V.L.-P. v. S.R.D.

2023 Pa. Super. 2, 288 A.3d 502

Opinion

J-A19020-22

2023 PA Super 2

V.L.-P. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : S.R.D. : : Appellant : No. 477 MDA 2022

Appeal from the Order Entered February 18, 2022 In the Court of Common Pleas of Lebanon County Domestic Relations at No(s): 2020-5-0545

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*

OPINION BY KING, J.: FILED: JANUARY 6, 2023

Appellant, S.R.D., appeals from the order entered in the Lebanon

County Court of Common Pleas, denying his petition for genetic testing. We

affirm in part and vacate and remand in part for further proceedings consistent

with this decision.

The trial court set forth the relevant facts and procedural history of this

case as follows:

[V.L.-P. (“Mother”)] is the biological mother of A.D. [(“Child”)]. In early 2008, [the parties] were engaged in an “on-again, off-again” relationship. Both parties acknowledge that they engaged in sexual intercourse on February 3, 2008, which was Super Bowl Sunday. [Mother] denied that she had sex with anyone else during the two months before and the two months after Super Bowl Sunday. [Appellant] presented a witness[, G.H.,] who proclaimed that her brother and [Mother] spent a great deal of time together and spoke about being engaged during ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A19020-22

February of 2008.

When [Mother] discovered that she was pregnant, she notified [Appellant] “because he is the father.” [Appellant] attended pre-natal ultrasounds and expressed some excitement about becoming a father. At no time during pregnancy did [Mother] relate that anyone else could possibly be the father of her unborn child.

[I]n October…2008, [Mother] gave birth to an infant daughter[, Child]. [Appellant] was notified and he was permitted to be present in the hospital at the time of birth. Both [Appellant] and [Mother] acknowledge that a conversation occurred regarding paternity. Although the details of the conversation are disputed, both [Appellant] and [Mother] agree that [Mother] assured [Appellant] that only he could be the father. Based upon this representation, [Appellant] signed an acknowledgment of paternity and [Child] was given his last name.

Starting six (6) months following birth, [Appellant] began enjoying alternating weekend periods of time with his daughter. As [Child] grew, [Appellant] attended doctor’s appointments, parent-teacher conferences, and athletic events involving [Child]. Almost every night, [Appellant] telephoned or FaceTimed [Child]. These communications inevitably ended with “I love you” being expressed by both [Appellant] and [Child].

[Appellant] is a part of a close extended family. [Appellant’s] family embraced [Child] as one of their own. During twelve years leading up to 2020, [Child] developed a close relationship with [Appellant’s] parents, who were called “Mimi and PopPop,” [Appellant’s] sister “Auntie M” and [Appellant’s] grandfather, “Pappy Beers.”

In early 2020, [Appellant] and his wife [K.D.] became involved with Ancestry.com. They presented DNA to Ancestry. Both [Appellant] and [K.D.] professed surprise when the Ancestry.com analysis was received and [Child] was not mentioned as being part of their family tree. According to [Appellant], “[Child’s] Ancestry profile did not match either me or anyone else in my family…I was shocked.”

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Prior to April of 2020, [Appellant] paid roughly $400 per month in voluntary child support. He stopped paying in May of 2020. [Appellant] testified that his cessation of support was due to COVID-driven unemployment and not the Ancestry.com information. In fact, [Appellant] testified that he had a difficult time believing the Ancestry.com test results. [Appellant’s] custody rights with respect to [Child] were expanded to equal 50-50 periods of time between May and September of 2020. During this period of time, [Appellant] did not mention or question paternity.

With the advent of in-person school in September of 2020, [Mother] again undertook primary physical custody of [Child] and [Appellant] returned to an alternating weekend schedule. However, [Appellant] did not pay any child support. Eventually, on November 16, 2020, [Mother] filed a Complaint Seeking Child Support against [Appellant].

[Following Thanksgiving weekend in] November of 2020, [Appellant] confronted [Mother] about the Ancestry.com paternity information. [Mother’s father] and [K.D.’s mother] were present…when the disclosure about the Ancestry.com information was accomplished. [Mother] testified that [Appellant] said: “Had you not sued me for support, I would have taken the information [about paternity] with me to my grave.” [Appellant] denied making such a statement. [Mother’s father] corroborated [Mother’s] version of the conversation. Everyone agrees that [Mother] continued to assert that [Appellant] was the only man who could be the father of [Child.]

Following the conversation between [Mother] and [Appellant] about paternity, the parties’ relationship understandably deteriorated. [Appellant] testified that [Mother] withheld contact with [Child]. [Mother] denies that she withheld contact. [Appellant] did acknowledge that after November 30, 2020, he declined to have telephone contact with [Child]. As summarized by the subsequently- appointed [guardian ad litem (“GAL”)], “There were a few instances where brief communication occurred between [Child] and [Appellant] after November 30, 2020. By and large, however, their telephone communications ceased. Indeed, the nightly telephone or FaceTime contacts stopped

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altogether.” In fact, the GAL documented that [Appellant] would hand over his telephone to other relatives whenever [Child] called him following November 30, 2020.

According to [Child], her relationship with [Appellant] underwent a “radical transformation” following November of 2020. At some unknown time, [Appellant] told [Child] that he may not be her biological father. According to [the GAL], [Child] “understands that [Appellant] is denying paternity for her based upon the Ancestry.com/Ancestry DNA results.”

[Appellant] did enjoy physical custody of [Child] on Christmas of 2020. [Appellant] described the visit as “rough.” In addition, [Appellant] acknowledged that he requested custody rights with [Child] on New Year’s Eve/Day. According to [Appellant], [Mother] refused to give him custody of [Child] at any time during the New Year’s holiday. Since Christmas of 2020, [Appellant] has not exercised any physical custody rights with [Child]. However, [Appellant] acknowledged that he sent an email on December 31, 2020 within which he asked for a resumption of alternating weekend periods of physical custody. Those weekend visits were never re-initiated.

In February of 2021, [Appellant’s] grandfather, Pappy Beers, passed away. Because [Child] was especially close to Pappy Beers, she was invited to his funeral. [Child] attended the funeral and sat with “Auntie M.” According to witnesses, very little interaction occurred between [Appellant and Child] during the funeral or the subsequent reception. Following the funeral, no further contact occurred between [Child] and [Appellant].

[Appellant] testified that he no longer considers himself to be [Child’s] father. According to [Appellant], he did not really reach the conclusion that he was not [Child’s] father until January of 2021. In addition to the Ancestry.com test results, [Appellant] indicated that he received information in October that [Mother] suffered from chlamydia when [Child] was born. [Appellant] indicated that he never contracted chlamydia and he attributed this [sexually transmitted disease] to [Mother’s] sexual contact with the true biological father of [Child]. In addition, [Appellant]

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received information through Ancestry.com from a woman by the name of [G.H.] [G.H.] testified that [Mother] and her brother were “close” to one another in February of 2008. In fact, [G.H.] believed that her brother and [Mother] may have been engaged at that period of time. According to [G.H.], her family has a history of suffering from a connective tissue disorder. [Child] was described as having a problem with connective tissue in her knee.

[Appellant] testified that he asked [Mother] to take a DNA test. He testified: “If [Mother] believed I was the father, then do the DNA test and let’s be done with this.” According to [Appellant], it was the confluence of all of the above information (the Ancestry test, the chlamydia, the connective tissue disease and [Mother’s] refusal to consent to genetic testing) that caused him to reach the conclusion in January of 2021 that he was not [Child’s] biological father. At that point, he cut off all contact with [Child].

[Mother] acknowledged that she would not consent to genetic testing. She explained that genetic testing would be “traumatic” for [Child], but she could not explain precisely how or why such trauma would flow from testing.

[Appellant] raised a question about paternity with the [c]ourt for the first time on December 18, 2020. The [c]ourt refused [Appellant’s] invitation to order genetic testing based exclusively upon a written petition.1 Instead, on December 21, 2020, the [c]ourt scheduled a hearing for the purpose of determining whether genetic testing should be [c]ourt-ordered.

1 When [Appellant’s] Motion was provided to the [c]ourt, we quickly perceived that the child in question was 12-years of age and that a Child Support dispute had recently been filed. Given these facts that were apparent from the record, we were unwilling to issue an immediate order to direct that genetic testing be undertaken.

On March 1, 2021, [Appellant] filed an Amended Request for Genetic Testing in which he raised an allegation of fraud against [Mother]. Following the March 1[, 2021] Amended Request for Genetic Testing, a Lebanon County Domestic

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Relations Master (DRM) issued a recommendation and report regarding child support. Based upon the parties’ respective incomes, the DRM recommended that [Appellant] pay $766.18 per month in child support. This was roughly $350 more than what [Appellant] had been paying prior to 2020. On March 16, 2021, this jurist met with both parties and both counsel. After a lengthy discussion, it became obvious that the parties were not in agreement as it related to the concept of genetic testing or the process by which it could be ordered. Because of this, the [c]ourt ordered both parties to file briefs.

Because this jurist refused to simply order genetic testing based on [Appellant’s] request, [Appellant] filed a Motion to Recuse this jurist on April 5, 2021. This motion was denied on April 7, 2021.

Both [Mother] and [Appellant] filed briefs regarding the genetic testing issue. On April 27, 2021, this [c]ourt issued a 16-page Opinion. In that Opinion, we set forth our analysis of what we described as a “morass of Pennsylvania Paternity by Estoppel law.” Because we concluded that Paternity by Estoppel requires a court to analyze the best interests of the child involved, we decided to appoint a [GAL] to represent the interests of [Child].

On April 27, 2021, we formally appointed [a] GAL for [Child]. [The GAL] is a licensed attorney who left the legal profession in order to launch a career as a family counselor. [The GAL] has served as GAL in numerous Lebanon County custody proceedings. He was asked by this [c]ourt to undertake an analysis with respect to whether disestablishment of paternity would be in the [best] interest of [Child].

[The GAL] began his assignment by reaching out to both counsel and both parties. As was his assigned role, [the GAL] attempted to focus upon [Child] and her interests. This was difficult to accomplish with [Appellant], because he was myopically focused upon the issue of fraud and his own self-victimization.

[The GAL] issued a formal report on June 28, 2021. As instructed, his report focused upon how disestablishment of

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paternity would affect [Child]. (To his credit, the GAL did not accept [Appellant’s] invitation to detour into the issue of fraud.) In focusing upon his assignment, [the GAL] met with the parties and [Child]. He described [Child] as an intelligent and focused young lady. He stated that [Child] was “confused” about how and why her relationship with “Dad” had changed so dramatically. [The GAL] described the emotion and tears shed by [Child] and he concluded that she has genuine love for [Appellant] and is suffering emotional pain as a result of what occurred in 2021. Ultimately, [the GAL] concluded that disestablishment of paternity would not be in the interest of [Child].

Following [the GAL’s] report, [Appellant] filed objections and asked this [c]ourt to strike the report from the record. This [c]ourt refused to grant [Appellant’s] motion.

The Factual Hearing was commenced on July 20, 2021. In accordance with our Opinion of April 27, 2021, we permitted [Appellant] to articulate and present evidence regarding his theory of fraud. Of necessity, the fraud-related testimony delved into [Mother’s] sexual and romantic history. In addition, we instructed the parties to focus upon the best interests of [Child]. As it related to that topic, we directed that [the GAL] provide sworn testimony in [c]ourt subject to cross-examination by both parties.

A Factual Hearing could not be completed on July 20, 2021. After several COVID-related postponements, the factual testimony relevant to our decision was completed on January 31, 2022. …

(Trial Court Opinion, filed 2/18/22, at 2-10) (internal citations omitted)

(emphasis in original).

At the July 20, 2021 hearing, Appellant testified that he was in a casual

relationship with Mother prior to Child’s birth. Appellant was not aware if

Mother was having any intimate relationships with other men while she was

intimate with Appellant. On February 3, 2008, Appellant and Mother had sex.

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Appellant remembered the date because it was Super Bowl Sunday. In mid-

to-late June 2008, Mother told Appellant she was pregnant with his child.

Mother said Appellant was the only possible father. Mother reassured

Appellant multiple times leading up to Child’s birth that he was Child’s father.

Based on Mother’s representations, Appellant testified that he never had a

reason to question paternity. Appellant attended some pre-natal

appointments with Mother. After Child’s birth while at the hospital, Appellant

had to sign various forms including an acknowledgment of paternity form.

Prior to signing, Appellant again asked Mother if he was the only possible

father. Mother assured Appellant that he was the only possible father. Mother

stated that if Appellant did not sign the form, then she would not let Child

have his last name. Appellant signed the form based on Mother’s assurances.

Appellant placed Child on his health insurance plan, but Mother made

most healthcare decisions regarding Child. Mother and Appellant lived

approximately 45 minutes away, and although Appellant visited with Child

after her birth, the visits were not regular. Appellant attended some of Child’s

well visits. Eventually, after consulting with a lawyer, Appellant obtained

partial physical custody. In 2015, Mother got married to J.P. (“Ex-Husband”),

whom she divorced in 2016. Prior to their marriage, Appellant observed that

Ex-Husband was regularly involved in Child’s life. After Mother’s divorce from

Ex-Husband, Ex-Husband no longer played a role in Child’s life.

In the beginning of 2020 when Appellant was working from home during

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the pandemic, he exercised more custodial time with Child. Since the time

Child could talk, Appellant tried to speak to her on the phone as many days

as possible. Once Child had her own phone, Appellant and Child frequently

had FaceTime calls. Over the years, Appellant felt a lot of push-back from

Mother if Appellant tried to express an opinion regarding Child that was not

aligned with Mother’s view.

In the spring of 2020, Appellant learned that he might not be Child’s

biological father. Appellant’s stepson’s father was adopted, and Appellant was

helping his stepson conduct a family tree project through Ancestry.com to

learn more about his heritage. The Ancestry.com results1 did not reveal Child

as part of Appellant’s familial matches. Instead, the test showed a close family

relation between Child and G.H. G.H. is someone who Appellant knew of in

the area. Initially, Appellant believed the test must be mistaken. Appellant

spent the next couple of months trying to verify the accuracy of the results.

In April or May of 2020, Appellant stopped paying child support, which

Appellant had paid voluntarily since Child’s birth. Appellant had job changes

due to the pandemic and was under financial stress. In late summer or fall of

2020, Mother filed for child support. During the week after Thanksgiving in

2020, Appellant brought up the Ancestry.com results to Mother. Appellant

____________________________________________

1 The court did not admit the results of the Ancestry.com test for the truth of

the matter asserted regarding paternity but merely to demonstrate Appellant’s state of mind after reading the results.

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was anxious to approach Mother on the topic because he anticipated an

argument. When he presented Mother with the Ancestry.com results, Mother

maintained that Appellant was Child’s father. Mother denied knowing anyone

with the last name shared by G.H.

Following the conversation, on December 3, 2020, Appellant e-mailed

Mother and proposed obtaining private genetic testing to confirm or deny the

accuracy of the Ancestry.com results. Mother said she would only proceed

through the court system. Mother also said that she was not comfortable

letting Appellant visit with Child following the discussion regarding the

Ancestry.com results. Mother permitted Child to see Appellant for a couple

hours on Christmas, but Mother distanced Child from Appellant regarding their

otherwise regularly scheduled visits.

Around December 2020 or January 2021, Appellant obtained medical

records showing that Mother had chlamydia during her pregnancy, and Mother

was admitted to the hospital in September 2008 for treatment. Appellant was

unaware that Mother had this infection during her pregnancy. Appellant

testified that he has never had chlamydia to his knowledge, and he would

have insisted on a DNA test to confirm paternity had Mother disclosed this

infection.

Appellant maintained this his relationship with Child is now non-existent.

Appellant no longer holds Child out as his own in the community. After the

visit on Christmas, Child removed personal belongings from Appellant’s home.

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After Christmas, Child attended the funeral of Appellant’s grandfather, with

whom Child was very close. Other than that event and the luncheon following

the funeral, Appellant has not seen Child.

On cross-examination, Appellant admitted that he sought shared

custody in the summer of 2020 even after receipt of the Ancestry.com results.

At that point, Appellant still doubted the accuracy of the test results and

believed he was Child’s father. (See N.T. Hearing, 7/20/21, at 5-114). The

court concluded the hearing following Appellant’s testimony, to resume at a

later date. The court further ordered that pending a final decision in the case,

all future support payments paid by Appellant were to be held in escrow by

the Domestic Relations office.

The hearing continued on January 31, 2022. Mother testified at the

hearing that at the time Child was conceived, she was in an “on-again, off-

again” relationship with Appellant. Mother agreed she had sex with Appellant

on February 3, 2008, which was Super Bowl Sunday. Mother said she also

had sex with Appellant about a week before that date. Mother said she notified

Appellant about the pregnancy a few months after discovering she was

pregnant. Mother denied that Appellant ever questioned paternity prior to

Child’s birth. Mother denied pressuring Appellant into signing the

acknowledgment of paternity after Child was born. Mother said that Appellant

told her in the hospital at the time of Child’s birth that his employer required

a paternity test for health insurance documents. Mother responded that if

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Appellant wanted to take a paternity test, then she would have given Child

her last name (and not the last name of Appellant) on the hospital paperwork

until the results came back. Appellant did not hesitate to sign the

acknowledgment of paternity after this brief discussion. Mother maintained

there was (and is) no reason to question paternity because Appellant is the

only person with whom she was sexually active at the time Child was

conceived. Appellant did not mention anything regarding paternity (aside

from the health insurance requirement discussion) to Mother until November

30, 2020.

Beginning when Child was approximately six months old, Appellant and

Mother had an informal custody arrangement whereby Appellant had custody

every other weekend. Appellant also saw Child during the holidays and Child

spent vacations with Appellant and his family. Appellant attended Child’s

medical and dental appointments. Appellant attended parent/teacher

conferences every year. Appellant also attended some of Child’s

extracurricular activities. Mother said Appellant and Child spoke regularly on

FaceTime.

On November 30, 2020, Appellant texted Mother indicating that he

wanted to have a conversation with her. During the ensuing conversation,

Appellant informed Mother that he had conducted an Ancestry.com project

several months before, and no one in his family matched with Child as being

a blood relative. Appellant told Mother that had she not filed for child support

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two weeks prior, Appellant would have “taken it [the Ancestry.com results] to

his grave.” Mother did not believe the accuracy of the results because she

insisted that Appellant is Child’s father.

Mother testified that this situation has been tough on Child because she

has not seen most of Appellant’s family since January 2021. Child expresses

to Mother that she misses Appellant and his family.

Mother explained that in May 2020, while Child’s school was virtual

during the pandemic, Appellant sought week-on/week-off custody. Mother

agreed and this shared custody arrangement continued until the fall of 2020

when in-person education resumed. During this time, Appellant exercised the

greatest amount of custodial time he had with Child since her birth. When in-

person learning resumed, the custody arrangement went back to Appellant

having every other weekend with Child, until Thanksgiving weekend.

Mother emphasized that she is certain Appellant is Child’s father because

she was not sexually active with anyone else during the relevant timeframe.

Regarding the sexually transmitted infection, Mother claimed she contracted

that from somebody else who she had been dating during her pregnancy, and

Mother was treated for it at the end of July 2008. Mother explained she had

been dating someone from June to August in 2008 while she was pregnant.

On cross-examination, Mother claimed that requiring Child to undergo a

paternity test would not serve her best interest. Specifically, Mother testified

that giving Child doubt about the status of paternity, when Mother is certain

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Appellant is her father, would not be in Child’s emotional best interest. Mother

also stated that she does not know anyone with the last name shared by G.H.,

who was identified as a relative of Child in the Ancestry.com results. Mother

admitted that she has a 2008 conviction for theft by unlawful taking, for which

she served probation. Mother also admitted that she lost her driver’s license

around 2017; she did not notify Appellant of her license suspension. Mother

maintained she had migraine issues around the time of her license suspicion

so she would not have driven even if she had her license during that period.

Mother maintained she never drove with Child when her license was

suspended. Mother explained that Child would have to give up some activities

if she would no longer receive child support payments from Appellant. (See

N.T. Hearing, 1/31/22, at 5-78).

Appellant’s wife, K.D., testified that Appellant was initially shocked by

the Ancestry.com results. K.D. said that she and Appellant tried to verify the

accuracy of the results, and they learned the results are 99.9% accurate. K.D.

claimed Appellant was scared to discuss the results with Mother. When

Appellant confronted her, Mother insisted Appellant is Child’s father. K.D.

denied that Appellant made the comment about taking the Ancestry.com

results to the grave if Mother had not filed for child support. K.D. stated that

the last time Appellant spent any meaningful time with Child was on Christmas

Eve of 2020. K.D. said that Child’s phone calls with Appellant and his family

stopped in January of 2021.

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K.D. testified that around 2017, Mother told K.D. and Appellant that she

could not drive because of bad migraines. Appellant transported Child more

often around that time. K.D. said that Mother still drove during the period

when she complained of migraines but usually shorter distances. K.D. later

learned Mother had been driving without a license.

K.D. testified that she no longer considers Child as part of their family.

When K.D. and Appellant tell people how many children they have, they no

longer count Child as one of their own. K.D. and Appellant specifically

excluded Child from their wills and removed her pictures from their home.

K.D. testified that Appellant believed he was Child’s father until early 2021,

when Appellant and K.D. received the medical records showing Mother’s

sexually transmitted infection, coupled with information from G.H. that Mother

had a close relationship with G.H.’s brother around the time of conception, as

well as Appellant and K.D.’s communications with Ancestry.com regarding the

accuracy of results. At that point, Appellant and K.D. no longer believed

Appellant was Child’s father. (See id. at 79-123).

G.H. testified that she has an Ancestry.com profile and that her

Ancestry.com results connect her with Child as “close family.” G.H. stated

that she knows Mother, as Mother was good friends with her brother, R.H.

G.H. confirmed that Mother “hung out” at her brother’s house approximately

eight to ten years earlier. G.H. testified that Mother and R.H. were in a serious

relationship around February 2008, and G.H. believed they were engaged to

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be married. G.H. explained that she has a genetic disorder called Ehlers-

Danlos syndrome, which is a connective tissue disorder that causes frequent

dislocations of joints. (Id. at 124-136).

K.D.’s mother, M.Q., testified that Appellant and Child had a good

relationship. M.Q. treated Child like an adopted granddaughter. M.Q.

explained that Appellant had little authority concerning decisions over Child’s

activities and medical appointments, as Mother made the decisions and

Appellant just had to accept them. (Id.at 137-145).

Mother’s father, K.L., Sr. (“Maternal Grandfather”), testified that he lives

with his wife, Mother, and Child. Maternal Grandfather was present when

Appellant confronted Mother about the Ancestry.com results. Maternal

Grandfather overheard Appellant make the comment about taking the

Ancestry.com results to his grave, but Maternal Grandfather could not recall

the precise context of that statement. Maternal Grandfather stated that Child

had a very close relationship with Appellant and his family. Maternal

Grandfather indicated that Child misses Appellant and his family. Maternal

Grandfather has no recollection of Mother having a relationship with anyone

named R.H. (Id. at 145-161).

On rebuttal, Appellant testified that if he made the comment about

taking the Ancestry.com results to his grave, that might have been his initial

response to the situation. Appellant clarified that after processing the

information more deeply, he could not keep the truth bottled up if he is not

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Child’s biological father. Appellant explained that G.H.’s genetic connective

tissue disorder sounds very similar to joint issues that Child has experienced,

which had been attributed to sports injuries. Appellant claimed he saw Mother

driving in 2017 when her license was suspended, around the time Mother had

been complaining of migraines. Appellant stated that his mother-in-law, M.Q.,

discovered that R.H. is a mutual Facebook friend of hers through Mother. In

other words, Facebook showed that Mother and R.H. are connected as friends

on social media.

Appellant testified that he began to reduce communication with Child in

January of 2021 because he did not want to confuse her or cause her more

emotional harm until the truth is determined. Appellant claimed that when he

met G.H., he believed her nose looked extremely similar to Child’s nose. (Id.

at 161-174).

On rebuttal, Mother confirmed that she does not know G.H. or R.H.

Mother denied that she was engaged to R.H. in February of 2008. Mother

stated that Child has never been diagnosed with a genetic connective tissue

disorder. Mother maintained that Child plays soccer, basketball, and lacrosse,

and periodically suffers knee injuries from those activities. Mother denied ever

driving while her license was suspended. (Id. at 174-179).

At the conclusion of Mother’s rebuttal testimony, the court indicated that

it had previously sentenced a man by the name of R.H. for creation of child

pornography, solicitation to create child pornography, corruption of minors,

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and intimidation of a witness. Based on court documents, the court confirmed

that the R.H. convicted of those offenses has a sister, G.H. Thus, the court

indicated that the R.H. mentioned in the proceedings as allegedly having a

past relationship with Mother is likely the same individual who has been

sentenced for sex offenses. As a result of his convictions, R.H. is prohibited

from having any contact with minors. The court stated it could take judicial

notice of R.H.’s conviction history because it is a matter of public record.

The GAL testified that he interviewed Child for approximately one hour

and conducted a few follow-up phone calls with her. In that time, Child

expressed her sadness based on her disconnection with Appellant, whom Child

regarded as her father for her whole life. The GAL believed Child displayed an

authentic emotional response from someone who feels a void in her life based

on Appellant’s disconnection. The GAL also interviewed Appellant and K.D.

Appellant maintained that he does not intend to have a relationship with Child

going forward. The GAL opined that it would not be in Child’s best interest to

disestablish paternity. The court admitted into evidence the GAL’s report,

over Appellant’s objection. (Id. at 185-239). Following the GAL’s testimony,

the court directed the parties to file post-hearing briefs and took the matter

under advisement.

On February 18, 2022, the court denied Appellant’s request for genetic

testing. In doing so, the court found “that the best interest of the child

paradigm can, should and must play a predominant role in our decision” and

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specifically rejected Appellant’s “argument that fraud precludes a

consideration of what is best for [Child].” (Trial Court Opinion at 13).

Although the court acknowledged that Appellant’s “questions about paternity

are not irrational[,]” the court stated that its decision would not hinge upon

an analysis of fraud. (Id. at 18). Rather, the court focused upon Child’s best

interests, which the court found were served if Appellant remained as Child’s

legal father. (Id. at 19-29). Additionally, the court directed that Appellant’s

previously escrowed child support payments be released to Mother within ten

days.

On February 28, 2022, Appellant filed a motion for reconsideration and

to stay/maintain the escrow of support payments pending an appeal. The

court denied Appellant’s motion for reconsideration on March 8, 2022. With

respect to the motion to stay, the court granted relief in part and denied relief

in part. Specifically, the court directed the Domestic Relations office to release

50% of all amounts currently held in escrow to Mother for Child’s support, and

to forward 50% of all future support payments to Mother. The court instructed

that the remaining 50% of the escrow fund and support payments should be

maintained in escrow.

On March 18, 2022, Appellant timely filed a notice of appeal and a

contemporaneous concise statement of errors per Pa.R.A.P. 1925(a)(2)(i).

Appellant presents five issues for our review:

Whether the trial court erred in finding that Appellant failed to establish fraud by a preponderance of the evidence, and

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improperly applied the standard of paternity by estoppel?

Whether the trial court erred in denying Appellant’s request for a paternity test and finding that Appellant “is considered the official parent of” the subject child prior to engaging in any factual finding on Appellant’s challenge to paternity?

Whether the trial court improperly appointed and admitted the report of a [GAL], where there is no legal authority for such appointment in an action for paternity by fraud?

Whether the trial court erred in denying Appellant’s stay of escrowed funds pending this appeal of the paternity action?

Whether the trial court abused its discretion in denying Appellant’s request for recusal, when prior to engaging in any finding of fact, the trial judge authored an email showing his bias against Appellant?

(Appellant’s Brief at 6).

In reviewing matters of child support and cases involving a question of

paternity, we will not disturb a trial court order absent an abuse of discretion.

Vargo v. Schwartz, 940 A.2d 459, 462 (Pa.Super. 2007).

An abuse of discretion exists if the trial court has overridden or misapplied the law, or if there is insufficient evidence to sustain the order. Moreover, resolution of factual issues is for the trial court, and a reviewing court will not disturb the trial court’s findings if they are supported by competent evidence. It is not enough for reversal that we, if sitting as a trial court, may have made a different finding.

Id. (quoting Doran v. Doran, 820 A.2d 1279, 1282 (Pa.Super. 2003)).

Further:

“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. 2006). 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

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determinations of the court below.” Id. (citation omitted).

Vargo, supra.

For purposes of disposition, we combine Appellant’s first and second

issues. In those issues, Appellant argues that the trial court failed to reconcile

its conclusion that Mother is at best uncertain about Child’s paternity, with

Pennsylvania’s principle of paternity by fraud. Appellant claims he relied on

Mother’s statements that he was Child’s biological father and did what any

“decent man would have done under the circumstances.” (Appellant’s Brief

at 17). Appellant insists that Mother informed him that he was Child’s

biological father both upon learning she was pregnant and at the time of

Child’s birth. In fact, Appellant contends that Mother threatened Appellant at

the time of Child’s birth that if he requested a paternity test and did not sign

the acknowledgment of paternity form, that Child would not bear his last

name. Appellant submits that he justifiably relied on Mother’s assertions that

he was Child’s biological father and paid child support and acted as Child’s

father throughout the years based on those representations.

Appellant emphasizes the Ancestry.com testing demonstrates that he

and Child have no genetic relationship, whereas the testing showed that G.H.

is Child’s “close relative.” Father concedes he is unsure who Child’s biological

father is, but he maintains that the Ancestry.com results suggest Child’s

biological father is an immediate family member of G.H. Appellant highlights

G.H.’s testimony that she knew Mother, and Mother was dating R.H. near the

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time of Child’s conception. Appellant submits that Mother’s refusal to admit

to sexual relations with another man near the time of Child’s conception

“should not be given more weight than the substantive and credible evidence

[Appellant] produced.” (Id. at 21). Appellant points out that Child resembles

G.H. Appellant further maintains that G.H. suffers from a rare genetic disorder

that causes issues with connective tissue and ligaments in joints. Similarly,

Child has seen doctors on several occasions for orthopedic issues.

Appellant also contends the trial court ignored other evidence

demonstrating Mother’s fraud. For example, in 2021, Appellant obtained

Child’s birth records and learned for the first time that Mother had chlamydia

during her pregnancy; Appellant denies ever having chlamydia. Appellant

maintains that Mother testified that she contracted chlamydia while dating

another man during her pregnancy. Appellant insists that if he knew Mother

was sexually active with other men during her pregnancy, he would have

insisted on a paternity test immediately after Child’s birth.

Appellant insists that he has distanced himself from Child’s life since

learning of Mother’s fraud, no longer holds Child out as his own, and they no

longer maintain a parent-child relationship. Appellant further complains the

court improperly weighed the credibility of the witnesses. Appellant claims

the court failed to consider Mother’s untruthfulness, especially in light of

Mother’s prior conviction involving dishonesty. Appellant also claims the court

focused solely on the best interests of Child as it relates to the doctrine of

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paternity by estoppel, without any regard for Appellant’s claim of fraud.

Appellant submits that “[i]njecting the best interest of a child into a paternity

by fraud action is like forcing a round peg into a square hole.” (Id. at 37).

Appellant emphasizes that the court erred by stating he was not entitled

to genetic testing simply because he signed an acknowledgment of paternity

when Child was born. Appellant asserts that other courts have ordered and

utilized the authenticity of genetic tests “to properly flesh out the merits of

fraud arguments and to get to the bottom of the truth of the matter asserted,

which is what a court is bound to do.” (Id. at 38). By denying genetic testing,

Appellant complains the trial court has invited more litigation. Appellant

points out that as Child’s legal father, Appellant could take Child at any future

time to obtain a private paternity test which will allow Appellant to resurrect

his fraud claim with definitive evidence of Mother’s untruthfulness, if the

results confirm Appellant’s suspicions of fraud. Appellant concludes the court

erred by rejecting his claim of fraud and denying genetic testing, and this

Court must grant relief. We agree that Appellant is entitled to genetic testing

under the unique facts of this case.

“The presumption of paternity, i.e., the presumption that a child

conceived or born during a marriage is a child of the marriage, …is one of the

strongest presumptions known to the law.” Vargo, supra at 463 (citation

omitted). Because the policy underlying the presumption is the preservation

of marriages, “the presumption of paternity applies only where the underlying

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policy to preserve marriages would be advanced by application of the

presumption.” Id. (emphasis in original). Thus, the presumption of paternity

is not applicable when there is no longer an intact family or a marriage to

preserve. Id. If the presumption of paternity is inapplicable, the court must

then consider whether the doctrine of paternity by estoppel applies to the facts

of the case. Id. at 464.

“Generally, estoppel in paternity issues is aimed at achieving fairness as between the parents by holding both mother and father to their prior conduct regarding paternity of the child.” Buccieri v. Campagna, 889 A.2d 1220, 1224 (Pa.Super. 2005) (quoting Freedman v. McCandless, 539 Pa. 584, 592, 654 A.2d 529, 533 (1995)). This Court has held that the principle of paternity by estoppel is well suited to cases where no presumption of paternity applies. Gulla v. Fitzpatrick, [596 A.2d 851, 858 (Pa.Super. 1991)]. The number of months or years a party held out another as the father of a child is not determinative of an estoppel claim. Id. “Rather, it is the nature of the conduct and the effect on the father and the child and their relationship that is the proper focus of our attention.” Id.

Estoppel has been used variously in cases involving paternity and support. See, e.g., Fish v. Behers, 559 Pa. 523, 741 A.2d 721 (1999) (holding as between mother and biological father, mother was estopped from asserting paternity of biological father, where she repeatedly assured her ex-husband that he was child’s biological father); Moyer v. Gresh, 904 A.2d 958 (Pa.Super. 2006) (holding as between putative father and biological father, biological father was estopped from challenging paternity of putative father where putative father raised child for nine years); Buccieri, supra (holding biological father was estopped from asserting paternity due to eight-year delay in accepting any responsibility as parent); J.C. v. J.S., 826 A.2d 1, 5 (Pa.Super. 2003)[, appeal denied, 576 Pa. 724, 841 A.2d 531 (2003)] (holding putative father was estopped from denying paternity because he continued to act as child’s father after his paternity was disproved); Gulla,

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supra (holding as between mother and putative father, mother was estopped from denying paternity of putative father where she had held him out as child’s father). Even in the context of a marriage, the principle of estoppel can be applied if fraud occurs. See also Doran, supra (holding husband was not estopped from denying paternity of child born during husband’s marriage to mother, where she deceived him into believing he was child’s biological father); Kohler[ v. Bleem, 654 A.2d 569 (Pa.Super. 1995), appeal denied, 541 Pa. 652, 664 A.2d 541 (1995)] (holding biological father could not assert estoppel to prevent presumptive father from denying paternity, in light of conclusive evidence of paternity, fraud and misrepresentation on issue of true identity of biological father, and absence of intact family).

* * *

“Estoppel in paternity actions is based on the public policy that children should be secure in knowing who their parents are….” Gebler v. Gatti, 895 A.2d 1, 3 (Pa.Super. 2006) (citing Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997)). “The doctrine is designed to protect the best interests of minor children by allowing them to ‘be secure in knowing who their parents are.’” Moyer, supra (internal citation omitted). The application of paternity by estoppel in any form is very fact specific and must be grounded in a close analysis of the circumstances of the case. Gebler, supra (citing T.L.F. v. D.W.T., 796 A.2d 358, 363 (Pa.Super. 2002)); Matter of Green, [650 A.2d 1072, 1075 (Pa.Super. 1994)]. The length of time involved is only one circumstance to be considered. Gulla, supra. This Court has also considered society’s concerns for stability in the child’s life, such as whether there is a stable family unit to preserve. Buccieri, supra. An additional factor is whether the child’s father “is willing to care [for the child]…and capable of doing so….” Moyer, supra at 963.

Conroy v. Rosenwald, 940 A.2d 409, 416-17 (Pa.Super. 2007).

Additionally, the relevant portion of the statute governing

acknowledgments of paternity provides as follows:

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(a) Acknowledgment of paternity.—The father of a child born to an unmarried woman may file with the Department of Public Welfare, on forms prescribed by the department, an acknowledgment of paternity of the child which shall include the consent of the mother of the child, supported by her witnessed statement subject to 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities). In such case, the father shall have all the rights and duties as to the child which he would have had if he had been married to the mother at the time of the birth of the child, and the child shall have all the rights and duties as to the father which the child would have had if the father had been married to the mother at the time of birth…

(g) Rescission.—

(1) Notwithstanding any other provision of law, a signed, voluntary, witnessed acknowledgment of paternity subject to 18 Pa.C.S. § 4904 shall be considered a legal finding of paternity, subject to the right of any signatory to rescind the acknowledgment within the earlier of the following:

(i) sixty days; or

(ii) the date of an administrative or judicial proceeding relating to the child, including, but not limited to, a domestic relations section conference or a proceeding to establish a support order in which the signatory is a party.

(2) After the expiration of the 60 days, an acknowledgment of paternity may be challenged in court only on the basis of fraud, duress or material mistake of fact, which must be established by the challenger through clear and convincing evidence. An order for support shall not be suspended during the period of challenge except for good cause shown.

23 Pa.C.S.A. § 5103(a), (g) (internal footnote omitted).

Thus, a signed acknowledgment of paternity may be challenged based

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upon fraud, duress or material mistake of fact. 23 Pa.C.S.A. § 5103(g). This

Court has explained the law regarding fraud in this context as follows:

In B.O. v. C.O., [590 A.2d 313 (Pa.Super. 1991)], this Court stated that “when an allegation of fraud is injected in an acknowledgment of paternity case, the whole tone and tenor of the matter changes. It opens the door to overturning settled issues and policies of the law.” B.O., [supra] at 315. This Court went on to create a narrow fraud exception for challenging paternity, which is otherwise a settled issue based on the signed acknowledgment. We adopted the traditional elements of fraud established in Pennsylvania jurisprudence:

(1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result.

Id. Recent cases have moved away from this rigid five- prong test which this Court acknowledged in B.O. as problematic and somewhat circular. [Id.] Our…decision of Glover v. Severino, 946 A.2d 710 (Pa.Super. 2008), provides additional guidance as to the elements of fraud in the context of challenges to acknowledgments of paternity:

A misrepresentation need not be an actual statement; it can be manifest in the form of silence or failure to disclose relevant information when good faith requires disclosure. Fraud is practiced when deception of another to his damage is brought about by a misrepresentation of fact or by silence when good faith required expression. Fraud comprises anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether by direct falsehood or innuendo, by speech or silence, word of mouth, or look or gesture.

Id. (quotations and citations omitted) (emphasis in original).

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In Glover, a mother had a brief sexual relationship with a putative father and became pregnant. Despite knowing that she had other sexual partners at the time of conception, the putative father signed an acknowledgment of paternity and paid child support, though his involvement in the child’s life was minimal and sporadic. Mother insisted that putative father was the father of the child, despite the results of later testing that revealed he was not. This Court held that despite the mother’s strong belief as to the identity of the biological father, her silence on the issue of other possible fathers and her failure to be forthcoming about the true probabilities of paternity constituted fraud by omission.

R.W.E. v. A.B.K., 961 A.2d 161, 168 (Pa.Super. 2008) (en banc). See also

N.C. v. M.H., 923 A.2d 499 (Pa.Super. 2007) (holding doctrine of paternity

by estoppel was inapplicable where appellant operated for over ten years

under false pretense that he was child’s father due to mother’s failure to

inform appellant of extramarital affair she had around time of child’s

conception); Gebler, supra (holding trial court erred in applying doctrine of

paternity by estoppel where appellant’s behavior as responsible father for first

eighteen months of child’s life was due to mother’s concealment of existence

of other sexual partners around time of child’s conception).

Indeed, this Court has explained:

The presumption that a child born during the marriage is a child of the marriage and the doctrine of paternity by estoppel grew out of a concern for the protection of the family unit; where the unit no longer exists, it defies both logic and fairness to apply equitable principles to perpetrate a pretense. In this case, application of estoppel would punish the party that sought to do what was righteous and reward the party that has perpetrated a fraud.

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Doran, supra at 1283-84 (emphasis added).

In K.E.M. v. P.C.S., 614 Pa. 508, 38 A.3d 798 (2012), our Supreme

Court upheld the continued viability of the paternity by estoppel doctrine

where the developed record demonstrates that doing so would serve the

child’s best interests. In analyzing whether the doctrine should apply, the

Court indicated that the best interests of the child “remains the proper,

overarching litmus, at least in the wider range of cases.” Id. at 525-26,

38 A.3d at 808 (emphasis added). In qualifying its holding, the Court was

clear to state that the strongest case of “overriding equities” to overcome

application of paternity by estoppel is the “typical fraud scenario (in which a

[putative father] is deluded into believing that a child is his own issue)[.]”

Id.at 525 n.7, 38 A.3d at 808 n.7. While the Court acknowledged that “even

in such circumstances, there are arguments to be made that the best interests

of a child should remain the predominate consideration,” the Court expressly

reserved any decision on how the best interests of the child should factor into

the analysis of a fraud scenario. Id.

Instantly, the parties were never married and there is no intact family

unit to preserve. Consequently, the presumption of paternity does not apply

here. See Vargo, supra. Nevertheless, the trial court applied the doctrine

of paternity by estoppel, reasoning that it is “beyond any doubt that [Child’s]

future life would be better if [Appellant] were to remain as her legal father.”

(Trial Court Opinion at 19). The court acknowledged that there is a legitimate

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question about whether Appellant is Child’s biological father; but the court

concluded Child’s best interests must be the overarching concern.

We are constrained to disagree with the trial court’s analysis. Since our

High Court’s decision in K.E.M., this Court has had occasion to apply its

principles to scenarios involving claims of fraud. Recently, in Hortman v.

Hortman, No. 2352 EDA 2021 (Pa.Super. Sept. 8, 2022) (unpublished

memorandum),2 this Court upheld the trial court’s finding of fraud and order

granting genetic testing. Although the appellee had held himself out as the

child’s father, the appellee did so based on the mother’s insistence that he

was the child’s father. In his petition for genetic testing, the appellee

presented evidence that another man was the child’s biological father. The

appellee also underwent private genetic testing, confirming that he was not

the child’s father.

In rejecting the mother’s claim of paternity by estoppel, this Court

discerned no abuse of discretion by the trial court in concluding that the

mother had perpetrated a fraud upon the appellee by (1) misrepresenting the

nature of her 2015 extramarital sexual encounter with another man; (2) her

adamant and persistent denial of the possibility that the other man could be

child’s biological father and her simultaneous ridicule of the appellee when he

questioned her about paternity; (3) the mother’s intention to induce the

2 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this

Court filed after May 1, 2019 for persuasive value).

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appellee to assume parental responsibility for the child; (4) the appellee’s

justifiable reliance upon the mother’s misrepresentation; and (5) the

appellee’s financial and emotional damage as a result. See id. at 22-23. This

Court also noted that the appellee did not continue to hold the child out as his

own after discovering that he was not the child’s biological father, and that

the appellee’s contact with the child had ceased.

This Court further held that the mother’s reliance on K.E.M. was

misplaced. In doing so, this Court explained: “In contrast to K.E.M., Appellee

in this case raised and proved a claim of fraud. Thus, K.E.M. is

distinguishable.” Hortman, supra at 29-30 (citing Ellison v. Lopez, 959

A.2d 395, 398 (Pa.Super. 2008) for proposition that even where father/child

relationship has been established, evidence of fraud may preclude application

of doctrine of paternity by estoppel). This Court went on to state that “if the

court estopped Appellee from challenging paternity, it would have punished

[the party] who had ‘sought to do what was righteous’ by assuming parental

duty of [the child], and it would have rewarded Mother who ‘perpetrated a

fraud.’” Hortman, supra at 30 (citing Doran, supra at 1283-84).

Here, Appellant has presented a colorable claim of fraud. Appellant’s

evidence of fraud includes, inter alia (1) Appellant’s actions taken after receipt

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of the Ancestry.com results;3 (2) testimony from Appellant and K.D. that G.H.

was a person connected as family to Child via the Ancestry.com results; (3)

G.H.’s testimony that Mother and G.H.’s brother, R.H., were engaged in 2008

around the time of Child’s conception; (4) the court’s judicial notice of the fact

that R.H. is a convicted sex offender, which might have provided a motive for

Mother to deny a sexual relationship with R.H.; (5) Mother’s steadfast refusal

to permit Child to undergo genetic testing to protect Child’s best interests,

which the trial court found incredible based on the minimally invasive testing

measures;4 and (6) Mother’s repeated assertions to Appellant that he is Child’s

biological father, upon which Appellant has relied since Child’s birth.

Certainly, if genetic testing confirms that Appellant is not Child’s

biological father, then he will have successfully proved fraud. In the absence

of genetic testing or an admission by Mother to engaging in sexual relations

with someone else around the time of Child’s conception, however, Appellant

will be unable to prove his claim of fraud. While our High Court recognized

that “there are arguments to be made that the best interests of a child should

remain the predominate consideration” in fraud cases, the Court expressly

3 We reiterate that the trial court did not admit the Ancestry.com results as

substantive evidence but only to demonstrate Appellant’s state of mind after receiving those results.

4 (See Trial Court Opinion at 16) (stating Mother’s “vague proclamation that

a blood test ‘would be traumatic for my daughter’ is simply not credible. Modern genetic tests are simple, easy and almost entirely pain-free”).

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declined to embrace such a holding. See K.E.M., supra at 525 n.7, 38 A.3d

at 808 n.7. We decline to extrapolate our holding today from the Court’s

comment in a footnote, which was mere dicta. Rather, we hold that to apply

the doctrine of paternity by estoppel under the circumstances of this case

would punish Appellant, who “sought to do what was righteous” by assuming

parental duty of Child, and reward Mother, who might be guilty of perpetrating

a fraud. See Doran, supra. See also N.C., supra; Gebler, supra;

Hortman, supra.

In so holding, however, we decline to accept Appellant’s position that

Child’s best interests are completely irrelevant in paternity disputes involving

claims of fraud. To the contrary, we simply do not hold, as the trial court did,

that a child’s best interests are elevated over the interests of a party who has

been defrauded. The analysis in cases such as these should turn on their

unique facts and consideration of all the relevant circumstances, which

necessarily includes evidence of fraud and the child’s best interests. Only in

cases where fraud is proven, will the “overriding equities” favor disestablishing

paternity, even if doing so would otherwise be against the child’s best

interests. Based upon the foregoing, we hold that Appellant has put forth

sufficient evidence of fraud such that he is entitled to genetic testing to prove

his claim.

In his third issue, Appellant argues there is no legal authority in

Pennsylvania for the appointment of a GAL in a paternity by fraud action.

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Appellant claims the court erred by relying on Pa.R.C.P. 1915.11-2 to make

this appointment, as that Rule governs actions for custody, not paternity.

Appellant insists the cases on which the court relied as authority to appoint

the GAL did not involve claims of fraud, so they are distinguishable. Appellant

concludes the court’s appointment of a GAL and subsequent admission of his

report was improper, and this Court must grant relief. We disagree.

Instantly, on April 27, 2021, the court scheduled a factual hearing for

July 20, 2021 and appointed a GAL to assist the court in determining the best

interests of Child. The order directed “that [the GAL] conduct an

investigation…with respect to whether and/or how [Child] would be affected

by a disestablishment of paternity…[and] to issue a written report on this issue

on or before July 1, 2021.” (Order, 4/27/21, at 1; R.R. at 72). The court

further directed that the GAL “shall be prepared to testify regarding his

investigation and the conclusions that flow from that investigation. He shall

be subject to cross-examination by both parties.” (See id.) In appointing the

GAL, the court stated the GAL “shall represent the best interests of the child

in accordance with Pa.R.C.P. 1915.11-2.[5] The GAL shall not act as the child’s

attorney or represent the child’s legal interests as an advocate in [c]ourt.”

(Id. at 2; R.R. at 73). On June 28, 2021, the GAL issued a report indicating

that it would not be in Child’s best interest to disestablish paternity. Appellant

5 See Pa.R.C.P. 1915.11-2(a) (providing for appointment of GAL to represent

best interests of child in custody action).

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objected to the GAL’s testimony and the report.

While we agree with Appellant that Rule 1915.11-2 regarding the

appointment of a GAL in custody proceedings is not directly applicable here,

we disagree with Appellant’s position that the court was prohibited from

appointing a GAL under the unique facts of this case. As previously stated,

while a child’s best interests do not take precedence over a colorable claim of

fraud in a paternity by estoppel case, they are not irrelevant, as Appellant

suggests. Rather, these types of cases must each be decided on their own

unique facts. See Gebler, supra. Significantly, Appellant cites no authority

that precludes a court from appointing a GAL in this context to aid the court’s

determination in a paternity dispute case. See, e.g., K.E.M., supra at 528,

38 A.3d at 809 (explaining that trial court has authority to appoint GAL to

advocate child’s best interests in paternity dispute); R.K.J. v. S.P.K., 77 A.3d

33 (Pa.Super. 2013), appeal denied, 624 Pa. 665, 84 A.3d 1064 (2014) (in

which trial court appointed GAL to discern child’s best interests in paternity by

estoppel case). Therefore, Appellant’s third issue merits no relief.

In his fourth issue, Appellant argues the court improperly ordered that

the support funds held in escrow should be released to Mother. Appellant

claims the court denied his request to stay release of the escrowed funds in

part, by ordering that 50% of the funds be released and 50% of future

payments to be held in escrow pending appeal. Appellant contends the court’s

ruling could be irreparable; recovery of those funds will likely involve even

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more litigation if this Court reverses the trial court’s decision. Appellant

concludes the court erred by denying his request to stay a release of the

escrowed funds. We disagree.

As a preliminary matter, appellate arguments which are not

appropriately developed are waived. Lackner v. Glosser, 892 A.2d 21, 29

(Pa.Super. 2006). Here, Mother points out that Appellant cites no legal

authority supporting his claim that the court was prohibited from denying

Appellant’s request for a stay, in part, and keeping some of the child support

payments in escrow. (See Mother’s Brief at 9). We agree with Mother’s

contention. In his brief, Appellant cites only to Pa.R.A.P. 1701(b)(1), which

discusses the effect of an appeal generally, and the trial court’s authority to

act while an appeal is pending. See Pa.R.A.P. 1701(b)(1). Appellant’s single

citation to this Rule of Appellate Procedure is insufficient to support his claim

on appeal, and we deem this issue waived for inadequate development. See

Lackner, supra. See also Irwin Union Nat. Bank and Trust Co. v.

Famous, 4 A.3d 1099 (Pa.Super. 2010), appeal denied, 610 Pa. 610, 20 A.3d

1212 (2011) (stating this Court will not act as counsel and will not develop

arguments on behalf of appellant).

In his fifth issue, Appellant argues the court erred by denying his request

for recusal. Appellant asserts the court evidenced its bias against Appellant

early in the proceedings, when it authored an e-mail to the parties on March

31, 2021 stating the court was concerned that men might “harass or gain

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leverage over women who are the objects of their ire” by alleging fraud.

(Appellant’s Brief at 44) (citing E-mail dated 3/31/21; R.R. at 41). Appellant

insists the court was predisposed to a finding of paternity by estoppel without

an analysis of Appellant’s fraud claim. Appellant emphasizes that the court

offered no comment or judgment on Mother’s deceitful conduct. Appellant

complains the court summarily denied his recusal motion and did not provide

any rationale for its denial until a supplemental opinion authored after

Appellant appealed. Appellant contends the court failed to appreciate the

gravity of its words in the March 2021 e-mail until after Appellant appealed.

Appellant claims that based on the court’s “assumptive and inflammatory

tone” in the March 2021 e-mail, “the die was cast, and [Appellant] had no

objective hope that his proof of Mother’s fraud would be heard by an

openminded jurist.” (Appellant’s Brief at 47). Appellant concludes the court

erred by denying his recusal motion, and this Court must grant relief. We

disagree.

Our scope and standard of review are as follows:

The denial of a motion to recuse is preserved as an assignment of error that can be raised on appeal following the conclusion of the case. We review a trial court’s decision to deny a motion to recuse for an abuse of discretion. Indeed, our review of a trial court’s denial of a motion to recuse is exceptionally deferential. We extend extreme deference to a trial court’s decision not to recuse. We recognize that our trial judges are honorable, fair and competent, and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially. Hence, a trial judge should grant the motion to recuse only if a

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doubt exists as to his or her ability to preside impartially or if impartiality can be reasonably questioned.

Interest of D.R., 216 A.3d 286, 292 (Pa.Super. 2019), aff’d, 659 Pa. 319,

232 A.3d 547 (2020).

“A party seeking recusal must assert specific grounds in support of the

recusal motion before the trial judge has issued a ruling on the substantive

matter before him or her.” Bowman v. Rand Spear & Associates, P.C.,

234 A.3d 848, 862 (Pa.Super. 2020) (internal citation omitted). “Recusal is

required whenever there is a substantial doubt as to the jurist’s ability to

preside impartially.” Id. “However, opinions formed by the judge on the basis

of facts introduced or events occurring in the course of the current proceedings

do not constitute a basis for a bias or partiality motion unless they display a

deep-seated favoritism or antagonism that would make fair judgment

impossible.” Id. at 862-63.

Instantly, the court explained its rationale for denying Appellant’s

recusal motion as follows:

In this case, this jurist had no prior knowledge or contact with either [Mother] or [Appellant]. Before presiding over the above-referenced case, this jurist had limited experience dealing with the issue of paternity by estoppel and fraud in the context of paternity. Because of this, we solicited legal briefs from the parties. The email sent by this jurist on March 31, 2021 merely advised about a concern of the [c]ourt so that said concern could be addressed in the parties’ briefs. At no time in our email did we accuse [Appellant] of any misconduct or improper motive. The third paragraph of the email made clear that this jurist had concerns because he had “encountered men in my years on the bench who would use such a process simply to harass

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or gain leverage over women who are the objects of their ire.” It became clear to this [c]ourt as the matter progressed that the motivation of [Appellant] transcended the concern articulated in the March 31, 2021 email.

At no time did this jurist have or display any “bias” against [Appellant]. We confronted a difficult legal question and a unique fact pattern as best we could, and we confronted that question impartially and fairly without bias or prejudice. We understand that [Appellant] disagrees and he can argue his disagreement to Pennsylvania’s Superior Court. However, this case should not be decided based upon a spurious recusal motion based upon “bias” that simply did not exist.

(Supplemental Trial Court Opinion, filed 3/31/22, at 6-7). The record supports

the court’s analysis.

Here, the court held a hearing on March 16, 2021, at which time it

expressed its concern that granting Appellant’s petition for genetic testing

could “open the floodgates” for any father to allege fraud and seek genetic

testing upon a separation from the mother. (See N.T. 3/16/21, at 4-5; R.R.

at 19-20). Notwithstanding the court’s concerns, it listened to Appellant’s

arguments and proceeded in a fair and impartial manner by ordering the

parties to brief the relevant legal issues. (See id. at 7; R.R. at 21).

Specifically, the court indicated that it did not want to hold a hearing to

develop Appellant’s fraud claim until reading legal briefs on what authority the

court had to disestablish paternity after Appellant had already signed an

acknowledgment of paternity and held Child out as his own for many years.

The court explained to Appellant’s counsel: “And it may well be that you’re

right and I need to do a factual hearing; and if that’s so, I’ll read your cases;

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and I’ll set the parameters for that factual hearing.” (Id. at 13; R.R. at 26).

The court entered an order following the March 16, 2021 hearing, directing

the parties to file briefs within 30 days.

Following the hearing, the parties informed the court’s judicial assistant

via e-mail that they agreed a factual hearing was necessary to resolve the

issues at hand. Based on their agreement, the parties sought to dispense with

filing pre-hearing briefs and to proceed directly to a hearing instead. In

response, the court drafted the March 31, 2021 e-mail, upon which Appellant’s

recusal motion is based. The e-mail reads:

Dear counsel—

I have received your emails indicating concurrence that a Factual Hearing is necessary. I will work with the Domestic Relations Office to schedule a date and time for such a hearing.

The above being said, I would still like a Memorandum of Law from both of you. I have looked briefly at the law pertaining to paternity by estoppel. With all due respect, I do not believe it is as clear as you make it out to be. While some factual issues may need to be resolved, I am not willing to entertain a proceeding without being able to establish parameters in advance.

I am concerned about the precedent of enabling a man to obtain a Factual Hearing that could involve questions to a woman about her sexual history. If all a father needs to do in order to open the door to such sensitive topics is allege fraud in a petition, there exists a significant danger of mischief occurring. I have encountered men in my years on the bench who would use such a process simply to harass or gain leverage over women who are the objects of their ire.

Because I would like to know how to set parameters in the

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above-referenced case, I still need you to file legal briefs as previously directed. Please focus on the scope of the Factual Hearing I will be conducting. Thank you for understanding my position.

Very truly yours,

[The court].

(E-mail, dated 3/31/21, attached as Exhibit B to Appellant’s Recusal Motion,

4/5/21).

Contrary to Appellant’s assertions, we see nothing in this e-mail that

rises to the level of a “deep-seated favoritism [for Mother] or antagonism

[against Appellant] that would make fair judgment impossible.” See

Bowman, supra. Rather, the court reiterated the concerns it expressed at

the March 16, 2021 hearing and made clear that it still wanted to review briefs

on the legal issues before it, so the court could set parameters for the scope

of the hearing. Additionally, when setting parameters for the hearing, the

court expressly permitted Appellant “to articulate his theory of fraud. This will

necessarily require [Appellant] to provide information regarding his belief that

someone else is [Child’s] father.” (Trial Court Opinion, 4/27/21, at 15).

Simply because the court ultimately disagreed with Appellant’s position

following the hearing, does not mean the court showed bias. On this record,

we see no reason to disrupt the court’s denial of Appellant’s recusal motion.

See Interest of D.R., supra.

Accordingly, we vacate the portion of the court’s order denying

Appellant’s request for genetic testing and remand for genetic testing such

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that Appellant will have an opportunity to prove his claim of fraud. Following

the results of the genetic testing, the trial court should proceed as it sees fit

under the circumstances. We affirm the court’s order in all other respects.

Order affirmed in part, vacated and remanded in part. Jurisdiction is

relinquished.

President Judge Emeritus Stevens joins this opinion.

Judge Bowes files a concurring opinion.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/06/2023

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