November 2, 2017, and on January 17, 2018, the trial court filed a decree
terminating Mother’s parental rights. On February 14, 2017, Mother filed a
timely notice of appeal. Both Mother and the trial court have complied with
Pa.R.A.P. 1925.
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* Retired Senior Judge assigned to the Superior Court.
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On appeal, Mother presents the following issue for this Court’s
consideration:
A. Whether the trial court abused its discretion and committed an
error of law by admitting and relying upon the findings of fact
found in the dependency proceedings as competent evidence in
the termination proceedings?
Mother’s Brief at 5 (full capitalization omitted).
It is well settled that “[t]he complete and irrevocable termination of
parental rights is one of the most serious and severe steps a court can take,
carrying with it great emotional impact for the parent and the children.” In
re Bowman, 647 A.2d 217, 218-219 (Pa. Super. 1994) (citation omitted).
We consider Mother’s issue according to the following standard:
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. If the factual findings are supported, appellate
courts review to determine if the trial court made an error of law
or abused its discretion. A decision may be reversed for an abuse
of discretion only upon demonstration of manifest
unreasonableness, partiality, prejudice, bias, or ill-will. The trial
court’s decision, however, should not be reversed merely because
the record would support a different result. We have previously
emphasized our deference to trial courts that often have first-hand
observations of the parties spanning multiple hearings.
In re T.S.M., 71 A.3d 251, 267 (Pa. 2013) (citations and quotation marks
omitted).
Termination of parental rights is governed by Section 2511 of the
Adoption Act, and it requires a bifurcated analysis.
Initially, the focus is on the conduct of the parent. The party
seeking termination must prove by clear and convincing evidence
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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. One major aspect of the needs and welfare analysis
concerns the nature and status of the emotional bond between
parent and child, with close attention paid to the effect on the child
of permanently severing any such bond.
In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). We
need agree with the trial court only as to any one subsection of Section
2511(a) in order to affirm. In re B.L.W., 843 A.2d 380, 384 (Pa. Super.
2004) (en banc).
In the instant case, however, Mother does not challenge the trial court’s
findings with respect to any subsection of 42 Pa.C.S. § 2511(a). Rather,
Mother claims the trial court committed evidentiary errors. Mother’s Brief at
11. Specifically, Mother alleges that the trial court erred in admitting and
relying on documentary evidence from an earlier proceeding under the
Juvenile Act. Id. These documents were designated P1 and P2 and were
admitted at the termination hearing. N.T., 11/2/17, at 22 and 85,
respectively. P1 is an adjudication order, and P2 is a collection of permanency
review orders and findings. Mother asserts that these documents, which were
created during the dependency proceedings under the Juvenile Act, should not
have been relied upon as substantive evidence under the wholly different
standards applicable to the instant termination proceedings conducted
pursuant to the Adoption Act. Mother’s Brief at 11.
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[T]he decision of whether to admit or exclude evidence is within
the sound discretion of the orphans’ court. Commonwealth v.
Johnson, 160 A.3d 127, 143 n.14 (Pa. 2017), cert. denied sub.
nom, Johnson v. Pennsylvania, 138 S. Ct. 508 (2017). A
reviewing court will not disturb these rulings absent an abuse of
discretion. Id. Discretion is abused if, inter alia, the orphans’ court
overrides or misapplies the law. Commonwealth v. Batts, 163
A.3d 410, 434 n.9 (Pa. 2017).
“Hearsay” is “a statement that (1) the declarant does not
make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted
in the statement.” Pa.R.E. 801(c). Under the Pennsylvania Rules
of Evidence, hearsay evidence is incompetent and inadmissible
unless it meets an exception set forth in the Rules or one
prescribed by this Court or statute. Pa.R.E. 802.
In Re: A.J.R.-H. and I.G.R.-H., ___A.3d ___, ___, 2018 WL 3455417, at *7
(Pa. filed July 18, 2018).
In some instances, evidence from dependency proceedings may be
relevant and admissible in termination proceedings. In re Child M., 681 A.2d
793 (Pa. Super. 1996). As our Supreme Court stated:
We observe that the Administrative Office of Pennsylvania Court’s
Office of Children and Families in the Courts recently published a
comprehensive benchbook for use by the bench and bar
addressing issues of dependency. Administrative Office of
Pennsylvania Court’s Office of Children and Families in the Courts,
Pennsylvania Dependency Benchbook (2010) [(“the
Benchbook”)]. The Benchbook recommends concurrent planning
as a “best practice.” Id. § 10.4 at 96. Additionally, the Benchbook
urges courts and agencies to combine hearings for permanency
plan goal change and termination of parental rights petitions
because the evidence presented at both hearings overlaps
substantially such that a single hearing is more efficient. Id. §
11.3 at 120. Moreover, a combined hearing provides for a single
appeal, allowing for faster permanency for the child.
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In Re R.J.T., 9 A.3d 1179, 1190 n.14 (Pa. 2010). However, the Benchbook
also notes:
CAUTION—If the permanency hearing for goal change and the
termination of parental rights hearing are being heard at the same
time, keep in mind that hearsay evidence that may be admissible
in the permanency hearing may not be admissible in the
termination hearing.
Benchbook, §11.6 at 123.
Recently, in A.J.R.-H., our Supreme Court vacated an order terminating
parental rights based on evidentiary infirmities. In that case the Court
recognized:
No witness stated that she was able to speak to the mode of each
of the documents’ preparation, testify that the documents were
created at or near the time of the documented event or
conversation, or made in the regular practice of the activity
involved. In fact, several of the documents were ineligible for
admission under the business records exception at all, as they
contained statements of diagnosis and/or opinion, thus requiring
the scrivener to testify.
A.J.R.-H., ___A.3d at ___, 2018 WL 3455417, at *8 (citing Williams v.
McClain, 520 A.2d 1374, 1376-77 (Pa. 1987) (records containing opinion
evidence or statements of diagnoses are inadmissible under the business
records exception); Pa.R.E. 803(6), cmt.; and In re Involuntary
Termination of Parental Rights (Jones), 297 A.2d 117, 121 (Pa. 1972)
(holding that the admission of a written statement prepared by a non-
testifying physician regarding parental incapacity at a termination hearing was
inadmissible hearsay and that the business records exception was
inapplicable)).
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Mother argues that P1 and P2 contain medical diagnoses and
conclusions reached by individuals who were not present at the termination
proceedings. Mother’s Brief at 19. Mother avers P1 and P2 were developed
during dependency proceedings and subject to less restrictive evidentiary
requirements. Mother’s Brief at 21.
Pa.R.J.C.P. 1406 provides, inter alia, that in adjudications, each party
shall have an opportunity to present evidence subject to the rules of evidence.
Pa.R.J.C.P. 1406(C), cmt. Allegations in an adjudication must be proven by
clear and convincing evidence. Pa.R.J.C.P. 1408(1). Similarly, 23 Pa.C.S. §
2511 requires clear and convincing evidence. In re L.M., 923 A.2d at 511.
However, permanency review hearings have relaxed evidentiary standards
and may be decided based on “Any evidence helpful in determining the
appropriate course of action, including evidence that was not admissible at
the adjudicatory hearing, shall be presented to the court.” Pa.R.J.C.P.
1608(C)(1).
CYS acknowledges the differences in the aforementioned evidentiary
standards. CYS’s Brief at 18. CYS, however, argues that the evidentiary
standards in adjudications are tantamount to those in termination cases, and
the burden of proof is clear and convincing evidence without the relaxed
standard present in permanency review hearings. Id. Thus, CYS maintains
that P1, which is a juvenile court order of adjudication, satisfies the evidentiary
standards required in orphans’ court termination-of-parental-rights cases.
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CYS’s Brief at 18. We agree that adjudications have the equivalent evidentiary
standards as termination proceedings. Pa.R.E. 101. However, although it
may not have been an abuse of discretion for the trial court to rely on P1, as
it is an adjudication and subject to the rules of evidence, P1 cannot satisfy, by
itself, any subsection of 2511(a). P1 was created six months prior to the
termination hearing and has no information regarding Mother’s efforts to
remedy the conditions that led to Child’s adjudication of dependency.
Regarding P2, we note that it contains orders and findings from
permanency review hearings that have relaxed rules of evidence. Pa.R.J.C.P.
1608. Thus, we conclude that due to the relaxed evidentiary rules, the
absence of the exhibits admitted at the permanency review hearing and the
inability of Mother to cross-examine the witnesses who contributed to the
juvenile court’s permanency review order, P2 was not competent evidence.
Exhibits P1 and P2 constituted most, if not all of CYS’s evidence.1 CYS’s
sole witness, Jennifer Sell, a case worker for CYS, became involved with this
matter in May of 2016. N.T., 11/2/17, at 64. The majority of Ms. Sell’s
testimony came not from personal observation, but directly from P1 and P2
over Mother’s repeated objections. Id. at 8, 14, 20, 35, 37. While P1 and P2
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1 We note CYS’s characterization of the trial court’s citations to P1 and P2 as
cumulative. CYS’s Brief at 13. However, we are constrained to disagree with
this conclusion. A review of the notes of testimony reveals that CYS’s sole
witness utilized P1 and P2 as the source material for nearly all of her responses
at the termination hearing.
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may have contained some admissible evidence from the dependency
proceedings, Ms. Sell relied on P1 and P2 to answer questions concerning
medical diagnoses, conclusions of witnesses from prior proceedings at which
she was not in attendance, and conclusions made by service providers. Id.
at 19, 33-35, 37, 69-70, 77-78.
It is this Court’s determination that although P1 contained evidence
upon which Ms. Sell and the orphans’ court could rely, P2 was replete with
hearsay and contained none of the exhibits upon which the juvenile court
based its decision. Although some of the evidence from P2 may have satisfied
an exception to hearsay, there was no testimony as to those exceptions. Ms.
Sell and the trial court relied on P1 and P2 almost exclusively, and P1 and P2
constituted the basis upon which Mother’s parental rights were terminated.
We conclude that the trial court abused its discretion in allowing Ms. Sell
to testify as to the contents of P2 and in admitting P2 into evidence in toto.
CYS had the opportunity to call witnesses with first-hand knowledge of
Mother’s progress, or lack thereof, in reuniting with Child. However, CYS
relied only on the testimony of one witness who then relied on documents and
conclusions reached by individuals who were not in court. Mother was denied
an opportunity to cross-examine the individuals who testified at the
dependency hearings and contributed to the creation of those documents and
the dependency court’s findings. Additionally, as stated earlier, P1 by itself
was insufficient evidence to satisfy any prong of Section 2511(a).
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As noted, the termination of parental rights is a severe sanction. In re
Bowman, 647 A.2d at 218-219. Due to the reliance on hearsay, we conclude
the trial court abused its discretion, and the evidence presented was not
competent to support the orphans’ court’s decision to terminate Mother’s
parental rights to Child. A.J.R.-H., ___A.3d at ___, 2018 WL 3455417, at
*17.
For the reasons set forth above, we vacate the decree terminating
Mother’s parental rights and remand the case to the orphans’ court for a new
hearing and decision on the petition to terminate Mother’s parental rights, to
occur within forty-five days of this decision. A.J.R.-H., ___A.3d at ___, 2018
WL 3455417, at *17. Pursuant to A.J.R.-H., under the circumstances of the
case and the expedited time frame for the new hearing and decision, CYS need
not undertake reunification efforts in this interim. On remand, the
appointment of counsel to represent Child’s legal interests is controlled by In
re L.B.M., 161 A.3d 172 (Pa. 2017).
Decree terminating Mother’s parental rights vacated. Case remanded
with instructions. Jurisdiction relinquished.
Judge Platt joins this memorandum.
President Judge Gantman concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/18
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