J-A23014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHIREETA TURNER, IND & AS                  :    IN THE SUPERIOR COURT OF
ADMINISTRATRIX OF THE ESTATE               :         PENNSYLVANIA
OF LAMIYAH GRAVES, DECEASED                :
AND AS PARENT& NATURAL                     :
GUARDIAN OF SAMIM HICKS-                   :
TURNER, SAMAD TURNER &                     :
RASHIRAH MUHAMMAD                          :
                                           :
                                           :    No. 490 EDA 2017
               v.                          :
                                           :
                                           :
HELEN OF TROY, L.P. INTERMATIC,            :
INC. CAMBRIDGE BEAUTY SUPPLY,              :
INC. TAE E. LEE, BELSON                    :
PRODUCTS, APPLICA CONSUMER                 :
PRODUCTS, INC: HELEN OF TROY               :
CORPORATION                                :
                                           :
                                           :
APPEAL OF: LAMONT GRAVES                   :

                  Appeal from the Order December 29, 2016
            In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): No. 02193 December Term 2013


BEFORE:    PANELLA, J., DUBOW, J., and FITZGERALD*, J.

JUDGMENT ORDER BY PANELLA, J.                      FILED DECEMBER 15, 2017

      Lamiyah Graves was seven years old when she died in a fire at her

mother’s home in New Jersey. Her mother, Shireetta Turner, filed suit in the

Philadelphia County Court of Common Pleas against the manufacturers of a

curling iron and power strip she believed to be the cause of the fire. Prior to

trial, all parties reached a global settlement subject to approval of

distribution   of   the   funds   under   the   Rules   of   Civil   Procedure   and


____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23014-17


Pennsylvania’s intestacy statute. The rules provided that the settlement

proceeds arising from the wrongful death claim would be distributed to

Lamiyah’s parents equally. See 20 Pa.C.S.A. § 2103.

      Shortly thereafter, Turner filed a petition seeking to have Appellant,

Lamont Graves, Lamiyah’s father, excluded from the distribution of the

settlement funds. Under Pennsylania’s forfeiture statute, a parent who fails

to adequately support a child for at least a year prior to the child’s death has

no right to a distribution from the child’s estate. See 20 Pa.C.S.A. §

2106(b)(1).

      At the hearing on Turner’s petition, Graves testified he had seen his

daughter only twelve or thirteen times in the last six years of her life. See

N.T., Hearing, 12/22/16, at 21. When asked when he had most recently

seen his daughter, he identified only one meeting in the year before her

death. See id., at 36, 49-50.

      Graves admitted he had only ever offered minimal monetary support

for Lamiyah, and had never sought to have legal visitation with her. See id.,

at 9-13, 25. In the year prior to Lamiyah’s death, he provided “maybe about

a hundred, $150” to her mother for Lamiyah’s support. Id., at 12.

      After considering both Graves’s testimony and other evidence before

it, the court concluded Graves had failed to provide support to Lamiyah in

the year before her death and determined he had therefore forfeited any




                                     -2-
J-A23014-17


right to a distribution from Lamiyah’s estate. Graves then filed this timely

appeal.

      On appeal, Graves argues, under various guises, that Turner’s failure

to keep him apprised of his daughter’s whereabouts rendered his failure to

support Lamiyah reasonable. Our standard in reviewing decisions of the

orphans’ court is as follows:

      The findings of a judge of the orphans’ court division, sitting
      without a jury, must be accorded the same weight and effect as
      the verdict of a jury, and will not be reversed by an appellate
      court in the absence of an abuse of discretion or a lack of
      evidentiary support. This rule is particularly applicable to findings
      of fact which are predicated upon the credibility of the witnesses,
      whom the judge has had the opportunity to hear and observe,
      and upon the weight given to their testimony. In reviewing the
      orphans’ court’s findings, our task is to ensure that the record is
      free from legal error and to determine if the orphans’ court’s
      findings are supported by competent and adequate evidence and
      are not predicated upon capricious disbelief of competent and
      credible evidence.

      When the trial court has come to a conclusion through the
      exercise of its discretion, the party complaining on appeal has a
      heavy burden. It is not sufficient to persuade the appellate court
      that it might have reached a different conclusion if, in the first
      place, charged with the duty imposed on the court below; it is
      necessary to go further and show an abuse of the discretionary
      power. An abuse of discretion is not merely an error of
      judgment, but if in reaching a conclusion the law is overridden or
      misapplied, or       the   judgment     exercised is      manifestly
      unreasonable, or the result of partiality, prejudice, bias or ill-will,
      as shown by the evidence [of] record, discretion is abused. A
      conclusion or judgment constitutes an abuse of discretion if it is
      so lacking in support as to be clearly erroneous.

      We are not constrained to give the same level of deference to
      the orphans’ court’s resulting legal conclusions as we are to its
      credibility determinations. We will reverse any decree based on
      palpably wrong or clearly inapplicable rules of law. Moreover,

                                       -3-
J-A23014-17


     we are not bound by the chancellor’s findings of fact if there has
     been an abuse of discretion, a capricious disregard of evidence,
     or a lack of evidentiary support on the record. If the lack of
     evidentiary support is apparent, reviewing tribunals have the
     power to draw their own inferences and make their own
     deductions from facts and conclusions of law. Nevertheless, we
     will not lightly find reversible error and will reverse an orphans’
     court decree only if the orphans’ court applied an incorrect rule
     of law or reached its decision on the basis of factual conclusions
     unsupported by the record.

In re Paxson Trust I, 893 A.2d 99, 112-113 (Pa. Super. 2006) (citations

and quotation marks omitted).

     We have reviewed the briefs of the parties and the certified record

pursuant to this standard, and conclude the opinion authored by the

Honorable Matthew D. Carrafiello adequately addresses the issues raised by

Graves on appeal. See Opinion Sur Appeal, 3/24/17, at 1-12. We therefore

adopt its reasoning as our own, and affirm on that basis.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/17




                                    -4-
                                                                                                          Circulated 11/30/2017 11:26 AM




              SHIREETT A TURNER, Individually and as
              Administratrix of the Estate of LAMIYAH                              PHILADELPHIA COUNTY
              GRAYES, Deceased, and as Parent and Natural
              Guardian ofSAMIM HICKS-TURNER, SAMAD                                 COURT OF COMMON PLEAS
              TURNER, and RASHIRAH MUHAMMAD
                                                                                   DECEMBER TERM, 2013
                        v.                                                         N0:02193

                                                                                   CONTROL NO: 16070278
              CAMBRIDGE BEAUTY SUPPLY, et al.
                                                                                                                         -r-
                                                                                                                        ,·
                                                                                                                                  - . ..,
                                                            OPINION SUR APPEAL

                      Lamont Graves, (hereinafter referred to as "Appellant"), appeals -the Trial
                                                                                                                  ...          ••. j




             Court's Order dated December 29, 2016, which granted Shireetta Turner'sPetition

             for Forfeiture against Lamont Graves.                               Turner Elal Vs Catnhrtdge Beauty supply. lnc.-OPFLD




                                                                                 1111111111 II 11111 111111111 Ill
                                                                                            13120219300607
             Facts and Procedural History

                      Lamiyah Graves, a minor, (hereinafter referred to as "Lamiyah"), died at

             seven years of age on December 28, 2011 as a result of a house fire caused by an

             alleged defective product. At the time of her death, Lamiyah was living with her

             mother, Shireetta Turner, (hereinafter referred to as Appellee), and her siblings.

                      Appellant, Lamiyah' s father, separated from Appellee when Lamiyah was

             three months old. N.T. 11/22/2016, p. 14. The uncontroverted testimony indicated

             that, other than purchasing a crib for Larniyah, Appellant did not provide clothing or

             food and offered only small monetary support throughout Lamiyah's life. In the

                                                                             1

()PII=� �J=f\lT Pl IR�I IAf\lT T() P� R   r:   P ?".\Rfh\    n".\1')7/?n17
year preceding Lamiyah's death, Appellant only saw Lamiyah once for a brief

moment and gave Appellee "maybe about a $100, $150." N.T. 12/22/2016, p. 12.

Appellant was incarcerated for a period of one month during which Lamiyah died.

Id. at 58.

       Appellee was appointed Administrator ad prosequendum of the Estate of

Lamiyah Graves by the Surrogate's Court of Burlington County, New Jersey. On

December 17, 2013, Appellee, as Administrator ad prosequendum, individually, and

as parent and natural guardian of Lamiyah' s three minor siblings, filed suit in the

Philadelphia Court of Common Pleas. Appellee's complaint asserted strict liability,

negligence, breach of warranty, and wrongful death and survival action claims. Prior

to trial, the parties negotiated a global settlement subject to approval of distributions

pursuant to Pa. R.C.P. Rules 2206 and 2039.

       On June 29, 2016, Appellee filed a Petition for Approval of the Minors'

Settlement for Lamiyah's siblings. On July 1, 2016, Appellee filed a Petition for

Forfeiture pursuant to 20 Pa. C.S. § 2106(b)(l) of Appellant's share of the wrongful

death proceeds arising from Lamiyah's death, and on July 11, 2016, she filed a

Petition for Approval of Wrongful Death and Survival Action Claims.

       The Trial Court approved funding of structured settlement annuities and

restricted accounts for each minor, as part of the Order issued on September 28, 2016

approving the global settlement.


                                           2
       The Trial Court's Order of September 28, 2016 further approved an allocation

of 90% to the wrongful death action and 10% to the survival action. As this was a

New Jersey estate and Appellee was only appointed Administrator ad

prosequendum, the survival action proceeds were ordered to be held in custodia legis

by Messa & Associates, P.C. pending appointment of a general administrator by the

Surrogate's Court of Burlington County, New Jersey.

       The      wrongful   death   proceeds,   which   are   distributed pursuant   to

Pennsylvania's intestacy statute and were to be paid in equal 50% shares to

Lamiyah's parents, Appellant and Appellee, were also ordered to be held in custodia

legis by Messa & Associates, P.C. pending resolution of the Forfeiture Petition.

       Evidentiary hearings on the Forfeiture Petition were held on November 22,

2016 and December 22, 2016.           Following review of the parties' letter briefs

submitted directly to the undersigned Judge, the Trial Court, by Order dated

December 29, 2016, granted the Forfeiture Petition finding that the amounts paid by

Appellant on behalf of Lamiyah did not constitute support and in fact, were grossly

inadequate to support even the bare necessities of the minor. The Trial Court further

found that while Appellant was not encouraged to pursue a familial relationship with

Lamiyah, Appellant was not prevented from visiting and failed to pursue such a

relationship.




                                           3
         Counsel for Appellant timely filed this appeal on January 19, 2017. Pursuant

to the Trial Court's Order dated January 23, 2017, Appellant timely filed his R.A.P.

1925(b) Statement of the Errors Complained of on Appeal on February 7, 2017.



Issues

         Appellant filed his Statement of Matters Complained of on Appeal, pursuant

to Pa. R.A.P. 1925(b ), raising the following issues, as quoted from his statement:

         1. Whether the Learned Trial Judge committed reversible error in
            finding that the overall quality, nature and extent of Appellant's
            contact with the minor and the physical, emotional and financial
            support provided to the mother justified the determination that
            Appellant failed to perform the duty to support the minor for a period
            of in excess of one (1) year before her death.

         2. Whether the Learned Trial Judge failed to apply the doctrine of
            estoppel in arriving at the conclusion that Appellant failed to perform
            the duty to support the minor and thus justified the granting of the
            Petition for Forfeiture.

         3. Whether the Learned Trial Judge failed to consider the fact that
            petitioner, Shireetta Turner, prevented Appellant from having
            contact with the minor child and did not pursue support from
            Appellant through the courts, thus rendering Appellant's alleged
            inadequate support not willful.

      4. Whether the Learned Trial Judge erred in granting the Petition for
         Forfeiture considering the high burden of proof required for a
         forfeiture particularly considering petitioner's own conduct m
         preventing Appellant from having contact with minor child.

      5. Whether the Learned Trial Judge erred in finding that the amounts
         paid by Appellant did not constitute support and in fact were grossly
         inadequate to support the bare necessities of the minor.
                                          4
       While the above issues are not concise and at times compound, repetitive

and/or based upon assumptions not supported by the evidence, the Trial Court shall

attempt to respond to these issues as fully as possible after restating them in a more

concise fashion.



Discussion

       1. The Trial Court, in applying the applicable law to the credible
          evidence, determined that Appellee successfully met her burden of
          proof that Appellant failed to perform his duty to support, thereby
          forfeiting his claim.
      Pennsylvania's forfeiture statute, 20 Pa. C.S.A. § 2106(b)(l), provides in

relevant part:

          (b) Any parent who, for one year or upwards previous to
          the death of the parent's minor or dependent child has:

             (1) failed to perform the duty to support the minor or
             dependent child or who, for one year has deserted the
             minor or dependent child; or ...

          shall have no right or interest under this chapter in the
          real or personal estate of the minor or dependent child.
          The determination under paragraph ( 1) shall be made by
          the court after considering the quality, nature and extent
          of the parent's contact with the child and the physical,
          emotional and financial support provided to the child.

20 Pa. C.S.A. § 2106(b)(l).




                                          5
          It is important to note at the outset that 20 Pa. C.S.A. § 2106(b)(l) was

    amended on December 20, 2000, at which time the Pennsylvania legislature

    removed the requirement that a parent's failure to support a minor or dependent child

    be willful.' However, the seminal case that addresses a parent's duty to support

    remains to be In re Estate of Teaschenko, which was decided by this Honorable

    Superior Court before the statute was amended. In re Estate of Teaschenko, 574

A.2d 649 (Pa. Super. 1990); See In re Moyer, 758 A.2d 206, 208 (Pa. Super. 2000).

          Accordingly, operating under the Teaschenko framework, Appellee herein has

the burden of proving that Appellant forfeited his right to inherit from his deceased

child. In re Estate of Teaschenko, 574 A.2d 649. Specifically, the elements of a

prima facie case of forfeiture based upon a parent's failure to support a minor or

dependent child are as follows:

                  1. The decedent is a minor,
                  2. The parent must owe some duty of support to the decedent,
                  3. The parent must have failed to perform any duty of support for the
                     decedent for at least a year prior to the decedent's death, and
                  4. The parent's failure must be willful.




I
  Prior to its amendment, Section 2106 (b )(I) provided that, "any parent who, for one year or upwards previous to
the death of the parent's minor or dependent child, has willfully neglected or failed to perform any duty of support
owed to the minor or dependent child or who, for one year, has willfully deserted the minor or dependent child shall
have no right or interest under this chapter in the real or personal estate of the minor or dependent child." 2000 Pa.
Legis. Serv. Act 2000-118 (H.B. 2328) (PURDON'S).

                                                          6
Id. at 651. In determining whether the failure to support was willful, the Court must

consider whether the parent was aware of the duty of support, had the capacity to

perform, and made no attempt to perform. Id. at 652.

      There was no dispute that Lamiyah was a minor at the time of her death or

that Appellant, as Lamiyah's father, owed some duty of support. The issue arises as

to what support Appellant provided in the year prior to Lamiyah's death. Appellee

testified that, from the time Lamiyah was three months old until she passed away,

Appellant did not buy food, clothes, toys, birthday gifts or Christmas presents for

Lamiyah; he did not attend any birthday or holiday celebrations; and he never took

Lamiyah to the park, zoo, movies, or even for a walk around the block. N.T.

11/22/16, p. 15-18. Appellee further testified that, from the time Lamiyah was three

months old until she passed away, Appellant only saw Lamiyah once when she was

five years old. Id. at 18-19. On that occasion, Appellee had taken Lamiyah to

Appellant's parents' house and Appellant saw Lamiyah briefly as he was leaving the

house. Id. at 18.

      Appellant testified to seeing his daughter in 2011, the year preceding and

inclusive of her death. He admitted that in 2011 he only saw Lamiyah once on a

street in Philadelphia. N.T. 12/22/2016, p. 36, 49-50. His only interaction with

Lamiyah was picking her up and hugging her. Id. at 50. Appellant also claims that

in 2011, he gave Appellee "maybe about a $100, $150." Id. at 12.


                                         7
         The Trial Court found Appellee's testimony credible as to Appellant's lack of

physical, emotional, and financial support of his daughter. Therefore, the Trial Court

found that Appellee successfully met her burden in proving that Appellant did not

provide support to Lamiyah in the year prior to her death, thereby forfeiting his right

to share in the wrongful death proceeds arising from Lamiyah's death.



         2. The Appellant has failed to show he was estopped in raising his
            defense.
         The Appellant failed to properly preserve this issue as it was never raised at

trial. Further, it was never raised with any degree of clarity in Appellant's 1925(b)

Statement. This issue has not been preserved for review before this Honorable Court

by merely citing a rule of evidence without concisely relating it to the operative facts.

Therefore, Appellant has effectively prevented the Trial Court from addressing this

issue.



         3. The Trial Court did consider the evidence that Appellee did not
            pursue child support against Appellant, but found that it did not affect
            the Trial Court's decision that Appellant failed to perform his duty to
            support his daughter.
         Appellant seems to allege that AppelJee, by not seeking formal child support

from Appellant during Lamiyah's life, has made his conduct appropriate and thereby

come into compliance with the statute. However, Appellee did not have a legal


                                            8
obligation to seek support from her child's father. The mere fact that Appellant did

not offer physical, emotional and financial support to Lamiyah is enough to find for

Appellee.

       Appellant excuses his failure to support his daughter because he claims that

he was unable to contact Appellee for a period of time in Lamiyah's life. However,

Appellant often contradicts himself in his testimony that Appellee was unreachable.

For example, Appellant testified that he had Appellee's phone number in 2004 when

Lamiyah was born but that Appellee was unreachable in the years that followed and

would call from a blocked number. N.T. 12/22/2016, p. 13-15. Appellant later

testified that there were times when he would call Appellee but was told that she and

her husband would appreciate if he did not call again. Id. at 38-39. When asked

how he had Appellee' s number to call, Appellant replied that he had "whatever

number she would leave at my parents' house." Id. at 39.

       Appellant further claims that he was kept from seeing his daughter. However,

during the seven years of Lamiyah' s life, Appellant did not take steps through our

Courts to see his daughter. Id. at 25. Moreover, Appellant admitted that he did not

go to the library, contact the police, contact a private investigator, or contact an

attorney to help him find out how he could see or provide support for his daughter.

Id. at 18, 45-46.




                                         9
      Nowhere in his testimony did Appellant demonstrate a sincere or persistent

effort to see or contact his daughter, and the Trial Court was unable to equate

requests that he not call, where he failed to show material concern or support, with

an enforceable permission to abrogate his duty to support his child. Therefore, the

Trial Court concluded that even if Appellant had obstacles in maintaining a

relationship with Lamiyah, he found it to his convenience and failed to provide the

necessary support.



      4. The Trial Court has considered all of the evidence, including
         stipulated testimony, and properly held that for the year before the
         minor's death, no support whatsoever was paid, and any support
         during the minor's entire life including "physical, emotional and
         financial support" was all but nonexistent.
      While the Trial Court need not look beyond the one year prior to Lamiyah' s

death, testimony and evidence presented showed a pattern oflittle or no support from

Appellant during Lamiyah's seven years of life.

      According to Appellant, the total extent of financial support that he provided

on behalf of Lamiyah is as follows. In 2011, the year preceding and inclusive of

Lamiyah's death, Appellant gave Appellee "maybe about a $100, $150." N.T.

12/22/2016, p. 12. In 2010, Appellant gave Appellee $60 or $70. Id. In 2009,

Appellant did not see Appellee. Id. at 13. In 2008, Appellant gave Appellee "maybe




                                         10
about a little over a hundred." Id. Lamiyah was born in 2004 and from 2005 to 2008

Appellant had no contact with Appellee and offered no support. Id.

       Appellant also claims that his listing Lamiyah as a dependent on his 201 1

income tax return is evidence of adequate support.         Id. at 90. However, this

purported support was given after Lamiyah 's death, which pursuant to the statute, is

specifically excluded. Nonetheless, according to Appellant's testimony, rather than

support, it was to be used to pay for Lamiyah's headstone. Id. at 94.

       That the Trial Court found that the amounts paid did not constitute support

and, in fact, were grossly inadequate to support the barest of necessities, is not

seriously contested. In fact, Appellant has never suggested that it does. Therefore,

Appellant failed to show any error on this issue.



Conclusion

      The Trial Court correctly found that within the guidelines of the relevant

statute, Appellee proved by clear and convincing evidence that Appellant failed to

support his daughter during the last year of her life financially, and also failed to

render any of the non-monetary parental expectations defined therein.

      The evidence presented, even viewed most favorably to the Appellant, shows

that he made no serious attempt to maintain a relationship with his daughter, let alone

render support for her care and upbringing. Appellant's feeble attempt to blame


                                          11
Appellee for his failures belies the fact that he did virtually nothing to assume his

rightful duties. As this Honorable Superior Court has held, the purpose of the statute

in question, "is to prevent a parent, who has failed to carry out his or her duty of

support, from gaining a 'windfall' from a minor child's death." In re Kistner, 858

A.2d 1226, 1228 (Pa Super. 2004).

      Therefore, it is respectfully submitted that the Appeal in this matter be denied

and the Trial Court's decision be affirmed.




                                                       Dated:
                                                                --=''3--,-/21.f            /7
                                                                          f-4,: ; ; __-,/I---'--�-

Joseph L. Messa, Jr., Esq.

Gary M. Gusoff, Esq.




                                         12
