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
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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