M.S. v. K.S.

J-A28003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.S. :
:
: No. 914 MDA 2018
APPEAL OF: J.W.M. :
Appeal from the Order Entered May 8, 2018
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-17-09360
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 17, 2018
J.W.M. (Petitioner) appeals from the order, entered in the Court of
Common Pleas of Lancaster County, denying his petition to intervene in the
custody action between K.S. (Mother) and M.S. (Father). After our review,
we affirm the order based on the opinion authored by the Honorable Jeffrey
A. Conrad.
To summarize, Petitioner had a relationship with Mother approximately
seven years ago; they dated, although not exclusively, between May and July
of 2011. Mother gave birth to daughter (Child) in April of 2012. Mother told
Petitioner at the time she found out she was pregnant that he could be Child’s
father, and she let him know when Child was born. In the six years since
Child’s birth, however, Petitioner has done nothing to support Child,
emotionally or economically. Petitioner did not seek paternity testing.
J-A28003-18
When Child was two months old, Mother and Father began their
relationship and they started living together when Child was six months old.
Mother and Father married in September 2013, when Child was a toddler.
Thereafter, Mother and Father had two children. At all times, Father has
supported Child and treated her as his own.
On October 16, 2017, Father filed a complaint in divorce (Complaint)
against Mother. In the Complaint, Father sought custody of Child and the
parties’ two biological children.
Petitioner, having reconnected with Mother in 2017 via social media,
filed a petition to intervene and sought court-ordered paternity tests. The
court scheduled a hearing for May 7, 2018. A few days prior to the scheduled
hearing, Father’s counsel filed a praecipe to withdraw the Complaint.
Following the hearing, at which both parties and Petitioner testified, the court
denied Petitioner’s petition to intervene. See Order, 5/7/18.1 This appeal
____________________________________________
1 The order reads:
And now, this 7th day of May, 2018, following a hearing on the
Petition to Intervene attended by Plaintiff [M.S.], Defendant
[K.S.], and Potential Intervenor [J.W.M.], each with counsel, the
Petition to Intervene is hereby DENIED.*
*In Buccieri v. Campagna, [889 A.2d 1220 (Pa. Super.
2005)], the Superior Court denied a putative father’s
request for genetic testing on the grounds that he was
estopped from making a paternity claim because he was on
notice that the child may be his yet he failed to pursue a
claim for seven years. This case is factually similar in that
[Petitioner] knew he was a potential father prior to or shortly
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followed. Both the trial court and Petitioner have complied with Pa.R.A.P.
1925.
Petitioner raises the following claims on appeal:
____________________________________________
after [Child’s] birth but did nothing to pursue confirmation
of paternity for nearly six years. [Petitioner] relies on the
case of K.E.M. v. P.C.S., [38 A.3d 798 (Pa. 2012)], in which
the Supreme Court directed that in “cases involving
separation and divorce . . . the Uniform Act on Blood Tests
to Determine Paternity is now to be applied on its terms
insofar as it authorizes testing.” Id. at 810-11. The Act
provides that “[i]n any matter . . . in which paternity,
parentage or identify of a child is a relevant fact, the court
. . . upon motion of any party to the action . . . shall order
the mother, child and alleged father to submit to blood
tests.” 23 Pa.C.S.A. § 5104(c). However, [Petitioner] is not
a party to this action, and this case is distinguishable from
K.E.M. because it is not one involving separation and
divorce. While [Father] did file divorce proceedings against
[Mother], those claims have been withdrawn and both
[Mother and Father] testified credibly of their reconciliation.
More importantly, [Petitioner] advanced no evidence that it
is in [Child’s] best interests that he be allowed to disrupt her
relationship with [Father]. [Father] has been her father
since she was six months old. He has cared for her
financially, practically, and emotionally. He treats her the
same as he does his biological children with [Mother]. He
signed a support order with the Office of Domestic Relations
during the separation and even attempted to have his name
listed on her birth certificate – both events occurring prior
to [Petitioner’s] Petition to Intervene. In short, [Father] is
the only father [Child] has ever known, and the court finds
that it is not in her best interests to disrupt that relationship.
Order, 5/7/18.
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J-A28003-18
1. Whether the court erred and abused its discretion in not
permitting [Petitioner] to intervene in this custody action?
2. Whether the trial court erred and abused its discretion in its
application of the doctrine of paternity by estoppel to the
facts and circumstances of this case?
3. Whether the trial court erred and abused its discretion in not
considering the fraud on the part of Mother, and its effect
on [Petitioner’s] actions and the course of this matter?
4. Whether the court erred and abused its discretion in not
ordering genetic testing pursuant to statute and case law
under the facts and circumstances of this case?
Appellant’s Brief, at 5-6.
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 has known all his life is not in fact h[er] father.
Fish v. Behers, 741 A.2d 721, 724 (Pa. 1999) (citation omitted). The
doctrine of paternity by estoppel is rooted in the best interests of the child.
Vargo v. Schwartz, 940 A.2d 459 (Pa. Super. 2007).
After our review, we conclude the trial court properly applied the
doctrine of paternity by estoppel and precluded application of the Uniform Act
on Blood Tests to Determine Paternity. 23 Pa.C.S.A. § 5104.2 We agree with
the trial court’s conclusion that Buccieri is dispositive and that Petitioner’s
reliance on K.E.M. is misplaced. Under the circumstances of this case,
____________________________________________
2 The Uniform Act on Blood Tests to Determine Paternity creates a statutory
right to obtain blood testing to determine paternity; the right is not absolute
and must be balanced against competing societal/family interests. See
Miscovich v. Miscovich, 688 A.2d 726 (Pa. Super. 1997).
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Petitioner is estopped by his own past conduct from obtaining genetic tests to
establish his paternity and/or assert his paternal rights. Buccieri, supra.Where the putative father has failed to exercise his parental claim, there is no
reason to disturb the familial relationship that has developed among Mother,
Father and Child. Id. “When balanced against societal concerns for
constancy in [Child’s] life, we see no reason to allow [Petitioner] to march into
[Child’s] life at this late date.” Buccieri, 887 A.2d at 1227. See also B.K.B.
v. J.G.K., 954 A.2d 630, 636 (Pa. Super. 2008) (concluding that alleged
biological father’s failure to pursue parental rights until child was nine years
old estopped him from challenging mother’s former husband’s status as child’s
father); Moyer v. Gresh, 904 A.2d 958, 962 (Pa. Super. 2006) (where
biological father voluntarily relinquished parental rights to another man during
first nine years of child’s life, biological father was estopped from asserting
parental rights towards child); In re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006)
(holding biological father estopped from asserting paternity where he knew
another man had been named father, and despite having right to acknowledge
paternity, he waited to assert paternity until three years after child had been
adopted).
The legal fictions perpetuated through the years, including the
proposition that genetic testing is irrelevant in certain paternity cases, retain
their greatest force where, as here, there is an intact family seeking to defend
itself against third-party intervention. The evidence of record here supports
the trial court’s findings; thus, we will not disturb them. See Vargo, supra
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at 462. Accordingly, we affirm the trial court’s order and direct the parties to
attach a copy of Judge Conrad’s opinion in the event of further proceedings.
Order affirmed.
Judge Musmanno joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2018
-6-
Circulated 12/11/2018 11:07 AM
ENTERED AND FILED
PROTHONOTARY'S OFFICE
LANCASTER,PA
... Electronlcal ly Flle38 A.3d 798, 803 (Pa. 2012). However, the
appellate standard of review for a paternity decision is abuse of discretion. D.M. v. V.B .• 87 A.3d
0
323, 327 (Pa. Super. 2014) ." Abuse of discretion exists where the trial court overrides or
misapplies the law, or ifthere is insufficient evidence to sustain its order. R.W.E. v. A.B.K .• 961
A.2d 161, 165 (Pa. Super. 2008) citing Vargo v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007).
Absent an abuse of discretion or insufficient evidence to sustain the support order, the reviewing
court will not interfere with the broad discretion afforded the trial court. Haselrig v. Haselrig,
840 A.2d 338, 339 (Pa. Super. 2003) quoting Strawn v. Strawn, 664 A.2d 129, 131 (Pa. Super.
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1995). Moreover, the resolution of factual issues is a matter for the trial court, and the reviewing
court will not disturb the trial court's findings if they are supported by competent evidence.
Doran v. Doran, 820 A.2d 1279, 1282 (Pa. Super. 2003). "The finder of fact is entitled to weigh
the evidence presented and assess its credibility. The fact finder is free to believe all, part, or
none of the evidence and the [appellate court] will not disturb the credibi1ity determinations of
the court below." 904 A.2d 15, 20 (Pa. Super. 2006) (internal citations and quotations omitted).
IV. DISCUSSION
Petitioner's statement of matters complained of on appeal lists seven paragraphs.
However, these paragraphs do not each contain a separate issue. Paragraph 1 is a broad and
vague statement of the court's error. Paragraphs 2 and 3 question the courts application of
paternity by estoppel. Paragraphs 5, 6, and 7 question the court's analysis of the best interest of
the Child. Rather than reproduce Petitioner's statement of errors verbatim, the court sununarizes
them as follows:
A. The court erred in its application of the doctrine of paternity by estoppel.
B. The court erred in not considering the fraud on the part of Mother.
C. The court erred in its consideration of the best interests of the Child.
This opinion shall address each of these condensed matters in turn.
A. The court erred in its application of the doctrine of paternity by estoppel.
This presumption of paternity does not apply in this case. The Child's birth occurred
prior to the commencement of Mother's relationship with Husband, so the question of her
paternity does not impinge upon their marriage. No party argues that Husband is the Child's
biological father, but Mother and Husband do argue that he is her father by way of estoppel:
because he has formed a parent-child bond with her; cared for her financially, physically, and
emotionally; and held himself out has her father.
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In K.E.M. v. P.C.S., the Pennsylvania Supreme Court stripped away much of the
substance of the doctrine of paternity by estoppel. While the Court still found place for the
doctrine in Pennsylvania law, it held that "the determination of paternity by estoppel should be
better informed according to the actual best interests of the child, rather than by rote
pronouncements grounded merely on the longevity of abstractly portrayed (and perhaps largely
ostensible) parental relationships." K.E.M. v. P.C.S., 38 A.3d 798, 809 (Pa. 2012). This required
trial courts to develop an extensive record, including testimony of the legal and biological
fathers.
In K.E.M .• the Court also directed that in "cases involving separation and divorce ... the
Uniform Act on Blood Tests to Determine Paternity is now to be applied on its terms insofar as it
authorizes testing." K.E.M., 38 A.3d at 810-11. The Act provides that "(i]n any matter subject to
this section in which paternity, parentage or identity of a child is a relevant fact, the court ...
upon motion of any party to the action .... shall order the mother, child and alleged father to
submit to blood tests." 23 Pa.C.S.A. § 5104(c). Petitioner relies upon this statute and the
Supreme Court's direction in K.E.M. to argue that this court is compelled to order genetic
testing. However, the statute applies only to parties. Petitioner is not a party to this action; he is
.,
as of yet only a potential party. Furthermore, while the instant case was previously one involving
separation and divorce, by the time of the hearing this was no longer the case. While Husband
did file divorce proceedings against Mother, at the time of hearing those claims had been
withdrawn and both Husband and Mother testified credibly of their reconciliation.
Even if the Uniform Act on Blood Test could be applied to the present situation, this
court did find that the Supreme Court's direction in K.E.M. requires it. The cases are factually
distinguishable. In K.E.M. the mother filed a complaint for support against the putative
biological father. The question before the court then was who should support the child: the
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mother's husband, who had provided financially for the child while the parties were in a
relationship but from whom the mother was separated; or the biological father? The instant
matter is not at all similar. Even when Mother and Husband were separated, there was never any
question that Husband would continue to support the Child and be the father he had always been.
Petitioner's attempt to intervene in this matter raises entirely different questions than were before
the Supreme Court when it decided K.E.M.
Instead, this case is similar to that of Buccieri v. Campagna. In Buccieri, the mother and
father had only a brief relationship, after which she informed him she was pregnant. The mother
never sought support from the father and he did not seek to establish paternity. Indeed, he did not
see the child until three or four years after birth, and then only in passing. Even after this chance
meeting, the father did not seek to establish any relationship with the child for another three or
four years. The Superior Court denied the putative father's request for genetic testing on the
grounds that he was estopped from making a paternity claim because he was on notice that the
child may be his yet failed to pursue the claim for seven years. Buccieri v. Campagna, 889 A.2d
1220 (Pa. Super. 2005). This instant appeal is factually similar in that Petitioner knew he was a
potential father prior to or shortly after the Child's birth-he visited Mother in the hospital and
,,
held the Child-but he did nothing to pursue conformation of paternity for nearly six years.
In applying the doctrine of paternity by estoppel to the facts of this case, this court finds
particularly instructive the dissent authored by Justice Baer in K.E.M. Justice Baer, joined by
Justice McCaffery, objected to the majority opinion not because it stripped away much the
substance of the doctrine of paternity by estoppel, but because it did not go far enough. Justice
Baer wrote: "I would abrogate the doctrine in its entirety, with the limited exception of where its
invocation would preserve the status of a husband who chooses to parent a non-biological child
born into an existing marriage." K.E.M., 38 A.3d at 814. This, of course, is nearly the precise
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situation faced by this court, the only difference being the Child was born prior to the marriage.
Husband has chosen be a father in every way to the Child to whom he bears no blood
relationship. He wishes to continue that relationship, and wished to do so even prior to his
reconciliation with Mother. Whatever the extent of the Supreme Court's decision in K.E.M .• the
doctrine of paternity by estoppel survives in sufficient strength to protect husband's relationship
with the Child, especially in light of Petitioner's failure to act until this moment.
B. The court erred in not considering the fraud on the part of Mother.
The court did not consider fraud on the part of Mother because, quite simply, the court
did not find that Mother had committed fraud. "The traditional test for fraud is: (1) a
misrepresentation; (2) a fraudulent utterance; (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 a proximate result." Glover v. Severino, 946 A.2d 710, 713 (Pa.
Super. 2008) citing N.C. v. M.H .• 923 A.2d 499, 503 (Pa. Super. 2007). "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," In re Adoption of R.J.S., 889 A.2d 92, 98 (Pa. Super.
2005) {emphasis in original). Petitioner testified that that he wanted a paternity test at the time of
.,
the Child's birth, but Mother declined (N.T., p. 11). He also asks the court to believe he had no
indication-none-that he was the Child's father befor! November 2017 (Id. p. 25). Despite the
fact that he was in a sexual relationship with Mother nine months prior to the Child's birth and
visited Mother with the express intention of seeing if the Child looked like him (.lih p. 11). The
court did not find Petitioner's testimony credible. Instead, the court found credible Mother's
testimony that she asked Petitioner to undergo a paternity test shortly after the Child's birth and
he refused. Furthermore, Petitioner failed to introduce at the hearing any other credible evidence
that Mother hid his relationship to the Child from him that would explain his nearly six years of
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disinterest in the Child. Mother telling Petitioner that she was going to live with another man and
this man would take care of her and the Child is simply not a misrepresentation of the Child's
parentage on Mother's part. Nothing prevented Petitioner from insisting on a paternity
determination at that time-except perhaps his own reticence at being required to make support
payment (llb p. 30). Mother had no knowledge of who the Child's biological father was among
the men she had a relationship with during the time of the Child's conception. She did not, either
through statement or silence, hide the Petitioner's potential parentage from him. She did not
commit fraud.
C. The court erred in its consideration of the best interests of the Child.
As discussed in Section IV.A, supri!, the doctrine of paternity by estoppel must now be
considered as it relates to the Child's best interests. Petitioner argues that this court failed to
consider the contributions he is willing to make on behalf of the Child and the interest of the
Child in knowing her biological father (ifhe were to prove to be her biological father). This is
incorrect. The court heard Petitioner's testimony and considered it. However, it also considered
the testimony of Husband and Mother. Husband has been the Child's father since she was six
months old. He has cared for her financially, practically, and emotionally. He treats her the same
..
as he does his biological children with Mother. He signed a support order with the Office of
Domestic Relations during the separation and even attempted to have his name listed on her birth
certificate-both events occurring prior to Petitioner's attempt to intervene. In short, Husband
has fulfilled the role of father to the Child completely, and he wishes to continue doing so.
Against this mass of evidence, Petitioner's vague statements regarding contributions and support
carry little weight. Further, Husband is the only father the Child has ever known. "[C]hildren
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
9
that may come from being told that the father [she] has known all [her] life is not in fact [her]
father. Fish v. Behers, 741 A.2d 721, 724 quoting Brinkley v. King. 701 A.2d 176, 180 (Pa.
1997).
V. CONCLUSION
For all the reasons given above, this court did not commit an error of law or an abuse of
discretion in denying Petitioner's request for genetic testing. The court's order dated May 7,
2018, should be upheld.
BY THE COURT:
JEFFREY A. CONRAD, JUDGE
ATTEST:---------
COPIES TO: Julie Miller, Esq.
Beulah Mall, Esq.
Paula Katchmer, Esq.
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