J-S09016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.M.E.                                                IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

D.A.B.

                            Appellant                    No. 1817 MDA 2015


               Appeal from the Order Entered September 18, 2015
                In the Court of Common Pleas of Snyder County
                    Domestic Relations at No(s): 2015-00071
                            PACSES No. 613115274


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

MEMORANDUM BY LAZARUS, J.:                            FILED FEBRUARY 19, 2016

        D.A.B. appeals pro se from an order of the Court of Common Pleas of

Snyder County naming him the biological father of X.A.E. (“Child”), born

October 2009, and entering a final order of support against him.             After

careful review, we vacate and remand.1

        On May 1, 2015, S.M.E. (“Mother”) filed a complaint against D.A.B. for

support of Child. The trial court ordered D.A.B. to appear for a support

conference on June 16, 2015. The court also ordered D.A.B. to appear for

genetic testing on June 8, 2015; that order stated that if D.A.B. “fails to

appear for genetic testing as ordered, the court will enter an order finding

the defendant is the father of the child.” Order, 5/27/15.
____________________________________________


1
    Appellee has failed to file an appellate brief.
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        On that date, the court entered an order finding D.A.B. is the father of

Child pursuant to 23 Pa.C.S.A. § 5104(c).2        The court noted that D.A.B.

appeared and refused to submit to genetic testing as ordered.

        D.A.B. states that when he appeared for genetic testing, he informed

the court that Mother “was married and living with her husband” at the time

of conception and that the presumption of paternity should apply.          See

Appellant’s Brief, at 4. D.A.B. further states that the court asked if he would

like to seek legal counsel before proceeding, to which he responded yes, and

was told a hearing would be scheduled. D.A.B. next states that prior to any

scheduled hearing being held, he received the June 8, 2015 order naming

him the biological father of Child. Id.



____________________________________________


2
    Section 5104(c) provides:

           Authority for test.--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 [sic] 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.

23 Pa.C.S.A. § 5104(c) (emphasis added).



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       Thereafter, the court held a conference on June 30, 2015, which both

parties attended, and the court entered an interim support order against

D.A.B. On July 10, 2015, D.A.B. requested a de novo hearing. The court

scheduled the hearing for September 18, 2015. On September 3, 2015,

Father filed a motion for a continuance, stating that he was scheduled to

undergo surgery. The trial court denied that request.

       D.A.B. failed to appear at the September 18, 2015 hearing, and the

court entered the interim support order as a final order of support. On

October 19, 2015, D.A.B. filed a request that the court “rescind the June 8,

2015 order naming him the biological father, and dismiss all support actions

against him.” This notice of appeal IFP was docketed on October 21, 2015.3

       In his brief, D.A.B. raises the following challenges to the finding of

paternity:

       1. Was the appellee married and living with her husband at the
          time of conception, and married at the time of birth?

       2. Was the appellant unavailable at the time of conception of the
          child in question?



____________________________________________


3
  D.A.B. erroneously filed the appeal in the Commonwealth Court. The
Commonwealth Court forwarded the appeal to the trial court. See Pa.R.A.P.
905(a)(4)(“If a notice of appeal is mistakenly filed in an appellate court, or is
otherwise filed in an incorrect office within the unified judicial system, the
clerk shall immediately stamp it with the date of receipt and transmit it to
the clerk of the court which entered the order appealed from, and upon
payment of an additional filing fee the notice of appeal shall be deemed filed
in the trial court on the date originally filed.”).



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      The trial court points out that D.A.B. failed to seek reconsideration or

file a notice of appeal from the June 8, 2015 order. See Trial Court Opinion,

10/27/15, at 1.    That, however, is inconsequential.    An order establishing

paternity is not an appealable order; the issue of paternity may be included

in an appeal from a final order of support.        See Pa.R.C.P. 1910.15(f).

D.A.B. has appealed from the September 18, 2015 final order of support.

      We now address D.A.B.’s challenges to the paternity finding.          The

Explanatory Comment to Pa.R.C.P. 1910.15(f) states that paternity may be

established “by failing to appear for the initial conference, genetic testing,

trial or hearing, which results in entry of a default order establishing

paternity under subdivision (e).”     Explanatory Comment-2000- Pa.R.C.P.

1910.15(f). Here, D.A.B. did appear for genetic testing, but it is not clear on

the record before us whether he was entitled to appointed counsel.          We

cannot conclude from this record that D.A.B. had a meaningful opportunity

to be heard on the issue of paternity.       The due process clause of the

Fourteenth Amendment to the United States Constitution requires the

appointment of counsel for indigent defendants in civil paternity actions in

Pennsylvania.     See Corra v. Coll, 451 A.2d 480, 486 (Pa. Super. 1982)

(familial, liberty and property interests at stake in a paternity proceeding are

significant enough to warrant protection through appointment of counsel for

indigent defendants in paternity actions); see also White v. Gordon, 460

A.2d 828 (Pa. Super. 1983) (non-indigent defendant must have reasonable

opportunity to obtain counsel).

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      D.A.B. is pro se on appeal, and this appeal was filed in forma pauperis;

we can only assume, therefore, having been granted IFP status, that D.A.B.

has averred that he is indigent.      See Pa.R.A.P. 551-561. There is no

discussion on the record of whether D.A.B. was in fact indigent and might

have counsel appointed for him.

      Further, the finding that   D.A.B. refused to submit to blood tests is

not supported by the record. D.A.B. raised the issue of the presumption of

paternity. Although the statute provides that if a litigant refuses to submit

to blood tests the court may resolve the paternity issue against him, in order

to make a finding that D.A.B. refused to take the blood tests, this must be

determined through hearing or admission. See Freedman v. McCandless,

654 A.2d 529 (Pa. 1995). Further, Rule 1910.15(c) provides that “[i]f either

party or the court raises the issue of estoppel or the issue of whether the

presumption of paternity is applicable, the court shall dispose promptly of

the issue and may stay the order for genetic testing until the issue is

resolved.”   Pa.R.C.P. 1910.15(c) (emphasis added).     Here, it appears that

D.A.B. raised the presumption of paternity, but there is no indication in the

record that this issue was resolved. 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);

Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999); McCue v. McCue, 604 A.2d

738 (Pa. Super. 1992); cf. M.L. v. J.G.M., 2016 PA Super 1 (filed January 4,

2016). As the trial court acknowledges, there is no factual record before us

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since D.A.B. failed to appear at the scheduled September 18, 2015 hearing,

which brings us to another concern – the trial court summarily denied

D.A.B.’s motion for continuance based on averment of scheduled surgery.

The lower court has provided little explanation, suggesting instead that

D.A.B.’s issues are waived because no factual record exists.

      From our review, it appears that the trial court entered the paternity

determination prematurely.     We, therefore, vacate and remand for: (1) a

determination of whether D.A.B. is entitled to appointment of counsel; and

(2) resolution of the presumption of paternity issue. If the court determines

the presumption does not apply, the matter can proceed pursuant to section

5104(c) and Rule 1910-15(c).

      Order vacated. Case remanded for further proceedings in accordance

with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2016




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