T.B. v. R.J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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