In Re: The Paternity of K.H., Rebekah Harris (Mother) v. Jon Cochran (Father)

FILED
Dec 13 2018, 8:57 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jarvis E. Newman, III John M. Haecker
Wigent & Newman Squiller & Hamilton, LLP
Ligonier, Indiana Auburn, Indiana
Helen L. Newman
Birch Kaufman, LLC
Syracuse, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Paternity of K.H., December 13, 2018
Rebekah Harris (Mother), Court of Appeals Cause No.
Appellant-Respondent, 18A-JP-1795
Appeal from the Kosciusko
v. Superior Court
Jon Cochran (Father), The Honorable David C.
Cates, Judge
Appellee-Petitioner.
Trial Court Cause No.
43D01-1712-JP-478

Riley, Judge.

Court of Appeals of Indiana | Opinion 18A-JP-1795 | December 13, 2018 Page 1 of 20
 STATEMENT OF THE CASE
[1] Appellant-Respondent/Cross-Appellee, Rebekah Harris (Mother), appeals from

the trial court’s paternity judgment and custody order in favor of Appellee-

Petitioner/Cross-Appellant, Jon Cochran (Father). Father cross-appeals the

trial court’s denial of his petition to change the surname of the minor child

(Child) to his own.

[2] We affirm.

ISSUES
[3] Mother presents four issues on appeal, which we restate as:

(1) Whether the trial court properly denied Mother’s motion to dismiss

Father for lack of standing;

(2) Whether the trial court’s paternity determination was supported by the

evidence;

(3) Whether the trial court properly took judicial notice of the records from

a child in need of services (CHINS) proceeding involving Child; and

(4) Whether the trial court acted within its discretion when it admitted

evidence of a personality inventory taken by Mother.

[4] In addition, Father presents one issue on cross-appeal, which we restate as:

Whether the trial court’s denial of Father’s motion to change Child’s surname

to his own was clearly erroneous.

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 FACTS AND PROCEDURAL HISTORY
[5] Mother gave birth to Child in September of 2014. On May 19, 2017, the State

filed a petition alleging that Child was a CHINS due to the fact that Mother had

been pulled over for a traffic infraction and was found to have been driving with

Child and a variety of illegal drugs in the car. Mother was arrested for

possession of methamphetamine, among other charges. During the pendency

of the CHINS proceeding, Mother identified Father as Child’s father, and

Father learned for the first time of Child’s existence. On October 27, 2017,

Father filed a petition in Noble County to establish paternity of Child. On

December 8, 2017, the paternity case was removed to Kosciusko County where,

on February 8, 2018, Father filed an amended petition to establish paternity,

custody, parenting time, child support, and name change, all as Child’s next

friend. 1 Child was ultimately placed with Father during the CHINS

proceedings.

[6] As part of the CHINS action, at the request of the Department of Child Services

(DCS), on March 6, 2018, Mother underwent a psychological evaluation at the

Bowen Center in Warsaw, Indiana. Jessicah Walker, M.A., Pre-Doctoral

Intern (Walker), conducted the evaluation which was based on a clinical

1
Mother filed motions to dismiss both of Father’s petitions based on her contention that he was time-barred
from filing the petitions in his own right and could not file the petitions on Child’s behalf. On March 9,
2018, the trial court denied Mother’s motions to dismiss. Mother sought to have the trial court’s denial order
certified for interlocutory appeal, but, after litigation regarding certification of the issue for appeal, the trial
court denied Mother’s certification motion on May 4, 2018, after the final hearing in the instant case. The
trial court found as part of its paternity judgment that it had jurisdiction over the parties.

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 interview regarding Mother’s medical, mental health, family, social,

educational, employment, legal, and substance abuse histories. Mother also

submitted to three diagnostic surveys, including the MMPI-2-RF (MMPI),

which “is a widely used and accepted adult personality inventory that is

frequently used as an assessment of psychological health and

psychopathology.” (Exhibit 2 Vol. III, p. 4). Although she cautioned that

Mother’s results on the MMPI may not be accurate due to over-reporting,

Walker indicated in her report that the MMPI indicated that Mother had a

variety of pathologies that were “generally congruent with [Mother’s] report

although the findings present an even more severe picture of [Mother’s]

emotional cognitive, and interpersonal functioning than she reported.” (Exh. 2

Vol. III, p. 5). Apart from the MMPI results, Walker also concluded that,

“[d]iagnostically,” Mother met the criteria for Posttraumatic Stress Disorder;

Severe Cannabis Use Disorder; Severe Amphetamine-Type Substance Use

Disorder; Moderate Sedative, Hypnotic, or Anxiolytic Use Disorder; and

Moderate Cocaine Use Disorder. (Exh. 2 Vol. III, p. 6).

[7] On May 1, 2018, the trial court conducted an evidentiary hearing on Father’s

petition. Mother provided the following testimony:

Counsel: Ma’am, you are the mother of [Child], correct?

Mother: Correct.

Counsel: Jon Cochran is the father of [Child], correct?

Mother: Correct.

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 Counsel: And you named him as the father as part of the CHINS
case, correct?

Mother: That is correct to the best of my knowledge he is the
father.

Counsel: And you did so because you had sexual intercourse
with him in a time frame that was consistent with him being the
father, correct?

Mother: Correct.

Counsel: You did not name any other individuals as a potential
father, correct?

Mother: That is correct.

Counsel: And you’ve never challenged any finding that he is the
father, you’ve never claimed that anyone else is the father,
correct?

Mother: Correct.

(Transcript Vol. II, pp. 11-12).

[8] Father called Walker to testify as an expert witness. Walker established that

she possessed a master’s degree in counseling psychology and that she was just

about to complete her doctorate. Walker’s credentials enabled her to complete

psychological testing and to render opinions and diagnoses under the

supervision of a licensed psychologist. Walker had been trained to administer

the MMPI and had experience administering it. Walker’s work on Mother’s

psychological examination, including the MMPI results, was reviewed by

Walker’s supervisor, Ashley Hunter, Psy.D. During voir dire on Walker’s

expert credentials, the trial court admitted into evidence what Mother claimed

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 was a qualifications policy from Pearson, the company that produced the

MMPI survey. This policy provided differing qualification levels for Pearson’s

products. The policy also provided that “[s]ome tests may be administered or

scored by individuals with less training, as long as they are under the

supervision of a qualified User.” (Exh. A, Vol. III). The trial court qualified

Walker as an expert and admitted the psychological examination over Mother’s

objection that Walker was not qualified to administer the MMPI.

[9] During the hearing, Father’s counsel moved the trial court to take judicial

notice of records from the CHINS proceedings. Mother’s counsel raised

objections based on relevancy and the confidentiality of information contained

in the proposed exhibits. The trial court admitted the CHINS records as

Exhibits 4 through 10. Father testified that he sought to have Child’s name

changed to his own because he felt that the change would create a stronger

bond between him and Child and Child would be more recognizable to others

as his daughter. Father also wished to avoid potential embarrassment to Child

later in life. Mother opposed the name change because Child knew her full

name and for the sake of consistency.

[10] On May 29, 2018, the trial court issued its judgment of paternity and custody

order in which it made the following relevant findings and conclusions:

2. That as agreed by the parties, [Father] is the biological father
of [Child].

***

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 6. That Mother has mental health issues, for which she is
presently receiving services.

***

17. The Court finds that changing custody is in the best interests
of the child, and further finds that there has been a substantial
change in one (1) or more of the factors under I.C.[§]31-17-2-8.
Specifically, the Court finds as follows:

***

(c) Mother’s mental health diagnoses demonstrates that
she continues to suffer from issues that impair her ability
to [effectively] parent [Child].

***

20. That [Child’s] surname should remain unchanged as that is
the name by which she knows herself and there has been no
showing of best interests of [Child] to change the same.

(Appellant’s App. Vol. II, pp. 9, 11-12). The trial court granted sole

physical and legal custody to Father, to be effective upon the CHINS

court’s approval or the closing of the CHINS proceedings.

[11] Mother now appeals, and Father cross-appeals. Additional facts will be

provided as necessary.

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 DISCUSSION AND DECISION
I. Father’s Standing

[12] Mother contends that Father was not a proper party to the instant paternity

action because he was time-barred from filing in his own right 2 and DCS was

the only proper party to instigate a paternity action during the pendency of a

CHINS proceeding. Mother raised the same issues in her motions to dismiss,

which the trial court denied. We review a trial court’s grant or denial of a

motion to dismiss for lack of standing de novo. Brown v. Vanderburgh Cty. Sheriff’s

Dep’t, 85 N.E.3d 866, 869 (Ind. Ct. App. 2017); In re Paternity of R.J.S. v.

Stockton, 886 N.E.2d 611, 614 (Ind. Ct. App. 2008). Inasmuch as the resolution

of this issue requires us to engage in statutory interpretation, such an inquiry is

a question of law reserved for the courts. In re Paternity of I.I.P. v. Rodgers, 92

N.E.3d 1158, 1161 (Ind. Ct. App. 2018). As such, we independently review a

statute’s meaning and apply it to the facts of the case. Id. If a statute is

unambiguous, we give the statute its clear and plain meaning. Id. The goal of

statutory interpretation is to determine, give effect to, and implement the intent

of the legislature as expressed in the plain language of its statutes. Matter of

Paternity of J.G.L. v. Lenig, 107 N.E.3d 1086, 1091 (Ind. Ct. App. 2018).

2
Father does not dispute that he could not have initiated a paternity action in his own right.

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[13] Mother’s argument rests on her proposed interpretation of the version of

Indiana Code section 31-34-15-6 in effect when Father filed his petition, which

provided as follows:

(a) This section applies whenever a child who was born out of
wedlock is:

(1) or is alleged to be a child in need of services; and

(2) under the supervision of the department or a local office as a
result of a court ordered out-of-home placement.

(b) The department or the local office shall refer a child’s case to
the local prosecuting attorney's office for the filing of a paternity
action if the:

(1) identity of the alleged father is known; and

(2) department or the local office reasonably believes that
establishing the paternity of the child would be beneficial to the
child.

The local prosecuting attorney's office shall file a paternity action
regarding each case that is referred under this subsection. The
department shall sign the paternity petition as the child’s next
friend.

[14] Mother does not argue that the statute was ambiguous. Rather, she contends,

based on the language the “department shall sign the paternity petition as the

child’s next friend” that the CHINS statute vested DCS with exclusive authority

to initiate a paternity action during the pendency of a CHINS proceeding and

required DCS to file a paternity action unless it determined that it would not be

beneficial to the child.

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[15] However, Mother’s argument is not supported by a plain reading of the statute,

which only mandates that DCS or the local office refer a case to the prosecutor

for the filing of a paternity action “if” it reasonably believes that establishing

paternity would be beneficial to the child. I.C. § 31-34-15-6(b)(2). When

construing a statute, “we presume that the words of the statute were selected

and employed to express their common and ordinary meaning.” J.G.L., 107

N.E.3d at 1091. The legislature did not employ the word “unless” in this

portion of the statute; it selected the word “if”. As such, nothing in the express,

permissive wording of the statute itself compelled DCS to initiate a paternity

proceeding or rendered it the exclusive authority to do so during the CHINS

proceeding. When construing a statute, we will not read into a statute that

which is not the manifest intent of the legislature, and, thus, it is as important to

recognize not only what a statute says, but also what it does not say. In re

Paternity of E.M.L.G., 863 N.E.2d 867, 868-69 (Ind. Ct. App. 2007). As such,

we will not read into the statute Mother’s proposed terms or meaning. Here,

neither DCS nor the local office made a determination or referral, so, contrary

to Mother’s contention on appeal, there was no exclusive mandate for DCS to

sign a paternity petition as Child’s next friend.

[16] In addition, as a general rule, statutes relating to the same general subject

matter are in pari materia and should be construed together to produce a

harmonious statutory scheme. Clark v. Kenley, 646 N.E.2d 76, 78 (Ind. Ct. App.

1995), trans. denied. Section 31-34-15-6 is part of the CHINS statute. Indiana

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 Code section 31-14-4-1, which is located in the paternity statute, provided as

follows at the time Father filed his petition:

A paternity action may be filed by the following persons:

(1) The mother or expectant mother.

(2) A man alleging that:

(A) he is the child’s biological father; or

(B) he is the expectant father of an unborn child.

(3) The mother and a man alleging that he is her child's biological
father, filing jointly.

(4) The expectant mother and a man alleging that he is the
biological father of her unborn child, filing jointly.

(5) A child.

(6) If paternity of a child has not been established, the department
in a child in need of services proceeding.

(7) If the paternity of a child has not been established:

(A) the department; or

(B) a prosecuting attorney operating under an agreement or
contract with the department described in IC[§]31-25-4-13.1.

[17] We note that the language of subsection (6) does not expressly limit to DCS the

authority to file a paternity action in a CHINS proceeding. Rather, section 31-

14-4-1 of the paternity statute provides a list of categories of persons or entities

which “may” file a paternity action. If we were to accept Mother’s reading of

section 31-34-15-6, it would render at least five of those categories superfluous

simply because a CHINS proceeding had been initiated. Mother’s proposed

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 statutory interpretation would also presumably require any ongoing paternity

action be dismissed should a CHINS proceeding involving the same child be

instigated so that DCS could relitigate the same issues. There is no indication

in the wording of the statutes that the legislature intended such a result.

[18] Further undermining Mother’s argument is Indiana Code section 31-14-5-2(a),

which provides that “[a] person less than eighteen (18) years of age may file a

petition if the person is competent except for the person’s age. A person who is

otherwise incompetent may file a petition through the person’s guardian,

guardian ad litem, or next friend.” This court has interpreted this subsection,

formerly codified at Indiana Code section 31-6-6.1-2(a)(4) in the paternity

statute, to permit a putative father to file a paternity action as a child’s next

friend. Matter of Paternity of P.L.M. v. Mitchell, 661 N.E.2d 898, 899-900 (Ind.

Ct. App. 1996), trans. denied. Although this section was recodified in 1997 as

section 31-14-5-2(a), its wording did not change, and so we disagree with

Mother that the recodification of the statute implied that the General Assembly

disapproved of the court’s holding in P.L.M. Because DCS did not have

exclusive standing to initiate a paternity proceeding under the CHINS statute

and Father had standing under the paternity statute to do so, we find no error

on the part of the trial court in denying Mother’s motion to dismiss Father as a

party.

II. Paternity Determination

[19] Mother next contends that Father failed to establish paternity, which we take to

be a challenge to the evidence supporting the trial court’s paternity

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 determination. The trial court entered findings of fact and conclusions of law

establishing paternity in Father. When we review a trial court’s findings of fact

and conclusions of law, we first determine whether the evidence supports the

findings and then whether the findings support the judgment. In re Paternity of

S.A.M. v. M.H., 85 N.E.3d 879, 886 (Ind. Ct. App. 2017). We shall not set aside

the findings or a judgment unless it is clearly erroneous. Id.

[20] In assessing the sufficiency of the evidence supporting a trial court’s paternity

determination, we are neither permitted to reweigh the evidence nor to judge

the witnesses’ credibility. Humbert v. Smith, 655 N.E.2d 602, 605 (Ind. Ct. App.

1995), trans. denied. Instead, we look to the evidence most favorable to the

judgment and the reasonable inferences that follow from that evidence. Id. “If

the evidence has sufficient probative value to sustain the trial court’s judgment,

the judgment will not be overturned on appeal.” Id. In addition, the alleged

father must be proved to be such by the preponderance of the evidence. Id.

Generally, the testimony of a mother regarding an act of sexual intercourse

with the putative father, coupled with the probability of conception at such

time, is sufficient to support the trial court’s determination that he is the father

of the child. Id.

[21] Here, Child was born in September of 2014. Father was in a relationship and

had sexual intercourse with Mother for one-to-two months beginning in either

December of 2013 or January of 2014. Mother testified that she had sexual

intercourse with Father in a time frame that was consistent with him being the

father and that she had not identified anyone else as a potential father. Because

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 Mother did not identify anyone else as a putative father, the trial court could

have reasonably inferred that there was a probability that she conceived Child

during the time period she identified as being consistent with Father being the

father. This evidence of an act of intercourse coupled with a probability of

conception was sufficient to support the trial court’s judgment. Id.; see also D.M.

v. C.H., 177 Ind. App. 600, 602, 380 N.E.2d 1269, 1270 (1978) (evidence that

mother had sexual intercourse with father during a period ranging from eleven

to seven months before child’s birth was sufficient to uphold paternity

determination). In addition, Mother, the party presumably contesting

paternity, admitted the paternity of Father at the evidentiary hearing in this

matter. While we decline Father’s invitation to hold that Mother’s admissions

alone were sufficient to establish paternity, her admissions were evidence which

further supported the trial court’s paternity determination. See H.W.K. v.

M.A.G., 426 N.E.2d 129, 133 (Ind. Ct. App. 1981) (considering putative father’s

admissions of paternity as part of the evidence supporting the trial court’s

paternity judgment).

[22] Mother contends that Father did not establish when sexual intercourse took

place, did not establish that Child was born “during the normal gestational

period,” and did not preclude anyone else from being Child’s father.

(Appellant’s Br. pp. 10-11). Mother’s arguments ignore her own testimony that

she had sexual intercourse with Father at a time consistent with him being the

father. In addition, her attempt to direct us to testimony which she contends

shows her own equivocation regarding the possibility of other men being the

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 father is unavailing, as we will consider only the evidence which supports the

trial court’s paternity judgment. Humbert, 655 N.E.2d at 605. Because evidence

in the record supports the trial court’s paternity determination, it is not clearly

erroneous, and we will not reverse. S.A.M., 85 N.E.3d at 886.

III. Judicial Notice

[23] Mother also argues that the trial court improperly took judicial notice of facts

contained in documents from the CHINS proceedings. As a threshold matter,

we agree with Father that Mother has waived this claim for our consideration

because she did not object on that basis at trial. A party may not object on one

ground at trial and argue a different basis on appeal. See Francies v. Francies, 759

N.E.2d 1106, 1113 (Ind. Ct. App. 2001) (finding issue waived and declining to

address it), trans. denied. At trial, Mother objected to the admission of the

challenged evidence on the basis of relevancy and confidentiality concerns, but

she did not object on the basis that the trial court’s taking of judicial notice of

the records was improper. As such, Mother has waived this issue. Id.

[24] However, even if she had not waived the issue, her argument is without merit.

Her contention that the trial court took judicial notice of facts, as opposed to

records, is not supported by the record on appeal. Father requested that the

trial court take judicial notice of certain records from the CHINS proceedings,

not that it take judicial notice of any particular fact or set of facts. Indiana

Evidence Rule 201(b)(5) provides that a court may take judicial notice of the

records of a court of this state. See In re D.K., 968 N.E.2d 792, 796 (Ind. Ct.

App. 2012) (upholding the trial court’s judicial notice of the records of a related

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 CHINS proceeding at the outset of a hearing to terminate parental rights).

Finding waiver and no trial court error, we do not address Mother’s contention

that the evidence supporting the trial court’s custody determination is

insufficient without reliance on the challenged CHINS records.

IV. MMPI

[25] Mother’s final argument is that the trial court improperly relied on the MMPI

results and Walker’s testimony about those results, which she contends were

inadmissible. “The admission of evidence is entrusted to the sound discretion

of the trial court.” B.H. v. Indiana Dep’t of Child Servs., 989 N.E.2d 355, 360

(Ind. Ct. App. 2013). An abuse of discretion occurs where the trial court’s

decision is against the logic and effect of the facts and circumstances before the

court. Id.

[26] Mother contends that the challenged evidence was inadmissible because Walker

did not have the necessary credentials to administer the MMPI. Mother bases

this argument on the Pearson’s qualifications policy she had admitted as

Exhibit A which she contended showed that Walker was required to hold a

doctorate or certification/membership in a professional organization in order to

administer the MMPI. Assuming without deciding that to be true, the same

qualifications policy also provided that some products offered by Pearson could

be administered without the listed credentials “as long as they are under the

supervision of a qualified User.” (Exh. A, Vol. III). The policy itself does not

exclude the MMPI as one of Pearson’s products that may be administered

under the supervision of a qualified user, as was done in this case. As such,

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 Mother did not conclusively establish any deficiency in Walker’s qualifications

to administer the MMPI, and we find no abuse of the trial court’s discretion in

admitting the challenged evidence.

[27] However, even if Walker had not been qualified to administer the MMPI and

the trial court erred in admitting that MMPI-related evidence, it would not

merit reversal. A claim of error based on the admission of evidence must affect

a substantial right of the party. See Indiana Evidence Rule 103(a). Here, the

trial court made only two findings regarding Mother’s mental health, neither of

which was expressly tied to the MMPI. The MMPI survey was only part of a

psychological evaluation that encompassed many other sources of information,

including Mother’s clinical interview and two other assessment tools that

Mother does not challenge on appeal. Indeed, the trial court’s reference to

Mother’s “mental health diagnoses” in its finding 17(c) is more likely based on

Walker’s assessment that, diagnostically, Mother met the criteria for several

clinical disorders. (Appellant’s App. Vol. II, p. 12). We cannot conclude that

any of Mother’s substantial rights were impacted by the admission of the

MMPI evidence which we cannot discern was relied upon by the trial court in

rendering its custody determination.

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 CROSS-APPEAL
[28] Father argues on cross-appeal that the trial court erred in denying his request to

change Child’s surname to his own. 3 A trial court’s grant or denial of a

biological father’s request to change the name of a nonmarital child is reviewed

for an abuse of discretion. In re Paternity of N.C.G., 994 N.E.2d 331, 334 (Ind.

Ct. App. 2013). An abuse of the trial court’s discretion occurs when the

decision is clearly against the logic and effect of the facts and circumstances

before the court. Id. The biological father bears the burden of persuading the

trial court that the change is in the best interests of the child. Id.

[29] In C.B. v. B.W., 985 N.E.2d 340, 343 (Ind. Ct. App. 2013), trans. denied, we

noted that when a name change is requested in a paternity proceeding, a trial

court may properly consider a number of factors including whether the child

holds property under a given name, whether the child is identified in public and

private by a certain name, the degree of confusion a name change might cause,

the child’s desires if the child is of sufficient maturity, and what name appears

on records relating to the child. We also concluded that

like all children, a child born out of wedlock is better served
when he knows and is identified with both parents, and both
parents are engaged in his upbringing. A child’s surname
connects the child with the parent. Here, Mother will have
physical custody of the child and, as such, the child will continue

3
On November 17, 2018, Mother filed a verified motion for leave to file a belated cross-appellee brief. By
separate order, we grant Mother’s motion.

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 to be identified with her and will be connected with her in
countless ways, large and small, on a daily basis. Father’s
surname will connect the child with his non-custodial parent and
is a tangible reminder to the child that the child has two parents
who care for him, which is in the child’s best interests.

Id. at 348.

[30] Here, the trial court determined that “[Child’s] surname should remain

unchanged as that is the name by which she knows herself and there has been

no showing of best interests of [Child] to change the same.” (Appellant’s App.

Vol. II, p. 12). This determination was supported by Mother’s testimony that

Child knew her full name and that Child’s retention of her name would

promote consistency for Child. By contrast, Father bore the burden to persuade

the trial court that it was in Child’s best interests to change her name, but he

presented little to no evidence bearing on the aforementioned factors or Child’s

best interests. At trial, Father merely argued that he desired the name change to

promote his own bond with Child, to lessen confusion to the public, and to

avoid potential embarrassment to Child. However, as we observed in C.B.,

since Father is the custodial parent, Child will be continually identified with

Father and connected to him in a myriad of ways on a daily basis. Id. In this

case, Child’s retention of Mother’s surname will be a tangible reminder to Child

of Child’s connection to Mother.

[31] While we commend Father for his proactivity in taking responsibility for Child

and his parenting to date, the trial court, in the exercise of its discretion,

considered the totality of the evidence and determined that it was in Child’s
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 best interests to refrain from changing Child’s name. Given the evidence before

the trial court and Father’s burden of persuasion, this determination was neither

an abuse of discretion, nor was the trial court’s conclusion on the issue clearly

erroneous. S.A.M., 85 N.E.3d at 886. As such, we affirm the trial court’s

denial of Father’s request to change Child’s name.

CONCLUSION
[32] Based on the foregoing, we conclude that the trial court did not err when it

denied Mother’s motion to dismiss Father as a party, the trial court’s paternity

determination was supported by the evidence, Mother waived her argument

regarding the trial court’s judicial notice of records from the CHINS

proceeding, and the trial court did not abuse its discretion when it admitted

evidence pertaining to the MMPI survey. In addition, we conclude on cross-

appeal that the trial court did not commit clear error when it denied Father’s

request to change Child’s name.

[33] Affirmed.

[34] Kirsch, J. & Robb, J. concur

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