Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

ROBERT D. KING, JR.                              GREGORY F. ZOELLER
DAVID R. THOMPSON                                Attorney General of Indiana
Indianapolis, Indiana
                                                 KATHY BRADLEY
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Aug 14 2012, 9:24 am
                             IN THE
                  COURT OF APPEALS OF INDIANA                                      CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




IN THE MATTER OF THE PATERNITY OF I.B., )
                                        )
R. P.,                                  )
                                        )
       Appellant-Respondent,            )
                                        )
              vs.                       )               No. 84A01-1109-JP-456
                                        )
M. B., As Next Friend of I. B.,         )
                                        )
       Appellee-Petitioner.             )


                      APPEAL FROM THE VIGO CIRCUIT COURT
                           The Honorable David R. Bolk, Judge
                        The Honorable Daniel W. Kelly, Magistrate
                             Cause No. 84C01-1008-JP-919


                                      August 14, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge


                                STATEMENT OF THE CASE

          Appellant-Respondent, R.P., appeals the trial court’s Order establishing his

paternity to the minor child, I.B.

          We affirm.

                                            ISSUES

          R.P. raises two issues on appeal, which we restate as follows:

          (1) Whether the trial court abused its discretion when it denied R.P.’s motion to

dismiss because the State lacked standing to bring the paternity action; and

          (2) Whether the evidence was sufficient to find that R.P. was the biological father

of I.B.

          On cross-appeal, Appellee-Respondent, M.B. as next friend of I.B. (M.B.), raises

one issue, which we restate as: Whether the trial court abused its discretion when it

excluded the testimony of an expert witness.

                          FACTS AND PROCEDURAL HISTORY

          From July 2003 until May 2004, M.B. and R.P. were in a relationship. During

August of 2003, M.B. and R.P. engaged in unprotected sexual intercourse. The following

September, M.B. discovered that she was five weeks pregnant and on May 11, 2004, I.B.

was born. When I.B. was less than one year old, R.P. mailed money orders to M.B.

totaling approximately two hundred dollars. The money orders were marked out to I.B.




                                               2
and were “to take care of his daughter.” (Transcript p. 75). R.P. told M.B. that if she

took him to court, she would receive less money.

       In January of 2009, M.B. became unemployed and the following year, she applied

to receive federal assistance through the Temporary Assistance for Needy Families

(TANF) program. Upon applying for TANF, employees at TANF informed M.B. that

they needed the name of I.B.’s presumed father since a dependent child or parent cannot

qualify for TANF unless the mother of the dependent child initiates court proceedings to

establish paternity.

       On August 5, 2010, M.B., as next friend of I.B., filed a petition to establish

paternity alleging R.P. to be the biological father. In her petition, M.B. stated that she

had “signed an agreement authorizing the State of Indiana to establish and/or enforce an

order for the support of the child(ren) on her behalf under the provisions of Title IV-D of

the Social Security Act.” (Appellant’s App. p. 11). That same day, the State filed a

motion to intervene in the action “for the purpose of enforcing the provisions of Title IV-

D of the Social Security Act.” (Appellant’s App. p. 13). The trial court granted the

motion. On August 17, 2011, the trial court conducted a hearing on M.B.’s petition.

During the hearing, R.P. objected to the testimony of the State’s witness, Dr. Michael

Schmiederer (Dr. Schmiederer), the Director of Paternity at Laboratory Corporation of

America (Labcorp). R.P. contested the testimony’s admission because Dr. Schmiederer

testified by phone, contrary to Indiana Trial Rule 43 which mandates the taking of

witnesses’ testimony in open court and because he had not personally performed the




                                            3
DNA testing but was testifying from a prepared DNA report. The trial court overruled

R.P.’s objection to Dr. Schmiederer’s testimony by phone but allowed the testimony

while it took R.P.’s objection with respect to the personal knowledge under advisement.

       On August 18, 2011, the trial court issued its Order, denying R.P.’s motion to

dismiss, noting that “[t]he [c]ourt finds that [M.B.’s] filing by next friend is a proper use

of the child’s ability to file to establish paternity beyond the two-year limitations period

applicable to the parents.” (Appellant’s App. p. 6). However, the trial court sustained

R.P.’s objection to Dr. Schmiederer’s testimony and struck it from the record.

Nevertheless, in light of the totality of the evidence before it, the trial court concluded

that R.P.’s paternity of I.B. had been established by a preponderance of the evidence,

ordered R.P. to pay eighty-eight dollars per week in child support, determined a child

support arrearage in the amount of $4,840, and granted R.P. visitation in accordance with

the Indiana Parenting Time Guidelines.

       R.P. now appeals and M.B. cross-appeals. Additional facts will be provided as

necessary.

                             DISCUSSION AND DECISION

                                         APPEAL

                                        I. Standing

       Initially, R.P. contends that the State did not have standing to pursue the paternity

action. Specifically, he asserts that because M.B. never requested the State to file the

paternity action in accordance with Ind. Code § 31-14-4-1, but instead opposed the filing




                                             4
of the petition, the trial court has no jurisdiction to hear the case and the action should be

properly dismissed.

       Standing focuses generally upon the question whether the complaining party is the

proper person to invoke the court’s power and the trial court’s decision in this respect is

reviewed de novo. See J.R.W. ex rel. Jemerson v. Watterson, 877 N.E.2d 487, 490 (Ind.

Ct. App. 2007). The facts alleged in the Complaint must be taken as true, and dismissal

for lack of standing is appropriate only where it appears that the plaintiff cannot be

granted relief under any set of facts. Id.

       Indiana Code section 31-14-4-1 enumerates the parties permitted to file a paternity

action as follows:

       (1) The mother or expectant mother.
       (2) A man alleging that:
               (A) he is the child’s biological father; or
               (B) he is the expectant father of an unborn child.
       (3) The mother and a man alleging that he is her child’s biological father,
       filing jointly.
       (4) The expectant mother and a man alleging that he is the biological father
       of her unborn child, filing jointly.
       (5) A child.
       (6) The department or a county office of family and children under section
       3 of this chapter.
       (7) The prosecuting attorney under section 2 of this chapter.

Section 2 of I.C. § 31-14-4 specifies that the prosecuting attorney shall upon the request

of the child, the mother or expectant mother, a man alleging to be the father or expectant

father, the department, or the county office of family and children file a paternity action

and represent the child in the action.




                                              5
       Here, M.B. filed a petition to establish paternity on August 5, 2010, which was

captioned in the name of M.B., who filed the paternity action as next friend of I.B. In the

petition, M.B. affirms, under the penalties of perjury, that she “consents to act as next

friend to establish paternity of the child” and that she “has signed an agreement

authorizing the State of Indiana to establish and/or enforce an order for the support of the

child(ren) on her behalf under the provisions of Title IV-D of the Social Security Act.”

(Appellant’s App. pp. 10-11). That same day, the State filed a motion to intervene “for

the purpose of enforcing the provisions of Title IV-D of the Social Security Act.”

(Appellant’s App. p. 13).

       During the hearing, M.B. testified that for TANF purposes, she decided to file the

paternity action. She clarified that she did not type the petition and guessed the State had

prepared it. However, she did not dispute her signature or the petition’s content. When

asked by R.P. if she wanted to withdraw the petition, she stated “I would rather knowing

[sic] that it’s on paper that he is her father. But I want nothing from him.” (Tr. p. 74).

       It is clear that M.B. commenced the paternity action as her minor child’s next

friend pursuant to I.C. § 31-14-4-1 and requested the State to establish and enforce an

order for I.B.’s support on her behalf pursuant to I.C. § 31-14-4-2. Therefore, we find

that the trial court had jurisdiction over the action filed by M.B. as next of friend and

properly granted the State’s motion to intervene.

                              II. Sufficiency of the Evidence




                                              6
       Next, R.P. asserts that the evidence is insufficient to prove by a preponderance of

the evidence that he is the biological father of I.B. Our standard of review of the

sufficiency of the evidence is well established. We are neither permitted to reweigh the

evidence nor to judge the witnesses’ credibility. Humbert v. Smith, 655 N.E.2d 602, 605

(Ind. Ct. App. 1995), trans. denied. We look instead to the evidence most favorable to

the judgment and the reasonable inferences that follow therefrom. Id. If the evidence has

sufficient probative value to sustain the trial court’s judgment, the judgment will not be

overturned on appeal. Id.

       Paternity actions are civil proceedings and the alleged father must be proved to be

such by a preponderance of the evidence. Id. In a paternity action, the testimony of the

mother regarding an act of sexual intercourse with the defendant, coupled with the

probability of pregnancy, is sufficient to support a determination that the defendant is the

father of the child. First Student, Inc. v. Estate of Meece, 849 N.E.2d 1156, 1164 (Ind.

Ct. App. 2006), trans. denied.      An act of intercourse plus the mere possibility of

conception, however, cannot serve to support such determination. Beaman v. Hedrick,

255 N.E.2d 828, 832 (Ind. Ct. App. 1970).

       I.B. was born May 11, 2004. M.B. testified that during August of 2003, M.B. and

R.P. engaged in unprotected sexual intercourse.         The following September, M.B.

discovered that she was five weeks pregnant. Although M.B. admitted that she also had

sexual intercourse with another man, this intercourse had taken place in July 2003 and he




                                             7
had used a condom. Based on these facts, we conclude that the evidence is sufficient to

support a determination of paternity.

                                         CROSS-APPEAL

        In her cross-appeal, M.B. contends that the trial court abused its discretion when it

excluded the testimony of Dr. Schmiederer as well as the DNA test results. Although

R.P. objected to Dr. Schmiederer testifying over the phone in violation of Indiana Trial

Rule 43 and Administrative Rule 14, the trial court overruled the objection and R.P. did

not appeal this decision in his appellate brief.1 Instead, M.B. now cross-appeals the trial

court’s decision excluding Dr. Schmiederer’s testimony based on the fact that he was not

personally present when the DNA testing occurred. Specifically, R.P. objected to the

doctor “testifying about the accuracy of [] the procedures and the protocols in this case

because he doesn’t have personal knowledge of that.” (Tr. p. 35). After taking its

decision under advisement, the trial court sustained the objection and excluded the

testimony.

        The standard of review for admissibility is abuse of discretion. Weinberger v.

Boyer, 956 N.E.2d 1095, 1104 (Ind. Ct. App. 2011), trans. denied. The trial court abuses

its discretion only when its action is clearly erroneous and against the logic and effect of

the facts and circumstances before the court. Id. Even when the trial court erred in its




1
 In so far as R.P. now intends to dispute the trial court’s decision in his response to the M.B.’s cross-
appeal, he has waived his argument. See Ind. Appellate Rule 46(D).




                                                   8
ruling on the admissibility of evidence, this court will reverse only if the error is

inconsistent with substantial justice. Id.

       Here, Dr. Schmiederer testified that he is the Director of Paternity at LabCorp

where he oversees the signing and evaluation of paternity cases, the comparisons, the

calculations and the final report. Even though he did not personally perform the DNA

tests in the current case, he is familiar with the procedures used at LabCorp and during

trial, he interpreted the results specified in the DNA report, which had been prepared by

one of his employees and which was not admitted by the trial court. Based on the DNA

report, Dr. Schmiederer opined that R.P. is the biological father of I.B.

       Indiana Evidence Rule 703 provides that

       The facts or data in the particular case upon which an expert bases an
       opinion or inference may be those perceived by or made known to the
       expert at or before the hearing. Experts may testify to opinions based on
       inadmissible evidence, provided that it is of the type reasonably relied upon
       by experts in the field.

       Thus, under some circumstances, Evid R. 703 allows an expert witness to testify to

opinions based on facts not before the factfinder. In Hopkins v. State, 579 N.E.2d 1297,

1302 (Ind. 1991), our supreme court held that “the theory and techniques of DNA

identification currently available are generally accepted in the scientific community as

capable of producing reliable results.” Dr. Schmiederer was made aware of the DNA

report before the hearing and based his opinion of R.P.’s paternity on his interpretation of

this report. As DNA testing is a generally accepted scientific method to determine

paternity, the trial court abused its discretion by excluding Dr. Schmiederer’s opinion




                                             9
testimony. However, because the presented evidence is sufficient to conclude by a

preponderance of the evidence that R.P. is the minor child’s biological father, the

exclusion of the testimony amounted to a harmless error.

                                     CONCLUSION

      Based on the foregoing, we conclude that the trial court properly denied R.P.’s

motion to dismiss. Additionally, we find that the evidence was sufficient to find that R.P.

was the biological father of I.B.    On cross-appeal, we conclude that the trial court

committed harmless error when it excluded the testimony of Dr. Schmiederer.

      Affirmed.

BAILEY, J. and CRONE, J. concur




                                            10
