J-A35044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.B., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.
H.D., a/k/a H.S., and D.G.,

Appellees No. 1110 WDA 2015

Appeal from the Order entered June 18, 2015, in the Court of Common Pleas of Washington County,

Civil Division, at No(s): 2014-6847

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 19, 2016

S.B. appeals from the Order denying his Petition t o establish paternity

and for genetic testing to prove his paternity of t he minor child, K.G.

(“Child”), who was born in May of 2009. The Order also sustained the

Preliminary Objections filed by D.G., the former pa ramour of Child’s

mother, 1 H.S., formerly known as H.D, (“Mother”) to the Com plaint for

Custody filed by S.B., and dismissed the Complaint with prejudice. We

affirm.

The trial court set forth the underlying facts as f ollows:

[Mother] is the biological mother of [Child.] S.B . and [Mother] never dated[,] but had sexual relations in June and July of 2008. When [Mother] learned that she was pregna nt, S.B.

1 D.G. is named as the father of Child on her birth certificate, and Mother, who had been involved in an intimate relationship w ith D.G. prior to Child’s birth, moved in with him shortly after Child was bo rn. See Trial Court Opinion, 8/4/15, at 2.J-A35044-15

- 2 -

claims that he provided [Mother] with money for an abortion and the two parted ways. [Mother] denied accepting mon ey for an abortion. In fact, she denied having any conversat ion at all with S.B. about her pregnancy, but she agreed that they parted ways. S.B. testified that in the spring of 2009, he becam e aware[,] through mutual friends[,] that [Mother] was in the hospital in labor. At the hearing, he claimed that he was “lie d to and told [C]hild wasn’t mine.” However, he also stated that it could have been as early as 2012 that others told him [that C] hild resembled him.

According to S.B., [Mother] was in a relationship with D.G. at the same time that he and [Mother] had sexual re lations; however, [Mother] maintains that she and D.G. were “off” at the time that she had relations with S.B. [C]hild was not born into an intact marriage[,] as [Mother] was not married a t the time [C]hild was born; however, D.G.’s name is listed as the father on [C]hild’s birth certificate. [Mother] stated that she moved in with D.G. shortly after [C]hild was born.

[Mother] and D.G. are no longer in a relationship. They maintain a shared custody agreement[,] which they h ave consistently followed for the past three or four ye ars. In July 2014, S.B. attended a wedding where he observed [C] hild for the first time in person. He testified that [C]hil d looked like him because she was “skinny, tall, and long legged.” H e further stated that, “... when I turned and looked, it just g ave me an eerie feeling. That I was lied to. That I was tri cked.” At the hearing, testimony revealed that [C]hild looks bira cial. [2]

... On November 5, 2014, S.B. filed a [C]omplaint for c ustody against [Mother] regarding ... [Child]. In an [O]rde r dated December 10, 2014 [the trial court] scheduled a hea ring for February 24, 2015[,] in order to determine whether D.G. should be permitted to intervene in the custody matter. I n a consent Order dated December 11, 2014, D.G. was granted lea ve to intervene in the matter and the Prothonotary was di rected to amend the caption to include D.G. On December 29, 2014, D.G. filed an [A]nswer to S.B.’s custody [C]omplaint and [N]ew [M]atter. On January 6, 2015, S.B. presented a [P] etition to establish paternity and for genetic testing, and on January 7, 2015, D.G. filed [P]reliminary [O]bjections to the custody

2 S.B. is African American while Mother is Caucasian

.J-A35044-15

- 3 -

[C]omplaint. Thereafter, [the trial court] schedul ed a hearing to take place on May 29, 2015. On April 15, 2015, S.B . submitted a brief in support of the [P]etition to establish p aternity and for genetic testing. On April 30, 2015, [Mother] and D .G. submitted briefs in opposition to S.B.’s [P]etition to establ ish paternity. On May 20, 2015, D.G. submitted a brief in opposition to S.B.’s custody [C]omplaint, and on May 22, 2015, S.B. subm itted a brief in opposition to D.G.’s [P]reliminary [O]bjec tions.

Trial Court Opinion, 8/4/15, at 1-3 (citations omit ted, footnote added).

On May 29, 2015, the trial court held a hearing on S.B.’s Petition to

establish paternity and for genetic testing, and on D.G.’s Preliminary

Objections. On June 18, 2015, the trial court ente red an Order denying

S.B.’s Petition to establish paternity and for gene tic testing, sustaining D.G.’s

Preliminary Objections, and dismissing with prejudi ce the Complaint for

Custody filed by S.B. On July 17, 2015, S.B. timel y filed a Notice of Appeal, 3

along with a Concise Statement of Errors Complained of on Appeal pursuant

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

On appeal, S.B. raises one issue: “Under all the c ircumstances of this

case, was [S.B.] estopped from claiming paternal ri ghts with respect to

[C]hild by his delay in taking action?” S.B.’s Bri ef at 2.

Our standard of review of a trial court’s order re lating to paternity is

whether the trial court abused its discretion or co mmitted an error of law.

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

3 “This Court accepts immediate appeals from orders directing or denying genetic testing to determine paternity.” Barr v. Bartolo , 927 A.2d 635, 638 (Pa. Super. 2007) (citation omitted).J-A35044-15

- 4 -

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

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

omitted).

S.B. challenges the trial court’s finding that his delay in asserting his

rights precluded him from seeking a determination o f Child’s paternity under

the doctrine of paternity by estoppel. S.B.’s Brie f at 10. S.B. claims that

because Mother did not inform him that he had becom e a father, he was

never given the opportunity to act as a father. Id . at 12-13, 15. S.B.

asserts that he repeatedly expressed concerns about the paternity of Child,

but had only second-hand reports that Child, who is biracial, resembled him,

whereas both Mother and D.G. are Caucasian. Id . at 10, 16; see also id . at

15 (wherein S.B. states that neither Mother nor D.G . denied that he could be

the father of Child). S.B. argues that, if, at the time of Child’s birth, the

complexion of Child puzzled Mother, she could have inquired about the

biracial appearance of Child. Id . at 16. S.B. points out that, when he saw

Child in person, he acted promptly to establish pat ernity through genetic

testing. Id . at 12. S.B. alleges that while Child will inevit ably learn that

D.G. is not her biological father, he does not seek to shut D.G. out of Child’s

life. Id . at 16, 18; see also id . at 16-17 (wherein S.B. claims that if hisJ-A35044-15

- 5 -

paternity if confirmed, a determination as to a new custody arrangement

should be conducted with Child’s best interests in mind). S.B. urges that we

should reverse the trial court Order and allow gene tic testing so that Child

will know that her birth father did not abandon her

. Id . at 18.

In making a legal determination of the paternity of a child, we must

consider the following:

[F]irst, one considers whether the presumption of p aternity applies to a particular case. [4] If it does, one then considers whether the presumption has been rebutted. [5] Second, if the presumption has been rebutted or is inapplicable, o ne then questions whether estoppel applies. Estoppel may b ar either a plaintiff from making the claim or a defendant from denying paternity.

N.C. v. M.H. , 923 A.2d 499, 502-503 (Pa. Super. 2007) (citation omitted,

footnotes added); see also K.E.M. v. P.C.S. , 38 A.3d 798, 810 (Pa. 2012)

(holding that “paternity by estoppel continues to p ertain in Pennsylvania, but

it will apply only where it can be shown, on a deve loped record, that it is in

the best interest of the involved child.”).

4 “The presumption of paternity, i.e. , the presumption that a child conceived or born during a marriage is a child of the marriag e, has been described by our Supreme Court as one of the strongest presumpti ons known to the law.” Vargo , 940 A.2d at 463 (citation and quotation marks omi tted). Because the policy underlying the presumption is the preser vation of marriages, the “presumption of paternity applies only where the un derlying policy to preserve marriages would be advanced by application of the presumption.” Id . “When there is no longer an intact family or a m arriage to preserve, then the presumption of paternity is not applicable .” Id

.

5 “In Pennsylvania, impotency/sterility and non-acce ss constitute the only ways to rebut the presumption of paternity.” Vargo , 940 A.2d at 463. “Notably, blood tests cannot be offered to rebut th e presumption of paternity.” Id

.J-A35044-15

- 6 -

Paternity by estoppel is merely the legal determina tion that because of a person’s conduct ( e.g. , holding the child out as his own or supporting the child), that person, regardle ss of his true biological status, will not be permitted to deny pa rentage.... The 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 interest s of the child.

Estoppel is based on the public policy that childre n should be secure in knowing who their parents are. If a cert ain 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 told that the father [s]he had known all h[er] life is not in fact h[er] father.

... [I]f there is no difference in the supportive rel ationship available from the psychological and biological fat hers, we conclude that the responsibility for fatherhood sho uld lie with the biological father.

The doctrine has most usually been applied to (1) p reclude a man who had held a child out as his own from avoidi ng further support of the child after his relationship with th e mother had ended; or (2) preclude a woman who had held one man out as her child’s father from seeking support from anothe r man later on. In other words, those who mislead a child as t o the identity of his or her natural father, [ sic ] cannot then turn around and disprove their own fiction to the detriment of the child.

Yet, estoppel also can serve to preclude a biologic al father from asserting his parental rights.

***

[I]f a biological father is not obstructed from pur suing his parental claim and he acquiesces in the fiction tha t someone else is his child’s father, the doctrine of estoppel may be invoked to bar his later attempt to assert his rights.

T.E.B. v. C.A.B. , 74 A.3d 170, 173-75 (Pa. Super. 2013) (citations,

quotation marks, brackets, and some paragraph break s omitted). “[W]here

estoppel is applied, blood tests may be irrelevant, for the law will not permitJ-A35044-15

- 7 -

a person in estoppel situations to challenge the st atus which he or she has

previously accepted. Only when estoppel does not a pply will blood tests be

ordered.” D.M. , 87 A.3d at 327 (citation omitted).

With regard to a fraud allegation in a paternity ca se, our Court noted

the following:

In B.O. v. C.O. , 404 Pa. Super. 127, 590 A.2d 313 (1991), this Court stated that “when an allegation of fraud is injected in [an acknowledgement of paterni ty] case, the whole tone and tenor of the matter change s. It opens the door to overturning settled issues and po licies of the law.” B.O. , 590 A.2d 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-p rong test[,] which this Court acknowledged in B.O. as problematic and somewhat circular. B.O. , 590 A.2d at 315. Our recent decision of Glover v. Severino , 946 A.2d 710 (Pa. Super. 2008), provides additional gui dance as to the elements of fraud in the context of chall enges 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 hisJ-A35044-15

- 8 - 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).

R.W.E. v. A.B.K. , 961 A.2d 161, 167-68 (Pa. Super. 2008).

Here, the trial court found that S.B. was estopped from asserting his

alleged parental rights 6 based on the following:

In the present case, S.B. seeks to establish that h e is the father of ... [C]hild, and he intends to seek custody if ver ified by a paternity test. However, the [c]ourt finds that he is estopped from asserting a claim of paternity, thus no blood tests can be ordered. S.B.’s failure to act during the first fi ve or six years of [C]hild’s life effectively estops him from now rais ing a claim of paternity.

Specifically, S.B. testified that he “heard that [M other] was at the hospital delivering.” Hrg. Transcr. 23:19-20; Hrg. Transcr. 32:6-12. When [C]hild was one year old, he started to think that [C]hild was his. Hrg. Transcr. 53:2-5. He st ated that he has seen pictures of [C]hild, and he also noted tha t when the baby was about a year old, she started to look bira cial. Hrg. Transcr. 48:20-21; Hrg. Transcr. 52:24-25. Further , S.B. admitted that as early as 2012, he was informed tha t [C]hild resembled him. Hrg. Transcr. 37:2-8. Despite this information, he did not come to court at this time. Hrg. Transc r. 37:18-19. When asked why he did not come to court sooner, S.B . stated that he “didn’t want this to be a bad situation” be cause the parties have mutual friends. Hrg. Transcr. 42:2-3. When pressed further, he admitted he “did not have the f inancial means.” Hrg. Transcr. 43:20-21. He also stated th at he has

6 S.B. notes that the presumption of paternity is no t applicable in this case because Mother never married D.G. See S.B.’s Brief at 10.J-A35044-15

- 9 -

always had concerns but “didn’t know the proper cha nnels to take.” Hrg. Transcr. 46:14-15. Based on the afore mentioned, it is evidence that he should have acted sooner.

The testimony of T.S. supports the notion that S.B. was aware that [C]hild may be his and that he simply waited t oo long to act. T.S., who graduated from high school with the parties, testified at the hearing. According to T.S., durin g the first year of [C]hild’s life, she and S.B. had a conversation at the [bar] where she was a bartender at the time. Hrg. Transc r. 64:13-21. S.B. was drinking during the conversation. Accordi ng to T.S., S.B. informed her that he was aware that [Mother] w as pregnant, he had given her money to get an abortion , and he knew that she did not get the abortion. T.S. furth er testified that S.B. stated during this conversation that he k new that [C]hild was his. Hrg. Transcr. 65:5-8. T.S. state d she had several subsequent conversations with S.B. over the years, and “It was always the same thing. Just, you need to g et a hold of [Mother] You need to tell her ... I want to see my d aughter. I’m going to take her to court ... it was always the same thing.” Hrg. Transcr. 66:22-25. According to T.S., S.B. never a sked her for [Mother]’s phone number. Hrg. Transcr. 67:18-20.

Despite testimony which clearly points to the fact that S.B. knew he may be the biological father of [C]hild, he wait ed approximately five years to seek court intervention . [C]hild is now six years old and D.G. is the only father she h as ever known. D.G. has cared for [C]hild her entire life. The [c]ourt finds that S.B.’s conduct precludes him from interv ening and disrupting [C]hild’s life at this point in time. H e cannot be permitted to challenge a status[,] which he previou sly accepted.

Trial Court Opinion, 8/4/15, at 5-6 (citation omitt ed). We agree.

Moreover, with regard to S.B.’s claim that Mother h ad committed

fraudulent misrepresentation by omission, the trial court found the following:

The evidence in this case does not amount to [] a f inding [of fraud]. There is no evidence that [Mother and D.G. ] misrepresented anything to S.B.[,] nor is there any evidence that S.B. actually relied on an alleged misrepresen tation. S.B. claims that he could not locate or contact [Mother] and that he was tricked. However, the testimony revealed that the partiesJ-A35044-15

- 10 -

have numerous friends. According to [Mother], she has had the same cell phone number for two and a half to three years. Hrg. Transcr. 78:17-25. Her number has always been in t he white pages of the phone book under her maiden name. Hrg . Transcr. 79:24-25. She has maintained a Facebook account si nce late 2009 or early 2010 and posts pictures of [Child] to this page. Hrg. Transcr. 82:17-22. She informed the [c]ourt t hat S.B. was not blocked from her [F]acebook page until November 2014 when these proceedings ensued. Hrg. Transcr. 83:7- 10. Additionally, S.B. knows where D.G. lives and admit ted that he has seen [F]acebook pictures on D.G.’s [F]acebook p age. It is evidence to the [c]ourt that [Mother] and D.G. coul d have been reached, and there is no evidence to suggest that t hey did anything to prevent S.B. from contacting them. S.B . himself admitted he would have sought court intervention so oner, but he did not have the financial means, he did not know t he proper channels, and he did not want to create a bad situa tion. Hrg. Transcr. 43:13-18; Hrg. Transcr. 46:14-15; Hrg. Tra nscr. 42:2- 3. This proves that he was not misled[,] nor did h e rely on any alleged misrepresentation.

The evidence clearly demonstrates that S.B. waited too long to assert his rights, and his inaction is not the prod uct of fraud. Therefore, paternity by estoppel is applicable, and S.B. is precluded from proceeding any further in asserting parental rights.

Trial Court Opinion, 8/4/15, at 7-8. We further no te S.B. testified that, as

early as 2012, people had informed him of Child’s r esemblance to him. N.T.,

5/29/15, at 37; accord Trial Court Opinion, 8/4/15, at 2.

The trial court’s findings, i.e. , that S.B. waited too long to assert his

rights as Child’s father while acquiescing to Mothe r’s paramour, D.G., as the

father of Child, and that Mother did not commit fra ud, are supported by the

record. See Trial Court Opinion, 8/4/15, at 5-8; see also B.K.B. v. J.G.K. , 954 A.2d 630, 636 (Pa. Super. 2008) (concluding tha t the alleged biological

father’s failure to pursue parental rights until ch ild was nine years oldJ-A35044-15

- 11 -

estopped him from challenging the mother’s former h usband’s status as the

child’s father); Moyer v. Gresh , 904 A.2d 958, 962 (Pa. Super. 2006)

(concluding that where biological father voluntaril y relinquished his parental

rights to another man during the first nine years o f child’s life, biological

father was estopped from asserting his parental rig hts towards the child); In

re M.J.S. , 903 A.2d 1, 10 (Pa. Super. 2006) (holding that th e biological

father was estopped from asserting paternity where he knew that another

man had been named the father, and despite having t he right to

acknowledge paternity, he waited to assert paternit y until three years after

the child had been adopted); Buccieri v. Campagna , 889 A.2d 1220, 1228

(Pa. Super. 2005) (holding that where the putative father was inactive for

eight years, he was “estopped by his own past condu ct from obtaining

genetic tests to establish his paternity and/or ass ert his paternal rights”). As

the trial court’s findings are supported by compete nt evidence, we will not

disturb them. See Vargo , 940 A.2d at 462. Accordingly, we affirm the tria l

court Order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/19/2016J-A35044-15

- 12 -