J-A35044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

S.B.,                                              IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                     Appellant

                v.

H.D., a/k/a H.S., and D.G.,

                     Appellees                     No. 1110 WDA 2015


                  Appeal from the Order entered June 18, 2015,
              in the Court of Common Pleas of Washington County,
                       Civil Division, at No(s): 2014-6847

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED APRIL 19, 2016

        S.B. appeals from the Order denying his Petition to establish paternity

and for genetic testing to prove his paternity of the minor child, K.G.

(“Child”), who was born in May of 2009.           The Order also sustained the

Preliminary Objections filed by D.G., the former paramour of Child’s

mother,1 H.S., formerly known as H.D, (“Mother”) to the Complaint for

Custody filed by S.B., and dismissed the Complaint with prejudice.          We

affirm.

        The trial court set forth the underlying facts as follows:

             [Mother] is the biological mother of [Child.] S.B. and
        [Mother] never dated[,] but had sexual relations in June and July
        of 2008. When [Mother] learned that she was pregnant, S.B.

1
  D.G. is named as the father of Child on her birth certificate, and Mother,
who had been involved in an intimate relationship with D.G. prior to Child’s
birth, moved in with him shortly after Child was born. See Trial Court
Opinion, 8/4/15, at 2.
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        claims that he provided [Mother] with money for an abortion and
        the two parted ways. [Mother] denied accepting money for an
        abortion. In fact, she denied having any conversation at all with
        S.B. about her pregnancy, but she agreed that they parted ways.
        S.B. testified that in the spring of 2009, he became aware[,]
        through mutual friends[,] that [Mother] was in the hospital in
        labor. At the hearing, he claimed that he was “lied to and told
        [C]hild wasn’t mine.” However, he also stated that it could have
        been as early as 2012 that others told him [that C]hild
        resembled him.

              According to S.B., [Mother] was in a relationship with D.G.
        at the same time that he and [Mother] had sexual relations;
        however, [Mother] maintains that she and D.G. were “off” at the
        time that she had relations with S.B. [C]hild was not born into
        an intact marriage[,] as [Mother] was not married at the time
        [C]hild was born; however, D.G.’s name is listed as the father on
        [C]hild’s birth certificate. [Mother] stated that she moved in
        with D.G. shortly after [C]hild was born.

               [Mother] and D.G. are no longer in a relationship. They
        maintain a shared custody agreement[,] which they have
        consistently followed for the past three or four years. In July
        2014, S.B. attended a wedding where he observed [C]hild for
        the first time in person. He testified that [C]hild looked like him
        because she was “skinny, tall, and long legged.” He further
        stated that, “… when I turned and looked, it just gave me an
        eerie feeling. That I was lied to. That I was tricked.” At the
        hearing, testimony revealed that [C]hild looks biracial.[2] …

              On November 5, 2014, S.B. filed a [C]omplaint for custody
        against [Mother] regarding … [Child]. In an [O]rder dated
        December 10, 2014 [the trial court] scheduled a hearing for
        February 24, 2015[,] in order to determine whether D.G. should
        be permitted to intervene in the custody matter. In a consent
        Order dated December 11, 2014, D.G. was granted leave to
        intervene in the matter and the Prothonotary was directed to
        amend the caption to include D.G. On December 29, 2014, D.G.
        filed an [A]nswer to S.B.’s custody [C]omplaint and [N]ew
        [M]atter. On January 6, 2015, S.B. presented a [P]etition to
        establish paternity and for genetic testing, and on January 7,
        2015, D.G. filed [P]reliminary [O]bjections to the custody

2
    S.B. is African American while Mother is Caucasian.
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      [C]omplaint. Thereafter, [the trial court] scheduled a hearing to
      take place on May 29, 2015. On April 15, 2015, S.B. submitted
      a brief in support of the [P]etition to establish paternity and for
      genetic testing. On April 30, 2015, [Mother] and D.G. submitted
      briefs in opposition to S.B.’s [P]etition to establish paternity. On
      May 20, 2015, D.G. submitted a brief in opposition to S.B.’s
      custody [C]omplaint, and on May 22, 2015, S.B. submitted a
      brief in opposition to D.G.’s [P]reliminary [O]bjections.

Trial Court Opinion, 8/4/15, at 1-3 (citations omitted, footnote added).

      On May 29, 2015, the trial court held a hearing on S.B.’s Petition to

establish paternity and for genetic testing, and on D.G.’s Preliminary

Objections.   On June 18, 2015, the trial court entered an Order denying

S.B.’s Petition to establish paternity and for genetic testing, sustaining D.G.’s

Preliminary Objections, and dismissing with prejudice the Complaint for

Custody filed by S.B. On July 17, 2015, S.B. timely filed a Notice of Appeal,3

along with a Concise Statement of Errors Complained of on Appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i).

      On appeal, S.B. raises one issue: “Under all the circumstances of this

case, was [S.B.] estopped from claiming paternal rights with respect to

[C]hild by his delay in taking action?” S.B.’s Brief at 2.

      Our standard of review of a trial court’s order relating to paternity is

whether the trial court abused its discretion or committed an error of law.

D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014).



3
  “This Court accepts immediate appeals from orders directing or denying
genetic testing to determine paternity.” Barr v. Bartolo, 927 A.2d 635,
638 (Pa. Super. 2007) (citation omitted).
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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 [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) (citation

omitted).

      S.B. challenges the trial court’s finding that his delay in asserting his

rights precluded him from seeking a determination of Child’s paternity under

the doctrine of paternity by estoppel. S.B.’s Brief at 10. S.B. claims that

because Mother did not inform him that he had become a father, he was

never given the opportunity to act as a father.        Id. at 12-13, 15.    S.B.

asserts that he repeatedly expressed concerns about the paternity of Child,

but had only second-hand reports that Child, who is biracial, resembled him,

whereas both Mother and D.G. are Caucasian. Id. at 10, 16; see also id. at

15 (wherein S.B. states that neither Mother nor D.G. denied that he could be

the father of Child).    S.B. argues that, if, at the time of Child’s birth, the

complexion of Child puzzled Mother, she could have inquired about the

biracial appearance of Child. Id. at 16. S.B. points out that, when he saw

Child in person, he acted promptly to establish paternity through genetic

testing.    Id. at 12.   S.B. alleges that while Child will inevitably learn that

D.G. is not her biological father, he does not seek to shut D.G. out of Child’s

life. Id. at 16, 18; see also id. at 16-17 (wherein S.B. claims that if his


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J-A35044-15


paternity if confirmed, a determination as to a new custody arrangement

should be conducted with Child’s best interests in mind). S.B. urges that we

should reverse the trial court Order and allow genetic testing so that Child

will know that her birth father did not abandon her. Id. at 18.

      In making a legal determination of the paternity of a child, we must

consider the following:

      [F]irst, one considers whether the presumption of paternity
      applies to a particular case.[4] If it does, one then considers
      whether the presumption has been rebutted.[5] Second, if the
      presumption has been rebutted or is inapplicable, one then
      questions whether estoppel applies. Estoppel may bar either a
      plaintiff from making the claim or a defendant from denying
      paternity.

N.C. v. M.H., 923 A.2d 499, 502-503 (Pa. Super. 2007) (citation omitted,

footnotes added); see also K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012)

(holding 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 interest of the involved child.”).

4
  “The presumption of paternity, i.e., the presumption that a child conceived
or born during a marriage is a child of the marriage, has been described by
our Supreme Court as one of the strongest presumptions known to the law.”
Vargo, 940 A.2d at 463 (citation and quotation marks omitted). Because
the policy underlying the presumption is the preservation of marriages, the
“presumption of paternity applies only where the underlying policy to
preserve marriages would be advanced by application of the presumption.”
Id. “When there is no longer an intact family or a marriage to preserve,
then the presumption of paternity is not applicable.” Id.
5
  “In Pennsylvania, impotency/sterility and non-access constitute the only
ways to rebut the presumption of paternity.” Vargo, 940 A.2d at 463.
“Notably, blood tests cannot be offered to rebut the presumption of
paternity.” Id.
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      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…. The
      law will not permit a person in these situations to challenge the
      status that he or she has previously accepted. The doctrine of
      paternity by estoppel seeks to protect the interests of the child.

      Estoppel is based on the public policy that children should be
      secure in knowing who their parents are. If a certain person has
      acted as the parent and bonded with the child, the child should
      not be required to suffer the potentially damaging trauma that
      may come from being told that the father [s]he had known all
      h[er] life is not in fact h[er] father.

      … [I]f there is no difference in the supportive relationship
      available from the psychological and biological fathers, we
      conclude that the responsibility for fatherhood should lie with the
      biological father.

      The doctrine has most usually been applied to (1) preclude a
      man who had held a child out as his own from avoiding further
      support of the child after his relationship with the mother had
      ended; or (2) preclude a woman who had held one man out as
      her child’s father from seeking support from another man later
      on. In other words, those who mislead a child as to the identity
      of his or her natural father, [sic] cannot then turn around and
      disprove their own fiction to the detriment of the child.

      Yet, estoppel also can serve to preclude a biological father from
      asserting his parental rights.

                                     ***

      [I]f a biological father is not obstructed from pursuing his
      parental claim and he acquiesces in the fiction that someone else
      is his child’s father, the doctrine of estoppel may be invoked to
      bar his later attempt to assert his rights.

T.E.B. v. C.A.B., 74 A.3d 170, 173-75 (Pa. Super. 2013) (citations,

quotation marks, brackets, and some paragraph breaks omitted). “[W]here

estoppel is applied, blood tests may be irrelevant, for the law will not permit

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a person in estoppel situations to challenge the status which he or she has

previously accepted. Only when estoppel does not apply will blood tests be

ordered.” D.M., 87 A.3d at 327 (citation omitted).

      With regard to a fraud allegation in a paternity case, our Court noted

the following:

         In B.O. v. C.O., 404 Pa. Super. 127, 590 A.2d 313
         (1991), this Court stated that “when an allegation of
         fraud is injected in [an acknowledgement of paternity]
         case, the whole tone and tenor of the matter changes. It
         opens the door to overturning settled issues and policies
         of the law.” B.O., 590 A.2d at 315. This Court went on
         to create a narrow fraud exception for challenging
         paternity, which is otherwise a settled issue based on the
         signed acknowledgment.       We adopted the traditional
         elements    of    fraud   established    in   Pennsylvania
         jurisprudence:

               (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.

         Id.

         Recent cases have moved away from this rigid five-prong
         test[,] which this Court acknowledged in B.O. as
         problematic and somewhat circular. B.O., 590 A.2d at
         315. Our recent decision of Glover v. Severino, 946
         A.2d 710 (Pa. Super. 2008), provides additional guidance
         as to the elements of fraud in the context of challenges to
         acknowledgments of paternity:

               A misrepresentation need not be an actual
               statement; it can be manifest in the form of
               silence or failure to disclose relevant information
               when good faith requires disclosure.       Fraud is
               practiced when deception of another to his

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              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 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.

         Id. (quotations and citations omitted) (emphasis in
         original).

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

      Here, the trial court found that S.B. was estopped from asserting his

alleged parental rights6 based on the following:

      In the present case, S.B. seeks to establish that he is the father
      of … [C]hild, and he intends to seek custody if verified by a
      paternity test. However, the [c]ourt finds that he is estopped
      from asserting a claim of paternity, thus no blood tests can be
      ordered. S.B.’s failure to act during the first five or six years of
      [C]hild’s life effectively estops him from now raising a claim of
      paternity.

      Specifically, S.B. testified that he “heard that [Mother] was at
      the hospital delivering.” Hrg. Transcr. 23:19-20; Hrg. Transcr.
      32:6-12. When [C]hild was one year old, he started to think
      that [C]hild was his. Hrg. Transcr. 53:2-5. He stated that he
      has seen pictures of [C]hild, and he also noted that when the
      baby was about a year old, she started to look biracial. Hrg.
      Transcr. 48:20-21; Hrg. Transcr. 52:24-25.         Further, S.B.
      admitted that as early as 2012, he was informed that [C]hild
      resembled him. Hrg. Transcr. 37:2-8. Despite this information,
      he did not come to court at this time. Hrg. Transcr. 37:18-19.
      When asked why he did not come to court sooner, S.B. stated
      that he “didn’t want this to be a bad situation” because the
      parties have mutual friends.       Hrg. Transcr. 42:2-3.   When
      pressed further, he admitted he “did not have the financial
      means.” Hrg. Transcr. 43:20-21. He also stated that he has

6
 S.B. notes that the presumption of paternity is not applicable in this case
because Mother never married D.G. See S.B.’s Brief at 10.
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      always had concerns but “didn’t know the proper channels to
      take.” Hrg. Transcr. 46:14-15. Based on the aforementioned, it
      is evidence that he should have acted sooner.

      The testimony of T.S. supports the notion that S.B. was aware
      that [C]hild may be his and that he simply waited too long to
      act. T.S., who graduated from high school with the parties,
      testified at the hearing. According to T.S., during the first year
      of [C]hild’s life, she and S.B. had a conversation at the [bar]
      where she was a bartender at the time. Hrg. Transcr. 64:13-21.
      S.B. was drinking during the conversation. According to T.S.,
      S.B. informed her that he was aware that [Mother] was
      pregnant, he had given her money to get an abortion, and he
      knew that she did not get the abortion. T.S. further testified
      that S.B. stated during this conversation that he knew that
      [C]hild was his. Hrg. Transcr. 65:5-8. T.S. stated she had
      several subsequent conversations with S.B. over the years, and
      “It was always the same thing. Just, you need to get a hold of
      [Mother] You need to tell her … I want to see my daughter. I’m
      going to take her to court … it was always the same thing.” Hrg.
      Transcr. 66:22-25. According to T.S., S.B. never asked her for
      [Mother]’s phone number. Hrg. Transcr. 67:18-20.

      Despite testimony which clearly points to the fact that S.B. knew
      he may be the biological father of [C]hild, he waited
      approximately five years to seek court intervention. [C]hild is
      now six years old and D.G. is the only father she has ever
      known. D.G. has cared for [C]hild her entire life. The [c]ourt
      finds that S.B.’s conduct precludes him from intervening and
      disrupting [C]hild’s life at this point in time. He cannot be
      permitted to challenge a status[,] which he previously accepted.

Trial Court Opinion, 8/4/15, at 5-6 (citation omitted). We agree.

      Moreover, with regard to S.B.’s claim that Mother had committed

fraudulent misrepresentation by omission, the trial court found the following:

      The evidence in this case does not amount to [] a finding [of
      fraud].    There is no evidence that [Mother and D.G.]
      misrepresented anything to S.B.[,] nor is there any evidence
      that S.B. actually relied on an alleged misrepresentation. S.B.
      claims that he could not locate or contact [Mother] and that he
      was tricked. However, the testimony revealed that the parties

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     have numerous friends. According to [Mother], she has had the
     same cell phone number for two and a half to three years. Hrg.
     Transcr. 78:17-25. Her number has always been in the white
     pages of the phone book under her maiden name. Hrg. Transcr.
     79:24-25. She has maintained a Facebook account since late
     2009 or early 2010 and posts pictures of [Child] to this page.
     Hrg. Transcr. 82:17-22. She informed the [c]ourt that S.B. was
     not blocked from her [F]acebook page until November 2014
     when these proceedings ensued.         Hrg. Transcr. 83:7-10.
     Additionally, S.B. knows where D.G. lives and admitted that he
     has seen [F]acebook pictures on D.G.’s [F]acebook page. It is
     evidence to the [c]ourt that [Mother] and D.G. could have been
     reached, and there is no evidence to suggest that they did
     anything to prevent S.B. from contacting them. S.B. himself
     admitted he would have sought court intervention sooner, but he
     did not have the financial means, he did not know the proper
     channels, and he did not want to create a bad situation. Hrg.
     Transcr. 43:13-18; Hrg. Transcr. 46:14-15; Hrg. Transcr. 42:2-
     3. This proves that he was not misled[,] nor did he rely on any
     alleged misrepresentation.

     The evidence clearly demonstrates that S.B. waited too long to
     assert his rights, and his inaction is not the product of fraud.
     Therefore, paternity by estoppel is applicable, and S.B. is
     precluded from proceeding any further in asserting parental
     rights.

Trial Court Opinion, 8/4/15, at 7-8. We further note S.B. testified that, as

early as 2012, people had informed him of Child’s resemblance to him. N.T.,

5/29/15, at 37; accord Trial Court Opinion, 8/4/15, at 2.

     The trial court’s findings, i.e., that S.B. waited too long to assert his

rights as Child’s father while acquiescing to Mother’s paramour, D.G., as the

father of Child, and that Mother did not commit fraud, are supported by the

record. See Trial Court Opinion, 8/4/15, at 5-8; see also B.K.B. v. J.G.K.,

954 A.2d 630, 636 (Pa. Super. 2008) (concluding that the alleged biological

father’s failure to pursue parental rights until child was nine years old

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J-A35044-15

estopped him from challenging the mother’s former husband’s status as the

child’s father); Moyer v. Gresh, 904 A.2d 958, 962 (Pa. Super. 2006)

(concluding that where biological father voluntarily relinquished his parental

rights to another man during the first nine years of child’s life, biological

father was estopped from asserting his parental rights towards the child); In

re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006) (holding that the biological

father was estopped from asserting paternity where he knew that another

man had been named the father, and despite having the right to

acknowledge paternity, he waited to assert paternity until three years after

the child had been adopted); Buccieri v. Campagna, 889 A.2d 1220, 1228

(Pa. Super. 2005) (holding that where the putative father was inactive for

eight years, he was “estopped by his own past conduct from obtaining

genetic tests to establish his paternity and/or assert his paternal rights”). As

the trial court’s findings are supported by competent evidence, we will not

disturb them. See Vargo, 940 A.2d at 462. Accordingly, we affirm the trial

court Order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2016


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