                                                                                   FILED
                                                                            Feb 07 2020, 9:03 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEYS FOR APPELLANT
Curtis T. Hill, Jr.
Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In Re the Support of J.O.,                                  February 7, 2020

Abriel Theresa Jenika Gonzalez,                             Court of Appeals Case No.
                                                            19A-JP-1957
Appellant-Petitioner,
                                                            Appeal from the St. Joseph Circuit
        v.                                                  Court
                                                            The Honorable William L. Wilson,
Johnathan Michael Ortiz,                                    Magistrate
                                                            The Honorable John Broden,
Appellee-Respondent
                                                            Judge
                                                            Trial Court Cause No.
                                                            71C01-1811-JP-110



Baker, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020                                   Page 1 of 9
[1]   Johnathan Ortiz (Father) signed a paternity affidavit at the time of the birth of

      the child (Child) of Abriel Gonzalez (Mother), though he suspected at that time

      that he was not Child’s biological father. Over two years later, after the State

      initiated a child support proceeding on Mother’s behalf, Father asked that the

      proceeding be dismissed and that he be removed from the birth certificate. The

      trial court granted Father’s motion to dismiss. The State now appeals, arguing

      that the trial court erred by finding that Father is entitled to relief. We agree

      with the State. Therefore, we reverse and remand for further proceedings.


                                                       Facts
[2]   Child was born on April 26, 2017. Mother had previously told Father that he

      was Child’s biological Father, but “he had some questions in his mind” as to

      the truth of her assertion. Appellant’s App. Vol. II p. 18. While he was at the

      hospital, Father asked for a DNA test, but was told that he would have to go

      somewhere else for the test. Father “apparently liked the idea of being a

      father,” so when Mother allegedly told him that he would not be able to see

      Child if he did not sign the paternity affidavit, he agreed to sign even though he

      suspected that he was not Child’s biological father. Id. He did not read the

      affidavit before he signed it. Among other things, the affidavit states as follows:


              1.       A man should NOT sign this form if he is not sure he is
                       the biological father. I may seek a genetic test before
                       signing this form. Signing a Paternity Affidavit is
                       voluntary. I may not be able to reverse paternity and the
                       legal responsibilities of support associated with it, once I
                       sign a Paternity Affidavit.


      Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020            Page 2 of 9
                                                         ***


              13.      A man has the right to withdraw/rescind his
                       acknowledgement of paternity only within sixty (60) days
                       of the date the Paternity Affidavit is completed. . . . After
                       sixty (60) days the father may not be able to reverse
                       paternity even if genetic tests prove he is not the biological father.


      Id. at 11 (emphases original).


[3]   In May 2017, Father obtained a home DNA test kit from a local pharmacy; the

      results of the test allegedly showed that Father is not Child’s biological father.

      Father informed Mother of the result, but she denied that it was accurate. In

      April 2018, Father submitted genetic samples to a certified laboratory. This test

      also showed that Father is not Child’s biological father. Mother again denied

      that the test was accurate.


[4]   At some point in 2018, Mother asked the St. Joseph County prosecutor to

      initiate a child support proceeding. Mother stated that she took this action

      because she wanted a court-sanctioned genetic test, which she believed would

      show that Father was Child’s biological father.


[5]   In November 2018, the prosecutor’s office filed a petition to establish child

      support. On January 7, 2019, Father moved to dismiss the petition and to have

      his name removed from Child’s birth certificate. On March 6, 2019, the trial

      court ordered the parties to submit to genetic testing. It based this order on a

      finding that there was a mistake of material fact in connection with the

      execution of the paternity affidavit—namely, Mother’s mistaken belief that

      Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020                      Page 3 of 9
      Father is Child’s biological father. The trial court found that Father did not

      show duress or fraud in connection with the affidavit, specifically noting that

      the evidence in the record did not support a conclusion that Mother “made a

      knowing misrepresentation of fact concerning the biological father of the

      child . . . .” Id. at 21. On August 7, 2019, the trial court granted Father’s

      motion to dismiss because the genetic test results showed that Father is not

      Child’s biological father.1 The State now appeals.


                                        Discussion and Decision
[6]   The State suggests that Father’s motion to dismiss the child support petition is

      akin to a motion to dismiss for failure to state a claim under Indiana Trial Rule

      12(B)(6). We agree that at its heart, the motion is, indeed, a Trial Rule 12(B)(6)

      motion to dismiss. But we note that the trial court held an evidentiary hearing

      at which Mother and Father both testified, and it relied on evidence beyond the

      face of the petition—specifically, the testimony and the subsequent genetic test

      results—in dismissing it. Trial Rule 12(B) provides that if, following a Trial

      Rule 12(B)(6) motion to dismiss, matters outside the pleading are presented to

      and not excluded by the trial court, “the motion shall be treated as one for

      summary judgment and disposed of as provided in Rule 56.”




      1
          It does not appear that the trial court ruled on Father’s request to be removed from Child’s birth certificate.


      Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020                                    Page 4 of 9
[7]   Therefore, we will treat the trial court’s order as a summary judgment order

      entered in Father’s favor. Our standard of review on summary judgment is well

      settled:


              The party moving for summary judgment has the burden of
              making a prima facie showing that there is no genuine issue of
              material fact and that the moving party is entitled to judgment as
              a matter of law. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012).
              Once these two requirements are met by the moving party, the
              burden then shifts to the non-moving party to show the existence
              of a genuine issue by setting forth specifically designated
              facts. Id. Any doubt as to any facts or inferences to be drawn
              therefrom must be resolved in favor of the non-moving
              party. Id. Summary judgment should be granted only if the
              evidence sanctioned by Indiana Trial Rule 56(C) shows there is
              no genuine issue of material fact and that the moving party
              deserves judgment as a matter of law. Freidline v. Shelby Ins.
              Co., 774 N.E.2d 37, 39 (Ind. 2002).


      Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016).


[8]   Additionally, we note that Father has not filed an appellee’s brief. We will not

      undertake the burden of developing arguments on his behalf and will reverse if

      the State establishes prima facie error, meaning error at first sight, on first

      appearance, or on the face of it. WindGate Props., LLC v. Sanders, 93 N.E.3d

      809, 813 (Ind. Ct. App. 2018).


[9]   The paternity statute provides that “if a man has executed a paternity affidavit

      in accordance with this section, the executed paternity affidavit conclusively

      establishes the man as the legal father of a child without any further


      Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020         Page 5 of 9
       proceedings by a court.” Ind. Code § 16-37-2-2.1(p). The statute further

       provides that “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.” Id. at -2.1(k). A properly

       executed paternity affidavit may not be rescinded more than sixty days after the

       execution unless (1) a court determines that fraud, duress, or material mistake

       of fact existed in the execution of the affidavit; and (2) a genetic test indicates

       that the man is excluded as the father of the child. Id. at -2.1(l).


[10]   Because Father’s request to rescind the paternity affidavit took place more than

       sixty days after the execution of the affidavit, he must establish fraud, duress, or

       material mistake of fact in connection with the execution. “Time and again,”

       this Court has “emphasized that allowing a party to challenge paternity when

       the party has previously acknowledged himself to be the father should only be

       allowed in extreme and rare circumstances.” In re Paternity of T.H., 22 N.E.3d

       804, 808 (Ind. Ct. App. 2014).


[11]   The trial court found no evidence of fraud or duress, and we agree that the

       evidence in the record does not support such claims. We must determine,

       therefore, whether the record supports a conclusion that there was a material

       mistake of fact. In In re Paternity of B.M., this Court considered a father who

       signed paternity affidavits for two children. 93 N.E.3d 1132 (Ind. Ct. App.

       2018). When he signed the first affidavit, he knew that he was not the

       biological father; and when he signed the second, he was aware of the

       Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020         Page 6 of 9
       possibility that he was not the child’s biological father. Id. at 1136. He failed to

       act within sixty days of execution and instead waited for years, until the mother

       sought child support. Under these circumstances—which are strikingly like the

       case at hand—this Court found that the father did not prove that, in relevant

       part, there was a mistake of material fact in connection with the execution of

       the affidavits. Id.


[12]   In another parallel, the B.M. trial court ordered a genetic test at the father’s

       request; the test showed that he was excluded as the biological father of the

       children. Id. This Court noted that our Supreme Court has found that a legal

       father may only challenge paternity in extreme and rare instances and that the

       challenge must be based upon evidence that has become “available

       independently of court action.” Fairrow v. Fairrow, 559 N.E.2d 597, 600 (Ind.

       1990); see also In re Paternity of K.M., 651 N.E.2d 271, 276 (Ind. Ct. App. 1995)

       (holding that “one who comes into court to challenge an otherwise valid order

       establishing paternity, without medical proof inadvertently obtained through

       ordinary medical care, should be denied relief as outside the equitable

       discretion of the trial court”). This Court has interpreted that guidance to mean

       “that the evidence establishing non-paternity was not actively sought by the

       putative father, but was discovered almost inadvertently in a manner that was

       unrelated to child support proceedings.” Tirey v. Tirey, 806 N.E.2d 360, 363 n.2

       (Ind. Ct. App. 2004). In B.M., as in the case before us, the father sought genetic

       testing solely to contest his paternity of the children. Therefore, this Court

       found that there was no evidence of non-paternity that had been inadvertently

       Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020         Page 7 of 9
       obtained through ordinary medical care unrelated to paternity, and father was

       not entitled to have the paternity judgments set aside. 93 N.E.3d at 1137.


[13]   In this case, Father suspected at the time he signed Child’s paternity affidavit

       that he was not the biological father. He even requested a DNA test at the

       hospital but was told he would have to do that elsewhere. Within a month of

       Child’s birth, Father obtained a home DNA test kit from a pharmacy. Despite

       all of this, he failed to file a judicial action within sixty days of the execution of

       the affidavit. During the ensuing months and years, he obtained another DNA

       test, this time from a certified laboratory. But it was not until Mother requested

       child support that he finally sought redress with the trial court. We simply

       cannot find that these facts constitute the extreme and rare circumstances

       required to set aside paternity after the sixty-day window has closed. As in

       B.M., the only reason Father sought genetic testing was to contest his paternity,

       meaning that the evidence establishing non-paternity was discovered

       intentionally rather than inadvertently.


[14]   This Court has noted that in a situation like this one, where setting aside

       paternity would leave a child fatherless, then the child would be a “filius

       nullius,” meaning a “son of nobody.” In re Paternity of E.M.L.G., 863 N.E.2d

       867, 870 (Ind. Ct. App. 2007). The paternity statute was “created to avoid such

       an outcome, which could carry with it countless ‘detrimental emotional and

       financial effect[s].’” Id. (quoting Johnson Controls, Inc. v. Forrester, 704 N.E.2d

       1082, 1085 (Ind. Ct. App. 1999)). Were the trial court’s order in this case to



       Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020          Page 8 of 9
       stand, it would leave Child with no father, which runs counter to Indiana public

       policy.2


[15]   We can only find, based upon the plain language of the paternity statute and

       our Supreme Court’s and this Court’s interpretations thereof, that the trial court

       erred by granting Father’s motion to dismiss. Father is Child’s legal father with

       all attendant legal consequences, and it is too late now to find otherwise.


[16]   The judgment of the trial court is reversed and remanded for further

       proceedings.


       Riley, J., and Brown, J., concur.




       2
         There is, of course, also a public policy in favor of correctly identifying a child’s biological parents. And
       indeed, a putative father may be entitled to file a paternity action against the child’s legal mother and father.
       In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). The public policy of correctly identifying the
       child’s biological parents applies when the paternity action would prove that someone is the biological father,
       rather than in a case like this one, where the child would be left fatherless.

       Court of Appeals of Indiana | Opinion 19A-JP-1957 | February 7, 2020                                   Page 9 of 9
