                                                                                 FILED
                                                                            Jun 26 2020, 11:03 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEY FOR APPELLEE
Stacey M. Davis                                             Danielle L. Gregory
Law Office of Stacey M. Davis LLC                           Law Office of Danielle L. Gregory
Indianapolis, Indiana                                       Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Teresa Tapia Sevilla and                                    June 26, 2020
Alfonso Sevilla,                                            Court of Appeals Case No.
Appellants-Intervenors/Claimants,                           19A-JP-2016
                                                            Appeal from the Marion Superior
        v.                                                  Court
                                                            The Honorable Sheryl L. Lynch,
Maria Lopez,                                                Judge
Appellee-Petitioner                                         Trial Court Cause No.
                                                            49C01-1605-JP-230



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020                                    Page 1 of 6
[1]   J.L. (Child) was born to Maria Lopez (Mother) and Jimmy Sevilla (Father),

      who were not married. Father died, but after his death his blood was submitted

      for a DNA test, which established that he was Child’s biological father. A

      paternity cause was opened, but a paternity order has never been entered.

      Father’s parents, Teresa Tapia-Sevilla and Alfonso Sevilla (Grandparents), filed

      a motion to intervene and a request for grandparent visitation. The trial court

      granted the motion to intervene, and Mother sought to voluntarily dismiss the

      paternity cause. The trial court granted the motion to dismiss, thereby

      extinguishing the Grandparents’ ability to seek grandparent visitation.


[2]   Finding that the Grandparents’ request for grandparent visitation is akin to a

      counterclaim or cross-claim for the purpose of Trial Rule 41(A), we reverse the

      trial court’s dismissal of the paternity cause and remand with instructions to

      enter a paternity order and conduct further proceedings on the request for

      grandparent visitation.


                                                       Facts     1




[3]   Child was born in June 2015, and at some point, she was found to be a Child in

      Need of Services (CHINS). During the CHINS case, which lasted for over two

      years, Child was placed in the care and custody of Grandparents.




      1
       Mother filed a motion to strike the Grandparents’ appendix. By separate order, we grant the motion to the
      extent that the appendix contains documents that were not in the record before the trial court. Otherwise, we
      deny it.

      Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020                                 Page 2 of 6
[4]   While the CHINS case was ongoing, the juvenile court ordered Father to

      complete a DNA test so that paternity could be established if he was Child’s

      biological father. Before that occurred, Father was killed in January 2016.

      Grandparents ensured that a vial of his blood was collected and submitted for

      DNA testing. The DNA test confirmed that Father was, indeed, Child’s

      biological father. On May 4, 2016, Mother filed a petition to establish paternity

      in the juvenile court.


[5]   On December 6, 2017, Child was returned to Mother’s care and custody, and

      on March 21, 2018, the juvenile court closed the CHINS case because Mother

      had successfully completed all required services. Under the paternity cause, the

      juvenile court noted that DNA testing had been completed; the juvenile court

      then transferred the cause to paternity court for completion of the paternity

      process. No paternity order was entered.


[6]   On October 23, 2018, Grandparents filed a petition to intervene and request for

      grandparent visitation under the paternity cause. The paternity court granted

      the petition to intervene. In February 2019, Mother and Grandparents

      informed the court that they had reached an agreement that allowed

      Grandparents to enjoy visitation with Child. On February 11, 2019, the trial

      court entered an agreed order summarizing the visitation agreement and

      indicating that Mother and the Grandparents agreed that it was in Child’s best

      interests to have visitation with Grandparents; the order was temporary and

      indicated that a final hearing would occur in May. Nine days later, on

      February 20, 2019, Mother filed a motion to dismiss the paternity cause and a

      Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020         Page 3 of 6
      request to stay the temporary order permitting grandparent visitation.

      Grandparents objected.


[7]   On April 1, 2019, the parties appeared for a hearing and argued in support of

      their positions; no evidence was presented. The trial court ultimately granted

      Mother’s motion to dismiss the paternity cause. Grandparents filed a motion to

      correct errors. Following argument, the trial court reached the same result,

      dismissing the paternity action. Grandparents now appeal.


                                      Discussion and Decision
[8]   Grandparents argue that the trial court erroneously dismissed the paternity

      action and denied their request for grandparent visitation.2 As this issue turns

      solely on a matter of law and not on consideration of evidence, we apply a de

      novo standard of review. In re I.I.P., 92 N.E.3d 1158, 1161-62 (Ind. Ct. App.

      2018).


[9]   Trial Rule 41(A)(1)(a) provides that a plaintiff may dismiss her action without

      order of the court by “filing a notice of dismissal at any time before service by

      the adverse party of an answer or of a motion for summary judgment[.]” Under

      other circumstances, the trial court may enter an order dismissing an action at

      the plaintiff’s request “upon such terms and conditions as the court deems



      2
        To the extent that Grandparents argue that the paternity court erred by granting their petition to intervene
      in the paternity cause before considering whether paternity had been established, we confess our confusion.
      Were we to find that the paternity court had erred in this way (which we do not), the remedy would have
      been to reverse the grant of the petition to intervene, which is surely not the outcome sought by
      Grandparents.

      Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020                                    Page 4 of 6
       proper. If a counterclaim or cross-claim has been pleaded by a defendant . . . ,

       the action shall not be dismissed against the defendant’s objection unless the

       counterclaim or cross-claim can remain pending for independent adjudication

       by the court.” T.R. 41(A)(2) (emphasis added). The purpose of this rule is “to

       eliminate evils resulting from the absolute right of a plaintiff to take a voluntary

       nonsuit at any stage in the proceedings before the pronouncement of judgment

       and after the defendant had incurred substantial expense or acquired substantial

       rights.” Rose v. Rose, 526 N.E.2d 231, 234 (Ind. Ct. App. 1988). Generally,

       dismissals should be permitted “unless the defendant will suffer some legal

       prejudice other than the mere prospect of a second lawsuit.” Id.


[10]   Here, the Grandparents filed a petition to intervene in the paternity cause.

       When the trial court granted their petition to intervene, the Grandparents

       formally became part of the paternity cause. Upon becoming parties to the

       case, the Grandparents pursued their claim for grandparent visitation, and

       Mother eventually contested that claim. While paternity causes do not

       generally include counterclaims or cross-claims, we can only conclude that the

       substantive nature of the request for grandparent visitation equates to the same.3

       To permit Mother to dismiss the paternity cause after the Grandparents had




       3
         Likewise, we find that the motion for grandparent visitation removes this case from the purview of Trial
       Rule 41(A)(1), which applies only where the adverse party has not served an answer or summary judgment
       motion. Again, paternity causes do not generally include answers or summary judgment motions, but we
       find that the Grandparents’ intervention and motion for visitation sufficed to make them a part of the case
       such that Mother could not voluntarily dismiss the action without a court order under Trial Rule 41(A)(2).



       Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020                                 Page 5 of 6
       already intervened would substantially prejudice—if not extinguish—their right

       to pursue visitation with their grandchild.4 Under these circumstances, we can

       only find that the trial court erred by granting Mother’s motion to dismiss the

       paternity petition.


[11]   As for paternity itself, no one disputes that Father is, in fact, Child’s biological

       father. When the juvenile court closed the CHINS case, it declined to issue an

       order establishing paternity. Given that the DNA test conclusively establishes

       that Father was Child’s biological father, upon remand, we direct the paternity

       court to enter a paternity order to that effect. We also direct the paternity court

       to hold further proceedings on the Grandparents’ request for visitation with

       Child and to issue an order on that request.


[12]   The judgment of the trial court is reversed and remanded with instructions to

       enter a paternity order showing that Father is Child’s biological father and for

       further proceedings on the request for grandparent visitation.


       Bradford, C.J., and Pyle, J., concur.




       4
         Indiana Code section 31-17-5-1(b) provides that a court “may not grant visitation rights to a paternal
       grandparent of a child who is born out of wedlock . . . if the child’s father has not established paternity in
       relation to the child.”

       Court of Appeals of Indiana | Opinion 19A-JP-2016 | June 26, 2020                                      Page 6 of 6
