J-A34042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.B.                                            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

R.J.

                         Appellant                   No. 1045 MDA 2015


                Appeal from the Order Entered April 16, 2015
              In the Court of Common Pleas of Bradford County
                    Civil Division at No(s): 97 FC 000 714


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED JANUARY 28, 2016

       Appellant R.J. appeals pro se from the order entered in the Bradford

County Court of Common Pleas, which denied his motion for DNA testing to

determine whether he is the biological father of A.B. (“Child”). We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On August 25, 1997, Child was born to T.B. (“Mother”), who was unmarried

and fourteen years old at the time. On October 29, 1997, Mother’s mother

(“Grandmother”) filed a complaint for child support against Appellant.        On

March 11, 1998, the parties signed an agreement for support of Child that

provided Appellant was to pay $29.00 per week in child support. On March

19, 1998, Appellant signed an acknowledgment of paternity form (“AOP”)

that stated he was the father of Child and that he waived his rights to
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genetic testing, a trial, and counsel to represent him on the issue of

paternity.

        On November 5, 2014, Appellant filed a motion to demand DNA or

blood testing to determine whether he is the biological father of Child.1 On

January 8, 2015, after Appellant failed to appear for a hearing, the trial court

dismissed Appellant’s motion.           On January 30, 2015, Appellant filed a

petition for a video conference on his motion along with the same motion for

DNA testing.      On February 6, 2015, the trial court scheduled a hearing,

which it conducted on April 15, 2015. On April 16, 2015, the court denied

Appellant’s motion.       On April 28, 2015, Appellant timely filed a notice of

appeal.2

        Appellant raises the following issues for our review:

           1. DID THE [TRIAL] COURT [ERR] IN FINDING THAT
           COLLATERAL ESTOPPEL APPLIED TO THIS CASE[?]

           2. DID THE [TRIAL] COURT [ERR] WHEN THERE WAS
           EXPARTE COMMUNICATION, WHEN [MOTHER] FAILED TO
           COMPLY WITH COURT ORDER THAT INSTRUCTED HER TO
           APPEAR AT THE HEARING ON 04/15/15[?]
____________________________________________


1
  On July 11, 2014, a jury convicted Appellant of several crimes, including
ten counts of incest with a minor (complainant between thirteen and
eighteen years of age). Child was the minor victim of Appellant’s crimes.
Appellant is appealing his criminal convictions at 144 MDA 2015. Appellant
claims he is only contesting the paternity of Child because she would like to
know who her true father is, and that the appeal has nothing to do with his
convictions. N.T., 4/15/2015, at 24. Child, however, did not appear at the
paternity hearing.
2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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J-A34042-15



         3. DID THE [TRIAL COURT ERR BY ADVOCATING] FOR THE
         COMMONWEALTH[?]

         4. DID THE [TRIAL COURT ERR] BY MISAPPLYING THE PA.
         CASE LAW, WHEN THERE WAS NO PA. CASE LAW
         PRESENTED AT THE HEARING BY THE COMMONWEALTH[?]

         5. DID THE COURT VIOLATE [APPELLANT’S] RIGHTS BY
         ONLY ALLOWING HIM TO TESTIFY BY WAY OF A PHONE
         WHEN THERE COULD HAVE BEEN A VIDEO HEARING AT
         THE LEAST[?]

         6. DID THE [TRIAL COURT ERR] BY RELYING ON [AN]
         ALTERED DOCUMENT, THAT BEING THE [AOP] DOCUMENT
         THAT DID NOT HAVE [MOTHER’S] SIGNATURE ON IT,
         THEREFORE MAKING IT INADMISSIBLE[?]

Appellant’s Brief at 1.

      In his first issue, Appellant argues the court erred by finding the

doctrine of paternity by estoppel precluded him from challenging Child’s

paternity when he could not be Child’s father because he was incarcerated

when Child was conceived, he did not meet Child until she was fifteen years

old, and he never established a parent-child relationship with Child.     We

disagree.

      We employ the following standard of review concerning paternity

questions:

         In reviewing matters involving child support, we as an
         appellate court will not disturb a trial court order absent an
         abuse of discretion. Doran v. Doran, 820 A.2d 1279,
         1282 (Pa.Super.2003) (applying this standard of review to
         a case involving a question of paternity).

         An abuse of discretion exists if the trial court has
         overridden or misapplied the law, or if there is insufficient

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         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.

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

citations omitted).

      “Under the doctrine of paternity by estoppel, a putative father who is

not a child’s biological father is estopped from challenging paternity after he

has held himself out as the child’s father or provided support.” Ellison v.

Lopez, 959 A.2d 395, 397-98 (Pa.Super.2008); see also 23 Pa.C.S. §

5102(b)(2).   In paternity actions, estoppel is:

         merely the legal determination that because of a person’s
         conduct (e.g., holding out the child as his own, or
         supporting the child) that person, regardless of his true
         biological status, will not be permitted to deny parentage,
         nor will the child’s mother who has participated in this
         conduct be permitted to sue a third party for support,
         claiming that the third party is the true father. As the
         Superior Court has observed, the 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.

Doran, 820 A.2d at 1282-83.

      Although Appellant claims that he has not held out Child to be his own,

the record reflects that he signed the AOP, paid child support for almost

eighteen years, and did not contest paternity until Child was seventeen

years old.




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      The relevant statute regarding acknowledging paternity provides, in

pertinent part:

         § 5103. Acknowledgment and claim of paternity

         (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.

         (b) Claim of paternity.--If the mother of the child fails or
         refuses to join in the acknowledgment of paternity
         provided for in subsection (a), the Department of Public
         Welfare shall index it as a claim of paternity. The filing and
         indexing of a claim of paternity shall not confer upon the
         putative father any rights as to the child except that the
         putative father shall be entitled to notice of any proceeding
         brought to terminate any parental rights as to the child.

                                  *    *    *

         (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


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       of paternity signed in another state according to its
       procedures.

       (e) Transfer.--The Department of Health shall transfer to
       the Department of Public Welfare all acknowledgments or
       claims of paternity filed with the Department of Health
       under prior statutes.

                                   *    *    *

       (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.

                                   *    *    *

       (i) Status of father.--The name of the father shall be
       included on the record of birth of the child of unmarried
       parents only if one of the following applies:

          (1) The father and mother have signed a voluntary
          acknowledgment of paternity.

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            (2) A court or administrative agency of competent
            jurisdiction has issued an adjudication of paternity.

23 Pa.C.S. § 5103 (emphasis added).

      Although Appellant acknowledges that he signed the AOP, and that he

did not contest signing the form within sixty days, he claims he was

fraudulently induced into signing it. Specifically, he avers that Mother told

him that he had to sign the form so that she would be eligible for Welfare,

and that he did not read the form before signing it.

      “When allegations of fraud arise in a paternity action, an estoppel

analysis must proceed in a different manner than it would without such

averments.” Doran, 820 A.2d at 1279 (quoting McConnell v. Berkheimer,

781 A.2d 206, 211 (Pa.Super.2001)).            “Evidence of fraud ‘must be

considered by the trial court in whether to apply paternity by estoppel.’” Id.

(quoting Sekol v. Delsantro, 763 A.2d 405, 410 (Pa.Super.2000)).

      This Court has adopted the traditional elements of fraud established in

Pennsylvania:

         (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.

                                 *    *    *

         Fraud is practiced when deception of another to his
         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

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

deleted).

      Nothing indicates Appellant was fraudulently induced into signing the

AOP. The only evidence of fraud Appellant presented was his own testimony

that Mother induced him into signing the form, which he did not read or

understand as being an AOP, to get welfare for Child. N.T., 4/15/2015, at

10-11.      Appellant had a high school education and was literate when he

signed the AOP, which clearly indicated that he acknowledged that he was

the father of Child.   Id.   Nothing indicates that Mother, who was fourteen

years old when Child was conceived, deceived Appellant into thinking he was

Child’s father.

      The trial court properly considered Appellant’s evidence of fraud before

deciding to apply paternity by estoppel. It reasoned:

         The [c]ourt does not accept the credibility of [Appellant] as
         to fraud in his signing of the acknowledgment. The form is
         a simple and straight forward [AOP] so we do not believe
         [A]ppellant’s claim that he signed the form so [Mother],
         also a minor, could obtain welfare benefits.

         Further, [Appellant] for years, had paid child support and
         had [Child] on his medical and dental insurance.

Trial Court Opinion, filed August 20, 2015, at 4.




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        The trial court’s findings are supported by competent evidence of

record, and we see no abuse of discretion.                 Accordingly, Appellant’s first

claim fails.

        In his final five issues, Appellant challenges the propriety of the trial

court hearing on his motion to compel paternity testing.                 Specifically, he

claims the court erred by allowing the trial to proceed without Mother, which

denied Appellant his right to confront witnesses against him. He claims the

trial   court    erred   by   advocating       for   the   Commonwealth       when   the

Commonwealth was not there to present any evidence or case law against

Appellant.      He further claims that he should have had a video conference

instead of a phone conference and that the AOP was not valid because

Mother did not sign it. Appellant’s issues merit no relief.

        Appellant seems to be confusing his criminal case with the present civil

case that is before this Court. Although a criminal defendant has the right to

confront witnesses against him,3 Appellant is a civil plaintiff in this case. He

is demanding a paternity test.            He is accusing Mother of fraud.            The

Commonwealth is not a party, and Mother was not a witness against

Appellant. Further, Appellant does not have a statutory right to come into

court to have his paternity determined, and he has no right to a criminal trial

on the issue of paternity. See In re Estate of Greenwood, 587 A.2d 749,
____________________________________________


3
    See Commonwealth v. Atkinson, 987 A.2d 743, 745 (Pa.Super.2009).




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754 (Pa.Super.1991) (“The statute…provides a device affording both the

father and mother the right to acknowledge paternity. The statute does not

afford the father the right to come into court to have his paternity

determined.”); Minnich v. Rivera, 506 A.2d 879, 880 (Pa.1986), aff'd, 483

U.S. 574, 107 S.Ct. 3001, 97 L.Ed.2d 473 (1987).

      Regarding Appellant’s contention that the AOP was not valid and thus

was improperly admitted into evidence, he has admitted to signing the AOP

and acknowledging he is Child’s father.      The statute provides that if the

father signs the AOP, he has all of 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 birth. 23 Pa.C.S. § 5103(a). The statute also provides that if the mother

of a child fails to or refuses to join in the acknowledgment of paternity, the

father will only be conferred the right to notice of any proceeding to

terminate his parental rights; however, it does not provide that the father no

longer has the duties he incurred by signing the AOP. 23 Pa.C.S. § 5103(b).

Thus, the AOP, which Appellant admitted signing, was properly admitted into

evidence. Accordingly, we affirm.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016




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