J-A19001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.N.M.,                                                IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellant

                       v.

M.F.,

                            Appellee                        No. 868 EDA 2017


                Appeal from the Order Entered February 27, 2017
              In the Court of Common Pleas of Philadelphia County
                         Family Court at No(s): 03-01628
                               PACSES 056106221


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                           FILED OCTOBER 02, 2017

        S.N.M. (Mother) appeals from the February 27, 2017 order that

dismissed the paternity action filed by M.F. (Father), who the court

determined was not the biological father of J.M. (Child), born in August of

2003. After review, we reverse.

        On September 6, 2016, Father filed a motion to establish paternity and

for genetic testing regarding Child. A hearing was scheduled for December

21, 2016, and was attended by Mother, Father, and Donna Marcus, an ADA

with    the   Philadelphia     District   Attorney’s   Office,   who   is   essentially

representing Mother in this matter pursuant to 23 Pa.C.S. § 4306.1 The trial
____________________________________________


1
  Specifically, section 4306(b) states that “[t]he district attorney, upon the
request of the court or a Commonwealth or local public welfare official, shall
represent any complainant in any proceeding under this subchapter.”
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court’s opinion, filed pursuant to Pa.R.A.P. 1925(a), describes the factual

and procedural background of this case, stating:

       [Father] testified, inter alia, that he had been incarcerated for
       eight years, including during the birth of the child, and he had
       doubts as to whether he was the biological father of [C]hild.

              At the time of the hearing, there was no outstanding order
       for support running against [Father]. Mother testified that a
       custody order was entered between the parties in 2003, and as a
       result, [Father] was required to sign an Acknowledgment of
       Paternity. This court took into consideration [Father’s] eight-
       year period of incarceration during which time he had no custody
       with [C]hild, [Father’s] testimony of his subsequent doubts as to
       paternity, and the fact that he filed his motion for genetic testing
       shortly after his release from prison in April 2016, and
       determined those as significant factors weighing against a
       finding of paternity by estoppel.[2] As a result, this court entered
       its order on December 21, 2016, as follows:

            MOTION TO ESTABLISH PATERNITY FILED SEPTEMBER
            6, 2016 IS RESOLVED AFTER A HEARING. DEFENDANT,
            [FATHER], PLAINTIFF, [MOTHER], AND THE MINOR
            CHILD,    …   SHALL  GO    FORTHWITH    TO   THE
            PHILADELPHIA FAMILY COURT GENETIC TESTING LAB,
            … FOR GENETIC TESTING TO BE CONDUCTED. MATTER
            TO BE RELISTED UPON AVAILABILITY OF RESULTS.

       Twenty minutes after the conclusion of the hearing, ADA Marcus
       requested that the motion be recalled to orally request a stay of
       genetic testing, which this court denied.

____________________________________________


2
  To clarify this statement by the trial court, we note that the record reveals
Father’s incarceration during the first three weeks of Child’s life, but that
during the next five years Mother and Father shared legal and physical
custody of Child pursuant to a custody agreement that was entered as an
order of court. See N.T., 12/21/16, at 5-7. In fact, Father testified that for
the first five years of Child’s life, he was involved in Child’s life “on a daily
basis.” Id. at 6.



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            Immediately following the hearing, both parties and [C]hild
      submitted to genetic testing at the Philadelphia Family Court’s
      genetic testing unit. Results of genetic testing were received
      and docketed on January 3, 2017, and notices were sent to the
      parties of a hearing scheduled administratively for March 14,
      2017, at 9:00 a.m., in a different courtroom tha[n] that of the
      undersigned judge. The docketed results indicated that the
      probability of paternity for [Father] was 0%.

           On January 10, 2017, [ADA] Marcus filed [a] … Petition for
      Reconsideration of the order of December 21, 2016. Thereafter,
      on February 1, 2017, this court entered its order denying
      Mother’s Petition for Reconsideration, as follows:

          COMMONWEALTH’S PETITION FOR RECONSIDERATION
          OF PATERNITY OF ORDER ENTERED BY THIS COURT
          AFTER A HEARING ON DECEMBER 21, 2016, AND FILED
          BY ADA DONNA MARCUS ON JANUARY 6, 2017, IS
          DENIED AFTER REVIEW.    THE GENETIC TESTING
          RESULTS THAT ARE PART OF THE COURT FILE
          INDICATE THAT [FATHER], PETITIONER IN THE
          UNDERLYING MOTION FOR GENETIC TESTING[,] IS
          EXCLUDED AS THE BIOLOGICAL FATHER OF MINOR
          CHILD….

           On March 10, 2017, [ADA] Marcus filed a Notice of Appeal
      along with a Statement of Matters Complained of on Appeal
      pursuant to Pa.R.A.P. 1925(b) of the February 27, 2017, order in
      this matter. [See infra.] [ADA] Marcus did not appeal from
      either the December 21, 2016, final order entered by this court
      or from the February 1, 2017, order denying reconsideration of
      that final order. This court believes that it is significant that the
      undersigned judge never signed the administrative order
      docketed on February 27, 2017, and in fact, the undersigned
      judge never saw the unsigned administrative order until this
      judge received it as an attachment to [ADA] Marcus’ Notice of
      Appeal. The administrative order provides as follows:

          AND NOW, THIS FEBRUARY 27, 2017, IT IS HEREBY
          ORDERED THAT DEFENDANT IS NOT THE BIOLOGICAL
          FATHER OF THE CHILD…, BORN … TO [MOTHER] AND
          THIS PATERNITY ACTION IS DISMISSED.

Trial Court Opinion (TCO), 3/27/17, at 1-3 (citations to the record omitted).


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       As noted, the court explained that the February 27, 2017 order was

administratively entered as a computer-generated order through the Giant

Activity Matrix (GAM).       Moreover, the opinion appears to suggest that the

court believes the final order from which an appeal should have been taken

was the December 21, 2016 order, directing the parties to submit to genetic

testing, or from the February 1, 2017 order, denying reconsideration of the

December 21st order. Therefore, the court seems to intimate that the appeal

in this matter was untimely, having only been filed on March 10, 2017, more

than thirty days after the December 21st and February 1st orders were

entered.3 Thus, based on its discussion of the reasons for its determination,

the trial court requests that this Court quash this appeal.

       We now turn to the issues raised by ADA Marcus in Mother’s appeal:

       I. Did the trial court err when it granted [Father’s] motion to
       establish paternity and ordered genetic testing, even though
       paternity had already been established when [Father] was
____________________________________________


3
  The court also found that ADA Marcus did “not have standing to bring the
instant appeal on behalf of the Commonwealth since there was no child
support action in existence at the time of the December 21, 2016 hearing.”
TCO at 4 (emphasis added). The court further stated that “[t]he [c]omplaint
for [s]upport on behalf of the Department of Public Welfare was not filed
until January 3, 2017, after the genetic testing results were entered….” Id.
Initially, we note that ADA Marcus is the named attorney on this Court’s
docket for Mother in connection with this appeal. Moreover, neither a party
nor the court raised an objection to ADA Marcus’ representation of Mother at
the time of the December 21, 2016 hearing. Additionally, since this appeal
was filed on March 10, 2017, and the support action was instituted on
January 3, 2017, ADA Marcus’ representation of Mother is proper under the
circumstances. ADA Marcus’ status at the time of the December 21, 2016
hearing does not impact her status in connection with this appeal.



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      adjudicated as the father of [C]hild in 2003 by signing an
      Acknowledgement of Paternity and the doctrine of paternity by
      estoppel applied since [Father] has held himself out as the father
      for thirteen (13) years?

      II. Did the trial court err when, after receiving the genetic
      testing results, the court cancelled the scheduled hearing on the
      genetic testing results, sua sponte, and entered a final order
      declaring that [Father] is not the biological father of the child in
      question, thus precluding [Mother’s] opportunity to present
      testimony or challenge the legality of the entry of the genetic
      testing results into evidence?

Mother’s brief at 4 (footnote omitted).

      Before addressing Mother’s issues, we must determine whether the

appeal before us is timely.    See Pa.R.A.P. 903(a) (“Except as otherwise

prescribed by this rule, the notice of appeal required by Rule 902 … shall be

filed within 30 days after the entry of the order from which the appeal is

taken.”). As noted above, the court suggests that the appeal should have

been filed after the entry of the December 21, 2016 order or the February 1,

2017 order, but it was not filed until March 10, 2017. However, our review

reveals that these orders were not final. See Pa.R.A.P. 341 (a) (stating “an

appeal may be taken as of right from any final order of a … trial court”); (b)

(“A final order is any order that … disposes of all claims and of all

parties[.]”). Despite lacking finality, we are aware that Mother could have

appealed after their entry pursuant to the holding in Jones v Trojak, 634

A.2d 201, 205 (Pa. 1993) (stating an appellate court in Pennsylvania may

“review court ordered blood tests at the interlocutory stage”). Moreover, we

recognize that a hearing remained scheduled for March 14, 2017, to address



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the results of the genetic test and provide an opportunity to the parties to

submit evidence.       It was not until the issuance of the February 27, 2017

order, declaring that Father was not Child’s biological parent and dismissing

the paternity action, that a final order was issued. Implicit in the dismissal

was a cancellation of the March 14, 2017 hearing. At that point, disposal of

all claims and parties was accomplished and the thirty-day appeal period

began to run.      Mother will not be penalized for choosing to wait until the

final order in this matter was entered. Accordingly, the appeal to this Court

on March 10, 2017, was timely.

       With regard to Mother’s first issue, her argument is two-fold: 1) that

paternity was established when Father signed the acknowledgment of

paternity and he did not provide evidence to rescind it; and 2) that the court

ignored the doctrine of paternity by estoppel and failed to balance that

against the continuing custody order and the relationship between Father

and Child.4

       Mother first contends that the court abused its discretion in granting

genetic testing and then declaring that Father is not Child’s biological father.

She bases this argument of Father’s signing an acknowledgment of paternity




____________________________________________


4
  We note that our standard of review in paternity matters is that of an
abuse of discretion. T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1 (Pa. Super.
2013).



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thirteen years ago, shortly after Child’s birth. This concept is governed by

23 Pa.C.S. § 5103 (a), (d) and (g), which states:

     (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. The hospital or other
     person accepting an acknowledgment of paternity shall provide
     written and oral notice, which may be through the use of video
     or audio equipment, to the birth mother and birth father of the
     alternatives to, the legal consequences of and the rights and
     responsibilities that arise from, signing the acknowledgment.

                                …

     (d)     Conclusive    evidence.—Notwithstanding      any   other
     provision of law, an acknowledgment of paternity shall constitute
     conclusive evidence of paternity without further judicial
     ratification in any action to establish support. The court shall
     give full faith and credit to an acknowledgment of paternity
     signed in another state according to its procedures.

                                …


     (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


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J-A19001-17



           (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.


     In R.W.E. v. A.B.R., 961 A.2d 161 (Pa. Super. 2008), a case involving

an acknowledgement of paternity, this Court stated:

     A signed, witnessed, voluntary acknowledgment of paternity
     shall be considered a legal finding of paternity if it is not
     rescinded by the signatories within sixty days of its signing. 23
     Pa.C.S. § 5103(g)(1). After sixty days, the acknowledgment
     may only be challenged in court on the basis of fraud, duress or
     material mistake of fact, if established by the challenger through
     clear and convincing evidence. 23 Pa.C.S.[] § 5103(g)(2).

Id. at 167. Thus, because Father signed the acknowledgment of paternity

and presented nothing to show fraud, duress or material mistake of fact, the

paternity of Child was established and cannot be challenged at this point.

See D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014) (stating “[t]he entry

of a support order necessarily determines the issue of paternity” and

“putative father is precluded from challenging paternity even if subsequently

performed blood tests exclude him as the child’s biological father”).     See

also Wachter v. Ascero, 550 A.2d 1019, 1021 (Pa. Super. 1988) (stating

that “blood test should not have been ordered … even for humanitarian



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purposes, and should never be ordered unless it is to establish paternity in a

proceeding where paternity is a relevant fact and has not already been

determined in a prior proceeding”). Here, the custody agreement, made an

order of court, is such a proceeding that determined paternity. Accordingly,

the trial court abused its discretion in granting the genetic testing.

      Additionally, we recognize that the trial court relied on the fact that no

support order was in existence at the time these proceedings were

instituted, but it overlooked the custody agreement that was made an order

of court. This custody order is to be construed to have the same effect as a

support order in determining the issue of paternity, particularly, because in

this case Father signed the acknowledgment of paternity. See 23 Pa.C.S. §

5103(g)(1)(ii).   This section of the law emphasizes that the signing of an

acknowledgment of paternity is considered a legal finding of paternity, but

also indicates that a judicial proceeding relating to the child is not limited to

a proceeding to establish a support order. Thus, the trial court abused its

discretion in so concluding.

      Furthermore, the court erred by relying on a humanitarian purpose in

its reasoning as stated in the notes of testimony:

      THE COURT: Well, I’m going to grant it and I’m telling you the
      reason why.

      I’m going to grant it because even if you are his biological father
      I think it’s better for [Child] to know for sure and for both mom
      and dad to know. There is a doctrine call Paternity by Estoppel
      and I think that’s what the Commonwealth attorney is objecting
      on those grounds because you held yourself out.


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      But, my concern at this point in time is to make sure that if you
      are not his biological father that I think -- if he has any kind of
      medical issues in the future it’s better for him to know who his
      biological parents are. Okay.

N.T., 12/21/16, at 7-8. See Wachter, supra.

      Mother also sets out arguments relating to the doctrine of paternity by

estoppel and her allegation that the court violated her due process rights by

entering the order establishing paternity without first holding a hearing, i.e.,

the previously scheduled March 14th hearing.           We agree with Mother’s

positions on both of these arguments. However, in light of our conclusion

that the court abused its discretion in granting the petition for genetic

testing, we need not address those arguments.          Thus, we conclude that

although Father is not Child’s biological father, he remains Child’s legal

father together with all that designation implies.      Accordingly, we reverse

the trial court’s order to the extent its dismissal of the paternity action

contradicts Father’s status as Child’s legal father.

      Order reversed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/2/2017




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