J-S56001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.D.-S., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
B.M.D.,
Appellant No. 695 MDA 2014
Appeal from the Order entered March 18, 2014 in the Court of Common Pleas of Lebanon County Domestic Relations, at No(s): 2002-5-0967
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED OCTOBER 16, 2014
B.M.D. (“Appellant”) appeals from the March 18, 2014 order of the
Court of Common Pleas of Lebanon County denying his motion to request
paternity testing in connection with K.S. (“Child”), born in November of
1999, as a result of a sexual relationship between Appellant and C.D.-S.
(“Mother”).1 We affirm.
On November 26, 2013, Appellant denied paternity of Child and
requested genetic testing. The trial court conducted a hearing on February
25, 2014, regarding Appellant’s request for genetic testing. At the time of
the hearing, Child was 14 years of age. Appellant participated in the hearing
* Retired Senior Judge assigned to the Superior Court. 1 “This Court accepts immediate appeals from orders directing or denying genetic testing to determine paternity.” Buccieri v. Campagna, 889 A.2d 1220, 1220 n.1 (Pa. Super. 2005) (citation omitted). J-S56001-14
via telephone, and Mother appeared at the hearing. Neither Appellant nor
Mother was represented by counsel.
At the hearing, Mother testified that, when Child was conceived, she
was not having consensual sexual relations with anyone other than
Appellant. See N.T., 2/25/14, at 13. On February 28, 1999, Mother was
raped by Damien T. Fields. Fields was charged and subsequently convicted
of Mother’s rape. See id., at 5, 15. Following the rape, Mother went to the
hospital, and the nurses performed a rape kit test. After the test, the nurses
informed Mother that she was already pregnant. See id., at 19-20. At that
time, the nurses also informed Mother that it was “extremely unlikely” that
the rapist was the father of her unborn child since there would not have
been enough time for the rape to result in a pregnancy that could be verified
by hormonal testing. See id., at 2.
When Child was born in November of 1999, Appellant signed an
Acknowledgment of Paternity at the hospital. At the time of Child’s birth,
Appellant was 17 years of age, and was accompanied by his mother when he
acknowledged paternity of Child. See id., at 6, Exhibit 1. At that point,
Appellant did not question his paternity or request genetic testing. See id.,
at 20.
Appellant acted in a manner consistent with parenthood for several
years following Child’s birth. Appellant lived in New York during Mother’s
pregnancy, but came to visit following Child’s birth. Appellant would “buy
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diapers here and there.” Id., at 15-17. Appellant never requested genetic
testing, nor did he question Child’s ethnicity during the first two years of
Child’s life. See id., at 20. Appellant also testified that he tried to see Child
after she was born, and he moved back to Pennsylvania to see if he and
Mother could work things out, but Mother cut him off and was pushing him
away. See id., at 11. Appellant testified that he lost contact with Child
when she was two years old, and has seen not seen either Child or Mother
for over ten years. See id., at 12.
At Mother’s request Appellant signed a Stipulation of Custody in 2010
within which he acknowledged that he was the father of Child, and by which
he awarded Mother sole legal and physical custody of Child. See id., at 7,
Exhibit 2. At that time, Appellant still did not request genetic testing. See
id., at 8.
Mother first sought child support from Appellant on December 27,
2002. At the time, Appellant’s whereabouts were not known to Mother or to
the Lebanon County Domestic Relations Office. Mother’s child support
complaint was dismissed on May 15, 2003. Mother’s next attempt to obtain
child support was initiated on June 8, 2011. Service of the Complaint was
effectuated upon Appellant at his residence in Florida. On July 5, 2011,
Appellant wrote a letter to the Lebanon County Domestic Relations Office
requesting to participate in the support proceeding via telephone. In the
letter, Appellant for the first time questioned the paternity of Child. A child
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support conference was conducted on July 13, 2011. The record is unclear
with respect to whether Appellant participated via telephone. An Interim
Order was entered on July 13, 2011, that required Appellant to pay $353.00
per month in child support. The Order was mailed to Appellant together with
a notice that he had a right to request a full hearing before the trial court.
Father never paid the child support, and never requested a hearing. On
September 27, 2011, a bench warrant was issued for Appellant’s arrest. The
bench warrant is still pending.
After the February 25, 2014 hearing, the trial court issued an Order
and Opinion on March 18, 2014, denying Appellant’s Petition to Open
Paternity. Appellant filed a timely Notice of Appeal.
We review an order denying genetic testing for an abuse of discretion.
See Barr v. Bartolo, 927 A.2d 635, 639 (Pa. Super. 2007). “An abuse of
discretion is not merely an error of judgment, but rather a misapplication of
the law or an unreasonable exercise of judgment.” Id. (citation omitted).
We will not disturb the trial court’s factual findings so long as they are
supported by sufficient evidence. See Vargo v. Schwartz, 940 A.2d 459,
462 (Pa. Super. 2007).
Our Supreme Court has instructed that “[u]nder the doctrine of
paternity by estoppel, an individual may be estopped from challenging
paternity where that person has by his or her conduct accepted a given
person as the father of the child.” Bahl v. Lambert Farms, Inc., 819 A.2d
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534, 539 (Pa. 2003) (citation and internal quotation marks omitted). This
Court, sitting en banc, explained:
[T]he legal determination that because of a person’s conduct (e.g. holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father. As [this Court] has observed, the doctrine of estoppel in paternity actions is aimed at ‘achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding paternity of the child.’
R.W.E. v. A.B.K., 961 A.2d 161, 169 (Pa. Super. 2008) (quoting Wieland
v. Wieland, 948 A.2d 863, 869 (Pa. Super. 2008)).
Furthermore, in Vargo, we explained:
“The finder of fact is entitled to weigh the evidence presented and assess its credibility.” Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2005).
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J-S56001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.D.-S., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
B.M.D.,
Appellant No. 695 MDA 2014
Appeal from the Order entered March 18, 2014 in the Court of Common Pleas of Lebanon County Domestic Relations, at No(s): 2002-5-0967
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED OCTOBER 16, 2014
B.M.D. (“Appellant”) appeals from the March 18, 2014 order of the
Court of Common Pleas of Lebanon County denying his motion to request
paternity testing in connection with K.S. (“Child”), born in November of
1999, as a result of a sexual relationship between Appellant and C.D.-S.
(“Mother”).1 We affirm.
On November 26, 2013, Appellant denied paternity of Child and
requested genetic testing. The trial court conducted a hearing on February
25, 2014, regarding Appellant’s request for genetic testing. At the time of
the hearing, Child was 14 years of age. Appellant participated in the hearing
* Retired Senior Judge assigned to the Superior Court. 1 “This Court accepts immediate appeals from orders directing or denying genetic testing to determine paternity.” Buccieri v. Campagna, 889 A.2d 1220, 1220 n.1 (Pa. Super. 2005) (citation omitted). J-S56001-14
via telephone, and Mother appeared at the hearing. Neither Appellant nor
Mother was represented by counsel.
At the hearing, Mother testified that, when Child was conceived, she
was not having consensual sexual relations with anyone other than
Appellant. See N.T., 2/25/14, at 13. On February 28, 1999, Mother was
raped by Damien T. Fields. Fields was charged and subsequently convicted
of Mother’s rape. See id., at 5, 15. Following the rape, Mother went to the
hospital, and the nurses performed a rape kit test. After the test, the nurses
informed Mother that she was already pregnant. See id., at 19-20. At that
time, the nurses also informed Mother that it was “extremely unlikely” that
the rapist was the father of her unborn child since there would not have
been enough time for the rape to result in a pregnancy that could be verified
by hormonal testing. See id., at 2.
When Child was born in November of 1999, Appellant signed an
Acknowledgment of Paternity at the hospital. At the time of Child’s birth,
Appellant was 17 years of age, and was accompanied by his mother when he
acknowledged paternity of Child. See id., at 6, Exhibit 1. At that point,
Appellant did not question his paternity or request genetic testing. See id.,
at 20.
Appellant acted in a manner consistent with parenthood for several
years following Child’s birth. Appellant lived in New York during Mother’s
pregnancy, but came to visit following Child’s birth. Appellant would “buy
-2 - J-S56001-14
diapers here and there.” Id., at 15-17. Appellant never requested genetic
testing, nor did he question Child’s ethnicity during the first two years of
Child’s life. See id., at 20. Appellant also testified that he tried to see Child
after she was born, and he moved back to Pennsylvania to see if he and
Mother could work things out, but Mother cut him off and was pushing him
away. See id., at 11. Appellant testified that he lost contact with Child
when she was two years old, and has seen not seen either Child or Mother
for over ten years. See id., at 12.
At Mother’s request Appellant signed a Stipulation of Custody in 2010
within which he acknowledged that he was the father of Child, and by which
he awarded Mother sole legal and physical custody of Child. See id., at 7,
Exhibit 2. At that time, Appellant still did not request genetic testing. See
id., at 8.
Mother first sought child support from Appellant on December 27,
2002. At the time, Appellant’s whereabouts were not known to Mother or to
the Lebanon County Domestic Relations Office. Mother’s child support
complaint was dismissed on May 15, 2003. Mother’s next attempt to obtain
child support was initiated on June 8, 2011. Service of the Complaint was
effectuated upon Appellant at his residence in Florida. On July 5, 2011,
Appellant wrote a letter to the Lebanon County Domestic Relations Office
requesting to participate in the support proceeding via telephone. In the
letter, Appellant for the first time questioned the paternity of Child. A child
-3 - J-S56001-14
support conference was conducted on July 13, 2011. The record is unclear
with respect to whether Appellant participated via telephone. An Interim
Order was entered on July 13, 2011, that required Appellant to pay $353.00
per month in child support. The Order was mailed to Appellant together with
a notice that he had a right to request a full hearing before the trial court.
Father never paid the child support, and never requested a hearing. On
September 27, 2011, a bench warrant was issued for Appellant’s arrest. The
bench warrant is still pending.
After the February 25, 2014 hearing, the trial court issued an Order
and Opinion on March 18, 2014, denying Appellant’s Petition to Open
Paternity. Appellant filed a timely Notice of Appeal.
We review an order denying genetic testing for an abuse of discretion.
See Barr v. Bartolo, 927 A.2d 635, 639 (Pa. Super. 2007). “An abuse of
discretion is not merely an error of judgment, but rather a misapplication of
the law or an unreasonable exercise of judgment.” Id. (citation omitted).
We will not disturb the trial court’s factual findings so long as they are
supported by sufficient evidence. See Vargo v. Schwartz, 940 A.2d 459,
462 (Pa. Super. 2007).
Our Supreme Court has instructed that “[u]nder the doctrine of
paternity by estoppel, an individual may be estopped from challenging
paternity where that person has by his or her conduct accepted a given
person as the father of the child.” Bahl v. Lambert Farms, Inc., 819 A.2d
-4 - J-S56001-14
534, 539 (Pa. 2003) (citation and internal quotation marks omitted). This
Court, sitting en banc, explained:
[T]he legal determination that because of a person’s conduct (e.g. holding out the child as his own, or supporting the child) that person, regardless of his true biological status, will not be permitted to deny parentage, nor will the child’s mother who has participated in this conduct be permitted to sue a third party for support, claiming that the third party is the true father. As [this Court] has observed, the doctrine of estoppel in paternity actions is aimed at ‘achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding paternity of the child.’
R.W.E. v. A.B.K., 961 A.2d 161, 169 (Pa. Super. 2008) (quoting Wieland
v. Wieland, 948 A.2d 863, 869 (Pa. Super. 2008)).
Furthermore, in Vargo, we explained:
“The finder of fact is entitled to weigh the evidence presented and assess its credibility.” Smith v. Smith, 904 A.2d 15, 20 (Pa. Super. 2005). In so doing, the finder of fact “is free to believe all, part, or none of the evidence and [we as an appellate court] will not disturb the credibility determinations of the court below.” Id. (citation omitted).
940 A.2d at 462.
In denying Appellant’s motion, the trial court found that Appellant
signed an Acknowledgment of Paternity in the presence of his mother shortly
after Child was born. Although Appellant denied the knowledge of his
mother’s presence, Mother testified at the hearing that Appellant’s mother
was present and had even changed the spelling of Child’s name. The trial
court found Mother’s testimony to be more credible than the testimony of
Appellant, and rejected Father’s testimony that his mother was not present,
-5 - J-S56001-14
and that he did not know what he was doing when he signed the
Acknowledgment of Paternity.
In addition, Mother testified that Appellant came down from his home
in New York shortly after Child was born, and bought diapers occasionally.
Father also testified that he moved back to Pennsylvania to see if he and
Mother could work anything out, but Mother pushed him away. The
evidence revealed that Father abandoned Mother and Child for over a
decade and moved to Florida. In June of 2011, Mother’s Complaint for Child
Support was served upon Appellant. At that time, there was still no mention
of Appellant requesting genetic testing until the support hearing of February
25, 2014. Therefore, we find not abuse of discretion on the part of the trial
court in denying the motion. See Barr v. Bartolo, 927 A.2d at 639.
Moreover, the trial court did not abuse its discretion in applying the
doctrine of estoppel. As noted, “[u]nder the doctrine of estoppel, an
individual may be estopped from challenging paternity where that person
has by his or her conduct accepted a given person as the father of the child.”
Bahl, 819 A.2d at 539. The trial court correctly concluded that Appellant
waited fourteen years to challenge the paternity of Child, raising the issue
only after being faced with child support obligations. Moreover, the trial
court also determined that the best interest of Child would be served by
disallowing a genetic test to determine whether Appellant is the biological
father of Child. The trial court prudently reasoned that there is no way that
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genetic testing would enhance Child’s life, and would provide multiple risks
to Child and her emotional well-being. See K.E.M. v. P.C.S., 38 A.3d 798
(Pa. 2012). The trial court did not abuse its discretion.
Finally, the trial court’s decision did not indicate prejudice, bias, or ill
will on the part of the trial court. Mother’s testimony was supported by
Appellant’s Acknowledgement of Paternity, which had been admitted into the
record. Based on this credited testimony, the trial court did not err in
concluding that Appellant was precluded from challenging the paternity of
Child.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/16/2014
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