S.N.M. v. M.F.

J-A19001-17
2017 PA Super 367S.N.M., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
M.F.,
Appellee No. 868 EDA 2017
Appeal from the Order Entered February 27, 2017
In the Court of Common Pleas of Philadelphia County
Family Court at No(s): 03-01628
PACSES 056106221
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
OPINION BY BENDER, P.J.E.: FILED NOVEMBER 20, 2017
S.N.M. (Mother) appeals from the February 27, 2017 order that
dismissed the paternity action filed by M.F. (Father), who the court
determined was not the biological father of J.M. (Child), born in August of
2003. After review, we reverse.
On September 6, 2016, Father filed a motion to establish paternity and
for genetic testing regarding Child. A hearing was scheduled for December
21, 2016, and was attended by Mother, Father, and Donna Marcus, an ADA
with the Philadelphia District Attorney’s Office, who is essentially
J-A19001-17
representing Mother in this matter pursuant to 23 Pa.C.S. § 4306. 1 The trial
court’s opinion, filed pursuant to Pa.R.A.P. 1925(a), describes the factual
and procedural background of this case, stating:
[Father] testified, inter alia, that he had been incarcerated for
eight years, including during the birth of the child, and he had
doubts as to whether he was the biological father of [C]hild.
At the time of the hearing, there was no outstanding order
for support running against [Father]. Mother testified that a
custody order was entered between the parties in 2003, and as a
result, [Father] was required to sign an Acknowledgment of
Paternity. This court took into consideration [Father’s] eight-
year period of incarceration during which time he had no custody
with [C]hild, [Father’s] testimony of his subsequent doubts as to
paternity, and the fact that he filed his motion for genetic testing
shortly after his release from prison in April 2016, and
determined those as significant factors weighing against a
finding of paternity by estoppel.[2] As a result, this court entered
its order on December 21, 2016, as follows:
MOTION TO ESTABLISH PATERNITY FILED SEPTEMBER
6, 2016 IS RESOLVED AFTER A HEARING. DEFENDANT,
[FATHER], PLAINTIFF, [MOTHER], AND THE MINOR
CHILD, … SHALL GO FORTHWITH TO THE
PHILADELPHIA FAMILY COURT GENETIC TESTING LAB,
… FOR GENETIC TESTING TO BE CONDUCTED. MATTER
TO BE RELISTED UPON AVAILABILITY OF RESULTS.
____________________________________________
1 Specifically, section 4306(b) states that “[t]he district attorney, upon the
request of the court or a Commonwealth or local public welfare official, shall
represent any complainant in any proceeding under this subchapter.”
2 To clarify this statement by the trial court, we note that the record reveals
Father’s incarceration during the first three weeks of Child’s life, but that
during the next five years Mother and Father shared legal and physical
custody of Child pursuant to a custody agreement that was entered as an
order of court. See N.T., 12/21/16, at 5-7. In fact, Father testified that for
the first five years of Child’s life, he was involved in Child’s life “on a daily
basis.” Id. at 6.
-2-
J-A19001-17
Twenty minutes after the conclusion of the hearing, ADA Marcus
requested that the motion be recalled to orally request a stay of
genetic testing, which this court denied.
Immediately following the hearing, both parties and [C]hild
submitted to genetic testing at the Philadelphia Family Court’s
genetic testing unit. Results of genetic testing were received
and docketed on January 3, 2017, and notices were sent to the
parties of a hearing scheduled administratively for March 14,
2017, at 9:00 a.m., in a different courtroom tha[n] that of the
undersigned judge. The docketed results indicated that the
probability of paternity for [Father] was 0%.
On January 10, 2017, [ADA] Marcus filed [a] … Petition for
Reconsideration of the order of December 21, 2016. Thereafter,
on February 1, 2017, this court entered its order denying
Mother’s Petition for Reconsideration, as follows:
COMMONWEALTH’S PETITION FOR RECONSIDERATION
OF PATERNITY OF ORDER ENTERED BY THIS COURT
AFTER A HEARING ON DECEMBER 21, 2016, AND FILED
BY ADA DONNA MARCUS ON JANUARY 6, 2017, IS
DENIED AFTER REVIEW. THE GENETIC TESTING
RESULTS THAT ARE PART OF THE COURT FILE
INDICATE THAT [FATHER], PETITIONER IN THE
UNDERLYING MOTION FOR GENETIC TESTING[,] IS
EXCLUDED AS THE BIOLOGICAL FATHER OF MINOR
CHILD….
On March 10, 2017, [ADA] Marcus filed a Notice of Appeal
along with a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925(b) of the February 27, 2017, order in
this matter. [See infra.] [ADA] Marcus did not appeal from
either the December 21, 2016, final order entered by this court
or from the February 1, 2017, order denying reconsideration of
that final order. This court believes that it is significant that the
undersigned judge never signed the administrative order
docketed on February 27, 2017, and in fact, the undersigned
judge never saw the unsigned administrative order until this
judge received it as an attachment to [ADA] Marcus’ Notice of
Appeal. The administrative order provides as follows:
-3-
J-A19001-17
AND NOW, THIS FEBRUARY 27, 2017, IT IS HEREBY
ORDERED THAT DEFENDANT IS NOT THE BIOLOGICAL
FATHER OF THE CHILD…, BORN … TO [MOTHER] AND
THIS PATERNITY ACTION IS DISMISSED.
Trial Court Opinion (TCO), 3/27/17, at 1-3 (citations to the record omitted).
As noted, the court explained that the February 27, 2017 order was
administratively entered as a computer-generated order through the Giant
Activity Matrix (GAM). Moreover, the opinion appears to suggest that the
court believes the final order from which an appeal should have been taken
was the December 21, 2016 order, directing the parties to submit to genetic
testing, or from the February 1, 2017 order, denying reconsideration of the
December 21st order. Therefore, the court seems to intimate that the appeal
in this matter was untimely, having only been filed on March 10, 2017, more
than thirty days after the December 21st and February 1st orders were
entered.3 Thus, based on its discussion of the reasons for its determination,
the trial court requests that this Court quash this appeal.
____________________________________________
3 The court also found that ADA Marcus did “not have standing to bring the
instant appeal on behalf of the Commonwealth since there was no child
support action in existence at the time of the December 21, 2016 hearing.”
TCO at 4 (emphasis added). The court further stated that “[t]he [c]omplaint
for [s]upport on behalf of the Department of Public Welfare was not filed
until January 3, 2017, after the genetic testing results were entered….” Id.
Initially, we note that ADA Marcus is the named attorney on this Court’s
docket for Mother in connection with this appeal. Moreover, neither a party
nor the court raised an objection to ADA Marcus’ representation of Mother at
the time of the December 21, 2016 hearing. Additionally, since this appeal
was filed on March 10, 2017, and the support action was instituted on
January 3, 2017, ADA Marcus’ representation of Mother is proper under the
circumstances. ADA Marcus’ status at the time of the December 21, 2016
hearing does not impact her status in connection with this appeal.
-4-
J-A19001-17
We now turn to the issues raised by ADA Marcus in Mother’s appeal:
I. Did the trial court err when it granted [Father’s] motion to
establish paternity and ordered genetic testing, even though
paternity had already been established when [Father] was
adjudicated as the father of [C]hild in 2003 by signing an
Acknowledgement of Paternity and the doctrine of paternity by
estoppel applied since [Father] has held himself out as the father
for thirteen (13) years?
II. Did the trial court err when, after receiving the genetic
testing results, the court cancelled the scheduled hearing on the
genetic testing results, sua sponte, and entered a final order
declaring that [Father] is not the biological father of the child in
question, thus precluding [Mother’s] opportunity to present
testimony or challenge the legality of the entry of the genetic
testing results into evidence?
Mother’s brief at 4 (footnote omitted).
Before addressing Mother’s issues, we must determine whether the
appeal before us is timely. See Pa.R.A.P. 903(a) (“Except as otherwise
prescribed by this rule, the notice of appeal required by Rule 902 … shall be
filed within 30 days after the entry of the order from which the appeal is
taken.”). As noted above, the court suggests that the appeal should have
been filed after the entry of the December 21, 2016 order or the February 1,
2017 order, but it was not filed until March 10, 2017. However, our review
reveals that these orders were not final. See Pa.R.A.P. 341 (a) (stating “an
appeal may be taken as of right from any final order of a … trial court”); (b)
(“A final order is any order that … disposes of all claims and of all
parties[.]”). Despite lacking finality, we are aware that Mother could have
appealed after their entry pursuant to the holding in Jones v Trojak, 634
-5-
J-A19001-17
A.2d 201, 205 (Pa. 1993) (stating an appellate court in Pennsylvania may
“review court ordered blood tests at the interlocutory stage”). Moreover, we
recognize that a hearing remained scheduled for March 14, 2017, to address
the results of the genetic test and provide an opportunity to the parties to
submit evidence. It was not until the issuance of the February 27, 2017
order, declaring that Father was not Child’s biological parent and dismissing
the paternity action, that a final order was issued. Implicit in the dismissal
was a cancellation of the March 14, 2017 hearing. At that point, disposal of
all claims and parties was accomplished and the thirty-day appeal period
began to run. Mother will not be penalized for choosing to wait until the
final order in this matter was entered. Accordingly, the appeal to this Court
on March 10, 2017, was timely.
With regard to Mother’s first issue, her argument is two-fold: 1) that
paternity was established when Father signed the acknowledgment of
paternity and he did not provide evidence to rescind it; and 2) that the court
ignored the doctrine of paternity by estoppel and failed to balance that
against the continuing custody order and the relationship between Father
and Child.4
____________________________________________
4 We note that our standard of review in paternity matters is that of an
abuse of discretion. T.E.B. v. C.A.B., 74 A.3d 170, 173 n.1 (Pa. Super.
2013).
-6-
J-A19001-17
Mother first contends that the court abused its discretion in granting
genetic testing and then declaring that Father is not Child’s biological father.
She bases this argument of Father’s signing an acknowledgment of paternity
thirteen years ago, shortly after Child’s birth. This concept is governed by
23 Pa.C.S. § 5103 (a), (d) and (g), which states:
(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.
…
(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 of paternity
signed in another state according to its procedures.
…
(g) Rescission.—
(1) Notwithstanding any other provision of law, a signed,
voluntary, witnessed acknowledgment of paternity subject to 18
-7-
J-A19001-17
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.
In R.W.E. v. A.B.R., 961 A.2d 161 (Pa. Super. 2008), a case involving
an acknowledgement of paternity, this Court stated:
A signed, witnessed, voluntary acknowledgment of paternity
shall be considered a legal finding of paternity if it is not
rescinded by the signatories within sixty days of its signing. 23
Pa.C.S. § 5103(g)(1). After sixty days, the acknowledgment
may only be challenged in court on the basis of fraud, duress or
material mistake of fact, if established by the challenger through
clear and convincing evidence. 23 Pa.C.S.[] § 5103(g)(2).
Id. at 167. Thus, because Father signed the acknowledgment of paternity
and presented nothing to show fraud, duress or material mistake of fact, the
paternity of Child was established and cannot be challenged at this point.
See D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014) (stating “[t]he entry
of a support order necessarily determines the issue of paternity” and
“putative father is precluded from challenging paternity even if subsequently
performed blood tests exclude him as the child’s biological father”). See
-8-
J-A19001-17
also Wachter v. Ascero, 550 A.2d 1019, 1021 (Pa. Super. 1988) (stating
that “blood test should not have been ordered … even for humanitarian
purposes, and should never be ordered unless it is to establish paternity in a
proceeding where paternity is a relevant fact and has not already been
determined in a prior proceeding”). Here, the custody agreement, made an
order of court, is such a proceeding that determined paternity. Accordingly,
the trial court abused its discretion in granting the genetic testing.
Additionally, we recognize that the trial court relied on the fact that no
support order was in existence at the time these proceedings were
instituted, but it overlooked the custody agreement that was made an order
of court. This custody order is to be construed to have the same effect as a
support order in determining the issue of paternity, particularly, because in
this case Father signed the acknowledgment of paternity. See 23 Pa.C.S. §
5103(g)(1)(ii). This section of the law emphasizes that the signing of an
acknowledgment of paternity is considered a legal finding of paternity, but
also indicates that a judicial proceeding relating to the child is not limited to
a proceeding to establish a support order. Thus, the trial court abused its
discretion in so concluding.
Furthermore, the court erred by relying on a humanitarian purpose in
its reasoning as stated in the notes of testimony:
THE COURT: Well, I’m going to grant it and I’m telling you the
reason why.
I’m going to grant it because even if you are his biological father
I think it’s better for [Child] to know for sure and for both mom
-9-
J-A19001-17
and dad to know. There is a doctrine call Paternity by Estoppel
and I think that’s what the Commonwealth attorney is objecting
on those grounds because you held yourself out.
But, my concern at this point in time is to make sure that if you
are not his biological father that I think -- if he has any kind of
medical issues in the future it’s better for him to know who his
biological parents are. Okay.
N.T., 12/21/16, at 7-8. See Wachter, supra.
Mother also sets out arguments relating to the doctrine of paternity by
estoppel and her allegation that the court violated her due process rights by
entering the order establishing paternity without first holding a hearing, i.e.,
the previously scheduled March 14th hearing. We agree with Mother’s
positions on both of these arguments. However, in light of our conclusion
that the court abused its discretion in granting the petition for genetic
testing, we need not address those arguments. Thus, we conclude that
although Father is not Child’s biological father, he remains Child’s legal
father together with all that designation implies. Accordingly, we reverse
the trial court’s order to the extent its dismissal of the paternity action
contradicts Father’s status as Child’s legal father.
Order reversed. Jurisdiction relinquished.
- 10 -
J-A19001-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
- 11 -