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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A12015-17


       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
____________________________________________


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.



____________________________________________


2
    Father never clarified the date of the Friday and Saturday he discussed.



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J-A12015-17


      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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J-A12015-17


     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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J-A12015-17


      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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J-A12015-17


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


____________________________________________


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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