                                                                                FILED
                                                                            Apr 30 2019, 9:16 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT
      Donna Jameson
      Greenwood, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      Michael Litton,                                             April 30, 2019
      Appellant-Petitioner,                                       Court of Appeals Case No.
                                                                  18A-JP-2066
               v.                                                 Appeal from the Johnson Circuit
                                                                  Court
      Jason Baugh,                                                The Honorable K. Mark Loyd,
      Appellee-Intervenor.                                        Judge
                                                                  Trial Court Cause No.
                                                                  41C01-1710-JP-192



      Tavitas, Judge.


                                               Case Summary
[1]   Michael Litton (“Biological Father”) appeals the trial court’s denial of his

      petition to establish paternity. We affirm.




      Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                            Page 1 of 24
                                                        Issue
[2]   Biological Father raises one issue, which we restate as whether the trial court

      properly dismissed Biological Father’s petition to establish paternity. We

      affirm.


                                                        Facts
[3]   Jessica Boyd (“Mother”) was in a relationship with Jason Baugh (“Legal

      Father”), and they had a child in 2005. Mother and Legal Father were

      estranged at some point during 2008, and she had a brief relationship with

      Biological Father. Mother and Legal Father resumed their relationship, and

      Mother had another child, K.B., who was born in January 2009. Mother and

      Legal Father executed a paternity affidavit listing Legal Father as K.B.’s

      biological father shortly after K.B.’s birth. Mother’s relationship with Legal

      Father ended sometime in 2010.


[4]   Mother married Andy Boyd (“Stepfather”) in June 2010. In December 2010,

      Legal Father filed a petition to establish paternity regarding K.B. and his older

      child with Mother. The trial court issued an order establishing paternity in

      Legal Father with respect to K.B. and the older child. The trial court awarded

      Mother and Legal Father joint legal custody of the children with Mother having

      primary physical custody and Legal Father having parenting time pursuant to

      the Indiana Parenting Time Guidelines.


[5]   In April 2017, Legal Father filed a petition for modification of parenting time

      and a motion for rule to show cause to address parenting time issues and other

      Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019       Page 2 of 24
      disputes between Legal Father and Mother. Mother contacted Biological

      Father in the spring of 2017 and asked him to take a private DNA test. DNA

      testing in June 2017 revealed a 99.9% probability that Biological Father is

      K.B.’s biological father.


[6]   On October 12, 2017, Biological Father and Mother filed a joint verified

      petition to establish paternity under Indiana Code Section 31-14-7-1(3). At that

      time, Biological Father was incarcerated at the Marion County Jail. Legal

      Father was joined as a necessary party. Legal Father also filed a motion to

      intervene in the action, which the trial court granted. The trial court appointed

      a guardian ad litem (“GAL”). In June 2018, Biological Father and Mother

      filed a petition to amend the caption to file as next friends on behalf of K.B.


[7]   After a hearing, the trial court entered findings of fact and conclusions of law

      dismissing Biological Father’s and Mother’s petition to establish paternity. The

      trial court found:


                        .....


               27.      [ ] The GAL submitted a report which was admitted into
                        evidence. The Court finds the following points articulated
                        by the GAL as salient to the present issues before the
                        Court:


                        a.       [Older child] and [K.B.] are well adjusted despite
                                 the conflict between the parents;


                        b.       Biological Father was likely to only be a tangential
                                 part of [K.B.’s] life in the long run given his history;
      Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                Page 3 of 24
                  c.       Mother was primarily responsible for the heightened
                           hostility between she and Legal Father;


                  d.       [T]he GAL questioned Mother’s timing in seeking
                           out Biological Father given Legal Father’s Petition
                           for Modification of Parenting Time;


                  e.       [I]t is not in [K.B.’s] best interest to substitute
                           Biological Father for Legal Father in her life and be
                           separated from her brother [ ] during parenting time
                           rotation with Legal Father;


                  f.       Biological Father has a criminal history which
                           includes a term in the Indiana Department of
                           Corrections for pointing a firearm, multiple citations
                           for driving while suspended and seven (7) substance
                           abuse related cases;


                  g.       Mother’s choice to not only draw [Biological
                           Father] into this situation but to tell the child about
                           him, shows a deeply disturbing lack of perspective
                           and principle;


                  h.       [K.B.] has developed a nine (9) year bond with
                           Legal Father, spent consistent time with him, had
                           him come to school functions and established a life
                           with him and with her brother;


                  i.       [K.B.] has shared the same schedule, going between
                           Legal Father and Mother’s house her entire life;
                           and,


                  j.       [W]hen asked about Biological Father, [K.B.]
                           responded with short, curt answers about her

Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                   Page 4 of 24
                           familiarity with him and denied much knowledge or
                           involvement.


         28.      Legal Father has acted as [K.B.’s] father since birth,
                  seeking to establish paternity and providing regular
                  financial support. [K.B.] accepted Legal Father as her
                  father and until recently he was the only father she had
                  known.


         29.      Biological Father is a recovering opiate addict. He has
                  only periodic, but not meaningful contact, with his other
                  four (4) children . . . . He only pursued establishment of
                  paternity for one (1) of those four (4) children. According
                  to Biological Father, [K.L.] is the only child he’s ordered
                  to pay child support on, and he is more than $5,000.00 in
                  arrears on that obligation.


         30.      Despite Biological Father’s track record of lackluster
                  parenting, Mother has chosen at this juncture to involve
                  him in [K.B.’s] life, going so far as to allowing regular
                  contact with Biological Father contrary to her daughter’s
                  best interests.


         31.      There is no dispute that the possibility of adoption of K.B.
                  by Mother’s current husband, should Legal Father’s
                  parental rights be terminated, has been discussed. It
                  appears that Mother is paying Biological Father’s expenses
                  in this action.


         32.      Mother’s timing, the nature of conversations, and the true
                  motives behind the filing of this joint petition[] with
                  Biological Father are transparent.




Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019              Page 5 of 24
         33.      Her motivations have little, if anything, to do with the
                  child’s best interest. Legal Father’s request for contempt
                  and a modification seeking more time with his children is
                  telling. The Court finds the true motivation for the joint
                  filing of this petition by Mother is to eliminate Legal
                  Father from [K.B.’s] life. Mother had an opportunity to
                  have DNA testing done at the time the Petition for
                  Paternity was filed, but instead, she voluntarily entered
                  into an agreement acknowledging Legal Father as [K.B.’s]
                  biological and natural parent.


         34.      Biological Father had unprotected sexual relations with
                  Mother, learned that Mother was pregnant soon thereafter,
                  and failed to make any further inquiries as to the biology
                  of the child Mother carried. Biological Father did not file
                  a petition to establish paternity within two (2) years after
                  [K.B.] was born.


         35.      Counsel for Petitioner proposed in her findings and
                  conclusions that Mother’s motivations are unknown. As
                  stated herein, the Court disagrees.


         36.      The Court does agree that Biological Father’s motives are
                  unknown. However, the Court can only conclude that he
                  will not voluntarily assume financial responsibility for
                  [K.B.] any more than he has for his other children. He is
                  clueless and uninterested.


         37.      Mother suggests she had suspicions from early on that
                  [K.B.] may not be the biological child of Legal Father and,
                  without excuse, failed to pursue legal remedies that were
                  available to her until [K.B.] was eight (8) years of age, had
                  bonded with Legal Father, and developed familial
                  relationships with Legal Father’s extended family.


Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019            Page 6 of 24
               38.      Mother and Biological Father now ask this Court to enter
                        an Order that is completely contrary to [K.B.’s] best
                        interest, removing the only father she had ever known.
                        The circumstances in this matter have changed
                        dramatically with the passing of time, given the established
                        and long-standing relationship which developed between
                        [K.B.] and Legal Father.


               39.      To disestablish paternity in Legal Father is contrary to
                        [K.B.’s] best interests and damaging and injurious to Legal
                        Father given the close relationship he has with his
                        daughter.


      Appellant’s App. Vol. II pp. 10-12.


[8]   After analyzing the relevant statutes, the trial court concluded:


               There is no doubt that Legal Father is the legal father of [K.B.]
               Likewise, Mother and Biological Father have not alleged fraud,
               duress, or material mistake of fact. Further, Legal Father has not
               requested DNA testing. Therefore, it would appear there is no
               basis for rescinding the Paternity Affidavit signed by Mother and
               Legal Father.


      Id. at 13. The trial court concluded that neither Mother’s nor Biological

      Father’s actions were in K.B.’s best interest. The trial court also concluded that

      Mother could not collaterally attack the prior paternity affidavit and prior

      paternity proceedings, to which she was a party. As to Biological Father,

      however, the trial court concluded:


               .....



      Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019          Page 7 of 24
               58. The same may not be said as it relates to the Biological
               Father and/or the child, however. Neither was a party to the
               2011 paternity action. As a result, neither is precluded from a
               collateral attack on the Legal Father’s paternity. In Re Paternity of
               SRI, 602 N.E.2d 1014 (Ind. 1992); see also Poteet v. Rodgers, 92
               N.E.3d 1158 (Ind. Ct. App. 2018); and, Davis v. Trensey, 862
               N.E.2d 308 (Ind. Ct. App. 2007).


               59. The Joint Petition asserts Indiana Code 31-14-4-1(3) as its
               only basis for the paternity filing. Of course, other provisions of
               that statute may be available to the Biological Father, should he
               choose to pursue the same and have his day in Court. However,
               until those issues are appropriately framed, the Court is unable to
               address the merits of his request.


      Id. at 15. The trial court then dismissed the petition to establish paternity. The

      trial court, however, noted that the dismissal was without prejudice as to

      Biological Father and/or child “to reinitiate the same on other grounds.” Id.

      The trial court allowed Biological Father twenty days to amend his paternity

      petition. Biological Father now appeals.


                                                     Analysis
[9]   Biological Father argues that the trial court erred by dismissing his petition to

      establish paternity. Before addressing the merits of Biological Father’s claim,

      we note that Legal Father did not file an appellee’s brief. “When an appellee

      fails to submit a brief, we apply a less stringent standard of review with respect

      to the showing necessary to establish reversible error.” In re Paternity of S.C.,

      966 N.E.2d 143, 148 (Ind. Ct. App. 2012), aff’d on reh’g, 970 N.E.2d 248 (Ind.

      Ct. App. 2012), trans. denied. “In such cases, we may reverse if the appellant

      Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019           Page 8 of 24
       establishes prima facie error, which is an error at first sight, on first appearance,

       or on the face of it.” Id. “Moreover, we will not undertake the burden of

       developing legal arguments on the appellee’s behalf.” Id.


[10]   At Biological Father’s request, the trial court entered findings of fact and

       conclusions of law pursuant to Indiana Trial Rule 52(A). In reviewing the

       findings made pursuant to Rule 52, we first determine whether the evidence

       supports the findings and then whether the findings support the judgment. K.I.

       ex rel. J.I. v. J.H., 903 N.E.2d 453, 457 (Ind. 2009). On appeal, we “shall not set

       aside the findings or judgment unless clearly erroneous, and due regard shall be

       given to the opportunity of the trial court to judge the credibility of the

       witnesses.” Id.; Ind. Trial Rule 52(A). A judgment is clearly erroneous when

       there is no evidence supporting the findings or the findings fail to support the

       judgment. K.I., 903 N.E.2d at 457. A judgment is also clearly erroneous when

       the trial court applies the wrong legal standard to properly found facts. Id.


[11]   Biological Father argues that the trial court erred by dismissing his petition to

       establish paternity. Biological Father’s argument requires us to interpret the

       relevant paternity statutes. Statutory interpretation is a question of law that we

       review de novo. Anderson v. Gaudin, 42 N.E.3d 82, 85 (Ind. 2015). In

       interpreting a statute, the first step is to determine whether the Legislature has

       spoken clearly and unambiguously on the point in question. Id. When a statute

       is clear and unambiguous, we apply words and phrases in their plain, ordinary,

       and usual sense. Id. “[W]hen a statute is susceptible to more than one

       interpretation it is deemed ambiguous and thus open to judicial construction.”

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019            Page 9 of 24
       Id. If the statute is ambiguous, our primary goal is to determine, give effect to,

       and implement the intent of the Legislature with well-established rules of

       statutory construction. Id. We examine the statute as a whole, reading its

       sections together so that no part is rendered meaningless if it can be harmonized

       with the remainder of the statute. Id. We do not presume that the Legislature

       intended language used in a statute to be applied illogically or to bring about an

       unjust or absurd result. Id.


                                      A. Disestablishment of Paternity

[12]   We begin by noting that Legal Father established paternity through a paternity

       affidavit and also later filed a paternity action in which the trial court issued an

       order establishing paternity in Legal Father. Indiana Code Section 31-14-2-1

       provides that paternity may only be established: “(1) in an action under

       [Indiana Article 31-14]; or (2) by executing a paternity affidavit in accordance

       with IC 16-37-2-2.1.” “[I]f a man has executed a paternity affidavit in

       accordance with [Indiana Code Section 16-37-2-2.1], the executed paternity

       affidavit conclusively establishes the man as the legal father of a child without

       any further proceedings by a court.” Ind. Code § 16-37-2-2.1(p).


[13]   Once paternity is established, Indiana Code Section 31-14-7-3 provides: “A

       man is a child’s legal father if the man executed a paternity affidavit in

       accordance with IC 16-37-2-2.1 and the paternity affidavit has not been

       rescinded or set aside under IC 16-37-2-2.1.” The circumstances under which a

       paternity affidavit can be rescinded or set aside are limited. Indiana Code

       Section 16-37-2-2.1 provides:
       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019        Page 10 of 24
                (k) Notwithstanding any other law, a man who is a party to a
                paternity affidavit executed under this section may, within sixty
                (60) days of the date that a paternity affidavit is executed under
                this section, file an action in a court with jurisdiction over
                paternity to request an order for a genetic test.


                (l) A paternity affidavit that is properly executed under this
                section may not be rescinded more than sixty (60) days after the
                paternity affidavit is executed unless a court:


                         (1) has determined that fraud, duress, or material mistake
                         of fact existed in the execution of the paternity affidavit;
                         and


                         (2) at the request of a man described in subsection (k), has
                         ordered a genetic test, and the test indicates that the man is
                         excluded as the father of the child.


                                                       *****


                 (n) The court may not set aside the paternity affidavit unless a
                genetic test ordered under subsection (k) or (l) excludes the
                person who executed the paternity affidavit as the child’s
                biological father.


       I.C. § 16-37-2-2.1. 1 None of these circumstances are present here.


[14]   Although Legal Father’s paternity cannot be rescinded pursuant to Indiana

       Code Section 16-37-2-2.1, Indiana courts have held that paternity may be



       1
         Indiana Code Section 16-37-2-2.1 has been amended since Father executed the paternity affidavit. The
       relevant portions of the statute, however, remain the same except for changes to the subsection numbering.

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                             Page 11 of 24
       indirectly disestablished by establishing paternity in another man. See In re

       Paternity of Infant T., 991 N.E.2d 596, 600 (Ind. Ct. App. 2013), trans. denied; In

       re Paternity of N.R.R.L., 846 N.E.2d 1094, 1097 (Ind. Ct. App. 2006) (“Although

       Rogge’s execution of the paternity affidavit established him as the child’s legal

       father, that does not preclude another man from attempting to establish

       paternity of the child.”), trans. denied.


[15]   In the context of a child born during a marriage and a biological father later

       seeking to establish paternity, our Supreme Court relied on public policy

       concerns 2 and held that:


                  In many cases, the parties to the dissolution will stipulate or
                  otherwise explicitly or implicitly agree that the child is a child of
                  the marriage. In such cases, although the dissolution court does
                  not identify the child’s biological father, the determination is the
                  legal equivalent of a paternity determination in the sense that the
                  parties to the dissolution—the divorcing husband and wife—will
                  be precluded from later challenging that determination, except in
                  extraordinary circumstances. See Fairrow v. Fairrow, 559 N.E.2d
                  597, 600 (Ind. 1990) (husband entitled to relief from support
                  judgment only in event that “the gene testing results which gave



       2
           The Court held:

               We appreciate the Court of Appeals’ concern for a man who may be deprived of parental rights
               that he assumed for many years and wishes to retain even though he is not the child’s biological
               father. However, a countering important policy concern is identifying correctly parents and
               their offspring. “Proper identification of parents and child should prove to be in the best
               interests of the child for medical or psychological reasons. It also plays a role in the just
               determination of child support; we have already declared that public policy disfavors a support
               order against a man who is not the child’s father.” In re S.R.I., 602 N.E.2d 1014, 1016 (Ind.
               1992). In the end, such policy choices are the province of the legislature. Also, a husband who
               is not the biological father of his wife’s child may pursue legally adopting the child, bringing
               such child within the statutory definition of “child.”
       Russell v. Russell, 682 N.E.2d 513, 517 n.7 (Ind. 1997).

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                               Page 12 of 24
         rise to the prima facie case for relief in this situation became
         available independently of court action.”). However, a child or a
         putative father is not precluded by the dissolution court’s finding
         from filing a separate action in juvenile court to establish
         paternity at a later time. See J.W.L. by J.L.M. v. A.J.P., 682
         N.E.2d 519 (Ind. 1997) (child); K.S. v. R.S., 669 N.E.2d 399 (Ind.
         1996) (putative father); In re S.R.I., 602 N.E.2d 1014 (Ind. 1992)
         (putative father).


Russell v. Russell, 682 N.E.2d 513, 518 (Ind. 1997); see also K.S. v. R.S., 669

N.E.2d 399, 400 (Ind. 1996) (holding that a man claiming to be the biological

father of a child born during the marriage of the child’s mother to another man

may bring a paternity action while the mother’s marriage is still intact); S.R.I.,

602 N.E.2d at 1016 (holding that “a putative father may establish paternity

without regard to the mother’s marital status”). 3 Given the prior opinions of




3
 We acknowledge and share Judge Baker’s concerns expressed in his dissent in Paternity of I.I.P. v. Rodgers,
92 N.E.3d 1158, 1165 (Ind. Ct. App. 2018), where he stated:
      The plain language of Indiana Code section 16-37-2-2.1(l) provides that where, as here, a
      paternity affidavit has already been executed pursuant to that section, it may not be rescinded
      unless the trial court:
      (1) has determined that fraud, duress, or material mistake of fact existed in the execution of the
      paternity affidavit; and
      (2) at the request of a man described in subsection (k), has ordered a genetic test, and the test
      indicates that the man is excluded as the father of the child.
      Neither of those circumstances has occurred in this case.
      The majority cites Indiana Code section 31-14-5-3 as support for its conclusion. In my view,
      this statute applies only if a paternity affidavit has not already been executed pursuant to
      Indiana Code section 16-37-2-2.1. To say that judicial action can trump a valid paternity
      affidavit even if the parties have not complied with Indiana Code section 16-37-2-2.1 is to render
      that statute meaningless, which is a result that should be avoided.
      Moreover, the majority points to In re Paternity of D.L., 938 N.E.2d 1221, 1225 (Ind. Ct. App.
      2010), in support of its conclusion that “establishing paternity in another man effectively
      operates to disestablish the paternity of a man who executed a paternity affidavit.” Op. para.
      14. In D.L., however, paternity was not first established by a paternity affidavit under Indiana
      Code section 16-37-2-2.1; instead, it “was established by an action commenced pursuant to
      Article 31-14 . . . .” 938 N.E.2d at 1225. That paternity established by Article 31-14 can be

Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                                 Page 13 of 24
       our Supreme Court and this court, Legal Father’s paternity could be indirectly

       disestablished by the establishment of paternity in Biological Father.


                                         B. Establishment of Paternity

[16]   Because our courts have held that Legal Father’s paternity may be

       disestablished by the establishment of paternity in another man, we will address

       whether the petition to establish paternity filed by Mother and Biological Father

       was proper. The paternity action filed by Mother and Biological Father must

       comply with the requirements of Indiana Code Article 31-14.


[17]   Indiana Code Section 31-14-4-1 governs persons permitted to file a paternity

       action and provides:




             disestablished by the same set of statutes is both unsurprising and irrelevant to the case before
             us.
             Both the plain language of Indiana Code section 16-37-2-2.1 and caselaw support a conclusion
             that once a paternity affidavit has been executed, it may not be rescinded unless the terms of
             that statute are met. See, e.g., In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct. App. 2008)
             (holding that “[o]nce a man executes a paternity affidavit in accordance with I.C. § 16-37-2-2.1,
             he ‘is a child’s legal father’ unless the affidavit is rescinded or set aside pursuant to that same
             statute” and that “once a mother has signed a paternity affidavit, she may not use the paternity
             statutes to deprive the legal father of his rights, even if he is not the biological father”). I
             acknowledge that there is also caselaw supporting the opposite conclusion, but respectfully
             disagree with those cases given the plain language of the relevant statutes. See Davis v. Trensey,
             862 N.E.2d 308, 312-14 (Ind. Ct. App. 2007) (holding that prosecutor had a right to file
             paternity action and seek a genetic test where paternity had been established in another man by
             affidavit in the past); In re Paternity of N.R.R.L., 846 N.E.2d 1094, 1098 (Ind. Ct. App. 2006)
             (noting that while a man is established as legal father after executing a paternity affidavit, “that
             does not preclude another man from attempting to establish paternity of the child” via a
             paternity action).
             I believe that the plain language of Indiana Code section 16-37-2-2.1 compels us to affirm, and
             therefore respectfully dissent.
       I.I.P., 92 N.E.3d 1165 (Baker, J., dissenting). We are constrained, however, to follow our Supreme Court’s
       opinions in Russell, S.R.I., and K.S. regarding whether paternity in one man can be disestablished by a finding
       of paternity in another man.

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                                 Page 14 of 24
         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[ 4] by filing an action under this article for a child who
         is the subject of a child in need of services proceeding.


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


                  (A) the department; or




4
 “Department” refers to the department of child services. See Ind. Code § 31-9-2-38.5 and Ind. Code § 31-25-
2-1.

Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                            Page 15 of 24
                         (B) a prosecuting attorney operating under an agreement
                         or contract with the department described in IC 31-25-4-
                         13.1.


[18]   Mother and Biological Father’s petition was filed jointly under subsection (3). 5

       The trial court, however, found that:


                Mother was a party to the both the prior paternity affidavit and
                the prior paternity proceedings involving the Legal Father which
                resulted in this Court’s issuance of the Paternity Order. The
                Paternity Order was a final appealable determination which has
                not been set-aside. As such, Mother may not now collaterally
                attack that determination by joining in the paternity proceeding
                with the Biological Father. In re HH, 879 N.E. 2d 1175 (Ind. Ct.
                App. 2008); see also Tierney v. Greene (In Re A.N.S.), 741 N.E.2d
                780 (Ind. Ct. App. 2001).


       Appellant’s App. Vol. II p. 15. We agree with the trial court.


[19]   The doctrine of res judicata bars litigation of a claim after a final judgment has

       been rendered in a prior action involving the same claim between the same

       parties or their privies. Dickson v. D’Angelo, 749 N.E.2d 96, 99 (Ind. Ct. App.

       2001). The principle behind this doctrine is the prevention of repetitive




       5
         Mother and Biological Father filed a motion to amend the caption to file as next friends on behalf of K.B.
       Their motion specifically provided: “The granting of this motion will allow the Petitioner and Co-Petitioner
       to change the form of the caption and not the substance of their Petition to Establish Paternity.” Appellant’s
       App. Vol. II p. 22. The trial court’s order notes that the magistrate approved the caption change on June 26,
       2018, but the CCS does not show that the magistrate approved the motion. Regardless, Mother’s and
       Biological Father’s motion specifically provided that the substance of the petition did not change, only the
       caption changed. The substance of the petition provides that it is filed under Indiana Code Section 31-14-4-
       1(3).

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                               Page 16 of 24
       litigation of the same dispute. Id. The following four requirements must be

       satisfied for a claim to be precluded under the doctrine of res judicata: 1) the

       former judgment must have been rendered by a court of competent jurisdiction;

       2) the former judgment must have been rendered on the merits; 3) the matter

       now in issue was, or could have been, determined in the prior action; and 4) the

       controversy adjudicated in the former action must have been between the

       parties to the present suit or their privies. Id. at 100.


[20]   The fourth factor requires that the parties to the subsequent action must be the

       same parties as, or those in privity with, those in the first action. Id. The term

       “privity” describes the relationship between persons who are parties to an

       action and those who are not parties to an action but whose interests in the

       action are such that they may nevertheless be bound by the judgment in that

       action. Id. The term includes those who control an action, although not a party

       to it, and those whose interests are represented by a party to the action. Id.


[21]   Mother was a party to both the paternity affidavit and the prior paternity action,

       which determined K.B.’s paternity. We have held that “once a mother has

       signed a paternity affidavit, she may not use the paternity statutes to deprive the

       legal father of his rights, even if he is not the biological father.” In re Paternity of

       H.H., 879 N.E.2d 1175, 1178 (Ind. Ct. App. 2008). As such, Mother may not

       use the paternity statutes to deprive Legal Father of his rights, and a joint

       petition to establish paternity under Indiana Code Section 31-14-4-1(3) was

       improper. The trial court properly dismissed Mother’s and Biological Father’s

       petition for paternity on this basis.

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019           Page 17 of 24
[22]   Although the trial court dismissed Mother’s petition with prejudice, the trial

       court noted that other provisions of Indiana Code Section 31-14-4-1 may be

       available to Biological Father and dismissed Biological Father’s petition

       without prejudice. Biological Father was thus permitted to amend his paternity

       petition. See Ind. Trial Rule 12(B). The CCS indicates that Father has done so,

       and the trial court stayed the petition pending this appeal.


[23]   Because these issues may arise on remand, we will mention the relevant

       statutory considerations. We note that only the persons listed in Indiana Code

       Section 31-14-4-1(2)—a man alleging that he is the child’s biological father—

       and in Indiana Code Section 31-14-4-1(5)—the child—are possible persons

       permitted to file the paternity action here. 6


                                               1. Biological Father

[24]   Indiana Code Section 31-14-4-1(2) allows a “man alleging that . . . he is the

       child’s biological father” to file a paternity action. Indiana Code Section 31-14-

       5-3, however, governs the time for filing a paternity action and is also relevant

       here. It provides:


                (a) This section does not apply to an action filed by the
                department or its agents under section 4 of this chapter (or IC 31-
                6-6.1-6(c) before its repeal).




       6
        A petition filed under Indiana Code Section 31-14-4-1(1) by Mother would be barred by res judicata, and
       Indiana Code Section 31-14-4-1(4), (6), and (7) do not apply here.

       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019                            Page 18 of 24
         (b) The mother, a man alleging to be the child’s father, or the
         department or its agents must file a paternity action not later than
         two (2) years after the child is born, unless:


                  (1) both the mother and the alleged father waive the
                  limitation on actions and file jointly;


                  (2) support has been furnished by the alleged father or by a
                  person acting on his behalf, either voluntarily or under an
                  agreement with:


                           (A) the mother;


                           (B) a person acting on the mother’s behalf; or


                           (C) a person acting on the child’s behalf;


                  (3) the mother, the department, or a prosecuting attorney
                  operating under an agreement or contract described in IC
                  31-25-4-13.1 files a petition after the alleged father has
                  acknowledged in writing that he is the child’s biological
                  father;


                  (4) the alleged father files a petition after the mother has
                  acknowledged in writing that he is the child’s biological
                  father;


                  (5) the petitioner was incompetent at the time the child
                  was born; or


                  (6) a responding party cannot be served with summons
                  during the two (2) year period.


Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019               Page 19 of 24
                (c) If any of the conditions described in subsection (b) exist, the
                paternity petition must be filed not later than two (2) years after
                the condition described in subsection (b) ceases to exist.


       I.C. § 31-14-5-3. Consequently, a biological father is required to file a paternity

       action within two years after the child’s birth unless one of the above statutory

       exceptions applies.


                                                       2. Child

[25]   Indiana Code Section 31-14-4-1(5) allows a “child” to file a paternity action.

       Indiana Code Section 31-14-5-2 addresses a paternity petition filed by a minor

       and provides:


                (a) 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.


                (b) Except as provided in subsection (c), a child may file a
                paternity petition at any time before the child reaches twenty (20)
                years of age.


                (c) If a child is incompetent on the child’s eighteenth birthday,
                the child may file a petition not later than two (2) years after the
                child becomes competent.


                                                   a. Next Friend

[26]   “There is no statutory definition of ‘next friend.’” In re Paternity of S.A.M., 85

       N.E.3d 879, 886 (Ind. Ct. App. 2017) (quoting R.J.S. v. Stockton, 886 N.E.2d

       611, 614 (Ind. Ct. App. 2008)). Our courts, however, have held that “only
       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019             Page 20 of 24
       parents, guardians, guardians ad litem, and prosecutors may bring paternity

       actions as next friends of children.” Id. at 887.


                As a general rule, a next friend for an infant plaintiff is required
                only when the infant is without a parent or general guardian,
                since ordinarily it is the duty of the parent or general guardian of
                an infant to institute and prosecute an action on behalf of the
                infant for the protection of his rights.


       Id. (holding that paternal grandfather did not have standing to file as child’s

       next friend). This court has interpreted the statute “to permit a putative father

       to file a paternity action as a child’s next friend.” In re Paternity of K.H., 116

       N.E.3d 504, 511 (Ind. Ct. App. 2018), trans. denied.


[27]   We acknowledge the apparent inconsistency that a mother and biological father

       may not be permitted to file a paternity action in their own names but could file

       a paternity action as next friend of a child. We discussed a similar concern in

       In re Adoption of E.L., 913 N.E.2d 1276 (Ind. Ct. App. 2009). There, the alleged

       biological father failed to timely register as a putative father. Consequently, his

       consent to the child’s adoption was implied, and he was not entitled to establish

       paternity. See I.C. § 31-19-9-14. Moreover, his paternity petition was time-

       barred under Indiana Code Section 31-14-5-3. We held, however, that he could

       file a paternity action as the child’s next friend. We noted that “our precedents

       indicate the fact R.J. is time-barred from petitioning in his own name does not

       preclude him from filing a petition as next friend on behalf of E.L.” E.L., 913

       N.E.2d at 1282; see also In re Matter of Paternity of P.L.M. by Mitchell, 661 N.E.2d

       898 (Ind. Ct App. 1996), trans. denied.
       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019          Page 21 of 24
[28]   After E.L., our General Assembly enacted Indiana Code Section 31-14-5-9,

       which provides: “A man who is barred under IC 31-19 from establishing

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

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

       action.” Consequently, a man barred from establishing paternity under the

       adoption statutes may not file a paternity action as the child’s next friend. This

       statutory change does not, however, prevent a man who is time-barred by

       Indiana Code Section 31-14-5-3 from filing as the child’s next friend. 7 See In re

       Adoption of K.G.B., 18 N.E.3d 292, 302-03 (Ind. Ct. App. 2014) (discussing E.L.

       and the enactment of Indiana Code Section 31-14-5-9).


                                                b. Guardian Ad Litem

[29]   A guardian ad litem is also permitted to file a paternity petition on behalf of a

       child. See I.C. § 31-14-5-2(a). The paternity statutes do not directly address

       whether a next friend or guardian ad litem is preferred to represent a child. We

       note, however, that Indiana Trial Rule 17(C) provides:


                  An infant or incompetent person may sue or be sued in any
                  action:


                  (1) in his own name;


                  (2) in his own name by a guardian ad litem or a next friend;




       7
           We respectfully invite the General Assembly to address this inconsistency.


       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019               Page 22 of 24
         (3) in the name of his representative, if the representative is a
         court-appointed general guardian, committee, conservator,
         guardian of the estate or other like fiduciary.


         The court, upon its own motion or upon the motion of any party,
         must notify and allow the representative named in subsection (3)
         of this subdivision, if he is known, to represent an infant or
         incompetent person, and be joined as an additional party in his
         representative capacity. If an infant or incompetent person is not
         represented, or is not adequately represented, the court shall appoint a
         guardian ad litem for him. The court may, in its discretion, appoint
         a guardian ad litem or an attorney for persons who are
         institutionalized, who are not yet born or in being, who are
         unknown, who are known but cannot be located, or who are in
         such position that they cannot procure reasonable representation.
         The court shall make such other orders as it deems proper for the
         protection of such parties or persons. Persons with claims
         against the estate of the ward or against the guardian of his estate
         as such may proceed under this rule or provisions applicable to
         guardianship proceedings. It shall not be necessary that the
         person for whom guardianship is sought shall be represented by a
         guardian ad litem in such proceedings. Nothing herein shall
         affect the right of a guardian to sue or be sued in his personal
         capacity.


         The court, in its discretion, may honor the infant’s or incompetent’s
         choice of next friend or guardian ad litem, but the court may deny
         approval or remove a person who is not qualified. A next friend or
         guardian under subsection (C) of this rule may be required by the
         court to furnish bond or additional bond and shall be subject to
         the rules applicable to guardians of the estate with respect to
         duties, terms of the bond required, accounting, compensation
         and termination.


(emphasis added).


Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019             Page 23 of 24
[30]   Importantly, both a person acting as a next friend and a guardian ad litem are

       required to act in the child’s best interest. See In re R.P.D. ex rel. Dick, 708

       N.E.2d 916, 918 (Ind. Ct. App. 1999), trans. denied. In R.P.D., the mother filed

       a paternity action as the child’s next friend. The mother asserted that it was in

       the child’s best interest to determine his biological father. The guardian ad

       litem, however, filed a motion to dismiss, asserting that the paternity action was

       not in the child’s best interest. We held that, “[b]ecause of this conflict, the

       trial court was required to determine, prior to reaching the merits, whether the

       paternity action was in [the child’s] best interest.” Id. “If the paternity action

       was not in [the child’s] best interest, the trial court was required to dismiss it

       since neither [the mother], as next friend, nor the GAL could continue to

       prosecute an action on [the child’s] behalf where it was contrary to his best

       interest.” Id.


                                                    Conclusion
[31]   The trial court properly dismissed Mother’s and Biological Father’s petition to

       establish paternity. We affirm.


[32]   Affirmed.


       Baker, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JP-2066 | April 30, 2019           Page 24 of 24
