                                                                               FILED
                                                                       Jun 04 2020, 10:44 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEY FOR APPELLEE –
Jay Lauer                                                   FREDY SANCHEZ CORTES
South Bend, Indiana                                         Elizabeth A. Bellin
                                                            Elkhart, Indiana

                                                            ATTORNEY FOR APPELLEE –
                                                            STATE OF INDIANA
                                                            Frances Barrow
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In Re the Paternity of J.G.;                                June 4, 2020

Wendy Sonora Hernandez and                                  Court of Appeals Case No.
                                                            19A-JP-2429
Margarito Guzman,
                                                            Appeal from the Elkhart Superior
Appellants,                                                 Court
        v.                                                  The Honorable David C.
                                                            Bonfiglio, Judge
Fredy Sanchez Cortes,                                       The Honorable James N. Fox,
                                                            Commissioner
Appellee,
                                                            Trial Court Cause No.
and                                                         20D06-1808-JP-262

State of Indiana,
Co-Appellee.



Najam, Judge.
Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                   Page 1 of 16
                                         Statement of the Case
[1]   During her marriage to Margarito Guzman (“Husband”), Wendy Sonora

      Hernandez (“Mother”) gave birth to J.G. (“Child”). Nearly five years after

      Child’s birth, the State filed a paternity action as Child’s next friend in which

      the State sought to establish paternity in Fredy Sanchez Cortez (“Putative

      Father”). Mother moved to dismiss the State’s petition, which motion the trial

      court converted to a motion for summary judgment. After a fact-finding

      hearing, the court denied Mother’s motion and found Putative Father to be

      Child’s biological father.


[2]   Mother and Husband appeal and raise three issues for our review, which we

      revise and restate as follows:


              1.       Whether the trial court erred when it dismissed Husband
                       as a party to the proceeding after it had found Putative
                       Father to be Child’s biological father.

              2.       Whether the trial court denied Mother a reasonable
                       opportunity to present materials relevant to her motion for
                       summary judgment.

              3.       Whether the trial court erred when it concluded that the
                       State’s petition was properly filed even though it filed the
                       petition more than two years after Child’s birth and
                       Putative Father had not registered with the putative father
                       registry.


[3]   We affirm.




      Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020            Page 2 of 16
                                   Facts and Procedural History
[4]   Mother and Husband were married in 2009. During their marriage, on

      September 18, 2013, Mother gave birth to Child. On August 2, 2018, the State,

      as Child’s next friend, filed a petition to establish paternity. In that petition, the

      State asserted that Child was born to Mother out of wedlock and that Putative

      Father was Child’s father. 1 Thereafter, Mother filed a motion to dismiss the

      State’s petition on the ground that the State had failed to name Husband as a

      party, the State had not timely filed the petition within two years of Child’s

      birth, and Putative Father had not registered with the putative father registry.

      The State then filed a motion to join Husband as a party, which motion the trial

      court granted. Shortly after Mother had filed her motion to dismiss, Putative

      Father registered with the putative father registry.


[5]   On November 15, without having yet ruled on Mother’s motion to dismiss, the

      court ordered the parties to submit to DNA tests. The results of those tests

      indicated that there is a greater than 99% chance that Putative Father is Child’s

      biological father. The court then held a review hearing on January 9, 2019. At

      the hearing, Putative Father asserted that, based on the results of the DNA

      tests, he is Child’s father. Mother reiterated her arguments that the State’s

      petition should be dismissed as untimely and because Putative Father had not




      1
        In its petition, the State indicated that it was filing at Mother’s request. However, at the evidentiary
      hearing, Mother informed the court that Putative Father had asked the State to file the paternity petition. See
      Tr. Vol. II at 8.

      Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                   Page 3 of 16
      registered with the putative father registry at the time the State had filed its

      petition. At the conclusion of the hearing, the court informed the parties that it

      would hold an evidentiary hearing in May, and the court directed the parties to

      file their witness and exhibit lists seven days prior to the hearing.


[6]   Then, on May 17, the trial court held an evidentiary hearing on both the State’s

      paternity petition and Mother’s motion to dismiss. 2 During the hearing,

      Mother and Husband did not testify or present any evidence. Putative Father

      did not testify, but he presented as evidence a petition that Husband had filed to

      dissolve his marriage to Mother. In that petition, Husband stated that, while

      Child was born during his marriage to Mother, Child “is not a child of the

      marriage[.]” Appellee’s App. Vol. II at 12. Putative Father also presented as

      evidence a verified motion for provisional orders filed by Husband in the

      dissolution proceeding in which Husband listed children other than Child as

      children of the marriage.


[7]   On July 19, the court entered an order on Mother’s motion to dismiss and the

      State’s petition. In that order, the court noted that it was treating Mother’s

      motion as a motion for summary judgment. The court then found that

      “precious little” evidence had been presented and that the parties had offered

      “absolutely no testimony.” Appellants’ App. Vol. II at 11. Accordingly, the




      2
         The day prior to the evidentiary hearing, Mother filed a second motion to dismiss the State’s paternity
      petition in which she reiterated the same arguments she had made in her first petition. However, the court
      struck that motion on the ground that it was “redundant and repetitive.” Appellants’ App. Vol. II at 14.

      Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                Page 4 of 16
      court found that Mother had “not met the burden of evidence to dismiss this

      action” and denied her motion for summary judgment. Id. The court then

      stated that it could not “overlook the fact that DNA establishes [Putative

      Father] as the father and disregard the filing where [Husband] denies being the

      father,” and it found “by clear and convincing evidence” that Putative Father is

      the father of Child. Id. Thereafter, on August 2, Putative Father filed a motion

      to dismiss Husband as a party to the action, which motion the trial court

      granted the same day. This appeal ensued.


                                       Discussion and Decision
                               Issue One: Dismissal of Husband as Party

[8]   On appeal, Mother and Husband contend that the trial court abused its

      discretion when it granted Putative Father’s motion to dismiss Husband from

      the proceeding. Specifically, Mother and Husband contend that the court “did

      not wait for the expiration of the thirty (30) day deadline for [Husband] to file a

      Notice of Appeal.” Appellant’s Br. at 21. However, we hold that Mother and

      Husband have failed to meet their burden on appeal to demonstrate that the

      court abused its discretion.


[9]   It is well settled that the Indiana Appellate Rules require appellants to include

      in their brief an argument section that “contain[s] the contentions of the

      appellant[s] on the issues presented, supported by cogent reasoning. Each

      contention must be supported by citation to the authorities, statutes, and the

      Appendix or parts of the Record on appeal relied on[.]” Ind. Appellate Rule


      Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020          Page 5 of 16
       46(A)(8)(a). Here, Mother and Husband have not provided any argument to

       explain why the court was required to wait until the thirty-day period in which

       they could file a notice of appeal had elapsed before it could rule on Putative

       Father’s motion to dismiss Husband as a party to the proceeding. Further,

       Mother and Husband have not provided a single citation to legal authorities to

       support their assertion. As a result, Mother and Husband have not met their

       burden on appeal to demonstrate that the court abused its discretion when it

       dismissed Husband as a party. 3


                              Issue Two: Opportunity to Present Materials

[10]   Mother next contends that the trial court did not provide her with a reasonable

       opportunity to present relevant materials after converting her motion to dismiss

       to a motion for summary judgment. 4 Indiana Trial Rule 12(B) provides that,

       where a court treats a motion to dismiss as a motion for summary judgment,

       “all parties shall be given reasonable opportunity to present all material made

       pertinent to such a motion by Rule 56.”




       3
         Further, we note that Husband disclaimed Child in his petition to dissolve his marriage to Mother. Indeed,
       Husband specifically stated that, while Child was born during his marriage to Mother, Child “is not a child of
       the marriage[.]” Appellee’s App. Vol. II at 12. Thus, it appears that Husband is now attempting to maintain
       a different position than he took in the dissolution proceeding. However, judicial estoppel may prevent a
       party from asserting a position in a legal proceeding inconsistent with one previously asserted. Turner v.
       Stuck, 778 N.E.2d 429, 431 (Ind. Ct. App. 2002). Here, Mother and Husband have not provided any
       argument or explanation why Husband is not judicially estopped from claiming to the trial court that he is
       Child’s father.
       4
         The parties do not contend that the trial court erred when it treated Mother’s motion as a motion for
       summary judgment.

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                 Page 6 of 16
[11]   On appeal, Mother asserts that the court “did not provide either party with any

       notice, prior to the issuance of its decision[,]” that it intended to treat her

       motion to dismiss as a motion for summary judgment. Appellant’s Br. at 20.

       Accordingly, Mother maintains that the court did not provide her with “a

       reasonable opportunity to present” relevant materials. Id.


[12]   We acknowledge that the trial court did not inform the parties in advance that it

       intended to treat Mother’s motion to dismiss as a motion for summary

       judgment. But it is well settled that a trial court’s “failure to give explicit notice

       of its intended conversion of a motion to dismiss to one for summary judgment

       is reversible error only if a reasonable opportunity to respond is not afforded a

       party and the party is thereby prejudiced.” Azhar v. Town of Fishers, 744 N.E.2d

       947, 950 (Ind. Ct. App. 2001).


[13]   Here, Mother simply asserts that, had the court given the parties notice of its

       intent to treat Mother’s petition as one for summary judgment, she could have

       submitted “additional documents” to support her position or to refute the

       allegations or documents submitted by Putative Father. Appellants’ Br. at 20.

       However, at the review hearing in January, the court notified the parties that it

       would hold an evidentiary hearing in May, and the court directed the parties to

       file their witness and exhibits lists. The court then held an evidentiary hearing

       on both the State’s petition and Mother’s motion at which Mother appeared.

       At that hearing, Mother had the opportunity to present any evidence that was

       relevant to either filing, but she did not offer any. Accordingly, Mother had

       several months’ notice that the court would hear evidence and, as such, she has

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020             Page 7 of 16
       not shown that she was prejudiced by the trial court’s failure to provide her with

       explicit notice of its intent to treat her motion as one for summary judgment.

       We therefore cannot say that the court committed reversible error on this issue.


                       Issue Three: Denial of Motion for Summary Judgment

[14]   Finally, Mother contends that the trial court erred when it denied her motion

       for summary judgment. Our standard of review for summary judgment appeals

       is well settled. The Indiana Supreme Court has explained that


               [w]e review summary judgment de novo, applying the same
               standard as the trial court: “Drawing all reasonable inferences in
               favor of . . . the non-moving parties, summary judgment is
               appropriate ‘if the designated evidentiary matter shows that there
               is no genuine issue as to any material fact and that the moving
               party is entitled to judgment as a matter of law.’” Williams v.
               Tharp, 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C)). “A
               fact is ‘material’ if its resolution would affect the outcome of the
               case, and an issue is ‘genuine’ if a trier of fact is required to
               resolve the parties’ differing accounts of the truth, or if the
               undisputed material facts support conflicting reasonable
               inferences.” Id. (internal citations omitted).


               The initial burden is on the summary-judgment movant to
               “demonstrate [ ] the absence of any genuine issue of fact as to a
               determinative issue,” at which point the burden shifts to the non-
               movant to “come forward with contrary evidence” showing an
               issue for the trier of fact. Id. at 761-62 (internal quotation marks
               and substitution omitted). And “[a]lthough the non-moving
               party has the burden on appeal of persuading us that the grant of
               summary judgment was erroneous, we carefully assess the trial
               court’s decision to ensure that he was not improperly denied his
               day in court.” McSwane v. Bloomington Hosp. & Healthcare Sys.,


       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020           Page 8 of 16
                916 N.E.2d 906, 909-10 (Ind. 2009) (internal quotation marks
                omitted).


       Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (omission and some

       alterations original to Hughley).


[15]   Further, this appeal requires us to interpret statutes. As this Court has stated,

       “[t]he primary purpose of statutory interpretation is to ascertain and give effect

       to the intent of our legislature. The best evidence of legislative intent is the

       statutory language itself, and we strive to give the words in a statute their plain

       and ordinary meaning.” 21st Amendment, Inc. v. Ind. Alcohol & Tobacco Comm’n,

       84 N.E.3d 691, 696 (Ind. Ct. App. 2017) (citations and quotation marks

       omitted).


[16]   On appeal, Mother maintains that the court erred when it denied her motion for

       summary judgment because the State’s petition was untimely and because

       Father had not registered with the putative father registry at the time the State

       filed its petition.5 We address each argument in turn.




       5
         Throughout her argument on this issue, Mother refers to the petition as “Putative Father’s paternity
       petition.” Appellants’ Br. at 13. However, the State, not Putative Father, filed the paternity petition on
       behalf of Child. See Appellants’ App. Vol. II at 17.

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                   Page 9 of 16
                                                Timeliness of Petition

[17]   Mother first contends that the trial court erred when it denied her motion for

       summary judgment because the State had not timely filed its paternity petition. 6

       Specifically, Mother asserts that a paternity petition must be filed not later than

       two years after a child is born. And because the State did not file its petition

       until Child was almost five years old, Mother maintains that the State filed its

       petition outside the two-year statute of limitations.


[18]   To support her assertion, Mother relies on Indiana Code Section 31-14-5-3(b)

       (2019), which provides that a “mother, a man alleging to be the child’s father,

       or the [Indiana Department of Child Services] or its agents must file a paternity

       action not later than two (2) years after the child is born[.]” However, there are

       exceptions to that requirement. Indeed, Indiana Code Section 31-14-5-3(b)(3)

       provides that a paternity petition must be filed within two years of a child’s

       birth unless “the mother, the department, or a prosecuting attorney operating

       under an agreement or contract described in I[ndiana] C[ode Section] 31-25-4-

       13.1 files a petition after the alleged father has acknowledged in writing that he

       is the child’s biological father.”


[19]   Here, the prosecuting attorney filed the paternity petition. And there is no

       dispute that the prosecuting attorney was operating under an agreement




       6
         Mother asserts that the trial court did not have jurisdiction to hear the petition because it was untimely.
       However, this Court has previously held that the “statute of limitations for paternity actions is not
       jurisdictional.” Nash v. Howell (In re Paternity of K.H.), 709 N.E.2d 1033, 1035 (Ind. Ct. App. 1999).

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                   Page 10 of 16
       described in Indiana Code Section 31-25-4-13.1. 7 Accordingly, the State was

       not required to file its petition within two years of Child’s birth and, as such, the

       State’s petition was timely filed.


[20]   Mother acknowledges that that exception allows a prosecuting attorney to file a

       paternity petition more than two years after a child’s birth. However, Mother

       directs us to Indiana Code Section 31-14-4-1(7), which provides that a

       prosecuting attorney can only file a paternity petition “[i]f the paternity of a

       child has not been established[.]” Based on that statute, Mother asserts that,

       here, paternity was established for Child when Child was born during her

       marriage to Husband.


[21]   In support of her position, Mother relies on Indiana Code Section 31-14-7-1(1).

       But that statute states that a man is “presumed to be” a child’s father if the child

       is born while the man is married to the child’s mother. That is, Mother has

       equated the term “presumed” as used in Indiana Code Section 31-14-7-1(1)

       with the term “established” as used in Indiana Code Section 31-14-4-1(7). But

       we “presume the legislature deliberately used a different term because it

       intended to communicate a different meaning.” In re Adoption of B.C.H., 22

       N.E.3d 580, 585 (Ind. 2014). Had the legislature intended for paternity of a




       7
         For the first time in her reply brief, Mother asserts that the State’s paternity petition “did not comply” with
       Indiana Code Section 31-14-5-3(b)(3) because the petition did not state that Putative Father had
       acknowledged in writing that he is Child’s biological father. Reply Br. at 9. While the statute requires a man
       to acknowledge in writing that he is a child’s biological father before the prosecuting attorney can file a
       paternity petition, we see no requirement in that statute that the petition itself must include a statement that
       the alleged father had acknowledged in writing that he is the father. See I.C. § 31-14-5-3(b)(3).

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                   Page 11 of 16
       child to be “established” simply because of a husband’s marriage to the child’s

       mother, it could have said so. But it did not. Rather, it explicitly provided that

       a husband’s marriage only creates a rebuttable presumption of paternity. See

       I.C. § 31-14-7-1(1).


[22]   Indeed, it is well settled that the fact that a child was born while his mother was

       married “does not establish that the child was born during wedlock.” K.S. v.

       R.S., 669 N.E.2d 399, 402 (Ind. 1996) (emphasis added). And our Supreme

       Court has observed that the presumption of fatherhood created by Indiana

       Code Section 31-14-7-1(1) “is not conclusive[.]” Fairrow v. Fairrow, 559 N.E.2d

       597, 600 (Ind. 1990). On the contrary, that presumption of paternity “can be

       rebutted[.]” T.M. v. L.D. (In re I.J.), 39 N.E.3d 1184, 1188 (Ind. Ct. App. 2015).


[23]   Because the presumption of paternity that arises when a man is married to a

       child’s mother is not conclusive and can be overcome, we hold that the

       paternity of a child has not been established simply by virtue of the marriage.

       Here, even though Husband was presumed to be Child’s father, his paternity

       had not been established. And because the paternity of Child had not been

       established, the prosecuting attorney was authorized to file the paternity

       petition. See I.C. § 31-14-4-1(7)(B).


[24]   In any event, while not discussed by Mother or Putative Father, we note that

       Indiana Code Section 31-14-5-2(a) provides that a person less than eighteen

       years of age “may file a petition if the person is competent except for the

       person’s age. A person who is otherwise incompetent can file a petition


       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020         Page 12 of 16
       through the person’s . . . next friend.” And a child may file a paternity petition

       “at any time before the child reaches twenty (20) years of age.” I.C. § 31-14-5-

       2(b). Here, the prosecuting attorney filed the petition on behalf of Child as

       Child’s next friend.8 Because the prosecuting attorney was filing on behalf of

       Child, he was authorized to file the petition at any time before Child turned

       twenty years old. As Child was less than five years old at the time the State

       filed its petition, the petition was timely. The trial court did not err when it

       denied Mother’s motion for summary judgment on the ground that the State’s

       petition was untimely.


                                  Registration with Putative Father Registry

[25]   Mother also asserts that the trial court erred when it denied her motion for

       summary judgment because Putative Father had not registered with the

       putative father registry at the time the State filed its paternity petition, which

       she maintains Putative Father was required to do before the State could file the

       petition. To support her assertion, Mother relies on Indiana Code Section 31-

       14-5-7, which provides that a “man who files or is a party to a paternity action

       shall register with the putative father registry” under Indiana Code Chapter 31-

       19-5.


[26]   Indiana Code Section 31-19-5-12 provides that, in order to be entitled to a

       notice of an adoption, a putative father must register with the putative father



       8
         It is well settled that “prosecutors may bring paternity actions as next friends of children.” J.R.W. ex rel.
       Jemerson v. Watterson, 877 N.E.2d 487, 491 (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                                    Page 13 of 16
       registry not later than thirty days after the child’s birth or the earlier of the date

       of the filing of a petition for the child’s adoption or the termination of the

       parent-child relationship between the child and the child’s mother. And

       Indiana Code Section 31-14-5-9 states that “[a] man who is barred under

       [Indiana Code Article] 31-19 from establishing paternity may not establish

       paternity by . . . requesting a prosecuting attorney to file a paternity action.”

       Based on those statutes, Mother maintains that Putative Father was required to

       register with the putative father registry.


[27]   To further support her assertion, Mother relies on J.W. v. R.M. (In re G.W.), 983

       N.E.2d 1193 (Ind. Ct. App. 2013). In that case, the child was subject to an

       adoption proceeding, and the putative father had not registered with the

       putative father registry. Rather, four days after the adoption petition was filed,

       the putative father asked the State to file a paternity petition. On appeal, this

       Court stated that


               the requirement that the putative father registers within a certain
               time limit[] is not solely mandated in adoption proceedings but
               carries its mirror consequences into the paternity proceedings. In
               particular, “[a] man who files or is a party to a paternity action
               shall register with the putative father registry under [Indiana
               Code Chapter] 31-19-5.” I.C. § 31-14-5-7. Likewise, “a man
               who is barred under [Indiana Code Article] 31-19 from
               establishing paternity may not establish paternity by: (1) filing a
               paternity action as next friend of child; or (2) requesting a
               prosecuting attorney to file a paternity action.” I.C. § 31-14-5-9.




       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020            Page 14 of 16
       Id. at 1197 (some alterations in original). As the putative father had not

       registered with the putative father registry, this Court held that he had impliedly

       consented to the child’s adoption and that he was barred from establishing

       paternity. Id. at 1198.


[28]   However, we agree with Putative Father and the State that Mother’s reliance on

       that case and the putative father registry statutes is misplaced. The putative

       father registry statutes simply require a man who wishes to contest a child’s

       adoption to timely register with the putative father registry. And the term

       “mirror consequences” as used in In re G.W. means only that, if a putative

       father fails to timely register, he cannot circumvent that registration

       requirement by filing a petition to establish paternity.


[29]   Neither this Court’s holding in In re G.W. nor the statutes cited by Mother

       require every putative father to register with the putative father registry before

       he can file a petition to establish paternity or ask a prosecutor to file as a child’s

       next friend. Indeed, this Court specifically noted that the “statute governing the

       putative father’s registry imposes registration requirements on putative fathers

       who wish to contest their child’s adoption or those who petition for paternity

       while an adoption proceeding is pending.” Id. at 1196-97. Thus, contrary to

       Mother’s assertions, the requirement for a man to register with the putative

       father registry only applies when the child is subject to an adoption proceeding.


[30]   Here, as Child was not subject to an adoption proceeding, Putative Father was

       not required to register with the putative father registry before the State could


       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020            Page 15 of 16
       file the paternity petition. As such, the court did not err when it denied

       Mother’s motion for summary judgment on the ground that Putative Father

       had not registered with the putative father registry. We therefore affirm the trial

       court’s denial of Mother’s motion for summary judgment. 9


                                                      Conclusion

[31]   In sum, we hold that Mother and Husband have failed to meet their burden on

       appeal to demonstrate that the court abused its discretion when it dismissed

       Husband as a party to the action. We further hold that Mother has failed to

       demonstrate that she was prejudiced by the trial court’s failure to provide her

       with explicit notice of its intent to treat her motion to dismiss as a motion for

       summary judgment. And we hold that the State timely filed its paternity

       petition and that Putative Father was not required to register with the putative

       father registry before the State could file its petition. As such, the trial court did

       not err when it denied Mother’s motion for summary judgment. We therefore

       affirm the trial court.


[32]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       9
         In her reply brief, Mother asserts that the court erred when it entered summary judgment in favor of
       Putative Father because there are disputed issues of material fact. See Reply Br. at 12. However, our review
       of the record indicates that the court did not enter summary judgment for Putative Father. Rather, following
       an evidentiary hearing, the court found by “clear and convincing evidence” that Putative Father is Child’s
       father. Appellants’ App. Vol. II at 11.

       Court of Appeals of Indiana | Opinion 19A-JP-2429 | June 4, 2020                               Page 16 of 16
