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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S.M.E. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
D.A.B.
Appellant No. 1817 MDA 2015
Appeal from the Order Entered September 18, 2015
In the Court of Common Pleas of Snyder County
Domestic Relations at No(s): 2015-00071
PACSES No. 613115274
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 19, 2016
D.A.B. appeals pro se from an order of the Court of Common Pleas of
Snyder County naming him the biological father of X.A.E. (“Child”), born
October 2009, and entering a final order of support against him. After
careful review, we vacate and remand.1
On May 1, 2015, S.M.E. (“Mother”) filed a complaint against D.A.B. for
support of Child. The trial court ordered D.A.B. to appear for a support
conference on June 16, 2015. The court also ordered D.A.B. to appear for
genetic testing on June 8, 2015; that order stated that if D.A.B. “fails to
appear for genetic testing as ordered, the court will enter an order finding
the defendant is the father of the child.” Order, 5/27/15.
____________________________________________
1
Appellee has failed to file an appellate brief.
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On that date, the court entered an order finding D.A.B. is the father of
Child pursuant to 23 Pa.C.S.A. § 5104(c).2 The court noted that D.A.B.
appeared and refused to submit to genetic testing as ordered.
D.A.B. states that when he appeared for genetic testing, he informed
the court that Mother “was married and living with her husband” at the time
of conception and that the presumption of paternity should apply. See
Appellant’s Brief, at 4. D.A.B. further states that the court asked if he would
like to seek legal counsel before proceeding, to which he responded yes, and
was told a hearing would be scheduled. D.A.B. next states that prior to any
scheduled hearing being held, he received the June 8, 2015 order naming
him the biological father of Child. Id.
____________________________________________
2
Section 5104(c) provides:
Authority for test.--In any matter subject to this section
in which paternity, parentage or identity of a child is a
relevant fact, the court, upon its own initiative or upon
suggestion made by or on behalf of any person whose
blood is involved, may [sic] or, upon motion of any party
to the action made at a time so as not to delay the
proceedings unduly, shall order the mother, child and
alleged father to submit to blood tests. If any party
refuses to submit to the tests, the court may resolve
the question of paternity, parentage or identity of a
child against the party or enforce its order if the
rights of others and the interests of justice so
require.
23 Pa.C.S.A. § 5104(c) (emphasis added).
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Thereafter, the court held a conference on June 30, 2015, which both
parties attended, and the court entered an interim support order against
D.A.B. On July 10, 2015, D.A.B. requested a de novo hearing. The court
scheduled the hearing for September 18, 2015. On September 3, 2015,
Father filed a motion for a continuance, stating that he was scheduled to
undergo surgery. The trial court denied that request.
D.A.B. failed to appear at the September 18, 2015 hearing, and the
court entered the interim support order as a final order of support. On
October 19, 2015, D.A.B. filed a request that the court “rescind the June 8,
2015 order naming him the biological father, and dismiss all support actions
against him.” This notice of appeal IFP was docketed on October 21, 2015.3
In his brief, D.A.B. raises the following challenges to the finding of
paternity:
1. Was the appellee married and living with her husband at the
time of conception, and married at the time of birth?
2. Was the appellant unavailable at the time of conception of the
child in question?
____________________________________________
3
D.A.B. erroneously filed the appeal in the Commonwealth Court. The
Commonwealth Court forwarded the appeal to the trial court. See Pa.R.A.P.
905(a)(4)(“If a notice of appeal is mistakenly filed in an appellate court, or is
otherwise filed in an incorrect office within the unified judicial system, the
clerk shall immediately stamp it with the date of receipt and transmit it to
the clerk of the court which entered the order appealed from, and upon
payment of an additional filing fee the notice of appeal shall be deemed filed
in the trial court on the date originally filed.”).
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The trial court points out that D.A.B. failed to seek reconsideration or
file a notice of appeal from the June 8, 2015 order. See Trial Court Opinion,
10/27/15, at 1. That, however, is inconsequential. An order establishing
paternity is not an appealable order; the issue of paternity may be included
in an appeal from a final order of support. See Pa.R.C.P. 1910.15(f).
D.A.B. has appealed from the September 18, 2015 final order of support.
We now address D.A.B.’s challenges to the paternity finding. The
Explanatory Comment to Pa.R.C.P. 1910.15(f) states that paternity may be
established “by failing to appear for the initial conference, genetic testing,
trial or hearing, which results in entry of a default order establishing
paternity under subdivision (e).” Explanatory Comment-2000- Pa.R.C.P.
1910.15(f). Here, D.A.B. did appear for genetic testing, but it is not clear on
the record before us whether he was entitled to appointed counsel. We
cannot conclude from this record that D.A.B. had a meaningful opportunity
to be heard on the issue of paternity. The due process clause of the
Fourteenth Amendment to the United States Constitution requires the
appointment of counsel for indigent defendants in civil paternity actions in
Pennsylvania. See Corra v. Coll, 451 A.2d 480, 486 (Pa. Super. 1982)
(familial, liberty and property interests at stake in a paternity proceeding are
significant enough to warrant protection through appointment of counsel for
indigent defendants in paternity actions); see also White v. Gordon, 460
A.2d 828 (Pa. Super. 1983) (non-indigent defendant must have reasonable
opportunity to obtain counsel).
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D.A.B. is pro se on appeal, and this appeal was filed in forma pauperis;
we can only assume, therefore, having been granted IFP status, that D.A.B.
has averred that he is indigent. See Pa.R.A.P. 551-561. There is no
discussion on the record of whether D.A.B. was in fact indigent and might
have counsel appointed for him.
Further, the finding that D.A.B. refused to submit to blood tests is
not supported by the record. D.A.B. raised the issue of the presumption of
paternity. Although the statute provides that if a litigant refuses to submit
to blood tests the court may resolve the paternity issue against him, in order
to make a finding that D.A.B. refused to take the blood tests, this must be
determined through hearing or admission. See Freedman v. McCandless,
654 A.2d 529 (Pa. 1995). Further, Rule 1910.15(c) provides that “[i]f either
party or the court raises the issue of estoppel or the issue of whether the
presumption of paternity is applicable, the court shall dispose promptly of
the issue and may stay the order for genetic testing until the issue is
resolved.” Pa.R.C.P. 1910.15(c) (emphasis added). Here, it appears that
D.A.B. raised the presumption of paternity, but there is no indication in the
record that this issue was resolved. See Brinkley v. King, 701 A.2d 176
(Pa. 1997) (presumption of paternity applies where policy of preservation of
marriage would be advanced by its application; otherwise it does not apply);
Fish v. Behers, 741 A.2d 721, 723 (Pa. 1999); McCue v. McCue, 604 A.2d
738 (Pa. Super. 1992); cf. M.L. v. J.G.M., 2016 PA Super 1 (filed January 4,
2016). As the trial court acknowledges, there is no factual record before us
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since D.A.B. failed to appear at the scheduled September 18, 2015 hearing,
which brings us to another concern – the trial court summarily denied
D.A.B.’s motion for continuance based on averment of scheduled surgery.
The lower court has provided little explanation, suggesting instead that
D.A.B.’s issues are waived because no factual record exists.
From our review, it appears that the trial court entered the paternity
determination prematurely. We, therefore, vacate and remand for: (1) a
determination of whether D.A.B. is entitled to appointment of counsel; and
(2) resolution of the presumption of paternity issue. If the court determines
the presumption does not apply, the matter can proceed pursuant to section
5104(c) and Rule 1910-15(c).
Order vacated. Case remanded for further proceedings in accordance
with this decision. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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