In Re the Paternity of T.H., Tyrone Hutchins, Jr. v. Kellishia Kelly

Dec 16 2014, 12:47 pm

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BROOKE N. RUSSELL GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana

KATHY BRADLEY
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE THE PATERNITY OF T.H., )
)
TYRONE HUTCHINS, JR., )
)
Appellant-Respondent, )
)
vs. ) No. 84A05-1404-JP-161
)
KELLISHIA KELLY, )
)
Appellee-Petitioner. )

APPEAL FROM THE VIGO CIRCUIT COURT
The Honorable David R. Bolk, Judge
The Honorable Daniel W. Kelly, Magistrate
Cause No. 84C01-0205-JP-439

December 16, 2014

OPINION - FOR PUBLICATION

RILEY, Judge
 STATEMENT OF THE CASE

Appellant-Respondent, Tyrone Hutchins (Father), appeals the trial court’s denial

of his Petition to Rescind or Vacate Paternity Affidavit.

We affirm.

ISSUE

Father raises one issue on appeal, which we restate as follows: Whether the trial

court abused its discretion when it denied Father’s Petition seeking to rescind or vacate

the paternity affidavit which he executed when he was a minor.

FACTS AND PROCEDURAL HISTORY

On September 21, 1998, Appellee-Petitioner, Kellishia Kelly (Mother), gave birth

to T.H. The following day, Father visited Mother at the hospital. Father had engaged in

sexual relations with Mother and believed himself to be the father of T.H. Father was

“excited” and wanted “to see the baby.” (Transcript p. 19). While visiting Mother in the

hospital, Father was given a paternity affidavit by a nurse. Father signed the affidavit,

affirming to be T.H.’s natural father. At the time of executing the affidavit, Father was

seventeen years old, in foster care, and resided in a group home.

On March 8, 2000, the trial court conducted a hearing on a petition for insurance

and Medicaid reimbursement. On November 17, 2000, following a hearing on Father’s

petition for visitation, the trial court granted Father “visitation with the minor child.”

(Appellant’s App. p. 2). On May 10, 2002, Mother filed a petition to establish support.

On July 17, 2002, the trial court conducted a hearing on Mother’s petition and ordered

Father to pay support in the weekly amount of $75. Mother continued to have physical

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custody of T.H., while Father was awarded “the right to reasonable visitation.”

(Appellant’s App. p. 5). Thereafter, on August 23, 2004, the trial court heard Mother’s

petition on visitation and did not enter an order “as the [F]ather did not indicate that he

desires to visit with his son.” (Appellant’s App. p. 5). In February 2008, Father sent a

letter to the trial court requesting a paternity test, which was denied by the trial court in

August 2008, noting that Father “signed the paternity affidavit on 9/22/98, nearly 10

[years] ago. It is too late for [Father] to be attempting to challenge the affidavit. Indiana

case law is clear that [F]ather may not undo his paternity.” (Appellant’s App. p. 7). On

September 27, 2012, Father appeared before the trial court on the State’s petition for rule

to show cause. During the hearing, Father agreed to pay weekly child support of $75,

increased by $30.00 per week toward the accrued support arrearage. In March 2013, the

parties appeared at a hearing where Father was ordered to obtain part-time employment

and pay the court ordered child support. On May 20, 2013, Father filed a petition to

modify child support. Eight days later, on May 28, 2013, the trial court reduced his

payment toward the accrued support to $5.00 per week but affirmed its weekly child

support order.

On September 14, 2013, Father filed his Petition to Rescind or Vacate Paternity

Affidavit, asserting coercion, duress, and mistake of fact during the signing of the

paternity affidavit at the time of T.H.’s birth. On October 3, 2013, following a hearing,

the trial court denied Father’s Petition, concluding

While the court is concerned about the alleged circumstances under which
[Father] signed the paternity affidavit following the child’s birth, and
believes that such circumstances may have justified the ordering of

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 paternity testing at an earlier date, the court finds that far too much time has
passed between the signing of the paternity affidavit in September of 1998
and the present. The juvenile magistrate listened to a recording of the
hearing which occurred on August 1, 2002, when custody and support
orders were first entered by the court. No mention of DNA testing or any
issue of Father’s paternity was raised at that time, which was four years
after the paternity affidavit was signed, The first request for DNA testing
in this case occurred in 2008. In addition, and more importantly, the court
finds that Father did indeed affirmatively ratify the paternity affidavit
when, on October 2, 2000, . . . , Father filed a request for a hearing to help
resolve problems with visitation. At a hearing on November 17, 2000, the
court awarded Father parenting time in accordance with the guidelines[.]

(Appellant’s App. p. 37).

On October 29, 2013, Father filed a motion to correct error. On March 13, 2014,

after conducting a hearing, the trial court denied Father’s motion, finding

In addition to the reasoning set forth in the court’s order of October
3, 2013, the court would point out that in sworn testimony, Father
acknowledged that he and Mother had had sexual intercourse and that he
believed himself to be the [F]ather of the minor child when he signed the
affidavit. He did not testify to any facts that would cast doubt on his
original belief regarding paternity. Mother testified that he is the biological
father of the child. The [F]ather did not cite any legal authority from
Indiana or any other jurisdiction allowing the court to order DNA testing
under the circumstances of this case, and the court was unable to find any
such authority in its own review of the law.

While the Father’s circumstances as a 17-year-old foster child, who
signed the paternity affidavit without the presence of a parent or guardian,
were less than ideal, those circumstances do not, ipso facto, establish
grounds for the relief here requested, particularly at this late date and after
the intervening hearings on custody and support when Father was 20 years,
11 months old, and on Father’s request for a visitation order when Father
was 19, which operated as a ratification of the paternity affidavit at issue.

(Appellant’s App. pp. 42-43).

Father now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

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 Father contends that the trial court abused its discretion when it denied his motion

to correct the trial court’s erroneous order denying his Petition to Rescind or Vacate

Paternity to T.H.

The trial court’s decision on a motion to correct error comes to an appellate court

cloaked in a presumption of correctness, and the appellant has the burden of proving that

the trial court abused its discretion. Petersen v. Burton, 871 N.E.2d 1025, 1028 (Ind. Ct.

App. 2007). A trial court abuses its discretion when its judgment is clearly against the

logic and effect of the facts and circumstances before it or where the trial court errs as a

matter of law. See Perkinson v. Perkinson, 989 N.E.2d 758, 761 (Ind. 2013). When the

trial court enters findings sua sponte, the specific findings will not be set aside unless

clearly erroneous. Id. A finding is clearly erroneous when there are no facts or

inferences drawn therefrom which support it. Id. We neither reweigh the evidence nor

judge the credibility of the witnesses. Id. We consider only the evidence and reasonable

inferences drawn therefrom that support the findings. Id. We review the trial court’s

legal conclusions de novo. Id.

The Indiana Code has no provision for the filing of an action to disestablish

paternity. In re Paternity of H.J.B., 829 N.E.2d 157, 159 (Ind. Ct. App. 2005). Rather,

the Indiana statutes governing paternity actions provide a means to establish paternity,

not to disestablish it. Id. At the time Father executed the paternity affidavit, the Indiana

statute provided two ways to establish paternity: “(1) in an action under [article 14

governing proceedings for establishing paternity] or (2) by executing a paternity affidavit

in accordance with I.C. § 16-37-2-2.1.” Ind. Code § 31-14-2-1(1998). “Immediately

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before or after the birth of a child who is born out of wedlock, a person who attends or

plans to attend the birth, including personnel of all public or private birthing hospitals,

shall: (1) provide an opportunity for: (A) the child’s mother; and (B) a man who

reasonably appears to be the child’s biological father; to execute an affidavit

acknowledging paternity of the child[.]” I.C. § 16-37-2-2.1(1998). Any request for

genetic testing must be made within sixty days after a paternity affidavit is executed. See

I.C. § 16-37-2-2.1(k)(1998). “A paternity affidavit that is properly executed [] may not

be rescinded more than sixty (60) days after the paternity affidavit is executed except in

cases of fraud, duress, or material mistake of fact.” I.C. § 16-37-2-2.1(i)(1998).

Because the sixty days to request genetic testing and to rescind the paternity

affidavit have well passed, Father focuses on the duress and mistake of fact prong of the

statute in an attempt to rescind the affidavit establishing his paternity of T.H.

Specifically, he asserts that, at the time of signing, he was a minor, acting without legal

representation, and was put under duress by Mother and the child’s maternal grandmother

(Grandmother).

Father testified that in September 1998, when executing the paternity affidavit, he

was seventeen years old. He was in a foster home, and no parent or guardian was present

when he visited Mother and T.H. in the hospital. He was excited and wanted to see the

baby; Father readily admitted to having engaged in sexual intercourse with Mother. He

stated that, during the visitation, a nurse handed him the paternity affidavit to sign. He

believed that signing the affidavit merely would give the child his last name. Father

testified that at the time he “actually signed the affidavit,” Mother and Grandmother told

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him that he would never see T.H. if he “didn’t man up and do what [he] was supposed to

do. And that they’d go to the group home; run to the news and tell them I’m a child in

the group home that had sex with her daughter, and she’d get the group home closed

down and things like that.” (Tr. p. 27).

Furthermore, while acknowledging that the current statute with regard to the

execution of paternity affidavits is not applicable, Father claims that a special

consideration should be made for him as a subsequent “change in the law [] highlights the

problematic and coercive situation [Father], a minor, was operating under[.]”

(Appellant’s Br. p. 9).

The current statute reads that

An individual who is (1) a (A) child’s mother; or (B) person identified as
the father []; and (2) less than eighteen (18) years of age; must have an
opportunity to consult with any adult chosen by the individual regarding the
contents of a paternity affidavit before signing the paternity affidavit under
this section. A signed paternity affidavit is voidable if the individual does
not have the opportunity to consult with an adult chosen by the individual.

I.C. § 16-37-2-2.1(t)(1).

Nevertheless, without finding the current statute to be applicable, we note that

Mother’s testimony at the hearing dispels Father’s contentions that he was unaware of

what he was signing and did not have an opportunity to consult with a parent or guardian.

Mother testified that upon handing Father the paternity affidavit for his signature, the

nurse explained “everything” to “both of them.” (Tr. p. 28, 30). Also, Mother clarified

that prior to signing, Father telephoned his mother and stated to her that “Mom, I know

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the child is mine, I don’t care what you say and I’m going to sign the papers.” (Tr. p.

28).

Time and again, we have 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 R.C., 587 N.E.2d 153, 157

(Ind. Ct. App. 1992). This is not one of those circumstances. At no point during the

proceedings does Father enunciate a belief that he is not T.H.’s biological father. Even

though he unsuccessfully requested a paternity test in 2008, when the child was nine

years old, Father never once stated that he doubted T.H.’s paternity. Rather, he readily

admitted to having had sexual relations with Mother and, at the time of the birth, clearly

fostered no doubt that he was the child’s biological father. Moreover, it was Father who

took the initiative in November 2000, to request court-ordered visitation. Despite

numerous court appearances since 2000, Father did not raise the issue of rescinding the

paternity affidavit until September 14, 2013—curiously after all his requests for

modification of child support fell for naught. Stripped to its bare essence, Father’s

argument boils down to an invitation to reweigh his and Mother’s credibility and to find

in his favor—this task which is not reserved for us.1 We affirm the trial court.

CONCLUSION

1
We disagree with Father’s analogy of his situation to J.M. v. M.A., 950 N.E.2d 1191, 1191 (Ind. 2011),
in which J.M. and mother began a relationship when mother was already four months pregnant. Our
supreme court remanded for paternity testing because a material mistake of fact might have existed at the
time J.M. signed the paternity affidavit. Id. at 1193. Not only did J.M. testify that he signed the affidavit
when he was a minor and under a belief that he was doing so to enable a guardianship to be established,
mother also testified that J.M. was not the child’s father, a fact which was conceded by the State. See id.
Here, neither Mother nor the State made a similar concession.

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 Based on the foregoing, we conclude that the trial court did not abuse its discretion

in denying Father’s Petition to Rescind or Vacate Paternity Affidavit.

Affirmed.

VAIDIK, C. J. and BAKER, J. concur

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