J-A31025-15

                                    2016 PA Super 1

M.L.                                               IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

J.G.M.

                            Appellee                    No. 716 MDA 2015


                  Appeal from the Order Entered April 6, 2015
                 In the Court of Common Pleas of Berks County
                     Domestic Relations at No(s): 12-05529


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

OPINION BY LAZARUS, J.:                               FILED JANUARY 04, 2016

        M.L., (“Mother”), appeals from the trial court’s order granting J.G.M.’s

motion for blood tests to determine paternity pursuant to 23 Pa.C.S.A. §

5104(c).1 J.G.M. filed a motion to quash Mother’s appeal, which we deny.2

After our review, we vacate and remand.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The Uniform Act on Blood Tests to Determine Paternity provides:

        In any matter subject to this section in which paternity,
        parentage or identity of a child is a relevant fact, the court, upon
        its own initiative or upon suggestion made by or on behalf of any
        person whose blood is involved, may or, upon motion of any
        party to the action made at a time so as not to delay the
        proceedings unduly, shall order the mother, child and alleged
        father to submit to blood tests. If any party refuses to submit to
        the tests, the court may resolve the question of paternity,
        parentage or identity of a child against the party or enforce its
        order if the rights of others and the interests of justice so
        require.
(Footnote Continued Next Page)
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      Mother and J.G.M. were married on July 11, 2001.             They are the

parents of one child, a daughter, (“E.M.”), born in July 2005. Mother and

J.G.M. separated in December 2011, and they divorced in September 2014.

      When the parties separated, J.G.M. began to question his paternity.

He administered a home “DNA” test, which excluded him as E.M.’s father.

Thereafter, on September 11, 2013, he filed a petition to terminate support,

alleging that upon learning he might not be E.M.’s biological father, he

terminated his relationship with her. Mother filed an answer, requesting the

court deny J.G.M.’s petition.         J.G.M. sought a psychological evaluation of

E.M. for the purpose of evaluating the bond between him and E.M.             The

court ordered the evaluation and, following testing, J.G.M. filed a motion for

blood tests to determine paternity pursuant to section 5104(c).         The trial

court granted the motion, but did so prior to determining whether the

doctrine of paternity by estoppel applied. See Jones v. Trojak, 634 A.2d

201, 206 (Pa. 1993) (where paternity by estoppel principle is operative,

“blood tests may well be irrelevant.”).



                       _______________________
(Footnote Continued)


23 Pa.C.S.A. § 5104(c).

2
  See Jones v. Trojak, 634 A.2d 201, 204 (Pa. 1993) (holding order
requiring blood tests to determine paternity is interlocutory but immediately
appealable). See also T.L.F. v. D.W.T., 796 A.2d 358 (Pa. Super. 2002)
(“This Court accepts immediate appeals from orders directing or denying
genetic testing to determine paternity.”).



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       On appeal, Mother argues that the doctrine of paternity by estoppel

should apply in this case, thus precluding paternity testing under section

5104.3

       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 [.]”
       B.K.B. v. J.G.K., 954 A.2d 630, 634 (Pa. Super. 2008). “[T]he
       law will not permit a person in these situations to challenge the
       status that he or she has previously accepted.” Id. at 635 (citing
       John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380, 1386
       (1990)). The doctrine of paternity by estoppel seeks to protect
       the interests of the child.

T.E.B. v. C.A.B., 74 A.3d 170, 173 (Pa. Super. 2012). In K.E.M. v. P.C.S.,

38 A.3d 798 (Pa. 2012), our Supreme Court recently considered the

continuing applicability of the doctrine and 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 interests of the involved

child.” Id. at 810.

       In K.E.M., mother filed a support action against biological father.

Biological father claimed the doctrine of paternity by estoppel applied,

characterizing his relationship with the child, as compared to mother’s
____________________________________________


3
  Mother does not argue the presumption of paternity. Although the child
was born during the marriage, the marriage is no longer intact. Therefore,
the presumption of paternity is not applicable here. See Brinkley v. King,
701 A.2d 176 (Pa. 1997) (presumption of paternity applies where policy of
preservation of marriage would be advanced by its application; otherwise it
does not apply); see also Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999).



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J-A31025-15



husband, as insignificant. In this context, our Supreme Court addressed the

viability of the doctrine of paternity by estoppel. The Court also addressed

the more narrow issue of whether the trial court had properly applied the

doctrine where mother’s husband had held himself out as the child’s father

after learning that he was not the biological father and where the court was

not convinced that mother’s marriage to father was over and thus

considered their marriage intact.

      In K.E.M., mother argued that an inflexible rule perpetuating a non-

factual portrayal of paternity would not always serve the child’s best

interests. She maintained that placing the responsibility for financial support

upon biological fathers, in that case, P.C.S., against whom she had filed a

support action, would provide a consistent, readily identifiable source of

sustenance, regardless of the child’s relationship with others.     The Court

stated:

      [W]e believe there remains a role for paternity by estoppel in the
      Pennsylvania common law, in the absence of definitive legislative
      involvement. We recognize the intransigent difficulties in this
      area of the law involving social, moral, and very personal
      interests. Nevertheless, on the topic, subject to modest
      qualification, we join the sentiment expressed in an opinion
      authored by the late, Honorable William F. Cercone, as follows:

          Absent 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,

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J-A31025-15


         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
         interest of the child and we are of the firm belief – in terms
         of common law decision making—that this remains the
         proper, overarching litmus, at least in the wider range of
         cases.

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

Andreas, 369 A.2d 416, 419 (Pa. Super. 1976) (footnotes and citations

omitted)).

      The K.E.M. Court, noting that the determination of paternity by

estoppel should be better informed according to the actual best interests of

the child, reversed and remanded the case for further proceedings.           The

Court stated that the record was “very sparse in terms of [child’s] best

interests[,]” K.E.M., 38 A.3d at 809, and “offers very little feel for the

closeness     of   [child’s]    relationship      with   [mother’s    husband].

Correspondingly, we have no sense of the harm that would befall [child] if

[mother’s 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.    The   Court   concluded   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

interests of the involved child.” Id. at 809-10 (emphasis added). The Court

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J-A31025-15



added that “[i]n cases involving separation and divorce, we direct that the

Uniform Act on Blood Tests to Determine Paternity [Act] is now to be applied

on its terms insofar as it authorizes testing.” Id.

       Thus, since the Act authorizes testing where paternity is a relevant

fact, it is first necessary to determine if that is the circumstance here.

Paternity is not a relevant fact where the doctrine of paternity of estoppel

applies. And, as the K.E.M. Court emphasized, that doctrine will apply only

where the record is developed with respect to the issue of the best interests

of the child.4

____________________________________________


4
  Prior to our Supreme Court’s decision in K.E.M., this Court, in R.K.J. v.
S.P.K., 32 A.3d 841 (Pa. Super. 2011) (unpublished memorandum),
affirmed a support order against S.P.K., concluding that the trial court
properly applied the doctrine of paternity by estoppel to preclude S.P.K.’s
request for paternity testing. There, although S.P.K. knew he was not the
child’s biological father, he was present at the child’s birth, signed an
Acknowledgement of Paternity, claimed the child on his federal taxes, lived
with mother and child for six years after the child’s birth and supported the
child during that time. Additionally, the child referred to S.P.K. as “dad.”
S.P.K. filed a petition for allowance of appeal and the Supreme Court, in light
of its decision in K.E.M., vacated the support order and remanded to the
matter to the trial court for further proceedings in accordance with K.E.M.
In re R.K.J., 40 A.3d 1184 (Pa. 2012). S.P.K. then filed a motion to renew
his request for paternity testing, requesting that both he and “the individual
named by [mother] as [the] biological father, [T.C.] be tested.” R.K.J.,
supra at 36, citing Motion to Renew Request for DNA Testing, 4/6/12. On
remand, the trial court ordered an evaluation of the child by a licensed
psychologist. Following a hearing, the court denied R.K.J.’s request for DNA
testing and ordered that the child support order remain in effect. R.K.J.
appealed, and this Court affirmed, holding that the evidence of record
supported the court’s application of the doctrine of paternity by estoppel
because, as the trial court had observed,

(Footnote Continued Next Page)


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J-A31025-15


      Here, the trial court ordered blood testing prior to holding a hearing on

the paternity issue.       Although the K.E.M. Court acknowledged flexibility in

the application of the paternity by estoppel doctrine, we interpret this as

requiring a searching inquiry of the father-child relationship and the child’s

best interests, and not “a preliminary analysis” after ordering paternity

testing. Moreover, although the court ordered a psychological evaluation to

determine the nature and extent of the bond between J.G.M. and the child,

see Order, 3/25/14, and it relied on the evaluator’s finding that the bond

was virtually non-existent, there is no evaluation in the certified record on

appeal. We, therefore, direct the trial court to hold a hearing on the issue of

paternity, in accordance with K.E.M., and determine whether estoppel

principles are applicable here.

                       _______________________
(Footnote Continued)

      The purported biological father has never been involved in [the
      child’s] life. In contrast, S.P.K. held himself out as [child’s]
      father for almost six years, lived with [child] and his mother in
      his home, told [child] that he was his father, and provided all
      financial support for [child]. Further, the evidence before the
      trial court addressed the factors set forth in K.E.M. as relevant
      to the child’s best interests. In addition, the record shows that
      the trial court did not apply the doctrine of paternity by estoppel
      by rote, but considered the individual circumstances of this case,
      as required by K.E.M. See K.E.M., 614 Pa. 508, 38 A.3d at 810
      (holding that the doctrine of paternity by estoppel may be
      applied “where it can be shown, on a developed record, that it is
      in the best interests of the involved child[.]”).

R.K.J., 77 A.3d at 41.




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J-A31025-15


      Vacated and remanded for proceedings consistent with this decision.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/4/2016




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