V.L.-P. v. S.R.D.

288 A.3d 502

V.L.-P., Appellee

v.S.R.D., Appellant

No. 477 MDA 2022

Superior Court of Pennsylvania.

Argued August 16, 2022

Filed January 6, 2023

Heather L. Paterno, Hershey, for appellant.

Andrew J. Morrow, Lebanon, for appellee.

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY KING, J.:

Appellant, S.R.D., appeals from the order entered in the Lebanon County Court of Common Pleas, denying his petition for genetic testing. We affirm in part and vacate and remand in part for further proceedings consistent with this decision.

The trial court set forth the relevant facts and procedural history of this case as follows:

[V.L.-P. ("Mother")] is the biological mother of A.D. [("Child")]. In early 2008, [the parties] were engaged in an "on-again, off-again" relationship. Both parties acknowledge that they engaged in sexual intercourse on February 3, 2008, which was Super Bowl Sunday. [Mother] denied that she had sex with anyone else during the two months before and the two months after Super Bowl Sunday. [Appellant] presented a witness[, G.H.,] who proclaimed that her brother and [Mother] spent a great deal of time together and spoke about being engaged during February of 2008.

When [Mother] discovered that she was pregnant, she notified [Appellant] "because he is the father." [Appellant] attended pre-natal ultrasounds and expressed some excitement about becoming a father. At no time during pregnancy did [Mother] relate that anyone else could possibly be the father of her unborn child.

[I]n October...2008, [Mother] gave birth to an infant daughter[, Child]. [Appellant] was notified and he was permitted to be present in the hospital at the time of birth. Both [Appellant] and [Mother] acknowledge that a conversation occurred regarding paternity. Although the details of the conversation are disputed, both [Appellant] and [Mother] agree that [Mother] assured [Appellant] that only he could be the father. Based upon this representation, [Appellant] signed an acknowledgment of paternity and [Child] was given his last name.

Starting six (6) months following birth, [Appellant] began enjoying alternating weekend periods of time with his daughter. As [Child] grew, [Appellant] attended doctor's appointments, parent-teacher conferences, and athletic events involving [Child]. Almost every night, [Appellant] telephoned or FaceTimed [Child]. These communications inevitably ended with "I love you" being expressed by both [Appellant] and [Child].

[Appellant] is a part of a close extended family. [Appellant's] family embraced [Child] as one of their own. During twelve years leading up to 2020, [Child] developed a close relationship with [Appellant's] parents, who were called "Mimi and PopPop," [Appellant's] sister "Auntie M" and [Appellant's] grandfather, "Pappy Beers."

In early 2020, [Appellant] and his wife [K.D.] became involved with Ancestry.com. They presented DNA to Ancestry. Both [Appellant] and [K.D.] professed surprise when the Ancestry.com analysis was received and [Child] was not mentioned as being part of their family tree. According to [Appellant], "[Child's] Ancestry profile did not match either me or anyone else in my family...I was shocked."

Prior to April of 2020, [Appellant] paid roughly $400 per month in voluntary child support. He stopped paying in May of 2020. [Appellant] testified that his cessation of support was due to COVID-driven unemployment and not the Ancestry.com information. In fact, [Appellant] testified that he had a difficult time believing the Ancestry.com test results. [Appellant's] custody rights with respect to [Child] were expanded to equal 50-50 periods of time between May and September of 2020. During this period of time, [Appellant] did not mention or question paternity.

With the advent of in-person school in September of 2020, [Mother] again undertook primary physical custody of [Child] and [Appellant] returned to an alternating weekend schedule. However, [Appellant] did not pay any child support. Eventually, on November 16, 2020, [Mother] filed a Complaint Seeking Child Support against [Appellant].

[Following Thanksgiving weekend in] November of 2020, [Appellant] confronted [Mother] about the Ancestry.com paternity information. [Mother's father] and [K.D.’s mother] were present...when the disclosure about the Ancestry.com information was accomplished. [Mother] testified that [Appellant] said: "Had you not sued me for support, I would have taken the information [about paternity] with me to my grave." [Appellant] denied making such a statement. [Mother's father] corroborated [Mother's] version of the conversation. Everyone agrees that [Mother] continued to assert that [Appellant] was the only man who could be the father of [Child.]

Following the conversation between [Mother] and [Appellant] about paternity, the parties’ relationship understandably deteriorated. [Appellant] testified that [Mother] withheld contact with [Child]. [Mother] denies that she withheld contact. [Appellant] did acknowledge that after November 30, 2020, he declined to have telephone contact with [Child]. As summarized by the subsequently-appointed [guardian ad litem ("GAL")], "There were a few instances where brief communication occurred between [Child] and [Appellant] after November 30, 2020. By and large, however, their telephone communications ceased. Indeed, the nightly telephone or FaceTime contacts stopped altogether." In fact, the GAL documented that [Appellant] would hand over his telephone to other relatives whenever [Child] called him following November 30, 2020.

According to [Child], her relationship with [Appellant] underwent a "radical transformation" following November of 2020. At some unknown time, [Appellant] told [Child] that he may not be her biological father. According to [the GAL], [Child] "understands that [Appellant] is denying paternity for her based upon the Ancestry.com/Ancestry DNA results."

[Appellant] did enjoy physical custody of [Child] on Christmas of 2020. [Appellant] described the visit as "rough." In addition, [Appellant] acknowledged that he requested custody rights with [Child] on New Year's Eve/Day. According to [Appellant], [Mother] refused to give him custody of [Child] at any time during the New Year's holiday. Since Christmas of 2020, [Appellant] has not exercised any physical custody rights with [Child]. However, [Appellant] acknowledged that he sent an email on December 31, 2020 within which he asked for a resumption of alternating weekend periods of physical custody. Those weekend visits were never re-initiated.

In February of 2021, [Appellant's] grandfather, Pappy Beers, passed away. Because [Child] was especially close to Pappy Beers, she was invited to his funeral. [Child] attended the funeral and sat with "Auntie M." According to witnesses, very little interaction occurred between [Appellant and Child] during the funeral or the subsequent reception. Following the funeral, no further contact occurred between [Child] and [Appellant].

[Appellant] testified that he no longer considers himself to be [Child's] father. According to [Appellant], he did not really reach the conclusion that he was not [Child's] father until January of 2021. In addition to the Ancestry.com test results, [Appellant] indicated that he received information in October that [Mother] suffered from chlamydia when [Child] was born. [Appellant] indicated that he never contracted chlamydia and he attributed this [sexually transmitted disease ] to [Mother's] sexual contact with the true biological father of [Child]. In addition, [Appellant] received information through Ancestry.com from a woman by the name of [G.H.] [G.H.] testified that [Mother] and her brother were "close" to one another in February of 2008. In fact, [G.H.] believed that her brother and [Mother] may have been engaged at that period of time. According to [G.H.], her family has a history of suffering from a connective tissue disorder. [Child] was described as having a problem with connective tissue in her knee.

[Appellant] testified that he asked [Mother] to take a DNA test. He testified: "If [Mother] believed I was the father, then do the DNA test and let's be done with this." According to [Appellant], it was the confluence of all of the above information (the Ancestry test, the chlamydia, the connective tissue disease and [Mother's] refusal to consent to genetic testing) that caused him to reach the conclusion in January of 2021 that he was not [Child's] biological father. At that point, he cut off all contact with [Child].

[Mother] acknowledged that she would not consent to genetic testing. She explained that genetic testing would be "traumatic" for [Child], but she could not explain precisely how or why such trauma would flow from testing.

[Appellant] raised a question about paternity with the [c]ourt for the first time on December 18, 2020. The [c]ourt refused [Appellant's] invitation to order genetic testing based exclusively upon a written petition.¹ Instead, on December 21, 2020, the [c]ourt scheduled a hearing for the purpose of determining whether genetic testing should be [c]ourt-ordered.

¹ When [Appellant's] Motion was provided to the [c]ourt, we quickly perceived that the child in question was 12-years of age and that a Child Support dispute had recently been filed. Given these facts that were apparent from the record, we were unwilling to issue an immediate order to direct that genetic testing be undertaken.

On March 1, 2021, [Appellant] filed an Amended Request for Genetic Testing in which he raised an allegation of fraud against [Mother]. Following the March 1[, 2021] Amended Request for Genetic Testing, a Lebanon County Domestic Relations Master (DRM) issued a recommendation and report regarding child support. Based upon the parties’ respective incomes, the DRM recommended that [Appellant] pay $766.18 per month in child support. This was roughly $350 more than what [Appellant] had been paying prior to 2020. On March 16, 2021, this jurist

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