                                                                            FILED
                                                                        Dec 13 2018, 8:57 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jarvis E. Newman, III                                      John M. Haecker
Wigent & Newman                                            Squiller & Hamilton, LLP
Ligonier, Indiana                                          Auburn, Indiana
Helen L. Newman
Birch Kaufman, LLC
Syracuse, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Paternity of K.H.,                              December 13, 2018
Rebekah Harris (Mother),                                   Court of Appeals Cause No.
Appellant-Respondent,                                      18A-JP-1795
                                                           Appeal from the Kosciusko
        v.                                                 Superior Court
Jon Cochran (Father),                                      The Honorable David C.
                                                           Cates, Judge
Appellee-Petitioner.
                                                           Trial Court Cause No.
                                                           43D01-1712-JP-478



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018                           Page 1 of 20
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent/Cross-Appellee, Rebekah Harris (Mother), appeals from

      the trial court’s paternity judgment and custody order in favor of Appellee-

      Petitioner/Cross-Appellant, Jon Cochran (Father). Father cross-appeals the

      trial court’s denial of his petition to change the surname of the minor child

      (Child) to his own.


[2]   We affirm.


                                                    ISSUES
[3]   Mother presents four issues on appeal, which we restate as:


          (1) Whether the trial court properly denied Mother’s motion to dismiss

              Father for lack of standing;

          (2) Whether the trial court’s paternity determination was supported by the

              evidence;

          (3) Whether the trial court properly took judicial notice of the records from

              a child in need of services (CHINS) proceeding involving Child; and

          (4) Whether the trial court acted within its discretion when it admitted

              evidence of a personality inventory taken by Mother.


[4]   In addition, Father presents one issue on cross-appeal, which we restate as:

      Whether the trial court’s denial of Father’s motion to change Child’s surname

      to his own was clearly erroneous.




      Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018    Page 2 of 20
                        FACTS AND PROCEDURAL HISTORY
[5]   Mother gave birth to Child in September of 2014. On May 19, 2017, the State

      filed a petition alleging that Child was a CHINS due to the fact that Mother had

      been pulled over for a traffic infraction and was found to have been driving with

      Child and a variety of illegal drugs in the car. Mother was arrested for

      possession of methamphetamine, among other charges. During the pendency

      of the CHINS proceeding, Mother identified Father as Child’s father, and

      Father learned for the first time of Child’s existence. On October 27, 2017,

      Father filed a petition in Noble County to establish paternity of Child. On

      December 8, 2017, the paternity case was removed to Kosciusko County where,

      on February 8, 2018, Father filed an amended petition to establish paternity,

      custody, parenting time, child support, and name change, all as Child’s next

      friend. 1 Child was ultimately placed with Father during the CHINS

      proceedings.


[6]   As part of the CHINS action, at the request of the Department of Child Services

      (DCS), on March 6, 2018, Mother underwent a psychological evaluation at the

      Bowen Center in Warsaw, Indiana. Jessicah Walker, M.A., Pre-Doctoral

      Intern (Walker), conducted the evaluation which was based on a clinical




      1
         Mother filed motions to dismiss both of Father’s petitions based on her contention that he was time-barred
      from filing the petitions in his own right and could not file the petitions on Child’s behalf. On March 9,
      2018, the trial court denied Mother’s motions to dismiss. Mother sought to have the trial court’s denial order
      certified for interlocutory appeal, but, after litigation regarding certification of the issue for appeal, the trial
      court denied Mother’s certification motion on May 4, 2018, after the final hearing in the instant case. The
      trial court found as part of its paternity judgment that it had jurisdiction over the parties.

      Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018                                  Page 3 of 20
      interview regarding Mother’s medical, mental health, family, social,

      educational, employment, legal, and substance abuse histories. Mother also

      submitted to three diagnostic surveys, including the MMPI-2-RF (MMPI),

      which “is a widely used and accepted adult personality inventory that is

      frequently used as an assessment of psychological health and

      psychopathology.” (Exhibit 2 Vol. III, p. 4). Although she cautioned that

      Mother’s results on the MMPI may not be accurate due to over-reporting,

      Walker indicated in her report that the MMPI indicated that Mother had a

      variety of pathologies that were “generally congruent with [Mother’s] report

      although the findings present an even more severe picture of [Mother’s]

      emotional cognitive, and interpersonal functioning than she reported.” (Exh. 2

      Vol. III, p. 5). Apart from the MMPI results, Walker also concluded that,

      “[d]iagnostically,” Mother met the criteria for Posttraumatic Stress Disorder;

      Severe Cannabis Use Disorder; Severe Amphetamine-Type Substance Use

      Disorder; Moderate Sedative, Hypnotic, or Anxiolytic Use Disorder; and

      Moderate Cocaine Use Disorder. (Exh. 2 Vol. III, p. 6).


[7]   On May 1, 2018, the trial court conducted an evidentiary hearing on Father’s

      petition. Mother provided the following testimony:


              Counsel: Ma’am, you are the mother of [Child], correct?

              Mother: Correct.

              Counsel: Jon Cochran is the father of [Child], correct?

              Mother: Correct.


      Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018   Page 4 of 20
              Counsel: And you named him as the father as part of the CHINS
              case, correct?

              Mother: That is correct to the best of my knowledge he is the
              father.

              Counsel: And you did so because you had sexual intercourse
              with him in a time frame that was consistent with him being the
              father, correct?

              Mother: Correct.

              Counsel: You did not name any other individuals as a potential
              father, correct?

              Mother: That is correct.

              Counsel: And you’ve never challenged any finding that he is the
              father, you’ve never claimed that anyone else is the father,
              correct?

              Mother: Correct.

      (Transcript Vol. II, pp. 11-12).

[8]   Father called Walker to testify as an expert witness. Walker established that

      she possessed a master’s degree in counseling psychology and that she was just

      about to complete her doctorate. Walker’s credentials enabled her to complete

      psychological testing and to render opinions and diagnoses under the

      supervision of a licensed psychologist. Walker had been trained to administer

      the MMPI and had experience administering it. Walker’s work on Mother’s

      psychological examination, including the MMPI results, was reviewed by

      Walker’s supervisor, Ashley Hunter, Psy.D. During voir dire on Walker’s

      expert credentials, the trial court admitted into evidence what Mother claimed


      Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018     Page 5 of 20
       was a qualifications policy from Pearson, the company that produced the

       MMPI survey. This policy provided differing qualification levels for Pearson’s

       products. The policy also provided that “[s]ome tests may be administered or

       scored by individuals with less training, as long as they are under the

       supervision of a qualified User.” (Exh. A, Vol. III). The trial court qualified

       Walker as an expert and admitted the psychological examination over Mother’s

       objection that Walker was not qualified to administer the MMPI.


[9]    During the hearing, Father’s counsel moved the trial court to take judicial

       notice of records from the CHINS proceedings. Mother’s counsel raised

       objections based on relevancy and the confidentiality of information contained

       in the proposed exhibits. The trial court admitted the CHINS records as

       Exhibits 4 through 10. Father testified that he sought to have Child’s name

       changed to his own because he felt that the change would create a stronger

       bond between him and Child and Child would be more recognizable to others

       as his daughter. Father also wished to avoid potential embarrassment to Child

       later in life. Mother opposed the name change because Child knew her full

       name and for the sake of consistency.


[10]   On May 29, 2018, the trial court issued its judgment of paternity and custody

       order in which it made the following relevant findings and conclusions:


               2. That as agreed by the parties, [Father] is the biological father
               of [Child].


               ***


       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018         Page 6 of 20
               6. That Mother has mental health issues, for which she is
               presently receiving services.


               ***


               17. The Court finds that changing custody is in the best interests
               of the child, and further finds that there has been a substantial
               change in one (1) or more of the factors under I.C.[§]31-17-2-8.
               Specifically, the Court finds as follows:


               ***


                        (c) Mother’s mental health diagnoses demonstrates that
                        she continues to suffer from issues that impair her ability
                        to [effectively] parent [Child].


               ***


               20. That [Child’s] surname should remain unchanged as that is
               the name by which she knows herself and there has been no
               showing of best interests of [Child] to change the same.


       (Appellant’s App. Vol. II, pp. 9, 11-12). The trial court granted sole

       physical and legal custody to Father, to be effective upon the CHINS

       court’s approval or the closing of the CHINS proceedings.

[11]   Mother now appeals, and Father cross-appeals. Additional facts will be

       provided as necessary.




       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018          Page 7 of 20
                                   DISCUSSION AND DECISION
                                                   I. Father’s Standing

[12]   Mother contends that Father was not a proper party to the instant paternity

       action because he was time-barred from filing in his own right 2 and DCS was

       the only proper party to instigate a paternity action during the pendency of a

       CHINS proceeding. Mother raised the same issues in her motions to dismiss,

       which the trial court denied. We review a trial court’s grant or denial of a

       motion to dismiss for lack of standing de novo. Brown v. Vanderburgh Cty. Sheriff’s

       Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017); In re Paternity of R.J.S. v.

       Stockton, 886 N.E.2d 611, 614 (Ind. Ct. App. 2008). Inasmuch as the resolution

       of this issue requires us to engage in statutory interpretation, such an inquiry is

       a question of law reserved for the courts. In re Paternity of I.I.P. v. Rodgers, 92

       N.E.3d 1158, 1161 (Ind. Ct. App. 2018). As such, we independently review a

       statute’s meaning and apply it to the facts of the case. Id. If a statute is

       unambiguous, we give the statute its clear and plain meaning. Id. The goal of

       statutory interpretation is to determine, give effect to, and implement the intent

       of the legislature as expressed in the plain language of its statutes. Matter of

       Paternity of J.G.L. v. Lenig, 107 N.E.3d 1086, 1091 (Ind. Ct. App. 2018).




       2
           Father does not dispute that he could not have initiated a paternity action in his own right.


       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018                               Page 8 of 20
[13]   Mother’s argument rests on her proposed interpretation of the version of

       Indiana Code section 31-34-15-6 in effect when Father filed his petition, which

       provided as follows:


               (a) This section applies whenever a child who was born out of
               wedlock is:

               (1) or is alleged to be a child in need of services; and

               (2) under the supervision of the department or a local office as a
               result of a court ordered out-of-home placement.

               (b) The department or the local office shall refer a child’s case to
               the local prosecuting attorney's office for the filing of a paternity
               action if the:

               (1) identity of the alleged father is known; and

               (2) department or the local office reasonably believes that
               establishing the paternity of the child would be beneficial to the
               child.

               The local prosecuting attorney's office shall file a paternity action
               regarding each case that is referred under this subsection. The
               department shall sign the paternity petition as the child’s next
               friend.



[14]   Mother does not argue that the statute was ambiguous. Rather, she contends,

       based on the language the “department shall sign the paternity petition as the

       child’s next friend” that the CHINS statute vested DCS with exclusive authority

       to initiate a paternity action during the pendency of a CHINS proceeding and

       required DCS to file a paternity action unless it determined that it would not be

       beneficial to the child.

       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018           Page 9 of 20
[15]   However, Mother’s argument is not supported by a plain reading of the statute,

       which only mandates that DCS or the local office refer a case to the prosecutor

       for the filing of a paternity action “if” it reasonably believes that establishing

       paternity would be beneficial to the child. I.C. § 31-34-15-6(b)(2). When

       construing a statute, “we presume that the words of the statute were selected

       and employed to express their common and ordinary meaning.” J.G.L., 107

       N.E.3d at 1091. The legislature did not employ the word “unless” in this

       portion of the statute; it selected the word “if”. As such, nothing in the express,

       permissive wording of the statute itself compelled DCS to initiate a paternity

       proceeding or rendered it the exclusive authority to do so during the CHINS

       proceeding. When construing a statute, we will not read into a statute that

       which is not the manifest intent of the legislature, and, thus, it is as important to

       recognize not only what a statute says, but also what it does not say. In re

       Paternity of E.M.L.G., 863 N.E.2d 867, 868-69 (Ind. Ct. App. 2007). As such,

       we will not read into the statute Mother’s proposed terms or meaning. Here,

       neither DCS nor the local office made a determination or referral, so, contrary

       to Mother’s contention on appeal, there was no exclusive mandate for DCS to

       sign a paternity petition as Child’s next friend.


[16]   In addition, as a general rule, statutes relating to the same general subject

       matter are in pari materia and should be construed together to produce a

       harmonious statutory scheme. Clark v. Kenley, 646 N.E.2d 76, 78 (Ind. Ct. App.

       1995), trans. denied. Section 31-34-15-6 is part of the CHINS statute. Indiana




       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018      Page 10 of 20
       Code section 31-14-4-1, which is located in the paternity statute, provided as

       follows at the time Father filed his petition:


               A paternity action may be filed by the following persons:

               (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) If paternity of a child has not been established, the department
               in a child in need of services proceeding.

               (7) If the paternity of a child has not been established:

               (A) the department; or

               (B) a prosecuting attorney operating under an agreement or
               contract with the department described in IC[§]31-25-4-13.1.


[17]   We note that the language of subsection (6) does not expressly limit to DCS the

       authority to file a paternity action in a CHINS proceeding. Rather, section 31-

       14-4-1 of the paternity statute provides a list of categories of persons or entities

       which “may” file a paternity action. If we were to accept Mother’s reading of

       section 31-34-15-6, it would render at least five of those categories superfluous

       simply because a CHINS proceeding had been initiated. Mother’s proposed


       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018      Page 11 of 20
       statutory interpretation would also presumably require any ongoing paternity

       action be dismissed should a CHINS proceeding involving the same child be

       instigated so that DCS could relitigate the same issues. There is no indication

       in the wording of the statutes that the legislature intended such a result.


[18]   Further undermining Mother’s argument is Indiana Code section 31-14-5-2(a),

       which provides that “[a] person less than eighteen (18) years of age may file a

       petition if the person is competent except for the person’s age. A person who is

       otherwise incompetent may file a petition through the person’s guardian,

       guardian ad litem, or next friend.” This court has interpreted this subsection,

       formerly codified at Indiana Code section 31-6-6.1-2(a)(4) in the paternity

       statute, to permit a putative father to file a paternity action as a child’s next

       friend. Matter of Paternity of P.L.M. v. Mitchell, 661 N.E.2d 898, 899-900 (Ind.

       Ct. App. 1996), trans. denied. Although this section was recodified in 1997 as

       section 31-14-5-2(a), its wording did not change, and so we disagree with

       Mother that the recodification of the statute implied that the General Assembly

       disapproved of the court’s holding in P.L.M. Because DCS did not have

       exclusive standing to initiate a paternity proceeding under the CHINS statute

       and Father had standing under the paternity statute to do so, we find no error

       on the part of the trial court in denying Mother’s motion to dismiss Father as a

       party.


                                           II. Paternity Determination

[19]   Mother next contends that Father failed to establish paternity, which we take to

       be a challenge to the evidence supporting the trial court’s paternity

       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018      Page 12 of 20
       determination. The trial court entered findings of fact and conclusions of law

       establishing paternity in Father. When we review a trial court’s findings of fact

       and conclusions of law, we first determine whether the evidence supports the

       findings and then whether the findings support the judgment. In re Paternity of

       S.A.M. v. M.H., 85 N.E.3d 879, 886 (Ind. Ct. App. 2017). We shall not set aside

       the findings or a judgment unless it is clearly erroneous. Id.


[20]   In assessing the sufficiency of the evidence supporting a trial court’s paternity

       determination, 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. Instead, we look to the evidence most favorable to the

       judgment and the reasonable inferences that follow from that evidence. Id. “If

       the evidence has sufficient probative value to sustain the trial court’s judgment,

       the judgment will not be overturned on appeal.” Id. In addition, the alleged

       father must be proved to be such by the preponderance of the evidence. Id.

       Generally, the testimony of a mother regarding an act of sexual intercourse

       with the putative father, coupled with the probability of conception at such

       time, is sufficient to support the trial court’s determination that he is the father

       of the child. Id.


[21]   Here, Child was born in September of 2014. Father was in a relationship and

       had sexual intercourse with Mother for one-to-two months beginning in either

       December of 2013 or January of 2014. Mother testified that she had sexual

       intercourse with Father in a time frame that was consistent with him being the

       father and that she had not identified anyone else as a potential father. Because

       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018      Page 13 of 20
       Mother did not identify anyone else as a putative father, the trial court could

       have reasonably inferred that there was a probability that she conceived Child

       during the time period she identified as being consistent with Father being the

       father. This evidence of an act of intercourse coupled with a probability of

       conception was sufficient to support the trial court’s judgment. Id.; see also D.M.

       v. C.H., 177 Ind. App. 600, 602, 380 N.E.2d 1269, 1270 (1978) (evidence that

       mother had sexual intercourse with father during a period ranging from eleven

       to seven months before child’s birth was sufficient to uphold paternity

       determination). In addition, Mother, the party presumably contesting

       paternity, admitted the paternity of Father at the evidentiary hearing in this

       matter. While we decline Father’s invitation to hold that Mother’s admissions

       alone were sufficient to establish paternity, her admissions were evidence which

       further supported the trial court’s paternity determination. See H.W.K. v.

       M.A.G., 426 N.E.2d 129, 133 (Ind. Ct. App. 1981) (considering putative father’s

       admissions of paternity as part of the evidence supporting the trial court’s

       paternity judgment).


[22]   Mother contends that Father did not establish when sexual intercourse took

       place, did not establish that Child was born “during the normal gestational

       period,” and did not preclude anyone else from being Child’s father.

       (Appellant’s Br. pp. 10-11). Mother’s arguments ignore her own testimony that

       she had sexual intercourse with Father at a time consistent with him being the

       father. In addition, her attempt to direct us to testimony which she contends

       shows her own equivocation regarding the possibility of other men being the


       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018     Page 14 of 20
       father is unavailing, as we will consider only the evidence which supports the

       trial court’s paternity judgment. Humbert, 655 N.E.2d at 605. Because evidence

       in the record supports the trial court’s paternity determination, it is not clearly

       erroneous, and we will not reverse. S.A.M., 85 N.E.3d at 886.


                                                III. Judicial Notice

[23]   Mother also argues that the trial court improperly took judicial notice of facts

       contained in documents from the CHINS proceedings. As a threshold matter,

       we agree with Father that Mother has waived this claim for our consideration

       because she did not object on that basis at trial. A party may not object on one

       ground at trial and argue a different basis on appeal. See Francies v. Francies, 759

       N.E.2d 1106, 1113 (Ind. Ct. App. 2001) (finding issue waived and declining to

       address it), trans. denied. At trial, Mother objected to the admission of the

       challenged evidence on the basis of relevancy and confidentiality concerns, but

       she did not object on the basis that the trial court’s taking of judicial notice of

       the records was improper. As such, Mother has waived this issue. Id.


[24]   However, even if she had not waived the issue, her argument is without merit.

       Her contention that the trial court took judicial notice of facts, as opposed to

       records, is not supported by the record on appeal. Father requested that the

       trial court take judicial notice of certain records from the CHINS proceedings,

       not that it take judicial notice of any particular fact or set of facts. Indiana

       Evidence Rule 201(b)(5) provides that a court may take judicial notice of the

       records of a court of this state. See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct.

       App. 2012) (upholding the trial court’s judicial notice of the records of a related

       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018      Page 15 of 20
       CHINS proceeding at the outset of a hearing to terminate parental rights).

       Finding waiver and no trial court error, we do not address Mother’s contention

       that the evidence supporting the trial court’s custody determination is

       insufficient without reliance on the challenged CHINS records.


                                                     IV. MMPI

[25]   Mother’s final argument is that the trial court improperly relied on the MMPI

       results and Walker’s testimony about those results, which she contends were

       inadmissible. “The admission of evidence is entrusted to the sound discretion

       of the trial court.” B.H. v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 360

       (Ind. Ct. App. 2013). An abuse of discretion occurs where the trial court’s

       decision is against the logic and effect of the facts and circumstances before the

       court. Id.


[26]   Mother contends that the challenged evidence was inadmissible because Walker

       did not have the necessary credentials to administer the MMPI. Mother bases

       this argument on the Pearson’s qualifications policy she had admitted as

       Exhibit A which she contended showed that Walker was required to hold a

       doctorate or certification/membership in a professional organization in order to

       administer the MMPI. Assuming without deciding that to be true, the same

       qualifications policy also provided that some products offered by Pearson could

       be administered without the listed credentials “as long as they are under the

       supervision of a qualified User.” (Exh. A, Vol. III). The policy itself does not

       exclude the MMPI as one of Pearson’s products that may be administered

       under the supervision of a qualified user, as was done in this case. As such,

       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018     Page 16 of 20
       Mother did not conclusively establish any deficiency in Walker’s qualifications

       to administer the MMPI, and we find no abuse of the trial court’s discretion in

       admitting the challenged evidence.


[27]   However, even if Walker had not been qualified to administer the MMPI and

       the trial court erred in admitting that MMPI-related evidence, it would not

       merit reversal. A claim of error based on the admission of evidence must affect

       a substantial right of the party. See Indiana Evidence Rule 103(a). Here, the

       trial court made only two findings regarding Mother’s mental health, neither of

       which was expressly tied to the MMPI. The MMPI survey was only part of a

       psychological evaluation that encompassed many other sources of information,

       including Mother’s clinical interview and two other assessment tools that

       Mother does not challenge on appeal. Indeed, the trial court’s reference to

       Mother’s “mental health diagnoses” in its finding 17(c) is more likely based on

       Walker’s assessment that, diagnostically, Mother met the criteria for several

       clinical disorders. (Appellant’s App. Vol. II, p. 12). We cannot conclude that

       any of Mother’s substantial rights were impacted by the admission of the

       MMPI evidence which we cannot discern was relied upon by the trial court in

       rendering its custody determination.




       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018   Page 17 of 20
                                              CROSS-APPEAL
[28]   Father argues on cross-appeal that the trial court erred in denying his request to

       change Child’s surname to his own. 3 A trial court’s grant or denial of a

       biological father’s request to change the name of a nonmarital child is reviewed

       for an abuse of discretion. In re Paternity of N.C.G., 994 N.E.2d 331, 334 (Ind.

       Ct. App. 2013). An abuse of the trial court’s discretion occurs when the

       decision is clearly against the logic and effect of the facts and circumstances

       before the court. Id. The biological father bears the burden of persuading the

       trial court that the change is in the best interests of the child. Id.


[29]   In C.B. v. B.W., 985 N.E.2d 340, 343 (Ind. Ct. App. 2013), trans. denied, we

       noted that when a name change is requested in a paternity proceeding, a trial

       court may properly consider a number of factors including whether the child

       holds property under a given name, whether the child is identified in public and

       private by a certain name, the degree of confusion a name change might cause,

       the child’s desires if the child is of sufficient maturity, and what name appears

       on records relating to the child. We also concluded that


                like all children, a child born out of wedlock is better served
                when he knows and is identified with both parents, and both
                parents are engaged in his upbringing. A child’s surname
                connects the child with the parent. Here, Mother will have
                physical custody of the child and, as such, the child will continue


       3
         On November 17, 2018, Mother filed a verified motion for leave to file a belated cross-appellee brief. By
       separate order, we grant Mother’s motion.



       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018                           Page 18 of 20
               to be identified with her and will be connected with her in
               countless ways, large and small, on a daily basis. Father’s
               surname will connect the child with his non-custodial parent and
               is a tangible reminder to the child that the child has two parents
               who care for him, which is in the child’s best interests.


       Id. at 348.


[30]   Here, the trial court determined that “[Child’s] surname should remain

       unchanged as that is the name by which she knows herself and there has been

       no showing of best interests of [Child] to change the same.” (Appellant’s App.

       Vol. II, p. 12). This determination was supported by Mother’s testimony that

       Child knew her full name and that Child’s retention of her name would

       promote consistency for Child. By contrast, Father bore the burden to persuade

       the trial court that it was in Child’s best interests to change her name, but he

       presented little to no evidence bearing on the aforementioned factors or Child’s

       best interests. At trial, Father merely argued that he desired the name change to

       promote his own bond with Child, to lessen confusion to the public, and to

       avoid potential embarrassment to Child. However, as we observed in C.B.,

       since Father is the custodial parent, Child will be continually identified with

       Father and connected to him in a myriad of ways on a daily basis. Id. In this

       case, Child’s retention of Mother’s surname will be a tangible reminder to Child

       of Child’s connection to Mother.


[31]   While we commend Father for his proactivity in taking responsibility for Child

       and his parenting to date, the trial court, in the exercise of its discretion,

       considered the totality of the evidence and determined that it was in Child’s
       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018       Page 19 of 20
       best interests to refrain from changing Child’s name. Given the evidence before

       the trial court and Father’s burden of persuasion, this determination was neither

       an abuse of discretion, nor was the trial court’s conclusion on the issue clearly

       erroneous. S.A.M., 85 N.E.3d at 886. As such, we affirm the trial court’s

       denial of Father’s request to change Child’s name.


                                              CONCLUSION
[32]   Based on the foregoing, we conclude that the trial court did not err when it

       denied Mother’s motion to dismiss Father as a party, the trial court’s paternity

       determination was supported by the evidence, Mother waived her argument

       regarding the trial court’s judicial notice of records from the CHINS

       proceeding, and the trial court did not abuse its discretion when it admitted

       evidence pertaining to the MMPI survey. In addition, we conclude on cross-

       appeal that the trial court did not commit clear error when it denied Father’s

       request to change Child’s name.


[33]   Affirmed.


[34]   Kirsch, J. & Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018    Page 20 of 20
