In the Matter of the Paternity of M.A.M. State of Indiana by the IV-D Prosecutor of Miami County v. T.M.

FILED
Dec 11 2019, 7:26 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr. Dan J. May
Attorney General Kokomo, Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the December 11, 2019
Paternity of M.A.M. Court of Appeals Case No.
19A-JP-771
State of Indiana by the IV-D Appeal from the
Prosecutor of Miami County, Miami Circuit Court

Appellant-Petitioner, The Honorable
Timothy P. Spahr, Judge
v. Trial Court Cause No.
52C01-1812-JP-37
T.M.,
Appellee-Respondent

Vaidik, Chief Judge.

Court of Appeals of Indiana | Opinion 19A-JP-771 | December 11, 2019 Page 1 of 18
 Case Summary
[1] B.S. (“Alleged Father”), a man who believes he is the father of five-year-old

M.A.M. (“Child”), applied for child-support services through the Miami

County Prosecutor’s Office (“Prosecutor”). The Prosecutor then filed a petition

seeking to establish that Alleged Father is Child’s father. Child’s mother, T.M.

(“Mother”), moved to strike the petition, arguing that the Prosecutor is not

authorized to bring such an action. The trial court agreed and granted Mother’s

motion to strike. The Prosecutor appeals. We reverse.

Facts and Procedural History
[2] Child was born out of wedlock in September 2014 and, according to the

pleadings, lives with Mother in Miami County. In November 2018, Alleged

Father “completed an application for Title IV-D Child Support Services

believing he was the father of [Child].” Appellant’s App. Vol. II p. 21. “Title

IV-D” is a reference to Title IV-D of the federal Social Security Act, which

provides for the payment of federal money to states that provide certain services

relating to child support, including assistance in establishing paternity. See 42

U.S.C. §§ 651-669b. In Indiana, the required services are typically provided by

county prosecutors.

[3] After receiving Alleged Father’s application, the Prosecutor filed a Verified

Petition to Establish Paternity, naming Alleged Father as the “Petitioner.” At

an initial hearing held in January 2019, the trial court ordered genetic testing.

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 That testing established a 99.999999996% probability that Alleged Father is

Child’s father. Shortly thereafter, Mother, “Individually and as next friend” of

Child, filed a combined motion to dismiss, motion for judgment on the

pleadings, and motion for summary judgment. Appellant’s App. Vol. II p. 17.

Mother asserted, in part, that Alleged Father is barred from bringing the action

by Indiana Code section 31-14-5-3, which provides that a man claiming to be a

child’s father must generally file a paternity action within two years of the

child’s birth.

[4] The Prosecutor filed a response to Mother’s motion, acknowledging that the

original petition “was erroneously filed by the State of Indiana as though the

alleged father was the petitioner” and asserting that the petition “should have

been filed by the State of Indiana on behalf of the child with the Miami County

Prosecutor as the next friend of the minor child.” Id. at 21. Accordingly, the

Prosecutor also filed an Amended Petition to Establish Paternity (“Amended

Petition”), which indicated that the Prosecutor was filing as next friend of

Child.

[5] Mother moved to strike the Amended Petition, arguing that Indiana’s paternity

statutes do not authorize the Prosecutor to bring the action. After hearing oral

argument from counsel, the trial court granted Mother’s motion.

[6] The Prosecutor now appeals.

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 Discussion and Decision
[7] The sole issue in this appeal is whether the Prosecutor was statutorily

authorized to file the Amended Petition. Statutory interpretation is a matter of

law that we review de novo. Dobeski v. State, 64 N.E.3d 1257, 1259 (Ind. Ct.

App. 2015). If a statute is clear and unambiguous, we need not apply any rules

of construction; we simply give the words and phrases their plain, ordinary, and

usual meanings. Id. Where a statute is open to more than one interpretation, it

is deemed ambiguous and subject to judicial construction, and our task is to

ascertain and give effect to the legislature’s intent. Id.

[8] Prosecuting attorneys are clearly allowed to file paternity actions. As

mentioned above, Title IV-D of the federal Social Security Act requires states to

provide various child-support services, including assistance in establishing

paternity, in exchange for receiving certain federal funds. See 42 U.S.C. §§ 651-

669b. To qualify Indiana for those funds, our General Assembly established a

Child Support Bureau within the Department of Child Services and charged it

with “the administration of Title IV-D of the federal Social Security Act.” Ind.

Code § 31-25-3-1. Under Indiana Code section 31-25-4-13.1, the Child Support

Bureau is required to contract with a prosecuting attorney or other person or

entity in each judicial circuit “to undertake activities required to be performed

under Title IV-D,” including “establishment of paternity” and “establishment,

enforcement, and modification of child support orders[.]” Ind. Code § 31-25-4-

13.1(b). In turn, Indiana’s paternity statutes, found at Indiana Code article 31-

14, identify “a prosecuting attorney operating under an agreement or contract

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 with the department described in IC 31-25-4-13.1” as one of the persons

authorized to file a paternity action. Ind. Code § 31-14-4-1(7)(B).1 The

Prosecutor asserts that he is operating under such a contract in this case.

[9] Mother does not dispute that the Prosecutor is operating under such a contract,

but she contends that the authority granted by Section 31-14-4-1(7)(B) is strictly

limited by Indiana Code section 31-14-4-3, which provides, in relevant part,

that

a prosecuting attorney operating under an agreement or contract
described in IC 31-25-4-13.1, may file a paternity action if:

(1) the mother;

(2) the person with whom the child resides; or

(3) the [Department of Child Services];

has executed an assignment of support rights under Title IV-D of
the federal Social Security Act (42 U.S.C. 651 through 669).

Mother contends that this statute identifies the only circumstances in which

prosecutors can file paternity actions and that because neither she nor the

1
Section 31-14-4-1 also provides that “[a] child” is permitted to file a paternity action. I.C. § 31-14-4-1(5). A
child, especially a young child, will generally have to file through a next friend. Here, the Amended Petition
indicates that the Prosecutor is acting as Child’s next friend, so an argument could be made that the
Amended Petition was filed not by the Prosecutor but by Child as contemplated by subsection (5). The
Prosecutor does not make that argument.

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 Department of Child Services has executed an assignment of support rights, the

Prosecutor was not authorized to file the Amended Petition. The trial court

agreed with Mother and ruled that in Section 31-14-4-3 “the General Assembly

has clearly enumerated the circumstances under which ‘a prosecuting attorney

operating under an agreement or contract described in IC 31-25-4-13.1’ may file

a paternity action.” Appellant’s App. Vol. II p. 10. For the reasons that follow,

we disagree.

[10] Most importantly, Title IV-D (42 U.S.C. §§ 651-669b) and Indiana’s

corresponding IV-D statutes (Indiana Code chapter 31-25-4) specifically

contemplate the State filing paternity actions in circumstances beyond those set

forth in Section 31-14-4-3. Section 31-14-4-3 deals with situations in which

benefits have been paid out under the Temporary Assistance for Needy

Families program, or “TANF,” which was established by Part A of Title IV (42

U.S.C. §§ 601-619). A mother or another person with whom a child resides

receives assistance under Part A and executes an assignment of support rights,

and a prosecutor proceeds under Part D and Section 31-14-4-3 to establish

paternity and then seeks to recoup funds from the father.

[11] However, the grant of assistance under Part A is not a prerequisite to action

under Part D. The first section of Part D, 42 U.S.C. § 651, provides:

For the purpose of enforcing the support obligations owed by
noncustodial parents to their children and the spouse (or former
spouse) with whom such children are living, locating
noncustodial parents, establishing paternity, obtaining child and
spousal support, and assuring that assistance in obtaining support

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 will be available under this part to all children (whether or not
eligible for assistance under a State program funded under part
A) for whom such assistance is requested, there is hereby
authorized to be appropriated for each fiscal year a sum sufficient
to carry out the purposes of this part.

(Emphasis added). Likewise, 42 U.S.C. § 654(4)(A) provides that a State plan

for child and spousal support must provide that the State will

provide services relating to the establishment of paternity or the
establishment, modification, or enforcement of child support
obligations, as appropriate, under the plan with respect to--

(i) each child for whom (I) assistance is provided under the
State program funded under part A of this subchapter . . .;

(ii) any other child, if an individual applies for such
services with respect to the child[.]

(Emphasis added).

[12] Indiana’s IV-D statutes follow suit. Indiana Code section 31-25-4-17 provides,

in relevant part, that the Child Support Bureau “shall do the following”:

* * * *

(3) Assist in establishing paternity for children born out of
wedlock.

* * * *

(7) In any Title IV-D case, petition:

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 (A) a court to:

(i) establish paternity for a child born out of
wedlock[.]

In turn, Indiana Code section 31-25-4-19 provides that “[a]ll services provided”

under Section 31-25-4-17 must be available to individuals “other than recipients

or applicants for the federal Temporary Assistance for Needy Families” upon

application for the services.2

[13] As noted at the outset, this case began when Alleged Father applied for services

as contemplated by 42 U.S.C. §§ 651 and 654 and Indiana Code sections 31-25-

4-17 and 31-25-4-19. And pursuant to those statutes, the Prosecutor was

required to provide those services, including assistance in establishing paternity.

If Mother and the trial court were correct that Section 31-14-4-3 sets forth the

only situations in which prosecutors are allowed to file paternity actions,

important aspects of these other statutes would be stripped of any meaning.

When interpreting statutes, we must strive to avoid an interpretation that

renders any parts of the statutes meaningless or superfluous. ESPN, Inc. v. Univ.

of Notre Dame Police Dept., 62 N.E.3d 1192, 1199 (Ind. 2016).

2
In its order, the trial court concluded that these statutes in Article 31-25 are “more general” than, and “must
give way to,” the “more specific statutes” in Article 31-14. Appellant’s App. Vol. II p. 10. But in terms of a
prosecutor’s role in establishing paternity, the statutes in Article 31-25 are arguably as specific as the statutes
in Article 31-14, if not more specific.

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[14] To be sure, there is tension between the statutes just discussed, which grant

prosecutors very broad authority to file paternity actions, and Section 31-14-4-3,

which seems to restrict that authority. But we think the legislature has

established a tiebreaker. Specifically, in the first section of Indiana’s paternity

code, Indiana Code section 31-14-1-1, the General Assembly has explicitly

stated that it “favors the public policy of establishing paternity under this article

of a child born out of wedlock.” To the extent that the statutes above are at

odds, this express policy indicates to us that the ambiguity should be resolved in

favor of allowing a paternity action to proceed. See Dobeski, 64 N.E.3d at 1259

(“Our primary goal in interpreting a statute is to ascertain and give effect to the

legislature’s intent[.]”). And if the legislature believes that the paternity action

in this case is not one that should be allowed to proceed, we trust that it will

amend the statutes accordingly.

[15] We conclude by addressing three additional arguments by Mother. First, she

contends that a prosecutor should not be allowed to file a paternity action at the

request of an alleged father because of the legislature’s 2015 repeal of Indiana

Code section 31-14-4-2. See P.L. 206-2015 § 45. That statute required a

prosecutor to file a paternity action when asked to do so by an alleged father (or

by a child, the mother or expectant mother, the Department of Child Services,

or the county office of family and children). If Section 31-14-4-2 had been the

only statute that allowed a prosecutor to take action at the request of an alleged

father, we might agree with Mother that the repeal of the statute was fatal to the

Amended Petition. But Section 31-14-4-2 was not the only such statute—as just

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 discussed, Indiana Code sections 31-25-4-17 and 31-25-4-19 require a

prosecutor to take action when an individual, such as an alleged father, applies

for IV-D services with respect to a child.

[16] Second, Mother argues that it is incongruous to allow a prosecutor to file a

paternity action at the request of an alleged father when, as here, the alleged

father is barred by the statute of limitation from filing himself. See Ind. Code §

31-14-5-3(b). However, any incongruity is a direct result of the legislature’s

choice to exempt prosecutors from that limitation period. See id. (“The mother,

a man alleging to be the child’s father, or the department or its agents must file

a paternity action not later than two (2) years after the child is born[.]”). The

legislature is free to eliminate that exemption, but we are not.3

[17] Last, Mother asserts that she has a “constitutional right” to raise Child as she

sees fit. See Appellee’s Br. pp. 25-28. However, none of the cases she cites

suggests that a mother has a constitutional right to not have the paternity of a

child established. In fact, most of the cases she cites concern the involuntary

termination of a person’s parental rights, which is not at issue here.

[18] For these reasons, we conclude that the trial court erred by granting Mother’s

motion to strike the Amended Petition.

3
Mother also cites Indiana Code section 31-14-5-9, which provides: “A man who is barred under IC 31-19
from establishing paternity may not establish paternity by: (1) filing a paternity action as next friend of a
child; or (2) requesting a prosecuting attorney to file a paternity action.” However, Indiana Code article 31-
19 deals with adoption, and this case does not involve adoption.

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[19] Reversed.

Riley, J., dissents with separate opinion.

Bradford, J., concurs.

Court of Appeals of Indiana | Opinion 19A-JP-771 | December 11, 2019 Page 11 of 18
 IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Court of Appeals Case No.
Paternity of M.A.M. 19A-JP-771

State of Indiana by the IV-D
Prosecutor of Miami County,
Appellant-Petitioner,

v.

T.M.,
Appellee-Respondent

Riley, Judge, dissenting.

[20] I respectfully dissent from the majority’s decision which reverses the trial court

and allows the State to pursue paternity proceedings at Alleged Father’s behest,

outside the two-year statute of limitations.

[21] In its opinion, the majority greatly emphasizes the interaction between Title IV-

D of the Federal Security Act and Indiana’s provision of various child-support

services in order to qualify for federal funding to underscore its reasoning. As

expressly acknowledged by the majority, “[a] mother or another person with

whom the child resides received assistance under Part A and executes an

assignment of support rights, and a prosecutor proceeds under Part D and

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 section 31-14-4-3 to establish paternity and then seeks to recoup funds from the

father.” (Slip op. p. 6). Accordingly, pursuant to the majority’s own reasoning,

Alleged Father cannot execute an assignment of support rights under Part A as

the Child never resided with him and consequently the State cannot commence

paternity proceedings under Part D. Nevertheless, the majority then continues

and notes that “the grant of assistance under Part A is not a prerequisite to

action under Part D.” (Slip op. p. 6). As such, the majority points to 42 U.S.C.

§ 654(a)(A), which provides that the State may create a State plan for child and

spousal support. However, the majority conveniently ignores the section’s

opining preamble which states that the State can provide “services relating to

the establishment of paternity or the establishment, modification, or

enforcement of child support obligations, as appropriate, under the plan [.]”

(Slip Op. 7). Indiana defined the parameters of this appropriateness through its

paternity statute and my reading of Indiana’s paternity statute indicates that the

Legislature did not find it appropriate for the State to represent the Alleged

Father in certain paternity proceedings.

[22] As pointed out by the majority, the Indiana General Assembly has specifically

stated that it “favors the public policy of establishing paternity under [Indiana

Code article 31-14] of a child born out of wedlock.” I.C. § 31-14-1-1. The

ultimate goal of allowing paternity suits “is to promote the welfare of the

child.” Paternity of I.I.P. v. Rodgers, 92 N.E.3d 1158, 1160 (Ind. Ct. App. 2018).

Unlike the majority, I consider this seemingly endless objective of establishing

paternity to be procedurally limited by our Code.

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[23] Pursuant to Indiana Code section 31-14-4-1, a paternity action may be filed by,

(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
by filing an action under this article for a child who is the
subject of 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 [I.C. §] 31-25-4-
13.1.

Yet, although different parties are permitted to establish paternity, the filing of a

paternity action—as opposed to an application for child support services

through the Child Support Bureau pursuant to I.C. Ch. 31-25-4—is further

subject to certain statutory limitations. A child is permitted to file a paternity

petition “at any time before the child reaches twenty (20) years of age,” and a

child who is incompetent—i.e., competency based on age—“may file a petition

through the person’s guardian, guardian ad litem, or next friend.” I.C. §31-14-

5-2(a)-(b). On the other hand, the mother, or a man alleging to be the child’s

father, or the department or its agents

Must file a paternity action no later than two (2) years after the
child is born, unless:

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 (1) Both the mother and the alleged father waive the limitation in
actions and file jointly;
(2) Support has been furnished by the alleged father or by a
person acting on his behalf, either voluntarily or under an
agreement with:
(A) The mother;
(B) A person acting on the mother’s behalf; or
(C) A person acting on the child’s behalf;
(3) The mother, the department, or a prosecuting attorney . . .
files a petition after the alleged father has acknowledged in
writing that he is the child’s biological father;
(4) The alleged father files a petition after the mother has
acknowledged in writing that he is the child’s biological
father;
(5) The petitioner was incompetent at the time the child was
born; or
(6) A responding party cannot be served with summons during
the two (2) year period.

I.C. § 31-14-5-3(b) (emphasis added). While it is undisputed that more than

two years have passed since the Child’s birth, and therefore Alleged Father is

barred from filing a paternity action, the State now relies on I.C §§ 31-14-4-

1(7)(b) and 31-14-5-3(b)(3) to maintain that “[w]hen [Alleged] Father applied

for Title IV-D services with the Miami County Child Support Division, he

acknowledged in writing that he was the [C]hild’s biological father.”4

(Appellant’s Br. p. 9).

4
The majority points out that the case commenced when Alleged Father applied for services based on I.C. §§
31-25-4-17 & -19 and “according to those statutes, the Prosecutor was required to provide those services.”
(Slip op. p. 8). These provisions relate to the duties and services provided by the Child Support Bureau and
are irrelevant to the specific powers of the prosecutor’s office in pursuing paternity proceedings. See e.g., I.C.
§ 31-25-4-13.1(b) (“The bureau shall make the agreements necessary for the effective administration of the
plan with local governmental officials within Indiana. The bureau shall contract with: (1) a prosecuting
attorney[.]”). Accordingly, the limitations imposed on the State in its prosecution of paternity cases is
separate from and not governed by I.C. Ch. 31-25-4.

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[24] Nevertheless, prior to our Legislature amending the paternity statute in 2015,5

the statutory provisions did not include the circumstances in which a Title IV-D

prosecutor was permitted to file a paternity action. Currently, the statute

provides in Indiana Code section 31-14-4-3 that the department or prosecuting

attorney may file a paternity action if: “(1) the mother; (2) the person with

whom the child resides; or (3) the department; has executed an assignment of

support rights under Title IV-D of the federal Social Security Act.” Here,

Alleged Father, the Child’s biological father, applied to the Title IV-D office

and requested it to represent him in the establishment of the Child’s paternity

by assigning his support rights. However, after the amendment of the paternity

statute in 2015, the State can no longer commence a paternity suit at the request

of a biological father, unless the biological father is the “person with whom the

child resides.” See I.C. § 31-14-4-3. Because the Child did not reside with

Alleged Father, the State cannot initiate the paternity action.

5
In 2015, with the amendment of that paternity statute, the Indiana General Assembly repealed Indiana
Code section 31-14-4-2(a), which previously stipulated that:
(a) Upon the request of:
(1) The child;
(2) The other or expectant mother;
(3) A man alleging to be the father or expectant father
(4) The department; or
(5) The county office of family and children;
The prosecuting attorney shall file a paternity action and represent the child in that action.

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[25] In support of its argument that the State may commence a paternity action as

the child’s next friend at a biological father’s request, the State refers to In re

Paternity of S.A.M., 85 N.E.3d 879, 886 (Ind. Ct. App. 2017), in which the court

noted that although “[t]here is no statutory definition of ‘next friend,’” “only

parents, guardians, guardians ad litem, and prosecutors may bring paternity

actions as next friends of children.” However, I find In re Paternity of S.A.M.

unpersuasive as it dealt with an establishment of paternity by a grandparent and

is silent about the application of Indiana Code section 31-14-4-3 in combination

with a paternity action filed by the Title IV-D prosecutor.

[26] Seemingly arguing for unbridled rights to bring paternity actions, the State

contends that “prosecutors are required to provide Title IV-D services,

including establishment of paternity, to people who are not receiving public

assistance. And reliance on Indiana Code section 31-14-4-3 was not necessary

in light of the specific provision in Indiana Code section 31-14-5-3(b)(3) for a

prosecuting attorney to file a paternity action, as well as the duties imposed by

federal and state law [] relating to operation of the Title IV-D program.”

(Appellant’s Br. p. 13). Thus, based on the State’s argument, any putative

father could avoid his two-year statute of limitations by simply requesting the

State to file a petition of paternity as the child’s next friend. This effectively

makes a mockery of the statute of limitations. I would caution the State that

although the office of the prosecuting attorney is provided for in Article 7,

Section 16 of the Indiana Constitution, the office receives its authority to act

from the Legislature. Mounts v. State, 496 N.E.2d 37, 39 (Ind. 1986). “Where

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the Legislature has enumerated the powers incident to any given office and the

Constitution is silent as to the duties of that office, the Legislature’s enactment

is final, and supersedes any residual authority that office may have had at

common law.” Id. Accordingly, there is no inherent authority of the Title IV-

D prosecutor to file a paternity action on behalf of a child. Rather, the

authority and the constraints on a prosecutor’s obligation to act as a child’s next

friend in bringing a paternity action emanate from the state statutes—or what

the State statutes deem appropriate within the federal parameters—not the

operation of the Title IV-D program or federal grants initiatives. Accordingly,

the State, through its Title IV-D prosecutor, cannot bring a paternity action as

the Child’s next friend at Alleged Father’s request,6 and I would affirm the trial

court’s dismissal of the paternity petition.

6
I acknowledge that this court recently decided Litton v. Baugh, 122 N.E.3d 1034 (Ind. Ct. App. 2019), in
which we concluded that a biological father may be permitted to file a paternity action as next friend of a
child even though the biological father is time-barred to file in his own name pursuant to I.C. § 31-14-5-3.
The Litton court expressed its concern with this possible inconsistency and invited the General Assembly to
address this. Meanwhile, we distinguish Litton as, here, the State filed as next friend of the Child at the
request of the Alleged Father.

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