                                                                        FILED
                                                                 Dec 30 2019, 9:05 am

                                                                        CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Kimberly S. Lytle                                          JESSICA DAVIS
Banks & Brower LLC                                         Rebecca M. S. Johnson
Indianapolis, Indiana                                      Spitzer Herriman Stephenson
                                                           Holderead Conner & Persinger,
                                                           LLP
                                                           Marion, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Phillip Young,                                             December 30, 2019
Appellant-Petitioner,                                      Court of Appeals Case No.
                                                           19A-JP-1015
        v.                                                 Appeal from the Grant Superior
                                                           Court
Jessica Davis f/k/a Jessica                                The Honorable Dana J.
Brummet,                                                   Kenworthy, Judge
                                                           The Honorable Brian F. McLane,
Appellee-Respondent,
                                                           Magistrate
and                                                        Trial Court Cause No.
                                                           27D02-1510-JP-133
Dakota Faunce,
Appellee-Intervenor.



Bradford, Judge.




Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019                     Page 1 of 10
                                           Case Summary
[1]   We have recognized a significant public policy interest in correctly identifying

      parents and their offspring. In this case, Phillip Young, knowing that he was

      not E.Y.’s (“Child”) biological father, initiated proceedings to establish himself

      as Child’s legal father. Based on the testimony of Young and Jessica Davis

      (“Mother”), the juvenile court issued an order establishing paternity in Young.

      Genetic testing subsequently identified Dakota Faunce as Child’s biological

      father. Given the test results, the juvenile court vacated the previous order

      establishing Young as Child’s legal father and established Faunce as Child’s

      father. We affirm.



                             Facts and Procedural History
[2]   In mid-2012, Mother engaged in sexual relationships with both Young and

      Faunce. Around that time, Mother became pregnant. Child was born on April

      24, 2013.


[3]   Young filed a petition to establish paternity of Child on October 29, 2015.

      During a November 13, 2015 hearing, Young and Mother indicated that Young

      was Child’s father. Young and Mother also claimed to have executed a

      paternity affidavit shortly after Child’s birth but neither provided a copy of the

      paternity affidavit to the juvenile court.


[4]   On August 9, 2016, while the paternity proceedings were pending and before

      the juvenile court entered any order establishing Young as Child’s father,

      Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019     Page 2 of 10
      Mother filed a motion for genetic testing. Young objected to Mother’s motion,

      claiming that Mother was not entitled to genetic testing because they had

      executed a paternity affidavit. Young did not support his claim by providing

      the juvenile court with a copy of the paternity affidavit.


[5]   On September 6, 2016, Faunce filed a motion to intervene in the ongoing

      paternity proceedings and for genetic testing. In this motion, Faunce indicated

      that he “just learned about [the] possibility” that he may be the biological father

      of Child and sought to intervene to “protect his possible rights and

      responsibilities as” Child’s father. Appellant’s App. Vol. II p. 40. He also

      asked that the juvenile court “enter an Order requiring all parties to submit to

      genetic testing.” Appellant’s App. Vol. II p. 41.


[6]   On October 26, 2016, the juvenile court issued an order granting Faunce’s

      request for genetic testing. On or about November 28, 2016, more than one

      year after Young filed his petition to establish paternity, the juvenile court

      issued an order granting Young’s petition to establish paternity. Mother,

      Faunce, and Young subsequently filed a joint petition requesting that the

      juvenile court enter an agreed order for genetic testing. The juvenile court

      granted the joint petition on February 1, 2018.


[7]   The results of the genetic testing were filed with the juvenile court on April 20,

      2018, establishing a 99.99% probability that Faunce is Child’s biological father.

      Given these results, on May 14, 2018, Mother filed a motion to vacate the




      Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019      Page 3 of 10
      November 28, 2016 paternity order. Mother subsequently petitioned the court

      to enter an order establishing paternity in Faunce.


[8]   The juvenile court held a hearing on all pending motions on September 26,

      2018. During this hearing, Young, for the first time, provided the juvenile court

      with a copy of the paternity affidavit that he and Mother executed after Child’s

      birth. On December 26, 2018, the juvenile court issued an order in which it

      found that Mother knew that Young was not Child’s biological father when she

      and Young executed the paternity affidavit and although Mother had initially

      falsely informed Faunce that he was not Child’s biological father, genetic

      testing had subsequently confirmed otherwise. The juvenile court also found

      that “Mother gave admittedly false testimony leading to the establishment of

      Young as [Child’s] father. Young’s testimony was doubtful, at best, leading to

      the establishment of him as [Child’s] father.” Appellant’s App. Vol. II pp. 166–

      67. The juvenile court vacated the November 28, 2016 order establishing

      paternity in Young and issued an order establishing paternity in Faunce.



                                  Discussion and Decision
                                      I. Standard of Review
[9]   Young appeals from the juvenile court’s order granting Mother’s motion to

      vacate the November 28, 2016 paternity order. The parties agree that Mother’s

      motion is essentially a Trial Rule 60(b) motion for relief from judgment.




      Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019   Page 4 of 10
               We review the trial court’s ruling on a motion for relief from
               judgment using an abuse of discretion standard. An abuse of
               discretion occurs only when the trial court’s action is clearly
               erroneous, that is, against the logic and effect of the facts before it
               and inferences drawn therefrom. Moreover, where as here, the
               trial court enters special findings and conclusions pursuant to
               Indiana Trial Rule 52(A), we apply a two-tiered standard of
               review. First we determine if the evidence supports the findings,
               and second whether the findings support the judgment. The trial
               court’s findings and conclusions will be set aside only if clearly
               erroneous. We neither reweigh the evidence nor reassess witness
               credibility. Instead, we must accept the ultimate facts as stated
               by the trial court if there is evidence to sustain them.


       Barton v. Barton, 47 N.E.3d 368, 373 (Ind. Ct. App. 2015) (internal citations

       omitted).


        II. Whether the Juvenile Court Abused its Discretion in
        Granting Mother’s Motion to Vacate the November 28,
                         2016 Paternity Order
[10]   “[T]here is a substantial public policy in correctly identifying parents and their

       offspring.” In re Paternity of S.R.I., 602 N.E.2d 1014, 1016 (Ind. 1992). “Proper

       identification of parents and child should prove to be in the best interests of the

       child for medical or psychological reasons.” Id. Indiana Code Title 31, Article

       14 (“Article 14”) covers the establishment of paternity. “A man’s paternity may

       only be established: (1) in an action under [Article 14]; or (2) by executing a

       paternity affidavit in accordance with [Indiana Code section] 16-37-2-2.1.” Ind.

       Code § 31-14-2-1. “The general assembly favors the public policy of



       Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019         Page 5 of 10
       establishing paternity under [Article 14] of a child born out of wedlock.” Ind.

       Code § 31-14-1-1.


[11]   Young asserts that his paternity was established pursuant to Indiana Code

       section 16-37-2-2.1. Contrary to this assertion, however, the record

       demonstrates that paternity was established pursuant to Article 14. Young

       initiated proceedings to establish his paternity on October 29, 2015. While it is

       true that Young and Mother had executed a paternity affidavit prior to

       initiation of the underlying proceedings, the juvenile court was not provided

       with a copy of the paternity affidavit until the September 26, 2018 hearing. The

       juvenile court, therefore, could not have based its November 28, 2016 order on

       the paternity affidavit as it was not part of the record before the court. Instead,

       the juvenile court based its order on testimony provided by Mother and Young

       during the November 13, 2015 hearing indicating that Young is Child’s

       biological father. The juvenile court made this fact clear in its December 26,

       2018 order, stating the following:


               The original paternity order of 11/28/2016 was based on the
               knowingly inaccurate testimony from the hearing on 11/13/2015
               wherein both Young and Mother indicated that Young was the
               father of [Child]. The court finds both Young and Mother were
               aware that Young was probably not the father when they testified
               on 11/13/2015 to the contrary.


       and


               The paternity affidavit was not provided to the court until after
               the genetic test had conclusively established that Faunce was the

       Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019       Page 6 of 10
               biological father of [Child]. Rescission of the affidavit was not
               required prior to the genetic test because the paternity affidavit
               had not been provided to the court at the time the genetic testing
               order was entered. The order on paternity was based solely on the
               testimony of Young and Mother at the 11/13/2015 hearing.


       Appellant’s App. Vol. II pp. 165, 166 (emphasis added). Young’s paternity,

       therefore, was established through Article 14 proceedings.


[12]   Young argues that the juvenile court abused its discretion in granting Mother’s

       motion to vacate the November 28, 2016 order establishing his paternity. We

       disagree. After the juvenile court entered its order establishing paternity in

       Young, additional evidence was brought to the court’s attention that rebutted

       Young’s claim that he is Child’s father. Again, Young initiated the underlying

       proceedings and Faunce successfully intervened in the proceedings. The

       juvenile court granted a motion for genetic testing but, before testing had been

       completed, the court issued the November 28, 2016 order establishing paternity

       in Young. Mother, Faunce, and Young subsequently filed a joint petition for

       genetic testing. The results of the testing were filed with the juvenile court on

       April 20, 2018, establishing a 99.99% probability that Faunce is Child’s

       biological father. The juvenile court subsequently heard evidence indicating

       that (1) although Mother and Young had executed a paternity affidavit on or

       about May 1, 2013, Mother knew at the time that Young was not Child’s

       biological father and (2) Mother and Young had provided false testimony

       during the November 13, 2015 hearing regarding paternity. Based on this

       evidence, the juvenile court vacated its prior order establishing paternity in

       Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019        Page 7 of 10
       Young. Upon review, we conclude that the juvenile court acted within its

       discretion in doing so.


[13]   We are unpersuaded by Young’s argument that neither Mother nor Faunce had

       standing to challenge the November 28, 2016 order because neither filed a

       timely petition to establish paternity pursuant to Article 14. This argument is

       without merit, as both Mother and Faunce were parties to the ongoing paternity

       proceedings initiated by Young, i.e., Mother was an original party to the

       proceedings and Faunce successfully intervened. Given that both were parties

       to said proceedings, it would have been superfluous to require either Mother or

       Faunce to initiate separate proceedings under Article 14.


[14]   Additionally, we would reach the same conclusion even if the juvenile court

       had based its order establishing Young’s paternity on the paternity affidavit

       executed by Young and Mother. As Young argues, a properly executed

       paternity affidavit conclusively establishes paternity. See Ind. Code § 16-37-2-

       2.1(p). However, “may that presumption of paternity be rebutted? The answer

       clearly is yes.” Paternity of Davis v. Trensey, 862 N.E.2d 308, 312 (Ind. Ct. App.

       2007). Stated differently, execution of a paternity affidavit “does not preclude

       another man from attempting to establish paternity of the child.” In re Paternity

       of N.R.R.L., 846 N.E.2d 1094, 1097 (Ind. Ct. App. 2006), trans. denied.


[15]   In this case, the presumption was sufficiently rebutted. Indiana Code section

       16-37-2-2.1(l) provides that




       Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019     Page 8 of 10
         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 [who is a party to the
               paternity affidavit] has ordered a genetic test, and the
               test indicates that the man is excluded as the father of
               the child.


As for subsection (1), the juvenile court found that the paternity affidavit was

based upon knowingly false assertions by Mother. We have previously found

similar acts of knowingly asserting paternity in a man by a mother to constitute

fraud on the courts, which subsequently may rely on the knowingly false

statements in making decisions relating to paternity, visitation, child support,

etc. See In re Paternity of S.C., 966 N.E.2d 143, 148–52 (Ind. Ct. App. 2012). As

for subsection (2), during the pendency of the proceedings, Mother, Young, and

Faunce filed a joint petition requesting that the juvenile court enter an agreed

order for genetic testing. The juvenile court granted this petition and the results

of the genetic testing established a 99.99% probability that Faunce is Child’s

biological father.1 There is no suggestion in the record that Faunce and Young

have identical DNA or that Child and Young share any genetic identifiers.

Based on these facts, we conclude that even if the juvenile court had relied on




1
  The juvenile court noted in its December 26, 2018 order that Young performed at least two genetic tests,
both of which indicated that he was not Child’s biological father. It is unclear, however, who requested these
tests.

Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019                             Page 9 of 10
       the paternity affidavit in establishing paternity in Young, it did not abuse its

       discretion in vacating said order.


[16]   The judgment of the juvenile court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-JP-1015 | December 30, 2019     Page 10 of 10
