NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P IN THE SUPERIOR COURT OF PENNSYLVANIA. Appellee No EDA 2014

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P T.L.V., Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. C.H., Appellee No EDA 2014 Appeal from the Order entered March 21, 2014, in the Court of Common Pleas of Philadelphia County, Family Court, at No(s): BEFORE: GANTMAN, ALLEN, and FITZGERALD*, JJ. MEMORANDUM BY ALLEN, J.: FILED AUGUST 19, 2014 Appellant, T.L.V. ( Mother ), appeals from the trial court order denying her amended motion for special relief ordering father to submit to a specialized blood test to establish paternity pertaining to her daughter, M.H. (born in March of 2013), and appellee/respondent, C.H. ( C.H. ). 1 This case is factually unusual because it involves Mother s repeated and unsuccessful attempts to establish that C.H. is the father of M.H. The trial court explained: 1 This Court accepts immediate appeals from orders directing or denying genetic testing to determine paternity. Buccieri v. Campagna, 889 A.2d 1220, 1220 n.1 (Pa. Super. 2005) (citation omitted). *Former Justice specially assigned to the Superior Court.

2 This matter commenced June 7, 2013 when a complaint for support was received by the lower court. [Mother] filed a motion July 3, 2013 seeking specialized blood test to establish paternity. [C.H.] filed an answer thereto July 30, On October 2, 2013 [Mother s] motion for specialized blood test was granted by the trial judge over [C.H. s] objection (EXHIBIT A ). This order specifically incorporated [M]other s request that [C.H. s] blood test be done from his thigh or arm. Additionally, [C.H. s] request for counsel fees was denied. Pursuant to [C.H. s] November 25, 2013 notification that testing was completed, [the] case was listed for outstanding issues. New counsel for [Mother] entered his appearance February 25, 2014 contemporaneously with the filing of an amended motion seeking further specialized blood testing. [C.H.] filed an answer and counter-claim for counsel fees on or about March 21, Trial Court Opinion, 4/28/14, at 1-2 (footnote omitted). Our review of the record confirms that on July 3, 2013, Mother filed a Motion for Special Relief Ordering Father to Submit to a Specialized Blood Test to Establish Paternity. With her motion, Mother conceded that two paternity tests indicated a zero probability that C.H. was the father of M.H. Motion, 7/3/13, at 2 (unnumbered). Mother averred that C.H. was a fraternal twin and is what is medically known as a Chimera. Id. (emphasis in original). Mother did not define chimera, but proceeded to aver: According to medical research, fraternal twins have two distinct sets of DNA, the DNA in the cheek and in the other parts of the body are different. Medical studies show that 8% of fraternal twins are Chimera. [C.H.] received a swab of the cheek when he submitted to the paternity tests from the two laboratories. Mother would like [C.H. s] blood drawn from a medical professional who is familiar with this condition. Mother would like the medical professional to draw blood from the part of the body that would have DNA not similar to the DNA in the cheek

3 Id. C.H. filed an answer to Mother s motion in which he, inter alia, denied being M.H. s father, denied being a chimera, and requested counsel fees. Answer to Motion for Special Relief, 7/29/13. While C.H. admitted to being a fraternal twin, he attached as Exhibits A and B to his answer, independent maps of his DNA from DNA Diagnostics dated April 24, 2013 (saliva) and May 28, 2013 (blood), indicating that his saliva and blood DNA are identical. Id. at 2. On October 2, 2013, the trial court convened a hearing and then issued an order permitting Mother to have a blood test conducted per Mother s request, [C.H. s] blood draw to be done from his thigh or arm. List for court or as requested by the parties when results are received. Order, 10/2/13. The record indicates that the trial court issued the order because the parties agreed that C.H. would subject himself to further blood testing. N.T., 3/21/14, at 4. The results of the blood test indicated there was a zero percent probability that [C.H.] is the father of [M.H.]. Id. Undeterred, Mother filed her amended motion for special relief ordering father to submit to a specialized blood test to establish paternity several months later. 2 The amended motion was repetitive, asserted that C.H. was M.H. s father and a chimera, and requested testing of C.H. s blood, 2 The amended motion is in the record, but not date-stamped

4 cheek swab, and semen. Mother also asked that C.H. s brother be tested in the alternative. Id. at 4 (unnumbered). Mother additionally averred that she had expert witnesses prepared to testify telephonically regarding Chimera. Id. The trial court convened another hearing on March 21, By then, C.H. had undergone two saliva tests and two blood tests, all of which indicated that C.H. was not the father of M.H. Id. at 5. Counsel for C.H. stipulated that there were at least three [paternity tests] done [with negative results]. Id. at 23. The trial court noted that testing was conducted for the parties to establish paternity relating to minor: April 16, 2013 (by Identigene), April 24, 2013 (by Labcorp) and October 9 and 11, 2013 (by DNA Diagnostics) (EXHIBIT C ). [C.H.] was excluded as minor s father by the above-referenced paternity testing. Trial Court Opinion, 4/28/14, at 2, findings 2 and 3. Mother indicated at the March 21, 2014 hearing that she was seeking a different genetic test asking for saliva, blood, and semen. N.T., 3/21/14, at 7. As in her prior request for blood testing, Mother averred that C.H. was a chimera. Id. at 8. The trial court expressly recognized that Mother had made her chimera assertion at the previous October 2, 2013 hearing. Id. Counsel for C.H. stated: Our position is we agreed to the test [in October]. We gave them one more chance. He s not the father. Let s move on with our lives

5 Id. at 10. Mother s counsel argued: And really at the last [October] hearing, prior counsel and even my client to some degree did not completely understand the animal that they were dealing with, and that s why we re asking you to allow this retest, Your Honor, so we can properly get this done and put this to bed.. They didn t understand chimera, how it needed to be tested, how it would be discovered in one s blood. Actually, Your Honor, the easiest, quickest to test for this would be to test [C.H. s] brother because that would be the cleanest, quickest and cheapest way to do it. However, since he s not a party to this, we have to go this other route. And that s why we re asking you to allow us to do this one last test. Id. at 11-12, 24. C.H. s counsel responded: The DNA from [C.H. s] blood and saliva tests, we actually have four tests right here which [Mother] has seen, are actually identical. So his DNA and his blood and saliva is actually identical which refutes the fact the accusation that he can be a chimera. *** We already cross-referenced saliva and blood. DNA matches. No way chimeraism is even an issue here. [Mother] also mentioned in [Paragraph] 27 [of her motion], which really leads to the bigger issue here, she mentioned [C.H.] s brother who, as you may know, is a star [professional athlete]. And I cannot imagine why this case is even moving along other than the fact that he s the brother. To ask him to be tested is obviously ridiculous. He s not a party to this case. She s never purported to sleeping with him. Id. at 23,

6 At the conclusion of the hearing, the trial court denied Mother s amended motion for special relief, denied C.H. s request for counsel fees, and dismissed the June 25, 2013 child support complaint. Mother appealed. Mother raises the following issues: I. Whether the trial court erred and abused its discretion in precluding [Mother s] expert witness regarding the proper genetic testing required in order to determine paternity. II. Whether the trial court erred and abused its discretion in sustaining an objection regarding what [Mother] learned and discovered through her research and meetings with The Children s Hospital of Philadelphia and other experts as to the genetic disorder that her daughter possesses which requires specialized testing to determine paternity. III. Whether the trial court erred and abused its discretion in denying [Mother s] Amended Motion for Special Relief Ordering Father to Submit to a Specialized Blood Test to Establish Paternity. Mother s Brief at 2. This Court reviews an order denying genetic testing for an abuse of discretion. See Barr v. Bartolo, 927 A.2d 635, 639 (Pa. Super. 2007). An abuse of discretion is not merely an error of judgment, but rather a misapplication of the law or an unreasonable exercise of judgment. A finding that the trial court abused its discretion must rest upon a showing by clear and convincing evidence.... For our purposes, an abuse of discretion requires proof of more than a mere error of judgment, but rather evidence that the law was misapplied or overridden, or that the judgment was manifestly unreasonable or based on bias, ill will, prejudice or partiality. Id. (citations omitted)

7 All three of Mother s issues invoke the trial court s discretion. Our careful review of the record reveals that the trial court did not abuse its discretion. Mother appeared before the trial court for a hearing on March 21, 2014, and essentially relitigated her claim for paternity testing of C.H., with the additional request for testing of semen, in addition to saliva and blood. We note the following exchange between the trial court and counsel: You re seeking what? MOTHER S COUNSEL: We re seeking a different genetic test Your Honor. You re seeking what? The test I ordered [on October 2, 2013] was a different genetic test. MOTHER S COUNSEL: Correct, Your Honor. And since the date of that test, my client What does your pleading request? MOTHER S COUNSEL: Request a new test. A new test, that s what you sought in a pleading? MOTHER S COUNSEL: Yes, Your Honor. We re almost done. MOTHER S COUNSEL: The new test is asking for, Judge, saliva, blood, and semen. It s a three part test. My client has, since the last hearing, extensively researched this. You told me she extensively researched it when we were here the last time. MOTHER S COUNSEL: I wasn t here the last time. She was represented by an attorney

8 MOTHER S COUNSEL: Uh-huh. She s seeking saliva, blood, and what? MOTHER S COUNSEL: Semen. She spoke to a geneticist. She told us about the person she had considered when we had the last test. My notes from that hearing what was that? October. Let s see. Please be seated, counsel. MOTHER S COUNSEL: Thank you, Judge. C.H. S COUNSEL: October 2 nd, swab test, request blood test, best interest of the child. Let s see. Heard about chimera, C-H-I-M-E-R-A. Let s see. She contacted genetic experts. I m trying to read my own notes here. That what the testimony was or the argument from counsel at that hearing. Something about eight percent of fraternal twins. That s what we heard about. I m not sure what the transcripts will show in regards to pages, but we heard quite a bit. Did we hear quite a bit? Yes, Your Honor. We heard quite a bit. N.T., 3/21/14, at 7-9. In her first and second issues, Mother asserts the trial court erred in precluding telephone testimony from her expert witness, and sustaining C.H. s objection to her testimony about what she learned through her research of genetic testing. See Mother s Brief at 5-9. Our standard of review for evidentiary rulings is very narrow. Gemini Equipment Co. v. Pennsy Supply Inc., 595 A.2d 1211, 1215 (Pa. Super. 1991). In general, - 8 -

9 we may reverse only for an abuse of discretion or an error of law. Id. Given the facts and procedural posture of this case, we find no abuse of discretion by the trial court in either the exclusion of testimony from Mother s expert 3 or Mother. As detailed above, the trial court heard Mother s chimera argument at the October 2, 2013 hearing. The trial court noted that there was no actual proof that previous paternity testing for these parties and the minor was defective. Trial Court Opinion, 4/28/14, at 4. The trial court further stated: Id. [Mother] has implied since the October 2, 2013 hearing that [C.H.] was a chimera (which could be a basis for alleged erroneous paternity test results). [C.H.] testified on October 2, 2013 about an independent test he underwent, N.T., 10/2/13, p. 81. His testimony that this testing did not support [Mother s] allegation that he is a chimera was not refuted. C.H. testified at the October 2, 2013 hearing: I went to take that test, after the second test, [Mother] was harassing me stating that she can prove that I m [M.H. s] father because I have a [rare] blood condition based off of my DNA. And she stated over and over again that the fact that my skin DNA did not match my blood DNA, and a test would prove that. 3 Our review of the notes of testimony indicates that although Mother s counsel offered the telephonic expert testimony of Gregory Gibson as an expert (N.T., 3/21/14, at 25), the trial court never actually ruled on the offer, as C.H. s counsel responded with an objecting argument, and the hearing proceeded to devolve to the merits of Mother s motion. See generally, N.T., 3/21/14, at

10 And so, basically, what I decided to do at that point was I had my blood draw after contacting DNA Diagnostics and talking to a few people there to see what my options might be. They suggested doing a DNA alieol sizing test where it would show all of my markers. And by doing that, basically, they would find the markers of my DNA, send me the results. And then I would compare them to the results that were from my swab test from Lab Corp. N.T., 10/2/13, at 81. C.H. s counsel asked him, Have you ever had a medical professional deem you a chimera? Id. at 82. C.H. answered, No. Id. Given all of the evidence of record, we discern no abuse of discretion in the trial court s evidentiary rulings. In her third issue, Mother generally asserts that the trial court erred in denying her most recent motion for genetic testing, and recycles her first two evidentiary issues as well as her hearing argument. See Appellant s Brief at 10-13; N.T., 3/21/14, at 24 (Mother s counsel stating Judge, we re just asking for one more chance. I mean, that s the bottom line. ). Mother s argument is beyond the pale. We find no abuse of discretion, and therefore affirm the order of the trial court. Order affirmed

11 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 8/19/