J-S22030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.A.R.                                           IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

R.E.M., III

                            Appellant                No. 1976 WDA 2014


                     Appeal from the Order October 28, 2014
                  In the Court of Common Pleas of Blair County
                   Domestic Relations at No(s): DR 769-2013


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 05, 2015

        R.E.M., III (“Father”) appeals from the order of the Court of Common

Pleas of Blair County denying his petition for DNA testing and rescission of

an acknowledgement of paternity. After our review, we agree with the trial

court’s conclusion that Father did not prove fraud by clear and convincing

evidence so as to preclude the application of the doctrine of paternity by

estoppel and rescind the acknowledgment of paternity. We therefore affirm

the trial court’s order.

        The parties were never married, but lived together from June 2009

until December 2013. During that time, C.A.R. (“Mother”) became pregnant

and the child, R.E.M., was born in June 2010.        The parties gave R.E.M.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Father’s surname, and Father testified that he signed an acknowledgement

of paternity1 and believed he was R.E.M.’s Father.

        The parties separated in December 2013.         At that time, R.E.M. was

two and one-half years old.         Mother filed a complaint for child support on

December 30, 2013.         The county domestic relations office requested DNA

testing. Mother refused. Father filed a Petition for Blood Test/Rescission of

Acknowledgment of Paternity. The court held a hearing on October 2, 2014.

        At the hearing, the parties’ testimony differed as to the DNA testing.

Mother testified that in order to get paternal grandmother “off their back,”

the parties agreed to use the DNA samples from a family friend and his

biological daughter, thereby ensuring the test would demonstrate a positive

match between parent and child.            N.T. Hearing, 10/2/14, at 19.   Mother

stated that Father “agreed to get a DNA test done with different DNA . . .

because he wanted to be her father either way and his mother did not

approve.” Id. Mother explained that she and Father obtained DNA samples

from a male friend and his daughter, and mailed the samples for testing.

Mother also testified that Father’s mother “got the DNA of [R.E.M.] and

[Father] and sent it in.       I never saw the results and I found out about it

about a year later.” Id. at 20. She continued,

          [Father] said---well, at first he told me that there was a
          rumor that [his mother] did it and he denied the fact that
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1
    See 23 Pa.C.S.A. § 5103.



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         it was happening and then he told me that it was, in fact,
         done and he didn’t want to see the results but his mother
         said it was negative.

Id. at 20-21.

      Father testified that after R.E.M.’s birth, his mother asked for a DNA

test and “it came out 99.9 percent positive.” Id. at 5. He stated that he

obtained his DNA from inside his cheek with a Q-tip, Mother obtained the

child’s DNA through the same method, and that these Q-tips were placed in

a plastic zip lock baggie.    He stated it was his understanding that Mother

sent the swabs to the laboratory. Id. at 9-11. Father stated at the hearing,

“I recently found out that the DNA was fake DNA; they were not mine or

[R.E.M.’s].”    Id.   He also acknowledged that he never personally saw the

test results. Id. at 9, 12.

      Mother acknowledged that it is possible Father is not the biological

father; she stated that when she found out she was pregnant, she “told him

that there was a chance that he could be the father and shortly after we got

together he told me that he wanted to be the father either way.” Id. at 23.

She stated that Father continued to assume and perform parental duties for

a year after the parties separated. Mother stated Father saw R.E.M. every

week and would keep her one night during the week. Id. at 22.         Mother

also testified that she had told Father many times he could walk away if he

wanted, and that she requested he do so at a time when R.E.M. would be

too young to remember; she stated that [R.E.M.], who was 2½ at the time

of the hearing, remembers him and “asks for him.” Id. at 27.

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      Father acknowledged that “in the beginning” he had some suspicion he

might not be the father. Id. at 30. He testified that “then we had that DNA

test done and I went off of that and that kind of eased it until I later on

found out that the test had been frauded [sic].” Id. Father also admitted

he did not seek DNA testing until after Mother filed her complaint for child

support. Id. at 33. Father testified that he continued to exercise his partial

custody rights, but he stated he did so only for six months after the parties

separated. Id. at 8. He stated he saw R.E.M. every weekend and she would

stay overnight. Id.

      Maternal grandmother also testified. She stated that while the parties

cohabitated, they lived with her in her house and during that time, it was no

secret that Mother was in a relationship with another man. She also testified

that she was present when Mother and Father were discussing sending the

DNA from a family friend and his biological daughter because paternal

grandmother was not happy with the relationship. Id. at 35-36.

      Following the hearing, the trial court denied Father’s petition.    The

court issued an opinion containing twenty-one (21) findings of fact.      See

Trial Court Opinion, 10/28/14. Father appealed. The court ordered Father

to file a Statement of Errors Complained of on Appeal pursuant to Pa.R.A.P.




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1925(b).     The trial court filed its Rule 1925(a) opinion on December 23,

2014. Father raises the following issues for our review:2

        1. Whether the trial court abused its discretion in deciding that
           the defendant below and challenger of paternity in the
           support action had failed to prove by clear and convincing
           evidence fraud in the acknowledgement of paternity for
           purposes of 23 Pa.C.S. § 5103(g)(2) and the trial court’s
           findings were unsupported?

        2. Whether the trial court abused its discretion in deciding that
           paternity by estoppel applied to the challenge of paternity in
           the support action inasmuch as the requisite fraud had been
           proved and no sufficient basis for paternity by estoppel had
           been established in the proceedings before the trial court.

Appellant’s Brief, at 4.

        For ease of discussion, we address Father’s second issue first. Father

argues the court erred in applying the doctrine of paternity by estoppel

because he had proven the requisite fraud.

        Our standard of review in paternity cases is an abuse of discretion.

See D.M. v. V.B., 87 A.3d 323 (Pa. Super. 2014); see also Doran v.

Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003) (applying this standard of

review to case involving question of paternity).

        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.
____________________________________________


2
    Mother has not filed an appellate brief.



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D.M., 820 A.2d at 1284 (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. 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).

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

granted allowance of appeal to consider the application of the doctrine of

paternity by estoppel and, more broadly, “its continuing application as a

common law principle.”      Id. at 803.    There, Mother filed a support action

against P.C.S. seeking support of her child who was born during her

marriage to H.M.M. (“Husband”).         Following genetic testing, Husband was

excluded as the biological father, but he remained in the marriage and held

himself out to the general public as the child’s father for the first four years

of the child’s life. Although K.E.M. and Husband separated, as of the time of

the hearing neither had filed for divorce. K.E.M. had made P.C.S. aware of

the fact that he might be the biological father of the child. P.C.S. refused

genetic testing, but he acknowledged the child as his son. The child referred

to both Husband and P.C.S. as “Daddy.”

      In    response   to   K.E.M.’s   support   action,   P.C.S.   relied   on   the

presumption of paternity. See Brinkley v. King, 701 A.2d 176, 180 (Pa.

1997) (policy underlying presumption of paternity is preservation of

marriages; presumption only applies in cases where that policy would be

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advanced by application, otherwise, it does not apply). As K.E.M.’s marriage

to Husband was no longer intact, the Court determined the presumption was

not applicable and confined its review to the question of paternity by

estoppel.   Quoting an opinion authored by the late Honorable William F.

Cercone, the Court agreed that

      [a]bsent any overriding equities in favor of the putative father,
      such as fraud, the law cannot permit a party to renounce even
      an assumed duty of parentage when by doing so, the innocent
      child would be victimized. Relying upon the representation of the
      parental relationship, a child naturally and normally extends his
      love and affection to the putative parent. The representation of
      parentage inevitably obscures the identity and whereabouts of
      the natural father, so that the child will be denied the love,
      affection and support of the natural father. As time wears on,
      the fiction of parentage reduces the likelihood that the child will
      ever have the opportunity of knowing or receiving the love of his
      natural father. While the law cannot prohibit the putative father
      from informing the child of their true relationship, it can prohibit
      him from employing the sanctions of the law to avoid the
      obligations which their assumed relationship would otherwise
      impose. . . . The operative language of this passage centers on
      the best interests of the child[.]

K.E.M., 38 A.3d at 807-08, quoting Commonwealth ex rel. Gonzalez v.

Andreas, 369 A.2d 416, 419 (Pa. Super. 1976). The Court emphasized that

the best interests of the child “remains the proper, overarching litmus, at

least in the wider range of cases.”         K.E.M., 38 A.3d at 808, quoting

Gonzalez, supra.

      The Court determined that the record in K.E.M. was not developed

with respect to the best interests of the child and the child’s relationship with

Husband. Stating that it had “no sense for the harm that would befall [the


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child] if [Husband’s] parental status were to be disestablished, either fully

or, as some intermediate court decisions are now suggesting is permissible,

partially (i.e., for purposes of support),” id. at 809, the Court remanded the

case to the trial court. The Court further stated, “[W]hereas the common

pleas court suggested that the present record is extensive, in fact, it is very

sparse in terms of [the child’s] best interests.” Id.       The Court concluded,

“[i]n summary, 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.” Id. at 810.

      Here, the trial court applied the doctrine of paternity by estoppel, see

K.J. v. S.P.K., 77 A.3d 33, 38 (Pa. Super. 2013), and concluded that Father

did not establish fraud by clear and convincing evidence. See 23 Pa.C.S.A.

§ 5103(g)(2). The court made factual findings, supported in the record, and

reasoned that, had Father seriously questioned his paternity, he would have

insisted on seeing the written DNA test results.            The court found it

“incredulous” that Father did not. We agree. Simply put, the court found

Father’s testimony not credible. See Smith, supra. The record is replete

with testimony that supports the court’s finding that Father was aware of the

possibility he was not R.E.M.’s biological father from the outset, that he

signed an acknowledgement of paternity, and that despite his questioning of

his paternity, he took no positive steps to assure himself of the facts.

Instead, he chose to remain a father to R.E.M., even after the parties ended

their relationship. The record supports the court’s finding that Father failed

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to establish fraud by clear and convincing evidence.     Absent fraud, Father

“regardless of his true biological status, will not be permitted to deny

parentage[.] . . . [T]he doctrine of estoppel in paternity actions is aimed at

achieving fairness as between the parents by holding them, both mother and

father, to their prior conduct regarding the paternity of the child.” Brinkley

v. King, 701 A.2d 176, 180 n. 5 (Pa. 1997), quoting Freedman v.

McCandless, 654 A.2d 529, 532–33 (Pa. 1995)(emphasis in original).        See

R.K.J. v. S.P.K., 77 A.3d 33 (Pa. Super. 2013) (evidence supported

application of doctrine of paternity by estoppel, for purposes of child

support, such that purported father could not be permitted to deny

parentage; unlike child’s biological father, who had no relationship with child

and had never met him, purported father for child support purposes had

held himself out as child’s father, lived with and interacted with child for

nearly six years, told child he was child’s father, and supported child

financially); see also Hamilton v. Hamilton, 795 A.2d 403 (Pa. Super.

2002) (where father signs acknowledgement of paternity and holds himself

out as father, but then attempts to deny paternity when support is sought,

doctrine of paternity by estoppel applies to preclude father from denying

paternity); cf. Gebler v. Gatti, 895 A.2d 1 (Pa. Super. 2006) (paternity by

estoppel doctrine did not apply where putative father’s behavior as

responsible father for 18 months was caused by mother’s concealment of the

truth).




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        Further, the record is clear that it is in R.E.M.’s best interests to apply

the doctrine of paternity by estoppel here.        Unlike in K.E.M., there is no

other father figure in the picture; Father is the only father R.E.M. has known

for four years.      She remembers him and asks for him.            Regardless of

whether Father chooses to remain a part of R.E.M.’s life, his prior conduct

imposes a financial responsibility. R.K.J., supra.

        With respect to rescission of the acknowledgement of paternity on

grounds of fraud, 23 Pa.C.S.A. § 5103(g)(2)3, we note that Father did not
____________________________________________


3
    Section 5103(g) provides:

        (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(g)(1),(2) (emphasis added).




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present this issue in his Rule 1925(b) Statement. That claim, therefore, is

waived.   See Pa.R.A.P. 1925(b).    Nonetheless, the statute provides that

rescission may only be challenged on the basis of fraud, duress or material

mistake of fact, which must be established by clear and convincing evidence,

23 Pa.C.S.A. § 5103(g)(2), and we have determined that Father did not

prove fraud by clear and convincing evidence.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/2015




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