In the Int. of: T.T., Appeal of: A.T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.T., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: A.T., MOTHER :
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:
: No. 615 EDA 2019
Appeal from the Order Entered January 22, 2019
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-DP-0002665-2018
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 27, 2019
A.T. (“Mother”) appeals from the January 22, 2019 order of adjudication
and disposition that granted the dependency petition filed by the Philadelphia
Department of Human Services (“DHS”) and deemed Mother a perpetrator of
child abuse against her son, T.T.1 Mother challenges the juvenile court’s
determination of child abuse. We affirm in part, vacate in part, and remand
for further proceedings.
T.T. was born during April 2011. He suffers from mental and behavioral
health problems, including homicidal and suicidal ideations, attention deficit
hyperactivity disorder (“ADHD”) and oppositional defiant disorder (“ODD”).
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1 While the order did not expressly identify Mother as a perpetrator of child
abuse, it stated the court’s finding of child abuse and its conclusion that the
child protective service report, which implicated Mother as the perpetrator,
was founded under the Child Protective Service Law.
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He has endured multiple hospitalizations, some of which were triggered by
tantrums and aggressive behavior toward Mother, who is his biological aunt.
T.T. receives mobile therapy through Citizens Acting Together Can Help
(“CATCH”), who previously interceded in T.T.’s contentious, sometimes
combative, relationship with Mother.
The certified record reveals the following facts. On December 17, 2018,
Adrienne Cox, T.T.’s CATCH therapist, intervened in an altercation between
Mother and T.T. that erupted at the family residence after the then-seven-
year-old child broke a window in the home. Mother expelled T.T. from the
home and refused entry when the child attempted to reenter the residence.
At some point, Mother engaged the assistance of Ms. Cox, who, upon her
arrival at the residence, observed T.T. outside of the home. A neighbor
informed Ms. Cox that T.T. had been left outside unattended for at least two
hours without a hat or jacket. The neighbor also indicated to Ms. Cox that
Mother has engaged in similar behavior in the past. Even after Ms. Cox
arrived, Mother refused to permit T.T. entry, and she clashed with the child
verbally. That argument escalated to a point where Ms. Cox was required to
restrain Mother physically before twice calling the Philadelphia Police
Department for assistance. When the police arrived, Mother was adamant
that T.T. could not return inside the home. Accordingly, the child was taken
to DHS, who obtained an order of protective custody (“OPC”).
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Following the ensuing shelter care hearing on December 19, 2018, the
juvenile court lifted the OPC, and temporarily committed T.T. to DHS’s legal
and physical custody. The court permitted Mother to participate in supervised
visitation with her son at the agency. Meanwhile, on December 18, 2018,
DHS opened a child protective service (“CPS”) report alleging that Mother’s
actions during the December 17, 2018 incident were tantamount to child
abuse, i.e., a repeated, prolonged, or egregious failure to supervise. See
N.T., 1/22/19, DHS Exhibit 1; CPS Report #8382193, 12/18/18, at 2. Three
days later, DHS filed a dependency petition alleging that T.T. was both (1) a
dependent child due to a lack of proper care or control and/or abandonment
and (2) a victim of child abuse in relation to the December 17, 2018 ordeal.
At the outset of the dependency hearing, the parties stipulated to the
finding of dependency due to Mother’s present inability to parent. N.T.,
1/22/19, at 5-6. Specifically, DHS recommended “an open petition with the
understanding that once the child is ready for discharge from the hospital that
he may be returned to [M]other’s care with supervision.” Id. at 6. Mother
agreed with the dependency adjudication, but contested the allegation that
she perpetrated child abuse.
During the ensuing hearing, DHS presented the testimony of Gabriel Li,
the DHS social worker who investigated the CPS report. Mr. Li testified that
he interviewed T.T., Ms. Cox, and Mother, and reviewed the police report,
which was neither admitted into evidence nor included in the certified record.
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Id. at 8, 9, 16. In summary, Mr. Li testified that T.T. admitted that he broke
a window and that Mother would not allow him to reenter the home. Id. at
8-9. As it relates to physical abuse, T.T. indicated that he was not subject to
abuse while in Mother’s care. Id. at 15. Likewise, Mother admitted to Mr. Li
that she prohibited the child from entering the home, that she regretted her
decision, and that she wanted the child to return home. Id. at 9, 15. Mr. Li
also testified that Mother “confirm[ed] the facts of the [CPS] report.” Id. at
9. As it relates to Ms. Cox, the primary witness to the incident, Mr. Li
recounted that Mother called Ms. Cox to the home, and Ms. Cox eventually
observed T.T. outside of the home. Id. at. 17-18.
Over Mother’s hearsay objection, Mr. Li also recounted the allegations
outlined in the CPS report which was subsequently admitted into the record
as substantive evidence. Id. at 7, 13, DHS Exhibit 1. In relation to the
hearsay arguments that Mother asserts in her brief, the CPS report included
two overlapping sets of allegations. The first statement, designated as the
“State Narrative,” provided as follows:
Type and Nature of Maltreatment
[T.T.]’s case manager called [the Reporting Source] to come
get [T.T.] because [he] had a tantrum and was out of control.
[T.T.] was outside by himself with no hat or jacket. [T.T.] had
been out for a couple hours. [Mother] left him there alone.
[Mother] came back and got in a verbal altercation and
attempted to become aggressive with [T.T.]. [Ms. Cox]
restrained [Mother]. [Ms. Cox] called police twice. Police came
and took [T.T.]. [Child] has been hospitalized in the past for
aggression towards [Mother] and tantrums. . . . .
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DHS Exhibit 1 at 3. The second, largely duplicative, description is styled
“Philadelphia DHS Narrative.” Id. In pertinent part, that statement reads,
. . . Reporting source states [T.T.’s] (7 yrs old) Case Manager
[(Ms. Cox) was] called . . . because [T.T.] had a tantrum and was
out of control. [The reporting source] states[: T.T.] was outside
by himself with no hat or jacket on[;] . . . [T.T.] had been out for
a couple hours[;] . . . [Mother] left him there alone[;] . . . Mother
came back and got in a verbal altercation and attempted to
become aggressive with [T.T.;] . . . [Ms. Cox] restrained Mother[;]
. . . and [Ms. Cox] called the [p]olice twice[, who] . . . came and
took [T.T.]. . . . [The reporting source] states a neighbor had
informed [Ms. Cox] that [T.T.] had been outside [and that] . . .
Mother has done this in the past.
Id. at 4. The record does not reveal who compiled the CPS report or authored
either of the foregoing narratives.
After Mr. Li testified as to all of the preceding evidence, the juvenile
court entered the above-referenced adjudication and disposition determining,
inter alia, that T.T. was a victim of child abuse and that the CPS report was
founded pursuant to the Child Protective Services Law (“CPSL”).2 Mother filed
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2 The CPSL defines a founded report, in pertinent part, as:
A child abuse report involving a perpetrator that is made pursuant
to this chapter, if any of the following applies:
(1) There has been a judicial adjudication based on a finding
that a child who is a subject of the report has been abused and
the adjudication involves the same factual circumstances
involved in the allegation of child abuse. The judicial
adjudication may include any of the following:
....
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a timely notice of appeal and a concomitant concise statement of errors
pursuant to Pa.R.A.P. 1925(b). The statement of errors raised two issues
which Mother reiterates in her brief as follows:
1. Did the trial court err as a matter of law and abuse its
discretion when it made a finding of child abuse where the
Philadelphia Department of Human Services failed to prove by
clear and convincing evidence that the child was abused as defined
by 23 Pa.C.S. § 6303[?]
2. Did the trial Court err as a matter of law and abuse its
discretion when it based its finding of child abuse under the Child
protective Services law on hearsay statements in violation of 23
Pa.C.S.A. §§ 5985.1 and 5986; [of] the Juveniles Act; the
Pennsylvania Rules of Evidence; and Appellant’s rights to due
process[?]
Mother’s brief at 5.
Our standard of review of a finding of child abuse in a dependency case
is as follows:
The standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by the
record, but does not require the appellate court to accept the
lower court’s inferences or conclusions of law. Accordingly,
we review for an abuse of discretion.
In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citations omitted);
see also In the Interest of L.Z., 111 A.3d 1164, 1174 (Pa.
2015). “The trial court is free to believe all, part, or none of the
evidence presented and is likewise free to make all credibility
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(iii) A finding of dependency under 42 Pa.C.S. § 6341
(relating to adjudication) if the court has entered a finding
that a child who is the subject of the report has been
abused.
23 Pa.C.S. § 6303(a).
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determinations and resolve conflicts in the evidence.” In re M.G.,
855 A.2d 68, 73-74 (Pa.Super. 2004) (citation omitted).
While dependency proceedings are governed by the Juvenile Act,
42 Pa.C.S. §§ 6301–6375, the [CPSL] controls determinations
regarding findings of child abuse, which the juvenile courts must
find by clear and convincing evidence. See In the Interest of
J.R.W., 631 A.2d 1019 (Pa.Super. 1993). As the Supreme Court
explained in In the Interest of L.Z., supra at 1176, “[as] part
of [a] dependency adjudication, a court may find a parent to be
the perpetrator of child abuse,” as defined by the CPSL.
In The Interest of T.G., 208 A.3d 487, 490 (Pa.Super. 2019).
Instantly, DHS’s petition for an adjudication of dependency asserted
that Mother committed child abuse by failing to supervise T.T. during the two-
hour period he was banished from the family residence. In pertinent part, the
CPSL defines child abuse as follows:
(b.1) Child abuse.— The term “child abuse” shall mean
intentionally, knowingly, or recklessly[3] doing any of the
following:
....
(7) Causing serious physical neglect.
23 Pa.C.S. § 6303(b.1)(7). As it relates to the case at bar, serious physical
neglect is defined as “[a] repeated, prolonged or egregious failure to supervise
a child in a manner that is appropriate considering the child’s developmental
age and abilities[,]” when the neglect “endangers a child’s life or health,
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3 The CPSL incorporates the statutory definitions of intentionally, knowingly,
and recklessly that our legislature outlined in § 302(b)(3) of the Crimes Code
relating to the general requirements of culpability. See 23 Pa.C.S. § 6303(a).
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threatens a child's well-being, causes bodily injury or impairs a child’s health,
development[,] or functioning[.]” 23 Pa.C.S. § 6303(a).
The crux of Mother’s first issue is that “[t]he entirety of the non-hearsay
evidence against Mother” is insufficient to demonstrate by clear and
convincing evidence that she intentionally, knowingly, or recklessly caused
serious physical neglect by precluding T.T. from re-entering the home.
Mother’s brief at 9. Primarily, Mother asserts that the Commonwealth’s only
witness, Mr. Li, lacked first-hand knowledge of the incident and engaged in
conjecture about the duration of the child’s exile, the extent of Mother’s
supervision of the child while he was outside, the weather conditions on the
day of the altercation, and the child’s proximity to a hazardous public roadway.
Id. at 10, 13-15. In sum, she concludes that Mr. Li’s testimony, “in addition
to being inadmissible hearsay, did not provide any detailed information so as
to make [it] clear and convincing evidence of abuse.” Id. at 10. For the
following reasons, we find that no relief is due.
Mother’s argument that DHS failed to prove its case by clear and
convincing evidence ignores the applicable standard of review. Thus, while
Mother proffers a cogent claim challenging the admissibility of various aspects
of DHS’s evidence, her assertion that DHS adduced insufficient evidence to
support its allegation of abuse fails. It is a well-ensconced legal principle that
appellate courts do not review sufficiency claims on a diminished record. See
e.g., D’Alessandro v. Pennsylvania State Police, 937 A.2d 404, 410 (Pa.
2007) (plurality) (quoting Commonwealth v. Lovette, 450 A.2d 975, 977
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(Pa. 1982)) (“A sufficiency claim will not be reviewed on a diminished record,
‘but rather on the evidence actually presented to the finder of fact rendering
the questioned verdict.’”); Commonwealth v. Weaver, 76 A.3d 562, 569
(Pa.Super. 2013) (law is clear that we are required to consider all evidence
that was actually received without consideration as to admissibility of evidence
or whether court’s evidentiary rulings were correct).
Moreover, notwithstanding Mother’s protestations challenging the
propriety of Mr. Li’s testimony about the weather conditions on the date of the
incident, the Court views the evidence actually adduced in a light most
favorable to DHS as the prevailing party and giving it the benefit of all
reasonable and logical inferences that can be drawn from the evidence. See
e.g., S.W. v. S.F., 196 A.3d 224, 230 (Pa.Super. 2018) (in reviewing
challenge to sufficiency of the evidence, appellate court must view evidence
in light most favorable to verdict winner, giving prevailing party the benefit of
all reasonable inferences). As the incident occurred during mid-December in
Pennsylvania, it is reasonable to infer that it was cold outside when Mother
expelled her son from the house for two hours without a coat or hat.
Similarly, our standard of review precludes this Court from adopting
Mother’s supposition that she supervised the child personally from inside the
home, that she enlisted the assistance of a neighbor to watch over T.T. while
he was outside, or that the eventual arrival of Ms. Cox and the police officer
eased her burden of supervisor. We address these points seriatim. First, the
certified record casts doubt on Mother’s assertion that she engaged the
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assistance of a neighbor. On cross-examination, Mr. Li rebuffed counsel for
Mother’s suggestion that a neighbor was reported to have aided Mother during
the event. He testified, “No. That neighbor was not mentioned,” and when
counsel subsequently revisited the topic, Mr. Li reiterated, “I can’t confirm the
neighbor.” N.T. 1/22/19, at 17. Hence, the record does not support Mother’s
contention that her neighbor supervised the outcast child.
Moreover, the record does not sustain Mother’s theory that either the
police or Ms. Cox supervised the child during this period. Recall that Mr. Li
specifically testified that Ms. Cox eventually located T.T. outside of the home,
presumably upon her response to Mother’s beckoning. Furthermore, the
police did not arrive until Ms. Cox twice requested police assistance because
Mother became aggressive with T.T., and Ms.Cox had to restrain her. It
strains credulity for Mother to attribute supervision to Ms. Cox or the
responding police officer when it is clear from the certified record that neither
arrived until sometime after Mother expelled her son from the home.
Finally, while Mother very well could have monitored T.T. throughout his
two-hour banishment, there is no evidence to support that notion and, though
logical, we cannot reach such an inference because Mother was not the
prevailing party. See S.W., supra at 230. Thus, when viewed in a light most
favorable to DHS, the evidence fails to support Mother’s assertion that either
she, Ms. Cox, a police officer, or a neighbor supervised T.T. for the two hours
that he was banished from the home without a hat or coat on that December
day.
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In sum, contrary to Mother’s assertion, DHS adduced clear and
convincing evidence that Mother perpetrated child abuse pursuant to
§ 6303(b.1)(7). At a minimum, the facts of record establish that Mother
became angry with T.T. following one of the child’s tantrums and made him
stay outside of the home, alone, for at least two hours, during mid-December.
Mother acknowledged these actions and noted her regret to Mr. Li. Moreover,
as it relates to whether Mother’s failure to supervise the child while he was
forced to remain outside of the house for two hours was either repeated,
prolonged or egregious, the evidence reveals that this is not the first time
Mother reacted to T.T.’s behavior by banishing him from the home, as reported
by a neighbor in the CPS report that was admitted into evidence at trial. In
this vein, the facts that T.T. was seven years old and suffered from severe
mental health problems, including suicidal and homicidal ideations, are
particularly relevant to whether Mother’s behavior constitutes serious physical
neglect. See 23 Pa.C.S § 6303 (“‘Serious physical neglect’ [includes] [a]
repeated, prolonged or egregious failure to supervise a child in a manner that
is appropriate considering the child's developmental age and abilities.”). Since
the clear and convincing evidence actually presented during the trial supports
the juvenile court’s finding of child abuse, we do not disturb its determination
on this basis. Mother’s contrary interpretation, which examines a diminished
record and relies upon inferences favorable to her, ignores the applicable
standard of review.
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Next, we address Mother’s claim that the juvenile court erred in
admitting hearsay evidence over her objections, an evidentiary issue that is
separate and distinct from Mother’s initial challenge to the sufficiency of the
evidence that DHS actually adduced. Specifically, Mother asserts that the
juvenile court erred in admitting the CPS report as a business record without
requiring DHS to lay a proper foundation to any noted hearsay exceptions.
Mother also challenges the juvenile court’s decision to admit into evidence Mr.
Li’s testimony reiterating the hearsay from the CPS report, or the statements
proffered to him by T.T., Mother, and Ms. Cox, some of which contains hearsay
within hearsay, i.e., the entire CPS report and Ms. Cox’s reference to the
neighbor who noted that Mother has engaged in similar behavior in the past.
For the following reasons, we agree with Mother’s argument that the evidence
was inadmissible and remand for a new hearing.
In In re A.J.R.-H., 188 A.3d 1157, 1166-67 (Pa. 2018), our Supreme
Court restated that appellate court’s review a trial court’s decision to admit or
exclude evidence for an abuse of discretion. “An abuse of discretion exists
where the trial court has rendered a judgment that is manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.” In re Duran, 769 A.2d 497, 506
(Pa.Super. 2001) (cleaned up).
As noted, supra, the gravamen of Mother’s complaint is that the CPS
report is barred by the rule against hearsay. Hearsay is defined as an “extra
judicial declaration offered to prove the truth of the matter asserted.”
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Keystone Dedicated Logistics, LLC v. JGB Enterprise, Inc., 77 A.3d 1(Pa.Super. 2013) (quoting Aldridge v. Edmunds, 750 A.2d 292, 296 (Pa.
2000)). Pennsylvania Rule of Evidence 802 precludes the admission of
hearsay unless an exception applies. In its Rule 1925(a) opinion, the juvenile
court observed that the CPS report was hearsay that was admissible under
the business record exception outlined in Pa.R.A.P. 803(6), which provides, in
pertinent part:
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) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
In explaining its decision to admit the CPS report, the juvenile court
concluded, “These are Child Protective Services Reports (CPS) of incidents
reported to DHS, which are kept in the normal course of business and are self-
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authenticating and are used by social worker investigators to interview and
gather more information.” Trial Court Opinion, 4/2/19, at 12. Significantly,
however, while the juvenile court outlined the five requirements of the
business records exception and recited that the report was compiled “was kept
in the normal course of business,” it admitted the document into evidence
without requiring DHS to provide a proper foundation to support that finding
or confirm the fidelity of the report’s preparation.
The High Court’s discussion in In re A.J.R.-H. informs our review of
Mother’s assertion that the juvenile court erred in admitting the CPS report as
a business record. In that case, our Supreme Court rejected the orphans’
court’s rote admission of a collection of exhibits under the business records
exception without a proper foundation. It reasoned,
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 42 Pa.C.S.
§ 6108(b); Pa.R.E. 803(6)(D). Instead, all of the exhibits were
presented to the court for admission, in bulk, by the county
solicitor prior to calling any witnesses to testify. . . . There was
also no testimony of record that someone with knowledge created
any of the 167 exhibits at or near the time of the event or that
they were created in the regular practice of the various agencies
from which the documents came. See 42 Pa.C.S. § 6108(b);
Pa.R.E. 803(6)(A), (C). Additionally, none of the documents were
certified copies. See Pa.R.E. 803(6)(D), 902(11). The only
information provided at the time of the exhibits’ admission was
the county solicitor’s assurance, in response to the leading
question posed by the orphans’ court, that the exhibits were
contained in CYS’s files and “were collected in the ordinary course
of business with regard to this case.” N.T., 8/12/2016, at 18-19;
see 42 Pa.C.S. § 6108(b); Pa.R.E. 803(6)(B).
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Id. at 1167-68 (footnote omitted). Thus, the High Court held that it was error
for the orphans’ court to admit the exhibits without first establishing the
proper foundation to support the business records exception. As the exhibits
were not prepared by the testifying witnesses, and CYS neglected to lay a
foundation with regard to their preparation, the exhibits were held to be
inadmissible.
Furthermore, as it relates to whether the evidentiary error was harmless
in light of the concurrent testimony that CYS adduced at the evidentiary
hearing, the Supreme Court stressed, “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.” Id. at 1175.
Notably, it continued, “[t]hat there may have been properly admitted evidence
sufficient to support termination does not render the orphans’ court’s
substantial evidentiary error harmless.” Id.
Thereafter, the In re A.J.R.-H. Court clarified that, while couched as
harmless error, this Court’s practice of affirming a trial court decision on any
basis supported by the certified record is, in reality, an application of the “right
for any reason” doctrine. Id. at 1176. Importantly, the Court observed that
this doctrine is inappropriate where an unresolved dispute of fact exists. It
explained, “appellate courts should refrain from assuming the role of a fact-
finder in an attempt to sustain the action of the court below.” Id. (quoting
Bearoff v. Bearoff Bros., Inc., 327 A.2d 72, 76 (Pa. 1974)). Hence,
according to the High Court, the right for any reason doctrine “may not be
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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.” In re A.J.R.-H., supra at 1176.
While the Supreme Court’s discussion In re A.J.R.-H. addressed the
evidentiary issues in the context of an involuntary termination of parental
rights proceeding in the orphans’ court, the identical principles of evidence
and harmless error apply to the juvenile court’s child abuse hearing. Instantly,
we concluded that the juvenile court abused its discretion in admitting the CPS
report. Notwithstanding the juvenile court’s declaration that the document
was self-authenticating and fashioned in the normal course of DHS business,
there is no evidence in the record to support his finding. While counsel for
DHS responded to Mother’s objection by claiming, “It’s just the [CPS] report,
Your Honor,” there was no testimony by a custodian or other qualified witness
to support the notion that the report was made and kept in the course of
regularly conducted activity. Nor was evidence presented that the report was
either a self-authenticating certified public record pursuant to Pa.R.A.P.
902(1), certified copy of a public record pursuant to Pa.R.A.P. 902(4), or a
certified domestic record of a regularly conducted activity in compliance with
Pa.R.E. 902(11).
Likewise, DHS did not present even a rudimentary foundation that its
sole witness, Mr. Li, either prepared the CPS report or was its custodian. In
fact, DHS neglected to establish that the person who actually drafted the
report created it at the time of the incident. Although the childline operator
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who received the information from the unidentified reporter ostensibly
collected the underlying information contemporaneous with that telephone
call, there is no testimony to establish when the call was received in relation
to the allegations of abuse and the operator is not identified as the person
who actually drafted the CPS report. In sum, because the CPS report, marked
DHS Exhibit 1, was not prepared by the testifying witnesses and DHS
neglected to lay a foundation with regard to its preparation pursuant to Rule
803(8) (A-D), the exhibit is inadmissible as substantive evidence and the
juvenile court erred in overruling Mother’s hearsay objection.
Furthermore, since the majority of Mr. Li’s in-court testimony was
founded on the same out-of-court statements compiled in the CPS report, his
testimony parroting those allegations is insufficient to cure the juvenile court’s
error in admitting the inadmissible hearsay. See In re A.J.R.-H., supra at
1172-73 (caseworker could not testify to the substance of inadmissible
documentary evidence); see also In re Sanders Children, 312 A.2d 414,
416 (Pa. 1973) (“The witness’[s] first-hand knowledge of some of the facts
contained in the report cannot justify the admission of otherwise incompetent
hearsay testimony drawn from the same report.”). Presently, the sum total
of Mr. Li’s testimony relevant to abuse that did not flow from the inadmissible
CPS report is that the child broke a window, Mother reacted by prohibiting him
from reentering the home, she subsequently regretted that decision, and by
the time of the interview with Mr. Li, Mother welcomed her son’s return. Mr.
Li continued that Ms. Cox informed him that Mother called her to the home for
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assistance, and upon arrival observed T.T. outside. While Mr. Li also testified
that Mother confirmed the facts of the CPS report, that ratification does not
negate the remaining unresolved disputes of fact concerning, inter alia, (1)
the precise duration of the incident; (2) the temperature and weather
conditions that day; (3) the child’s proximity to the roadway; and (4) Mother’s
supervision from inside the home or her awareness that a neighbor was
monitoring the situation. As Mr. Li’s testimony does not resolve any of these
material factual disputes, the juvenile court’s error cannot be deemed
harmless. See In re A.J.R.-H., supra at 1176 (the right for any reason
doctrine “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.”).
For all of the foregoing reasons, we affirm the portion of the January 22,
2019 order of adjudication and disposition that adjudicated T.T. dependent
and vacate the portion of the order that found that T.T. was the victim of child
abuse as defined at 23 Pa.C.S. § 6303(b.1)(7), and we remand the case to
the juvenile court for a new hearing and decision on DHS’s CPS report.
Order affirmed in part, vacated in part, and remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/27/19
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