J-S30017-19
                              2019 PA Super 252

 JANELLE JOHNSON, INDIVIDUALLY             :    IN THE SUPERIOR COURT OF
 AND AS ADMINISTRATRIX OF THE              :         PENNSYLVANIA
 ESTATE OF NAHYER JOHNSON, A               :
 MINOR, DECEASED                           :
                                           :
                                           :
              v.                           :
                                           :
                                           :    No. 1914 EDA 2018
 NESHAMINY SHORE PICNIC PARK               :
                                           :
                                           :
 APPEAL OF: CARL GRIGGS                    :


                Appeal from the Order Entered, June 4, 2018,
            in the Court of Common Pleas of Philadelphia County,
                     Civil Division at No(s): 170601945.


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY KUNSELMAN, J.:                              Filed: August 20, 2019

      In this tragic wrongful death and survival action, the minor decedent’s

father, Carl Griggs, appeals from the trial court’s decision that he forfeited his

share of the proceeds from the action filed by the decedent’s mother, Janelle

Johnson, under Pennsylvania probate law. See 20 Pa.C.S.A. § 2106(b). After

careful review, we affirm.

      The pertinent factual and procedural history is as follows:

      The decedent Nahyer Johnson (Child) was just four years old when he

drowned at the Neshaminy Shore Picnic Park during a family get-together. At

the time of his death, Child was living with Mother; Father had been

incarcerated for the preceding ten months. Father had been largely absent

from Child’s life. The parents separated before Child’s birth, and Father was
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not involved at all during the first year of Child’s life. In the year preceding

Child’s death, Father only saw Child once, when Mother brought Child to visit

Father in prison. In fact, Child thought his maternal grandfather was his dad.

      Following the tragedy, Mother was granted Letters of Administration and

she subsequently commenced a wrongful death and survival action on behalf

of Child’s estate and herself individually.   Prior to trial, the parties to that

action negotiated a global settlement subject to approval of distributions

pursuant to Pa.R.C.P. 2206.

      In June 2017, Mother filed a Petition for Forfeiture of Father’s share of

the wrongful death proceeds arising from Child’s death. See 20 Pa.C.S.A. §

2106(b)(1). An evidentiary hearing was held on the petition on September

20, 2017. Mother and Father appeared, as did Keith Johnson (the maternal

grandfather) and Shontae Sancho, the owner of the Child’s daycare. All four

testified about the relationship, or the lack thereof, between Father and Child.

The court ultimately granted Mother’s Petition for Forfeiture in June 2018.

      Father presents two issues in this timely-filed appeal:

            1. Whether the trial court erred when it misinterpreted
               the relevant law regarding forfeiture pursuant to 20
               Pa.C.S. § 2106(b), by conflating the support and
               desertion criteria, which requires an intent to
               permanently abandon, and by interpreting the
               forfeiture statute to exclude any consideration of
               noneconomic support.

            2. Whether the trial court misapplied the relevant law
               regarding forfeiture pursuant to 20 Pa.C.S. § 2106(b)
               by 1) finding that willfulness need not be considered;
               2) basing its decision on facts beyond the one year



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                      prior to death; 3) finding forfeiture when there was
                      insufficient proof in the record to show that defendant
                      had the capacity to perform the duty of support; 4)
                      improperly applying Teaschenko[1] and Moyer[2].

Father’s Brief at 2 (footnotes added).

        As we discuss below, the crux of this matter is one of first impression.

The current version of Section 2106(b) was amended on December 20, 2000

and made effective on February 18, 2001.                       Father’s appeal concerns the

dissonance between the current version of the forfeiture statute and our case

law applying the prior version. Specifically, Father claims the court erred when

it departed from prior case law, which found forfeiture only when the parent

willingly and completely failed to perform the duty to support the child.

Since        Father’s         issues           are   interconnected,   we   address   them

contemporaneously.

        This Court recently reaffirmed our standard of review in these matters:

             When reviewing a decree entered by the Orphans' Court,
             this Court must determine whether the record is free from
             legal error and the court's factual findings are supported by
             the evidence. Because the Orphans' Court sits as the fact-
             finder, it determines the credibility of the witnesses and, on
             review, we will not reverse its credibility determinations
             absent an abuse of that discretion. However, we are not
             constrained to give the same deference to any resulting
             legal conclusions. Where the rules of law on which the court
             relied are palpably wrong or clearly inapplicable, we will
             reverse the court's decree.




____________________________________________
1   In re Estate of Teaschenko, 574 A.2d 649 (Pa. Super. 1990).

2   In re Estate of Moyer, 758 A.2d 206 (Pa. Super. 2000).


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Estate of Powell, --- A.3d ---, 2019 PA Super 140, at *2-3 (Pa. Super. May

1, 2019) (citing In re Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014))

(further citations omitted).

      When we review a legal conclusion based on statutory interpretation,

our standard of review is de novo and our scope of review is plenary. See In

re Estate of Fuller, 87 A.3d at 333 (citation omitted).

      With those standards in mind, we start by addressing how the forfeiture

statute has been amended. Under both the current and former iterations of

the forfeiture statute, there are two ways a parent forfeits his or her interest

in the child’s estate: when the parent failed to support the child; or when the

parent deserted the child. See 20 Pa.C.S.A. § 2106(b)(1).

      The current version of Section 2106(b) provides, in relevant part:

         (b) Parent's share.—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 child or who,
               for one year, has 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. 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).

      Prior to its amendment, Section 2106(b) provided:



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         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.

Former Section 2106(b) (Effective until February 18, 2001) (emphasis added).

      Significantly, the Legislature amended the failure-to-support clause by

deleting the term “willfully neglected” and changing the phrase “any duty” to

“the duty;” the Legislature amended the desertion clause by deleting the word

“willfully” from the phrase “has willfully deserted.”

      Father asserts that the prima facie elements of a forfeiture claim, based

on the failure-to-support clause, remain intact notwithstanding the statute’s

revisions. Interpreting the prior version of the failure-to-support clause, this

Court set forth the elements of a prima facie claim as follows:

            1. the decedent must be a minor or dependent child;

            2. the parent must owe a 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.

See In re Estate of Moyer, 758 A.2d 206, 211 (Pa. Super. 2000) (quoting

In re Estate of Teaschenko, 574 A.2d 649, 651 (Pa. Super. 1990))

(emphasis added).




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        We further expounded upon the third and fourth elements when we held

that a parent must willfully and completely fail to perform the duty of support:

           A parent does not forfeit their interest in their child’s estate
           merely by failing to perform their duties fully; rather, the
           parent must completely fail to perform any duty of support
           before a court will find a forfeiture under the statute.
           Second, the parent must have “willfully” failed to perform
           any duty of support. At the very lead, the term “willfully”
           implies that the parent is aware of the duty to support, has
           the capacity to perform that duty, and makes no attempt to
           do so.

In re Estate of Teaschenko, 574 A.2d at 651-652 (emphasis original).

        Under this standard, Father argues, we must conclude that the court

erred. Father claims that he did not willfully fail to support Child, because

he did not have the capacity to do so given his low income and incarceration;

moreover, he argues he did not completely fail to provide any support.

        Notably, however, our previous construction of these prima facie

elements focused on the terms “willfully neglected” and “any duty;” and those

terms     did   not   survive   the   amendments     to   the   forfeiture    statute.

Notwithstanding the amendments, Father argues that willfulness still applies

in any analysis of section 2106(b), and that the rule in Teaschenko and its

progeny endures.

        Having identified the differences between the two versions of the statute

and having framed Father’s argument, we address next whether a parent must

still willfully and completely fail to perform his duty before forfeiture is

warranted.




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        We have discovered no case, published after the current version of the

statute became effective (in February 2001), which addresses the willfulness

element of a forfeiture claim under the failure-to-support clause.3 However,

we have since interpreted the desertion clause; i.e., the other basis by which

a parent forfeits his interest in the child’s estate. See In re Estate of Fuller,

87 A.3d 330, 334 (Pa. Super. 2014).

        In In re Estate of Fuller, we concluded that the deletion of “willfully”

from the desertion clause had no effect on the application of the statute.

Father argues that the deletion of “willfully” from the failure-to-support clause

is equally benign. We disagree. The clauses are unique.

        In In re Estate of Fuller, we observed that words of a statute are

generally construed according to their common and approved usage.” Id.

(quoting Tooey v. AK Steel Corp., 81 A.3d 851, 858 (Pa. 2013)); see also

1 Pa.C.S. § 1903. We also turned to the dictionary as a source to determine

the common and approved usage of a term. Id. (citing Fogle v. Malvern

Courts, Inc., 722 A.2d 680, 682 (Pa. 1999)).          We then explained that

____________________________________________
3 Father would disagree. He cites In re Kistner, 858 A.2d 1226 (Pa. Super.
2004) for the proposition that that the Teaschenko elements of a prima facie
forfeiture care survived the 2001 revisions. But that case concerned the first
element of a prima facie case, namely, whether the child is a minor or a
dependent. In In re Kistner, the decedent-child was 58 years old. As such,
the petition for forfeiture did not survive the first element, and we never
arrived at the question of whether willfulness remained a prima facie element
following the 2001 revision, nor whether the failure to support must be
complete. Thus, any recitation of the Teaschenko elements beyond the first
element in In re Kistner was dicta and not binding on this Court.




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J-S30017-19



“desertion” is defined as “the willful and unjustified abandonment of a person’s

duties or obligations, esp. to military service or to a spouse of family.” Id.;

see also Black’s Law Dictionary (8th ed. 2004). And finally we held: “By

definition…desertion in the context of Section 2106 is a parent’s intentional

and willful abandonment of a minor or dependent child.” Id.

      Put another way, desertion comprises two elements: willfulness and

abandonment. Only when both elements are present can it be said that parent

has deserted their child for purposes of the forfeiture statute.             The

Legislature’s removal of “willfully” in the desertion clause was the elimination

of a redundancy.

      But the instant matter concerns the other basis for forfeiture: the

failure-to-support clause.    There, the Legislature’s removal of the term

“willfully neglected” has a significant impact.   Unlike the term “desertion,”

willfulness is not implied in the plain meaning of the failure-to-support clause.

      As in In re Estate of Fuller, we are guided by the Statutory

Construction Act, which directs us to ascertain and effectuate the intent of the

General Assembly. See 1 Pa.C.S. §§ 1501 et seq.; see also § 1921(a); and

see § 1903.      “Failure” is defined as “an omission of an expected action,

occurrence, or performance.”       Black’s Law Dictionary (10th ed. 2014).

“Neglect” is defined as “the omission of proper attention to a person or thing,

whether inadvertent, negligent, or willful.” Id. (emphasis added).

      Further,




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J-S30017-19


          ’neglect’ is not the same thing as ‘negligence.’ In the present
          connection the word ‘neglect’ indicates, as a purely
          objective fact, that a person has not done that which it was
          his duty to do; it does not indicate the reason for this
          failure.

Id. (quoting J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 108 n.1

(16th ed. 1952) (emphasis original).

      Thus, the failure to perform the duty to support is the mere omission of

an expected performance, regardless of the reason. Unlike in the desertion

clause, in the failure-to-support clause, the Legislature’s removal of the

modifier “willfully” fundamentally changed the court’s inquiry into the parent’s

action.

      In the current iteration of the statute, where “willfully neglected” has

been removed, a parent forfeits his interest when, inter alia, he simply “failed

to perform the duty to support.” The reason for the failure is irrelevant. We

cannot say this amendment was unintentional. Not every parent who owes a

duty of support to a minor or dependent child has the ability to fulfill his

obligation. But when the parent cannot perform his or her duty to support the

child, some other actor must, whether that actor is the other parent, another

family member, the state, or all of the above.        It follows, then, that the

Legislature intended to prohibit the non-performing parent from collecting a

windfall in the tragic event of the child’s death. To rule otherwise would be to

ignore Legislature’s explicit decision to modify as it did.




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      Having concluded that a parent’s failure to perform the duty of support

need not be willful, we must also address how the revised forfeiture statute

alters our interpretation of that duty.

      In the prior iteration of the statute, a parent would forfeit his interest if

he failed to perform any duty of support owed. When we interpreted that

clause in 1990, we stated:

         A parent does not forfeit her interest in her child’s estate
         merely by failing to perform her duties fully; rather, the
         parent must completely fail to perform any duty of support
         before a court will find a forfeiture under this statute.

In re Estate of Teaschenko, 574 A.2d at 651-652 (emphasis original).

      In In re Estate of Moyer, 758 A.2d 206, 212 (Pa. Super. 2000), we

further examined whether the duty to support meant financial support and/or

non-financial support. There, we concluded that regardless of whether the

duty to support meant financial or non-financial support, the mother against

whom forfeiture was sought wholly failed to provide either.

      Seven months later, the Legislature amended Section 2106(b) to

change the term “any duty” to “the duty.”         The Legislature also provided

guidance to explain what “the duty” entailed:

         The    determination     under    paragraph  (1)   [which
         encompasses both the failure-to-support clause and the
         desertion clause] 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).




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      The revised statute is clear.         Section 2106(b) now requires a

comprehensive review of the parent’s involvement when evaluating that

parent’s support. We can no longer read the statute to ask whether the parent

completely failed to support the child.

      We also observe that “physical” is defined as “of, relating to, or involving

material things; pertaining to real, tangible objects.”        See Black’s Law

Dictionary (10th ed. 2014). Thus, “physical support” pertains to the material

things and objects a parent was able to provide, independent of the financial

or emotional support he was obligated to provide.

      In sum, we cannot ignore the ramifications of the amendments to the

failure-to-support clause. We must conclude that the willfulness element of a

prima facie forfeiture claim has been eliminated. We conclude further that the

duty to support encompasses physical, emotional, and financial support.

Therefore, the elements of a prima facie forfeiture claim under the current

failure-to-support clause are as follows:

            1. the decedent must be a minor or dependent child;

            2. the parent must owe a duty of support to the
               decedent; and

            3. the parent must have failed to perform the duty of
               support for the decedent for at least a year prior to
               the decedent’s death

See 20 Pa.C.S.A. § 2106(b)

      Regarding the third element, the reason why a parent may have failed

to support the child is irrelevant. Furthermore, the Legislature mandates the



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courts to inquire into both the quality, nature and extent of the parent’s

contact and the physical, emotional and financial support provided to the

child. See id. (emphasis added); see also In re Estate of Fuller, 87 A.3d

at 334, 336 (concluding that the “quality, nature, and extent of the parent’s

conduct with the child and the physical, emotional and financial support

provided to the child” indicated that the parent did not desert the child”

(emphasis added)).

      Having clarified the inquiry under the failure-to-support clause of a

forfeiture claim, we address the trial court’s decision and the merits of Father’s

appeal.

      Instantly, the first element was satisfied; Child was four years old, and

obviously a minor.

      Regarding the second element, Father argues that he had no duty to

support the child because of his meager income of $700 per month in social

security disability benefits, which were suspended upon his incarceration.

Father incorrectly assumes that his social security benefits did not count as

income for the purpose of calculating child support. But he argues that even

if his benefits counted, he did not have a duty to pay child support because

his monthly net income fell below the Self-Support Range. See Rule 1910.16-

2; 23 Pa.C.S.A. § 4302; see also Rule 1910.16-2 (The Self-Support Reserve

(SSR) “is intended to assure that obligors with low incomes retain sufficient

income to meet their basic needs and to maintain the incentive to continue

employment.”); and see Rule 1910.16-2 Explanatory Comment – 2013 (The


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J-S30017-19



SSR is $931, meaning that the obligor must retain this net amount per month

after fulfilling the child support obligation). Thus, Father concludes, because

he did not have to pay child support, he did not have a duty of support under

the second element of a prima facie forfeiture claim.

      Father’s theory fails twice. First, Father conflates the duty to support

with the ability to support (i.e. ability to perform the duty). As we discussed

above, under a forfeiture analysis, the reason a parent cannot perform the

duty is no longer relevant; that element was stricken with the term “willfully

neglected.”   Although Father’s inability to pay child support may have

prevented the court from finding him in contempt; an inability to perform a

duty is not the same as having no duty at all. For instance, if Father suddenly

possessed a winning lottery ticket, then Father would just as suddenly possess

the ability to pay the child support, but Father’s legal duty was present all

along.

      Second, Father incorrectly assumes that his incarceration tolled his duty

to support the child. Even if incarceration did alleviate him from providing

financial support, Father still could have provided some form of emotional or

physical support. No doubt, the degree to which he could perform the duty

would have been hampered.         But the record is nevertheless devoid of

allegations that Mother thwarted Father’s attempts to have a relationship with

Child while incarcerated. Father corresponded with Mother while incarcerated,

but he never communicated with Child. Father explains that Mother brought

Child to visit him only once during the incarceration. We can infer that this


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was enough for Father, who did not petition for more contact, as other

prisoners have done.        See, e.g., S.T. v. R.W., 192 A.3d 1155, 1159 (Pa.

Super. 2018) (Where an incarcerated mother, pro se, petitioned for contact

via telephone and correspondence). We conclude that the court did not abuse

its discretion when determining that Mother satisfied the second element;

Father owed a duty of support.

      Our consideration of the third and final element involves a determination

of the quality, nature and extent of the parental contact, as well as the

physical, emotional and financial support Father provided to the child.

Instantly, we observe that Father argues that the court did not consider his

nonfinancial support. Indeed, the trial court struggled to account for how a

parent’s nonfinancial support should impact its analysis. Nevertheless, the

trial court determined that Father made hardly any effort to support Child,

financial or otherwise.      We cannot agree with Father that the trial court

discounted his nonfinancial support when the trial court made explicit findings

that Father made no effort at all. In any event, we observe “it is a well settled

doctrine in this Commonwealth that a trial court can be affirmed on any valid

basis.” See In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013).

      As we review the trial court’s findings, we are mindful of the deference

due   to   lower   court,     sitting   as   factfinder,   which   makes   credibility

determinations after witnessing the testimony firsthand. See Estate of

Powell, supra, at *2-3.




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      In a case that turned largely on testimony, the trial court determined

Father did virtually nothing. In the year immediately preceding Child’s death,

Father saw Child only once. While he was incarcerated during 10 of the 12

months leading up to the death, Father made no other effort to have a

relationship with Child. In fact, the Father’s involvement in Child’s life was so

extremely limited that Child thought his true father was his maternal

grandfather.   Although Father had little disposable income, so did Mother.

When Mother named Father on her application for public assistance, Father

denied paternity and requested testing. Father testified that he did this to be

vindictive, because he and Mother had allegedly agreed to handle the support

of Child without the court’s involvement. During the course of Child’s lifetime,

Father bought Child one pair of shoes; he never bought Child any food, toys

or other gifts. In the three years Child attended daycare, Father provided

transportation three times. He never spent holidays with Child or exercised

any sort of custody.     The sum total of Father’s physical, emotional, and

financial support was $39.99, and only after Mother’s request. We conclude

that the trial court did not abuse its discretion in concluding that Father failed

to support Child for at least one year prior to Child’s death.

      Our review of the trial court’s decision is not a review of Father’s

parenting.   We are cognizant that the parents discussed the possibility of

Father and Child having a meaningful relationship in the future.         Tragedy

robbed them of that opportunity. Conversely, we are also cognizant that if

Father inherited his share, his other child would presumably reap some benefit


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from this inheritance.4 Yet the statute does not consider what could or should

have been, only what was.                      In that vein, the trial court did not abuse its

discretion when it applied the statute and found Father forfeited his ability to

inherit from his deceased minor child.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/19




____________________________________________
4   Father alluded to the existence of another child support obligation.


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