J-A12015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE ADOPTION OF K.O.K., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: I.K.S. AND C.G.S.
No. 1451 WDA 2016
Appeal from the Order Dated August 17, 2016
In the Court of Common Pleas of Greene County
Orphans’ Court at No(s): 14 O.C. of 2016
BEFORE: OLSON, J., SOLANO, J. and, RANSOM, J.
MEMORANDUM BY SOLANO, J.: FILED JULY 14, 2017
I.K.S. (“Mother”) and C.G.S. (“Stepfather”) (collectively, “Appellants”)
appeal from the August 17, 2016 order that denied involuntary termination
of parental rights of J.J.K. (“Father”) to his minor son, K.O.K. (“Child”).
Upon careful review, we affirm.
In its decision, the trial court found:
The [c]ourt finds that [the Child] was born [in] 2011. That the
[trial c]ourt believes and finds that there is a factual basis to
determine that from the date of the [C]hild’s birth until
September, 2014, [Father] was clearly involved in his son’s life.
T[hat] he was fully involved in his son’s life. The parties agree
that the normal bond between a father and son [was] present.
The parties each testified that custody was flexible with parents
sharing largely the child rearing relationship and that since birth
the [C]hild has resided with [Mother].
That prior to September, 2014, it appears that the
communication between the parties was amicable and custody
arrangements were flexible without problems between the
parents.
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That in May of 2014, [M]other began a relationship with
[Stepfather] and that [M]other and [Stepfather] were married on
September 5, 2015. [M]other lived at various locations and lived
at a Mechanic[] Street address located in Mt. Morris,
Pennsylvania from at least May, 2014 through August, 2015.
That [Appellants] assert[] that from September, 2014 up to the
filing of the Petition [for Involuntary Relinquishment of Parental
Rights o]n April[ 6], 2016 that at least a period of 6 months
passed in which [F]ather did not have contact with his son. . . .
The [trial c]ourt finds that after September, 2014 [F]ather, at
various times, made arrangements to see his son. However, it
appears that [F]ather did not follow up on those arrangements.
However, the parties indicate because of telephone issues
communication between [M]other and [F]ather became difficult
and [F]ather indicates that his telephone was highly unreliable
and he would not always receive telephone calls. However,
[F]ather continuously stated that he made attempts to go to
where he thought [M]other was living and knock on the door,
which was customary in their relationship before September,
2014. However, no one answered the door and he was not able
to make contact. The [trial c]ourt finds [F]ather’s testimony to
be credible.
That also after September, 2014, although [F]ather did not see
his child, both [M]other and [F]ather testified that [F]ather left
various gifts at [M]other's house. That would be gifts of BB guns
and a maternity blanket that was the blanket of his son at birth.
However, [M]other did not give these gifts to the [C]hild.
Instead, she took the various gifts that [F]ather left and
returned them to [F]ather’s porch. Also, other attempts were
made to continue to reach out to [M]other to continue to see
[C]hild. The [trial c]ourt again finds that [Appellants] ha[ve] not
proven by clear and convincing evidence that [F]ather had
allowed 6 months or more to pass without attempting to make
contact with his son.
The Guardian Ad Litem for the child states that [F]ather’s home
is suitable and notes to the record that the Guardian visited both
[M]other and [S]tepfather and had the benefit of observing the
[C]hild interact with both [M]other and [Stepfather] and had the
ability to observe their home and its environment. The Guardian
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Ad Litem also viewed the home and the environment of
[F]ather’s residence. The Guardian Ad Litem indicated that
[F]ather’s home was safe, suitable and an appropriate
environment for a child. . . .
The [trial c]ourt also finds that [M]other of the [C]hild moved
from the Mechanic[] Street address in Mt. Morris to a different
address located . . . [in] Mt. Morris Pennsylvania and that this
move occurred in August, 2015. The [trial c]ourt is convinced
that [F]ather did not know of the address of his child from
August, 2015 to the present. That it was only at the time of the
service of the petition that he realized the new address of
[Mother] or the fact that she had remarried. This address was
significant because this had been the address of his former
marital home. [M]other indicated that she did not advise
[F]ather of her new address and simply speculates that [F]ather
should have known, as Mt. Morris is a “small town”.
That [F]ather called legal aid in hopes to gain some form of
assistance with being able to see his child. However, legal aid
was unable to help in this regard and [F]ather then took no
further action. That [F]ather indicated that he did not contact
the [C]hild’s grandparents because they strongly dislike him as
being the individual that caused [M]other and ex-husband[’]s
divorce.[1]
That during the time frame in question [F]ather had lost his dad
in a tragic car accident and clearly was distraught. The [trial
c]ourt also believes that although he did not seek professional
treatment [F]ather was suffering from depression during this
time. That [F]ather is employed, has a valid driver’s license,
does not have a criminal or mental health record, and has no
drug or alcohol abuse background. It should be noted that there
is no involvement of children and youth services, no allegations
of physical, sexual, or mental abuse. The [trial c]ourt
determines that neither parent has been diagnosed with mental
health issues, substance abuse issues, criminal background, that
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1
As Mother was married to and living with her now ex-husband at the time
of the Child’s birth, he was the presumptive father of the Child, but he
voluntarily relinquished his parental rights to the Child. N.T. at 35; Trial Ct.
Op. at 9-10.
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there has been no involvement with children and youth services
and that both [M]other[’]s and Father[’]s home are equally
appropriate as asserted by the guardian ad litem.
Trial Ct. Op. at 1-6.
The trial court held a hearing on July 22, 2016, and in light of the
arguments made by Appellants, we summarize some of the hearing
testimony here. At that hearing, Mother agreed that, prior to September
2014, her interactions with Father were “all very civil and caring” and that
“there were no bad feelings” between her and Father. N.T. at 14.
However, she said she could give no explanation for why Father just
“dropped out of the picture then.” Id. Mother testified that the last time
Father saw the Child was September 27, 2014. Id. at 10-11. Mother
added that Father “had stopped by the house” two subsequent times in
2014 “and asked if he could visit” the Child, but, after they “set up a time
and date,” Father did not “show up.” Id. at 9. Mother also testified that
she and the Child lived at the same address on Mechanic Street until August
2015. Id. at 10. She also testified that a BB gun “showed up on [her]
door” sometime between September 27 and approximately late November
2014. Id. at 14-15. Mother returned the BB gun to Father by leaving it on
the porch “where [she] suspected him to be staying at.” Id. at 15.
According to Mother, she and Stepfather began dating in May 2014 and
were married on September 5, 2015; she described the relationship
between the Child and Stepfather as “[w]onderful.” Id. at 16.
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Father testified that he had been employed “recently” and was
beginning a new job on August 1, 2016. N.T. at 33. He averred that he
has no criminal record and no mental health problems. Id. at 33-34, 41,
48. Father did not know the last date that he saw the Child and could not
confirm that it was September 27, 2014. Father continued that the last
time he was “supposed to see” the Child, he “was supposed to pick [the
Child] up on Saturday, and [he] actually showed up on Friday because [he]
wasn’t paying attention, knocking on the door, no answer, went back home,
realized it was Friday. So [he] was like oh, I’m not supposed to get him
today.” Id. at 43. When Father returned to Mother’s home on Saturday,
again, nobody answered. Id.2 Father testified that he returned to Mother’s
house more than once a week for a month after that; he also asserted that
he tried calling Mother “a time or two” but “thought . . . maybe the phone
was an issue” and out-of-service. Id. at 44. Father stated that he had a
driver’s license, a vehicle, and no history of drug abuse. Id. at 48-49.
Father confirmed that he “had a good relationship” with Appellants prior to
September 2014. Id. at 57. Father maintained that he “[did]n’t want to
separate [the Child] from [Stepfather], he just want[ed] back in [the
Child’s] life.” Id. at 65.
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2
Father never clarified the date of the Friday and Saturday he discussed.
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On August 17, 2016, the trial court entered an opinion and order
denying Appellants’ petition for involuntary relinquishment of Father’s
parental rights to the Child. On September 16, 2016, Appellants filed a
timely notice of appeal. Appellants’ brief raises the following issues for our
review:
I. Are the trial court’s findings purporting to support the
denial of the petition to terminate parental rights of the natural
father supported by competent evidence of record?
II. Are the trial court’s findings that [F]ather had not allowed
six months or more to pass without attempting to make contact
with his son supported by the record and is attempting to make
contact the proper legal standard in this case?
III. Did the trial court apply the proper legal standard for the
termination of parental rights?
IV. Is the trial court’s denial of the petition to terminate
parental rights against the weight of the evidence?
V. Is the trial court’s finding that a bond exists between the
natural father and the Child supported by the record and did the
trial court apply the proper legal standard to determine the
needs and welfare of the Child in this regard?
VI. Did the trial court abuse its discretion in relying on hearsay
statements and incompetent evidence and innuendo in making
its findings of fact?
Appellants’ Brief at 2-3.
We consider Appellants’ issues in light of our well-settled standard of
review:
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
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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, brackets, and
quotation marks omitted).
As we stated in In the Interest of S.A.D., 555 A.2d 123, 128 (Pa.
Super. 1989)
A fundamental purpose of the Juvenile Act is to preserve family
unity whenever possible. The Act limits the Commonwealth’s
course of interference with the family unit to those cases where
the parents have not provided a minimum standard of care for
the child’s physical, intellectual and moral well-being. It is well-
settled that the Juvenile Act was not intended to provide a
procedure to take the children of the poor and give them to the
rich, nor to take children of the illiterate and crude and give
them to the educated and cultured, nor to take the children of
the weak and sickly and give them to the strong and healthy.
Accordingly, “[a] decision to terminate parental rights [is] never to be made
lightly or without a sense of compassion for the parent.” In re Adoption of
S.P., 47 A.3d 817, 827 (Pa. 2012). Rather, we have pointed out that —
A parent’s right to raise his child is one of the most basic rights
of western civilization. It is so much a part of our cultural
tradition that our courts have enshrined it with constitutional
protection despite its absence from the document’s text. There
is no simple or easy definition of parental duties. Parental duty
is best understood in relation to the needs of a child[.]
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In re Matsock, 611 A.2d 737, 745 (Pa. Super. 1992) (citations and internal
quotation marks omitted). Similarly —
The custody, care, nurture, and instruction of children resides
first in the children’s natural parents, as a constitutionally
recognized fundamental right. . . . It is universally agreed that
the bond of parental affection is unique and irreplaceable. When
parents act in accordance with the natural bonds of parental
affection, preservation of the parent-child bond is prima facie in
the best interest of the child, and the state has no justification to
terminate that bond. On the other hand, a court may properly
terminate parental bonds which exist in form but not in
substance when preservation of the parental bond would consign
a child to an indefinite, unhappy, and unstable future devoid of
the irreducible minimum parental care to which that child is
entitled.
In re J.W., 578 A.2d 952, 957-58 (Pa. Super. 1990) (emphasis in original).
These principles inform our disposition of this case.
Termination of parental rights is governed by Section 2511 of the
Adoption Act, 23 Pa.C.S. §§ 2101–2938, which 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 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.
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In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007) (citations omitted). The
burden is on the petitioner seeking termination to prove by clear and
convincing evidence that the asserted statutory grounds for seeking the
termination of parental rights are met. In re R.N.J., 985 A.2d 273, 276
(Pa. Super. 2009).
The standard of clear and convincing evidence means testimony
that is so clear, direct, weighty, and convincing as to enable the
trier of fact to come to a clear conviction, without hesitation, of
the truth of the precise facts in issue. If the trial court’s findings
are supported by competent evidence, we must affirm the
court’s decision, even if the record could support the opposite
result.
In re D.A.T., 91 A.3d 197, 203 (Pa. Super.) (citations and internal
quotation marks omitted), appeal denied, 95 A.3d 278 (Pa. 2014).
Here, Appellants sought to terminate Father’s parental rights pursuant
to 23 Pa.C.S. § 2511(a)(1) & (b), which provide:
(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.
* * *
(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,
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furnishings, income, clothing and medical care if found to be
beyond the control of the parent.
Appellant had the burden of proving the requirements of Section
2511(a)(1). L.M., 923 A.2d at 511. Under that provision —
The court should consider the entire background of the case and
not simply mechanically apply the six-month statutory provision.
The court must examine the individual circumstances of each
case and consider all explanations offered by the parent facing
termination of his parental rights, to determine if the evidence,
in light of the totality of the circumstances, clearly warrants the
involuntary termination.
In re A.S., 11 A.3d 473, 482 (Pa. Super. 2010) (citation omitted). In this
case, the trial court held that Appellants had “failed to prove that a period of
6 months has passed, pursuant to the statute.” Trial Ct. Op. at 6.
Mother testified that the last time Father had performed any parental
duties was in 2014, N.T. at 9, but she presented no other evidence
corroborating her contention that Father had failed to perform parental
duties after that date. Father could not recall when he last performed
parental duties, but he testified that he made repeated attempts after
September 2014 to see and to interact with the Child. Id. at 41, 43-44.
The trial court found Father credible but made no credibility determinations
as to Mother. Trial Ct. Op. at 3. Since the parties’ testimony diverged, the
trial court’s finding that Appellants did not prove that Father had been
absent from the Child’s life and had “refused or failed to perform parental
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duties” “for a period of at least six months,” pursuant to 23 Pa.C.S. §
2511(a)(1), is supported by the record. T.S.M., 71 A.3d at 267.3
Appellant’s failure to prove the requirements of Section 2511(a) makes
it unnecessary to engage in an analysis of the requirements under Section
2511(b). L.M., 923 A.2d at 511. If we were to reach that portion of the
Section 2511 inquiry, however, we would agree with the trial court that
nothing in Section 2511(b) compels termination here.4
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3
Appellants assert that the trial court “applied an incorrect legal standard”
of “attempting to make contact” with the Child, but they provide no case law
explicating that argument; they simply repeat the language of 23 Pa.C.S. §
2511(a)(1). See Appellants’ Brief at 29. As the argument portion of
Appellants’ Brief for this issue, at pp. 29-32, does not cite to pertinent
authorities, this issue merits no relief. In re Estate of Whitley, 50 A.3d
203, 209 (Pa. Super. 2012) (“The argument portion of an appellate brief
must include a pertinent discussion of the particular point raised along with
discussion and citation of pertinent authorities[; t]his Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority” (internal citations and quotation marks omitted)), appeal
denied, 69 A.3d 603 (Pa. 2013); see also Lackner v. Glosser, 892 A.2d
21, 29-30 (Pa. Super. 2006) (explaining appellant’s arguments must adhere
to rules of appellate procedure, and arguments which are not appropriately
developed are waived on appeal; arguments not appropriately developed
include those where party has failed to cite any authority in support of
contention); Estate of Haiko v. McGinley, 799 A.2d 155, 158-59 (Pa.
Super. 2002) (stating rules of appellate procedure make clear appellant
must support each question raised by discussion and analysis of pertinent
authority; absent reasoned discussion of law in appellate brief, this Court’s
ability to provide appellate review is hampered, necessitating waiver of issue
on appeal).
4
The trial court stated that, assuming that Appellants had proven “that a
period of 6 months had passed,” Trial Ct. Op. at 6, the facts still did “NOT
justify an involuntary termination of parental rights” pursuant “to the
(Footnote Continued Next Page)
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In discussing Section 2511(b), we have explained that “[i]ntangibles
such as love, comfort, security, and stability are involved in the inquiry into
the needs and welfare of the child.” In re C.M.S., 884 A.2d 1284, 1287
(Pa. Super. 2005) (citation omitted), appeal denied, C.M.S. v. D.E.H., Jr.,
897 A.2d 1183 (Pa. 2006). The trial court must “discern the nature and
status of the parent-child bond, with utmost attention to the effect on the
child of permanently severing that bond.” Id. (citation omitted).
Instantly, in “determin[ing] the needs and welfare of the [C]hild under
the standard of best interest of the [C]hild,” L.M., 923 A.2d at 511, the trial
court was “not persuaded by clear and convincing evidence that terminating
the parental rights is in the best interest of the [C]hild” and found Father’s
“explanation of his conduct before and after September, 2014, truthful and
credible.” Trial Ct. Op. at 5, 8. Specifically, the trial court “determine[d]
that a bond does exist between [F]ather and [the Child] as evidenced by
their continuing and constant relationship from the time of birth [until the
Child was about three-and-a-half years old], this in the life of a five year old
child.” Trial Ct. Op. at 8. The presence of Father in the Child’s life until
September 2014 is uncontested. N.T. at 10-11, 14, 57. The trial court
appeared to find the Child’s bonds with “male figures” to be fluid, given “that
the [C]hild has encountered various male figures in his household as a result
_______________________
(Footnote Continued)
requirements as laid out in Title 23 § 2511(b).” Id. at 7-8 (emphasis in
original).
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of changing relationships between [M]other” and her ex-husband, Father,
and Stepfather. Trial Ct. Op. at 8; see also id. at 2, 4, 6 (the Child has
already known Mother’s ex-husband, Father, and Stepfather as the “father
figures” in his short life); N.T. at 16 (Child’s relationship with Stepfather), 35
(presence of Mother’s ex-husband).
Additionally, the trial court was “not convinced that . . . an ongoing
relationship with [Father] is detrimental to the [C]hild.” Trial Ct. Op. at 8;
see also id. at 6 (listing Father’s employment, transportation abilities,
housing, and lack of criminal, mental health, or children and youth services
records or of substance abuse history); N.T. at 33-34, 48-49. The trial court
also observed that Father “does not want to separate [the Child] from any
family members, including [Stepfather] and clearly wants to be involved in
[the Child’s] life.” Trial Ct. Op. at 9; see also N.T. at 65.
We must “accept the findings of fact and credibility determinations of
the trial court if they are supported by the record.” T.S.M., 71 A.3d at 267.
Having reviewed the record, we find that all of these factual findings are
supported thereby, and we accept them. See id. Accordingly, we hold that
the trial court did not abuse its discretion in finding that Appellants, as the
petitioners seeking termination, did not “prove by clear and convincing
evidence that [the] asserted grounds for seeking the termination of parental
rights [were] valid.” R.N.J., 985 A.2d at 276.
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Appellants’ final claim is that “the trial court abuse[d] its discretion in
relying on hearsay statements and incompetent evidence and innuendo in
making its findings of fact.” Appellants’ Brief at 40. Appellants point to their
unsuccessful objection to Father’s testimony that he sought help from a legal
aid office but was denied assistance. See id. (citing N.T. at 46). They also
label the trial court’s finding that Father “lost his own father in 2013 and that
he was suffering from depression” as “incompetent evidence and innuendo,”
and complain that the trial court “drew this testimony by leading the
witness.” Id. (citing N.T. at 49). But Appellants cite to no case law or
statutory authority to explain how or why any of this contested testimony
qualifies as inadmissible hearsay or is in anyway “incompetent.” See id.
Absent such supporting authority, their argument fails to carry any
persuasive weight. Moreover, the failure to support an argument with
pertinent authority is a violation of our briefing rules which results in waiver
of the unsupported issue. See In re Estate of Whitley, 50 A.3d 203, 209
(Pa. Super. 2012), appeal denied, 69 A.3d 603 (Pa. 2013); Lackner v.
Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006); Estate of Haiko v.
McGinley, 799 A.2d 155, 158-59 (Pa. Super. 2002).
In any event, Father’s testimony, N.T. at 46, was offered to explain his
course of conduct – i.e., why he did not pursue legal assistance regarding
custody of the Child. See Commonwealth v. Hill, 549 A.2d 199, 203 (Pa.
Super. 1988) (out-of-court statement to explain course of conduct is not
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hearsay), appeal denied, 563 A.2d 887 (Pa. 1989); Commonwealth v.
Carroll, 513 A.2d 1069, 1071 (Pa. Super. 1986) (while an out-of-court
statement offered for its truth is generally inadmissible hearsay, an out-of-
court statement offered to explain a course of conduct is not hearsay).
Having discerned no abuse of discretion or error of law, we affirm the
trial court’s decision. T.S.M., 71 A.3d at 267.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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Adoption of: K.O.K, minor Appeal of: I.K.S.
Combined Opinion