W.O., IV v. J.N.B.

• Court: Superior Court of Pennsylvania
• Decided: October 15, 2021
• Docket: 518 MDA 2021
• Status: Unpublished

Opinion

J-S26034-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

W.T.O., IV : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : J.N.B : : Appellant : No. 518 MDA 2021

Appeal from the Order Entered April 7, 2021 In the Court of Common Pleas of Berks County Civil Division at No(s): 2020-18674

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: OCTOBER 15, 2021

J.N.B. (“Mother”) appeals from the Order granting the request filed by

W.T.O., IV (“Plaintiff”), seeking genetic testing of a minor child, K.R.B.

(“Child”) (a female born in June 2016).1 We affirm.

Plaintiff filed a Complaint to Establish Paternity and For Genetic Testing

in December 2020, in the Berks County Court of Common Pleas.2 In the

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1 We have redacted the parties’ names in the caption and have redacted the

participants’ names in the remainder of this Memorandum, so that Child may not be identified, pursuant to our Internal Operating Procedure Rule § 65.44 (effective January 2021).

2 Plaintiff also filed a Complaint related to custody of the Child. For an unknown reason, the Berks County Prothonotary’s Office did not file the two Complaints under the same docket. As such, the Custody Complaint is docketed at No. 2020-18574, while the Paternity Complaint is docketed at No. 2020-18674. The instant appeal is taken from docket No. 2020-18674, regarding the Paternity Complaint. J-S26034-21

Paternity Complaint, Plaintiff asserted his belief that he is Child’s father and

sought genetic testing to establish paternity of Child pursuant to 23 Pa.C.S.A.

§ 4343.3 Mother served Plaintiff with her Answer and New Matter, raising the

3 Section 4343 states, in relevant part, as follows:

(a) Determination.-- Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury. A putative father may not be prohibited from initiating a civil action to establish paternity. The burden of proof shall be by a preponderance of the evidence. Bills for pregnancy, childbirth, postnatal care related to the pregnancy and genetic testing are admissible as evidence without requiring third-party foundation testimony and shall constitute prima facie evidence of amounts incurred for such services or for testing on behalf of the child. If there is clear and convincing evidence of paternity on the basis of genetic tests or other evidence, the court shall upon motion of a party issue a temporary order of support pending the judicial resolution of a dispute regarding paternity. The Supreme Court shall provide by general rule for entry of a default order establishing paternity upon a showing of service of process on the defendant and a subsequent failure to appear for scheduled genetic testing.

*** (c) Genetic tests.--

(1) Upon the request of any party to an action to establish paternity, supported by a sworn statement from the party, the court or domestic relations section shall require the child and the parties to submit to genetic tests. The domestic relations section shall obtain an additional genetic test upon the request and advance payment by any party who contests the initial test.

23 Pa.C.S.A. § 4343.

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doctrine of paternity by estoppel.4 The trial court delayed action on the

Custody Complaint pending resolution of the question of Child’s paternity. As

the trial court noted in its Opinion, Plaintiff will not have standing to seek

custody if paternity testing reveals he is not the father. Trial Court Opinion,

5/24/21, at 1.

On March 15, 2021, the trial court held an evidentiary hearing on

Plaintiff’s request for genetic testing. Plaintiff and Mother were present with

their respective counsel. They each testified on their own behalf. Plaintiff also

presented the testimony of his sister (“J.O.”), and had several photographs

admitted into evidence as exhibits. Mother had the Child’s birth certificate,

an Acknowledgment of Paternity form signed by Mother’s husband (“A.S.”),

and a message from Plaintiff admitted into evidence as exhibits.

In its Opinion, the trial court summarized the testimony provided by

Plaintiff, J.O., and Mother, and rendered credibility determinations as to each

individual, which we adopt as though fully set forth herein. See Trial Court

Opinion, 5/24/21, at 2-6. In particular, the trial court found Plaintiff to be

4 Mother captioned her New Matter and Answer at docket No. 2020-18674, the docket related to the Paternity Complaint and the docket from which Plaintiff took his appeal. However, her Answer and New Matter was filed at docket No. 2020-17854, the docket related to the Custody Complaint. Thus, Mother’s Answer and New Matter is not part of the certified record in the instant case. We have confirmed, however, that Mother’s Answer and New Matter was filed and docketed at No. 2020-17854 and Plaintiff responded to the same. It is unclear why her Answer and New Matter was filed at the incorrect docket, and our review has not been hampered by the error.

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attentive and thoughtful throughout the proceedings and found his testimony

to be “largely credible.” Id. at 2. Similarly, the trial court found J.O. to be

“both thoughtful in responding to questions and candid.” Id. at 3. However,

the trial court found Mother’s testimony “generally not credible—especially in

regard to questions concerning her past statements about the Child’s

parentage.” Id. at 4.

Following the hearing, the trial court entered an Order captioned,

Temporary Custody Order granting Plaintiff’s request for genetic testing

regarding paternity of Child. On April 7, 2021, Mother filed a Notice of Appeal

and a Concise Statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(a)(2)(i).

Before we address the merits of Mother’s appeal, we will address

Plaintiff’s argument that the Order at issue is interlocutory. Brief for Appellant

at 12. It is well-settled that “[a]n appeal lies only from a final order, unless

permitted by rule or statute.” Stewart v. Foxworth, 65 A.3d 468, 471 (Pa.

Super. 2013). Generally, a final order is one that disposes of all claims and

all parties. See Pa.R.A.P. 341(b).

Our Supreme Court has held that an order directing or denying blood

tests in a paternity action, though interlocutory, is immediately appealable.

Jones v. Trojak, 634 A.2d 201, 204 (Pa. 1993); id. (citing the Court’s

concern for the best interests of the child). See also Freedman v.

McCandless, 654 A.2d 529, 533-35 (Pa. 1995) (reaffirming the principle that

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an appeal from an order directing blood tests is appealable, even in a situation

where the mother and the alleged presumptive father were never married).

Accordingly, Mother’s appeal is properly before this Court. Jones, supra;

Freedman, supra.

In her appellate brief, Mother raises one issue: “Did the [t]rial [c]ourt

commit an error of law in refusing to apply the doctrine of estoppel and

granting [Plaintiff’s] request that the [c]ourt order [Mother] to submit to

genetic testing to determine paternity of [Child]?” Brief for Appellant at 4.

In its Opinion, the trial court suggests that we should find that Mother’s

Concise Statement is too vague to allow for meaningful appellate review, and

lacks specificity concerning her issue.5 Trial Court Opinion, 3/24/21, at 7.

Our review of the hearing transcript reveals that Mother primarily argued that

Plaintiff was estopped from seeking genetic testing by the doctrine of paternity

estoppel. N.T., 3/15/21, at 5 (wherein counsel for Mother stated she raised

the issue of paternity by estoppel in Mother’s New Matter); Id. at 9 (wherein

counsel for Mother stated that she was arguing estoppel at the hearing).

Moreover, the trial court set forth findings relevant to the issue of paternity

5 In her Concise Statement Mother framed her issue as follows: “Did the [t]rial

[c]ourt err when it granted Plaintiff’s Complaint to Establish Paternity and for Genetic Testing in light of the testimony and evidence presented at the Hearing on March 15, 2021?” Concise Statement of Errors Complained of on Appeal, 4/7/21.

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by estoppel in its Opinion, thus adequately facilitating our review.

Accordingly, we decline to find Mother’s claim waived.

In her brief, Mother argues that the trial court improperly granted

Plaintiff’s request for genetic testing, because it should have been denied

pursuant to the doctrine of estoppel. Brief for Appellant at 8. Mother argues

that the trial court committed an error of law in refusing to apply the doctrine

of estoppel to the present case because Father waited for four-and-a-half

years before he filed his Complaint for genetic testing, and she did not create

obstacles to his doing so previously. Id. at 22. Mother relies heavily upon

two cases, C.T.D. v. N.E.E., 653 A.2d 28 (Pa. Super. 1995), and Buccieri v.

Campagna, 889 A.2d 1220 (Pa. Super. 2005). Brief for Appellant at 8, 10.

We review an order in an appeal from a paternity determination for an

abuse of discretion. D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014) (citing

T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1 (Pa. Super. 2013)); 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.

[Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003)] (citations omitted).

“The finder of fact is entitled to weigh the evidence presented and assess its credibility.” Smith v. Smith, [] 904 A.2d 15, 20 (Pa.

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

Vargo, 940 A.2d at 462.

Traditionally, in paternity cases, the court first considers the

presumption of paternity, which only applies when a child is born into an intact

marriage. Id. at 463. Where, as here, the parties were unmarried at the

time of the child’s birth, the court addresses the applicability of the doctrine

of paternity by estoppel. Id. at 464. Estoppel is a paternity determination

that is based upon the conduct of the mother and the father, which bars a

party from disputing paternity. Id. Our Supreme Court has held that,

“paternity by estoppel continues to pertain in Pennsylvania, but it will apply

only where it can be shown, on a developed record, that it is in the best

interest of the involved child.” K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012).

Paternity by estoppel

is merely the legal determination that because of a person’s conduct (e.g., holding the child out as his own or supporting the child), that person, regardless of his true biological status, will not be permitted to deny parentage. … [T]he law will not permit a person in these situations to challenge the status that he or she has previously accepted. The doctrine of paternity by estoppel seeks to protect the interests of the child.

Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a certain person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being

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told that the father [s]he had known all [her] life is not in fact [her] father.

[O]ur Supreme Court recently considered the continuing applicability of the doctrine and held that it is the interests of the child that are paramount: “paternity by estoppel continues to pertain in Pennsylvania, but it will apply only where it can be shown, on a developed record, that it is in the best interests of the involved child.” K.E.M. v. P.C.S., [], 38 A.3d 798, 810 (Pa. 2012).

T.E.B., 74 A.3d at 173-74 (some quotation marks and citations omitted).

D.M. 87 A.3d at 329-30. “Where [paternity by] estoppel is applied, blood

tests may be irrelevant, for the law will not permit a person in estoppel

situations to challenge the status which he or she has previously accepted.

Only when estoppel does not apply will blood tests be ordered.” Id. at 327

(citing Freedman, 654 A.2d at 532).

In her brief, Mother relies upon C.T.D. In C.T.D., this Court addressed

whether a putative father had the right to request court-ordered blood tests

to determine paternity. C.T.D., 653 A.2d at 29. When the child was

conceived, the mother was engaged in sexual relationships with three men:

M.C.E, C.T.D., and S.M. Id. The mother’s contact with C.T.D. lessened

during her pregnancy. Id. The child was born in June 1991. Id. Two days

after the birth of child, the mother told C.T.D. that the baby was a male, and

that she was now with M.C.E. Id. At that point, communication between

C.T.D. and the mother had ceased. Id. On December 31, 1991, M.C.E. and

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the mother were married, and a new birth certificate was issued for the child

naming M.C.E. as the father. Id.

When the child was almost two years old, C.T.D filed a complaint in

custody and a petition for blood tests. Id. The mother refused to submit to

the testing. Id. After an evidentiary hearing, the trial court ordered the tests.

Id. On appeal, the mother claimed that C.T.D. was estopped from requesting

the tests, because his petition was not filed until the child was almost two

years old and after the mother and M.C.E. had established a family unit. Id.

at 60-61.

On appeal, this Court concluded that the presumption of paternity does

not apply because the mother and M.C.E. were not married when the child

was born. Id. at 30-31. This Court reversed the Order granting the putative

father’s petition for testing, and remanded for a determination of whether

C.T.D.’s actions constituted an abandonment of the child, and whether he

should be estopped from raising his claim of paternity. Id. We instructed

that “[p]art of that determination should examine whether [the mother] and

M.C.E. by their actions frustrated C.T.D.’s ability to seek custody or visitation.”

Id. (emphasis added). Thus, C.T.D. offers Mother no basis for relief.

Mother similarly relies on Buccieri. In that case, the child’s mother

appealed from an order granting the putative father’s petition for paternity

testing. Buccieri, 889 A.2d at 1221. The child was born in November 1996.

Id. The putative father waited until March 2004 to file his complaint for partial

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custody and his petition for paternity testing. Id. The panel in Buccieri

stated as follows:

[The putative father] has been absent from [the child’s] life over the course of her twelve years. [The child’s m]other and [her h]usband have taken the entire responsibility for [the child]. [The putative father] is equitably estopped from undoing the situation that he created, by his words and by his failure to act.

Id. at 1226-27 (some citations omitted). The Court found that even if it

accepted putative father’s assertion that he did not know about the child’s

birth until four years after she was born, he took no action to assert his

parental rights until another four years had passed:

[The putative father’s] own delay and inactivity for eight years now bars him from confirming or asserting his paternity through genetic tests. When balanced against societal concerns for constancy in the child’s life, we see no reason to allow [the putative father] to march into [the child’s] life at this late date. As a practical matter, [the child’s] health and social history can still be completed. The record raises no genuine question as to whether [the putative father] is [the child’s] biological father. Under the circumstances of this case, [the putative father] is estopped by his own past conduct from obtaining genetic tests to establish his paternity and/or assert his paternal rights.

Buccieri, 889 A.2d at 1228 (emphasis in original, citation omitted). Here,

unlike in Buccieri, Father was not voluntarily absent from Child’s life.

In the instant case, the trial court explained its bases for ordering

genetic testing as follows:

As previously mentioned, the [t]rial [c]ourt found Plaintiff to be generally credible in testifying — most specifically that he was engaged in a sexual relationship with Mother at or around the time the Child was conceived. Plaintiff was also credible when he testified that Mother told him he was the father of the Child. [J.O.]

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was found to be credible in her testimony as well, most especially that Mother told her Plaintiff was the father and that [J.O.] was the Child’s aunt.

In stark contrast, Mother’s testimony was largely unbelievable. Mother tried to explain that her statement about Plaintiff not being the “father she needs him to be” was general and not specific to the Child. Mother also tried to explain that calling [J.O.] the Child’s “aunt” was something she generally does with friends and not specific to a familial relationship with the Child. Mother tried to explain that, although the Child was born within nine months of Mother and Plaintiff being in a sexual relationship, the Child could not be Plaintiff’s [child] because she was born four weeks early. Mother tried to explain that the reason [A.S.] signed an Acknowledgment of Paternity in May 2018 [was] because she wanted the Child to be eligible for [A.S.’s] benefits. It was not, she suggests, in response to Plaintiff’s message to [A.S.] two days earlier asking to see the Child. Frankly, the [t]rial [c]ourt does not believe Mother when she says any of these things.

Having found Plaintiff met his burden by a preponderance of the evidence, the [t]rial [c]ourt granted the request for genetic testing. The results of testing will either show Plaintiff is the father by clear and convincing evidence or reveal he is not the father. Should the latter be shown, the [t]rial [c]ourt will resolve the pending Custody Complaint through dismissal due to lack of standing. If Mother is certain the Child is not Plaintiff’s [child], then it would seem logical for her to assume genetic testing would confirm her assertion and welcome the validation it would provide. [This is especially true,] considering Mother put forth no suggestion — either through argument or testimony — that a buccal swab of the Child’s mouth would present any sort of danger, harm, or distress to the Child. Instead, it would seem Mother believes the same thing the [t]rial [c]ourt has found to be established by a preponderance of the evidence — Plaintiff’s claim of paternity is valid.

Trial Court Opinion, 5/24/21, at 8-10 (emphasis in original) (footnotes

omitted).

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Given the facts of the instant case and the trial court’s findings and

determinations, both C.T.D. and Buccieri are distinguishable from the instant

matter. Herein, the trial court found credible Plaintiff’s testimony that he has

made attempts to have a relationship with Child, and that Plaintiff sent Child

birthday cards and has sent Mother’s Day cards, but received no reply. See

Trial Court Opinion, 5/24/21, at 3. The trial court additionally credited

Plaintiff’s testimony that Mother had created obstacles to his seeking genetic

testing any sooner. Id. Indeed, Plaintiff testified that Mother had threatened

to have him arrested for harassment, through his probation officer, if he tried

to be involved in Child’s life.6 N.T., 3/15/21, at 19. J.O. confirmed that Mother

had threatened to “do everything to try to keep [Plaintiff] out [of her life].”

Id. at 37. Moreover, the trial court repeatedly stated that it did not find

Mother’s testimony to be credible. Trial Court Opinion, 5/24/21, at 4 (finding

that Mother’s testimony was “generally not credible”); id. at 10 (noting that

in contrast to Plaintiff’s and J.O’s testimony, “Mother’s testimony was largely

unbelievable”). We cannot overturn the trial court’s findings of credibility in

this regard. See Vargo, 940 A.2d at 462.

After careful review, we conclude that the trial court properly considered

the testimony and documentary evidence in applying the doctrine of paternity

6 The parties stipulated that Plaintiff was discharged from parole in October

2020. N.T., 3./15.21, at 18. Plaintiff filed both the Custody Complaint and the Paternity Complaint shortly after he was discharged from parole.

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by estoppel. Our review of the record further confirms that there is sufficient,

competent evidence in the record to support the trial court’s determinations.

As such, we may not disturb them. Vargo, supra. We therefore affirm the

Order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/15/2021

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