to Amend Birth Record of Wright, J. ( 2021 )

J-A20039-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF PETITION TO : IN THE SUPERIOR COURT OF
AMEND BIRTH RECORD OF JERMANE : PENNSYLVANIA
WRIGHT :
:
:
APPEAL OF: JERMANE CRYSTAL :
LYNN WRIGHT :
:
: No. 339 WDA 2021
Appeal from the Order Entered February 16, 2021
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): 2017-70126, M.D.
BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 12, 2021
Appellant Jermane Crystal Lynn Wright (“Wright”) appeals from the
order entered in the Lawrence County Court of Common Pleas denying her
petition to correct her birth record, or birth certificate. There is no appellee.1
The question presented is one of jurisdiction, purely – did the trial court err in
concluding that the requested relief was beyond its power to grant? We
reverse.
Wright phrases the questions presented as follows:
1. Procedurally, did the trial court [err] and abuse its discretion
by denying [Wright’s] request to “amend the surname recorded
on her Certification of Birth”, without any substantive legal
rationale, without hearing, summarily denying [Wright’s] Motion
for Reconsideration the day after it was filed, and strangely
mischaracterizing [her] “Petition to Further Correct a Birth Record
– Uncontested” [or Petition] of February 10, 2021 as an untimely
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1 The Department of Health has not taken a position on this litigation.
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Petition to Amend the Court’s Order of April 5, 2018, when the
subject Petition was obviously, clearly, on its face, not requesting
to amend the court’s prior 2018 order?
2. Did the trial court [err] and abuse its discretion by denying
[Wright’s] request to “amend the surname recorded on her
Certification of Birth” stating that such a request is “beyond the
authority of this Court” in response to [Wright’s Petition] when the
authority of the court to make this correction was provided in the
subject Petition, provided in the court’s own order, and further
detailed in [Wright’s] “Motion for Reconsideration” that was timely
filed in response to this order?
3. Did the trial court [err] and abuse its discretion by denying
[Wright’s] request to amend and correct her name on her
certificate of birth to[ ] “Jermane Crystal Lynn Lo Voi” when the
legislatively delegated keeper of the subject birth record, the
Pennsylvania Department of Health, Vital Records Division,
thoroughly reviewed her Petition in advance, reviewed this
proposed amendment and correction, and stated in an official
letter through their legal counsel [ ] that they have no objection
to her request and amendment?
4. Did the trial court [err] and abuse its discretion by denying
[Wright’s] request to “amend the surname recorded on her
Certification of Birth” considering this same trial court and trial
judge decreed in 2018 that “Joseph William Lo Voi” was her
biological father and that he should be listed on her birth
certificate as such; considering that her mother signed an affidavit
in the presence of a notary stating that [Wright’s] surname on her
birth record should have been “Lo Voi”; considering the deep
personal meaning and significance of correcting her birth
surname; considering the practical significance of the surname in
Italian culture; considering birth record surnames frequently
being changed and corrected in Adoption cases; and considering
all the other reasons identified in the [Petition] and the “Motion
for Reconsideration”, filed of record?
Wright’s Brief at 9-11.
Wright, who is multiracial and whose mother is African-American, used
a consumer DNA service and online tools to discover the identity of her father,
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Joseph William Lo Voi. She then contacted her half-siblings, but not without
apprehension, as she did not know how they would react to having a
multiracial sibling and to the news that their father had an extramarital
encounter with her mother.2 She knew from her online research that her
father’s marriage had produced children both older and younger than her, so
she feared that the news of her identity might be unwelcome, as it might
destabilize the family’s identity. Her fears were dispelled by her siblings’ joy
at the happy news that their family was larger than they had known, and since
then she has developed a rewarding relationship with them.
On November 27, 2017, Wright filed an initial, counseled petition to
amend her birth record. However, her counsel advised her that it would be
cheaper for her to present her case by herself, apparently advising her that it
was a “slam dunk” and therefore she would not necessarily need counsel at
the hearing. N.T. Hearing, 1/24/18, at 6. Here is the trial court’s recitation
of the relevant facts:
In paragraph 3 of [Wright’s 2017] Petition, the Petition stated that
[Wright] was seeking to amend her birth certificate for the
following reasons:
a. Petitioner’s birth record does not state any father
listed (it is blank for “Father”).
b. Petitioner did not know her biological father in her
youth.
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2 N.T. Hearing, 3/27/18, at 40.
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c. After an extensive search, Petitioner discovered
that her biological father is Joseph William Lovoi . . .
.”
The relief requested was, “to enter an order decreeing that the
Petitioner’s birth record be amended to indicate that her biological
father was Joseph William Lovoi.” After changing attorneys, a
Supplement to Petition to Amend Birth Record was filed on March
27, 2018. The aforelisted reasons for the requested change and
the relief requested were not changed.
On March [27], 2018, a hearing was held and testimony
received. The Court transcript of the testimony was filed on April
30, 2018. An Order was entered on March 28, 2018 granting the
relief requested and ordering that the Petitioner’s birth certificate
be changed and that Joseph William Lovo [sic] be inserted as the
Petitioner’s biological father. Because the March 28, 2018 Order
listed the father’s last name as “Lovi” instead of “Lovoi,” an April
5, 2018 Order was entered correcting the spelling of the biological
father’s name to the requested “Joseph William Lovoi.”
Nothing further happened until almost three years later,
when on February 10, 2021 a “Petition to Further Correct Birth
Record – Uncontested” was filed. In this new Petition, it was
alleged that if the Petitioner’s mother had known the identity of
the child’s father, she would have named the Petitioner “Jermaine
Chrystal Lyynn Lo Voi” instead of “Jermaine Chrystal Lyynn
Jones.” The Petition also stated that the correct last name of the
father should have been “Lo Voi” not “Lovoi” as originally listed in
the initial petition and supplemental petition. The Petition to
Further Correct Birth Record requested that the Father’s last name
be corrected to “Lo Voi” and that the Petitioner’s last name at birth
be changed from “Jones” to “Lo Voi.”
. . . However, the request to change the Petitioner’s name
at birth could not be treated as a mere technical correction; and
the request to modify the Petitioner’s name at birth was denied.
Neither the original Petition to Amend Birth Record or the
2018 Supplement to Amend Birth Record contained any allegation
that the Petitioner’s Mother would have named the Petitioner
differently if the Mother had known the Father of her child. And
neither the original Petition or the 2018 Supplement made any
request for relief asking the Court to amend the birth certificate
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to change the Petitioner’s name at birth. The testimony that was
placed on the record on March 28, 2018 contained no testimony
about changing the Petitioner’s birth name. While a technical
error can be corrected at any time, an Order becomes final and
non-appealable after thirty (30) days, 42 Pa.C.S.[ ]§ 5505. A
Court retains inherent authority to correct technical errors in the
record, but no [substantive] change can be made after an Order
becomes final . . . .
Trial Ct. Op., 5/6/21, at 1-3.
Wright argues that the trial court has mischaracterized her petition of
February 10, 2021 (the 2021 Petition) as an untimely petition to amend the
court order of April 5, 2018, instead of viewing it as a distinct and subsequent
petition. Wright’s Brief at 29. Wright points out that the Department of
Health, Vital Records Division, “thoroughly reviewed her [2021] Petition in
advance, reviewed this proposed amendment and correction, and stated in an
official letter through their legal counsel . . . that they have no objection to
her request and amendment.” Id. at 30.
In an appeal from an Orphans’ Court decree,
[we] must determine whether the record is free from legal error
and the court’s factual findings are supported by the evidence.
Because the Orphans’ Court sits as the fact-finder, it determines
the credibility of the witnesses and, on review, we will not reverse
its credibility determinations absent an abuse of that discretion.
However, we are not constrained to give the same deference to
any resulting legal conclusions. Where the rules of law on which
the court relied are palpably wrong or clearly inapplicable, we will
reverse the court’s decree.
In re Estate of Brown, 30 A.3d 1200, 1206 (Pa. Super. 2011) (citation
omitted).
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Here, the dispute lies in the legal conclusions reached by the trial court.
The central question is whether an individual can bring multiple petitions to
correct a birth record, or whether all potential corrections must be brought in
the same proceeding at the risk of loss of jurisdiction. The trial court supports
its denial of relief by pointing out that the request to change Wright’s birth
name was not presented in Wright’s original or amended petition, nor was it
raised at the hearing of March 27, 2018. Trial Ct. Op. at 5. “Not directly
stated by the trial court, but almost implied in its opinion, is that [a petitioner]
only gets one opportunity to amend her Birth Record.” Wright’s Brief at 35.
Wright asserts that there is no authority for this implication. Id. Wright also
points out that the 2021 Petition requested other relief that the trial court
granted. Id. at 36. The trial court acknowledges in its opinion that it
corrected the spelling of Wright’s father’s last name. Trial Ct. Op. at 2.
We must agree with Wright that there is no authority for the supposition
that petitioners may only seek to amend a record of birth once; nor is there
authority for the position that there is a time bar and petitioners must seek
amendment promptly upon encountering facts that would support amendment
of a record of birth. Our review of 35 P.S. § 491 (governing ability to petition
for amendment of a birth record and information to provide in such a petition)
and other pertinent law does not support the trial court’s assumption that
individuals may only petition once for such relief.
Appellant cites In re I.L.P., 965 A.2d 251 (Pa. Super. 2009), a case in
which the parents of twins who were birthed through the assistance of a
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gestational carrier, sought in 2008 to amend the twins’ birth record, after
initially (successfully) amending their birth records in 2006. Wright’s Brief at
48; see In re I.L.P., 965 A.2d at 252. The I.L.P. Court held “that jurisdiction
to entertain Appellants’ 2006 and 2008 petitions (seeking alteration,
amendment or modification of birth records) was properly before the Orphans’
Court . . . .” In re I.L.P., 965 A.2d at 256. This Court held that the trial
court abused its discretion in denying the 2008 petition, and remanded with
instructions to “reconsider its ruling given our conclusion that it does have the
authority to modify the decree appealed by Appellants.” Id. at 258. We reach
the same conclusion here.
Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2021
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