J-S13015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CRAWFORD COUNTY CHILDREN AND                      IN THE SUPERIOR COURT OF
YOUTH SERVICES                                          PENNSYLVANIA

                       v.

J.B.W.

                       v.

C.G.

                            Appellant                 No. 1106 WDA 2015


                      Appeal from the Order June 23, 2015
               In the Court of Common Pleas of Crawford County
                   Domestic Relations at No(s): DR 2014-296


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 11, 2016

        Appellant, C.G., who claims to be the natural father of B.G. (child),

appeals from the June 23, 2015 order of the Court of Common Pleas of

Crawford County.         That order stated the presumption of paternity was

irrebuttable and Mother’s husband, J.B.W., was the presumptive father.

C.G. challenges the court’s finding that there was an intact family; he also

challenges the constitutionality of the presumption on equal protection

grounds. After our review, we affirm.

        Crawford County Children and Youth Services (CCCYS) filed a support

action against J.B.W. with respect to two children in placement, J.W., Jr.,
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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and B.G.     C.G. sought to intervene, claiming he was the biological father of

B.G. C.G. requested a hearing, claiming that there was no intact family and

thus the presumption of paternity was rebuttable. The Honorable Anthony J.

Vardaro held a hearing on December 3, 2014.        The court determined that

C.G. did not meet his burden of rebutting the presumption by clear and

convincing evidence, and found that J.B.W. was married to Mother at the

time of conception and birth and that they remained in an intact

relationship. The court concluded, therefore, that the presumption was

irrebuttable. The court entered an order finding J.B.W. was the presumptive

father, and C.G. appealed. C.G. raises the following issues for our review:

           1. Did mother and her husband and the child have an intact
              family, which precluded natural father from being
              permitted to rebut the presumption of paternity?

           2. Is the presumption of paternity unconstitutional in that it
              deprives a child born to a married woman of its father
              while allowing a child born to a single woman to have its
              father?

           3. Is the presumption of paternity unconstitutional in that it
              deprives a child born to a married woman of its father
              while allowing a child born to a married man to have its
              father?

           4. Is the presumption of paternity unconstitutional in that it
              deprives a man of his paternity based on the marital status
              of the mother while allowing a mother to have her
              maternity regardless of the marital status of the father?

     We first point out our standard of review. We will not disturb the trial

court's order unless there has been an abuse of discretion. See Doran v.

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


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      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 that we, if sitting as a trial court, may have made a
      different finding.

Id. (quotation marks, citations, and brackets omitted).

      In Brinkley v. King, 701 A.2d 176 (Pa. 1997) (plurality opinion), the

Pennsylvania Supreme Court explained the presumption of paternity as

follows:

      [G]enerally, a child conceived or born during the marriage is
      presumed to be the child of the marriage; this presumption is
      one of the strongest presumptions of the law of Pennsylvania;
      and the presumption may be overcome by clear and convincing
      evidence that the presumptive father had no access to the
      mother or the presumptive father was physically incapable of
      procreation at the time of conception. However, the presumption
      is irrebuttable when a third party seeks to assert his own
      paternity as against the husband in an intact marriage.
      [Emphasis added.]

Id. at 179 (emphasis added). The preservation of marriages is the purpose

of the presumption of paternity. See Fish v. Behers, 741 A.2d 721, 723

(Pa. 1999). The presumption renders blood test results irrelevant unless and

until the presumption is overcome. See Strauser v. Stahr, 726 A.2d 1052,

1054 (Pa. 1999). “[T]he presumption is irrebuttable when a third party

seeks to assert his own paternity as against the husband in an intact

marriage.” C.W. v. L.V., 788 A.2d 1002, 1005 (Pa. Super. 2001) (emphasis

added). The relevant time to examine whether the marriage is intact is at

the time of the challenge to a husband’s paternity, Vargo v. Schwartz, 940

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A.2d 459, 463 (Pa. Super. 2007), and this is a question solely for the trial

court sitting as fact-finder. Id. at 467.

      The disposition of this matter turns on whether Mother and her

husband, J.B.W., had an intact marriage at the time of C.G.’s challenge to

J.B.W.’s paternity. C.G. was the only witness to testify at the hearing. He

testified that he and Mother had an on and off relationship, and that at the

time of B.G.’s conception, Mother and J.B.W. were separated and that

Mother spent some time with him (C.G.), and some time with her mother.

B.G. was conceived in February or March of 2013; C.G. testified that during

this time Mother “stayed with me a couple nights[.] . . . I can’t be exact, 100

percent certain, but right around that time.”        N.T. Paternity Hearing,

6/15/15, at 15.    At the time of B.G.’s birth, Mother and J.B.W. were back

together, and when Mother brought B.G. home from the hospital, she

brought her to her residence with her husband, J.B.W.         Id. at 8.   C.G.

acknowledged that at the time of the hearing, the child was living with

Mother and J.B.W. Id. at 13.     Thus, the court found that Mother and J.B.W.

were married before the birth of B.G., were married at the time of B.G.’s

conception, and, as of the time of C.G.’s challenge and the paternity

hearing, remained married.      The court also found that C.G. had failed to

prove by any quantum of evidence that J.B.W. had no access to Mother or

was impotent.     (Trial Court Opinion, 7/21/14 at 10–11.)    As a result, the

presumption of paternity is irrebuttable. Vargo, 940 A.2d at 463.




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       Our review of the record supports the trial court’s findings.            We find

no abuse of discretion. Doran, supra.            Even    if   the   presumption   were

rebuttable, C.G. failed to rebut the presumption. The presumption may be

overcome by clear and convincing evidence that either of the following

circumstances was true at the time of conception: the presumptive father

was physically incapable of procreation because of impotency or sterility or

the presumptive father had no access to wife. As stated above, C.G. failed

to present any evidence, let alone clear and convincing evidence, of either

circumstance. The law is clear that, absent such circumstances, the

presumption of paternity continues to apply.            Vargo, supra.     See     also

B.S. and R.S. v. T.M., 782 A.2d 1031, 1034 (Pa. Super. 2001) (although

presumption may be rebutted by clear and convincing evidence of husband's

non-access, impotency, or sterility, presumption is irrebuttable where

mother, child, and husband live together as intact family and husband

assumes parental responsibility for the child).

       C.G. also challenges the presumption of paternity on equal protection

grounds.1 He argues the presumption of paternity is unconstitutional in that

it deprives a man of his paternity based on the marital status of the mother

while allowing a mother to have her maternity regardless of the marital

status of the father.

____________________________________________


1
 We need not address issues 2 or 3 because C.G. has no standing to raise
equal protection on behalf of a child.



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       C.G. does have not standing to assert an equal protection claim

grounded on paternity. Due process and equal protection principles confer

standing on C.G. to rebut the presumption of paternity; however, having

failed to do so, there has been no legal determination of his paternity.

Therefore, C.G. has no constitutionally protected interest.        See Fausey v.

Hiller, 851 A.2d 193 (Pa. Super. 2004), citing Troxel v. Granville, 530

U.S. 57, 67, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (right of parents to

make decisions about upbringing of their children is fundamental right).

       We also point out that there are other interests at stake in this case

besides those of C.G, the putative father and intervenor, and J.B.W., the

presumptive father. Our Supreme Court has stated:

       Obviously, the needs and interests of the Child are of paramount
       concern, and the needs and interests of [Mother] are on a par
       with the “putative” and “presumptive” fathers. There is, in short,
       a family involved here. A woman and a man who have married
       and lived together as husband and wife, giving birth to and
       raising [a child], have obvious interests in protecting their family
       from the unwanted intrusions of outsiders (even ones who have
       had serious relationships with the mother, father or children).
       The Commonwealth recognizes and seeks to protect this basic
       and foundational unit of society, the family, by the presumption
       that a child born to a woman while she is married is a child of
       the marriage.

John    M.   v.   Paula   T.,   571   A.2d   1380,   1386   (Pa.    1990),    citing

Commonwealth ex rel. O'Brien v. O'Brien, 136 A.2d 451 (Pa. 1957).

“Whatever interests the putative father may claim, they pale in comparison

to the overriding interests of the presumed father, the marital institution and

the interests of this Commonwealth in the family unit. These interests are

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the cornerstone of the age-old presumption and remain protected by the

Commonwealth today.”      John M., 571 A.2d at 1388-89 (Nix, C.J.,

concurring).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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