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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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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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 wellsettled 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

____________________________________________

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-ofcourt 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