FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

RACHELE L. CUMMINS                             JONI L. GRAYSON
Smith Carpenter Thompson                       Jeffersonville, Indiana
Fondrisi & Cummins, LLC
Jeffersonville, Indiana

                                                                         Feb 27 2013, 9:49 am


                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE PATERNITY OF              )
G.W.,                                          )
                                               )
J.W.,                                          )
                                               )
        Appellant-Respondent,                  )
                                               )
               vs.                             )        No. 22A01-1205-JP-234
                                               )
R.M.,                                          )
                                               )
        Appellee-Petitioner.                   )


                      APPEAL FROM THE FLOYD CIRCUIT COURT
                          The Honorable J. Terrence Cody, Judge
                              Cause No. 22C01-1112-JP-150


                                    February 27, 2013

                               OPINION - FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Respondent, J.W. (Mother), appeals the trial court’s decision to deny

her two motions to dismiss the paternity action commenced by Appellee-Petitioner, R.M.

       We reverse.

                                          ISSUES

       Mother raises two issues on appeal, which we restate as follows:

       (1) Whether the trial court erred when it denied Mother’s motion to dismiss R.M’s

          paternity action; and

       (2) Whether the trial court erred when it denied Mother’s motion, as G.W.’s next

          friend, to voluntarily dismiss the paternity action.

                        FACTS AND PROCEDURAL HISTORY

       G.W. was born on July 27, 2010 to Mother. Prior to Mother’s pregnancy with

G.W., she was in a relationship with R.M., who claims to be the minor child’s biological

father. R.M. was never married to Mother, he did not sign G.W.’s birth certificate or

paternity affidavit, and did not register with the putative father registry. R.M. knew about

Mother’s pregnancy, he attended doctor appointments with Mother, and was present

during G.W.’s birth. After G.W. was born, R.M. saw the minor child regularly until

April of 2011, when Mother stopped all visitation.

       Six months into her pregnancy with G.W., Mother started dating J.U., her current

husband. Mother and J.U. married on July 12, 2011 and on August 22, 2011, he filed a

petition to adopt G.W., to which Mother consented, in the Floyd Circuit Court. Although


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R.M. was named in the adoption petition as “the biological father,” and a search of the

putative father registry was conducted, R.M. did not receive notice of the proceedings.

(Appellant’s App. p. 9).

       On August 10, 2011, twelve days prior to the filing of the adoption petition, R.M.

signed a petition to establish paternity at the Clark County prosecutor’s office. It was not

until four days after the adoption petition was filed, on August 26, 2011, that the State of

Indiana, as G.W.’s next friend, actually filed the verified complaint to establish paternity

and support in the Clark Circuit Court. On September 16, 2012, Mother filed a motion to

dismiss the paternity action.1 On September 21, 2011, R.M. filed a response and cross-

petition in the paternity action in the Clark Circuit court, as well as a motion contesting

the adoption in the Floyd Circuit Court. On November 4, 2011, the paternity action and

adoption proceeding were consolidated in the Floyd Circuit Court and the State withdrew

its appearance in the paternity action. On January 12, 2012, Mother, as G.W.’s next

friend, filed a motion to voluntarily dismiss the complaint to establish paternity and

support. On April 30, 2012, after conducting an evidentiary hearing on Mother’s two

motions to dismiss, the trial court stated: “[t]he [m]otions to [d]imiss the [p]etition to

[e]stablish [p]aternity which were filed by [Mother] as custodial party/oblige and as next

friend of [G.W.] be and the same are hereby denied.” (Appellant’s App. p. 6). In the

same decision, the trial court certified its order for interlocutory appeal, which this court

accepted.


1
 The Clark Circuit Court granted this motion on September 20, 2011 but vacated its order on October 12,
2011.


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       Mother now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

       Mother contends that the trial court erred when it denied her two motions to

dismiss the paternity action—the motion to dismiss the paternity action, filed on

September 16 and the motion, as G.W.’s next friend, to voluntarily dismiss the paternity

action. Although the two motions are phrased differently and represent distinct legal

mechanisms, they both aim to prevent R.M. from establishing his paternity to the minor

child. Mother’s motion to dismiss, originally filed in Clark Circuit Court, asserts that

because R.M. failed to timely register with the putative father registry, sign the birth

certificate, or timely file a paternity action, he implicitly consented to the adoption and is

barred from seeking paternity to the minor child as he no longer has standing to bring the

claim. Subsequently, in her motion to voluntarily dismiss, Mother, as G.W.’s next friend,

asserts that because R.M. has no standing to establish paternity, he is also barred to seek

paternity by filing as next of friend.

                         I. Motion to Dismiss for Lack of Standing

       Mother brought her initial motion to dismiss under the province of Indiana Trial

Rule 12(B)(6), failure to state a claim, as well as pursuant to the claim that R.M. lacks

standing. Motions to dismiss for lack of standing may be brought under Trial Rule

12(B)(6) for failure to state a claim on which relief can be granted. Thomas v. Blackford

Co. Area Bd. of Zoning Appeals, 907 N.E.2d 988, 990 (Ind. 2009). If the motion is

presented under Rule 12(B)(6), the allegations of the complaint are required to be taken

as true. Id. A successful 12(B)(6) motion alleging lack of standing requires that the lack


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of standing be apparent on the face of the complaint. Id. However, if on a 12(B)(6)

motion matters outside the pleading are presented to and not excluded by the court, the

motion shall be treated as one for summary judgment and disposed of as provided in Ind.

T.R. 56 See T.R. 12. In this case, the trial court conducted an evidentiary hearing and

both parties tendered briefs in support of their respective positions. As such, we shall

proceed under the summary judgment standard of review.

       Summary judgment is appropriate only when there are no genuine issues of

material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial

Rule 56(C). “A fact is material if its resolution would affect the outcome of the case, and

an issue is genuine if a trier of fact is required to resolve the parties’ differing accounts of

the truth . . ., or if the undisputed facts support conflicting reasonable inferences.”

Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). In reviewing a trial court’s ruling

on summary judgment, this court stands in the shoes of the trial court, applying the same

standards in deciding whether to affirm or reverse summary judgment. First Farmers

Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied.

Thus, on appeal, we must determine whether there is a genuine issue of material fact and

whether the trial court has correctly applied the law. Id. at 607-08.

       Mother’s main contention alleges that because R.M. failed to register with the

putative father registry, did not sign G.W.’s birth certificate or a paternity affidavit, he is

now precluded from establishing paternity and contesting the adoption. In fact, Mother

asserts that because R.M. failed to take timely action, he implicitly consented to the

adoption of the minor child and waived any notice of the adoption proceedings. On the


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other hand, acknowledging that he never registered, R.M. nevertheless argues that the

provisions of the putative father registry are not applicable to him because Mother

disclosed his name to her attorney and a search of the putative father registry was

conducted.

      Indiana established the Indiana Putative Father’s Registry in 1994, which is

managed by the Indiana Department of Health. I.C. §31-19-5-2. The statute governing

the putative father’s registry imposes registration requirements on putative fathers who

wish to contest their child’s adoption or those who petition for paternity while an

adoption proceeding is pending. See In re Adoption of J.D.C., 751 N.E.2d 747, 749 (Ind.

Ct. App. 2001). Specifically, Indiana Code section 31-19-5-1 (emphasis added) provides

      Application of Chapter
      Sec. 1 (a) This chapter applies to a putative father whenever:
                    (1) an adoption under [I.C. ch.] 31-19-2 has been or may be
                    filed regarding a child who may have been conceived by the
                    putative father; and

                    (2) on or before the date the child’s mother executes a consent
                    to the child’s adoption, the child’s mother has not disclosed
                    the name or address, or both, of the putative father to the
                    attorney or agency that is arranging the child’s adoption.

             (b) This chapter does not apply if, on or before the date the child’s
             mother executes a consent to the child’s adoption, the child’s mother
             discloses the name and address of the putative father to the attorney
             or agency that is arranging the child’s adoption.


A putative father who registers within thirty days after the child’s birth or the date the

adoption petition is filed, whichever occurs later, is entitled to notice of the child’s

adoption. See I.C. § 31-19-5-4; -12. If, on or before the date the mother of a child



                                            6
executes a consent to adoption, she does not disclose to the attorney or agency that is

arranging the adoption, the name or address, or both, of the putative father of the child,

the putative father must register under this chapter to entitle him to notice of the child’s

adoption. I.C. § 31-19-5-5. Statutorily, the repercussions of failing to register with the

putative father registry are far-reaching. Not only does the putative father forego notice

of the adoption proceeding, but “[t]he putative father’s waiver under this section

constitutes an irrevocably implied consent to the child’s adoption.” I.C. § 31-19-5-18.

       Moreover, the requirement that the putative father registers within a certain time

limit, is not solely mandated in adoption proceedings but carries its mirror consequences

into the paternity proceedings. In particular, “[a] man who files or is party to a paternity

action shall register with the putative father registry under [I.C. Ch] 31-19-5.” I.C. § 31-

14-5-7. Likewise, “a man who is barred under [I.C.] 31-19 from establishing paternity

may not establish paternity by: (1) filing a paternity action as next of friend of a child; or

(2) requesting a prosecuting attorney to file a paternity action.” I.C. § 31-14-5-9.

       The evidence reflects that although Mother disclosed R.M.’s name to the attorney

arranging the adoption of G.W. by her husband, she never divulged R.M.’s address.

Because both the name and address have to be revealed to fall outside the application of

the putative father registry, we find that the provisions of the registry are applicable to

R.M. See I.C. § 31-19-5-1. As R.M. acknowledges that he never registered, we must

necessarily conclude that he is not entitled to notice of the adoption proceeding, and has

irrevocably and implicitly consented to the adoption of his minor child to J.U.




                                              7
       Our conclusion today is supported by Indiana’s strong interest in providing stable

homes for children, as “early and permanent placement of children with adoptive families

is of the utmost importance.” In re Paternity of Baby Doe, 734 N.E.2d 281, 287 (Ind. Ct.

App. 2000). If a father fails to register within the specified amount of time allowed under

the statute, then “the State’s obligation to provide this child with a permanent, capable

and loving family becomes paramount.” Id. Moreover, other jurisdictions have similarly

concluded that a putative father who fails to register with the putative father’s registry has

waived his right to notice of adoption proceedings and impliedly consents to the

adoption. In Baby Doe, this court relied on Robert O v. Russell K., 80 N.Y.2d 254, 590

(N.Y. Ct. App. 1992) where the New York Court of Appeals concluded that although the

putative father was not immediately aware of the child, not only due to his lack of effort

to discover the child but also because of the biological mother’s efforts to keep him from

knowing about the child,

       [p]romptness is measured in terms of the baby’s life not by the onset of the
       father’s awareness. The demand for prompt action by the father at the
       child’s birth is neither arbitrary nor punitive, but instead a logical and
       necessary outgrowth of the State’s legitimate interest in the child’s need for
       early permanence and stability.

Baby Doe, 734 N.E.2d at 286-87.

       Thus, as R.M. failed to timely register with the putative father registry, he has

impliedly consented to the adoption of his minor child and is now barred from

establishing paternity. See I.C. § 31-14-5-7. Thus, the trial court erred in denying

Mother’s motion to dismiss the paternity action.

                        II. Mother’s Motion as G.W.’s Next Friend


                                              8
       Repeating the argument supporting her motion to dismiss R.M’s paternity action,

Mother asserts that R.M. “cannot serve as [G.W.’s] Next Friend.” (Appellant’s br. p. 16).

We agree. Pursuant to I.C. 31-14-5-9, “a man who is barred under [I.C.] 31-19 from

establishing paternity may not establish paternity by: (1) filing a paternity action as next

of friend of a child; or (2) requesting a prosecuting attorney to file a paternity action.”

Therefore, the trial court erred in denying Mother’s motion as next of friend.

                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court erred in denying Mother’s

motions to dismiss R.W.’s paternity action.

       Reversed.

BAKER, J. and BARNES, J. concur




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