In Re the Paternity of J.G. Wendy Sonora Hernandez and Margarito Guzman v. Fredy Sanchez Cortes and State of Indiana

FILED
Jun 04 2020, 10:44 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

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

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

IN THE
COURT OF APPEALS OF INDIANA

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

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

State of Indiana,
Co-Appellee.

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

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

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

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

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

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

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

Child’s biological father.

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

revise and restate as follows:

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

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

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

[3] We affirm.

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

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

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

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

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

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

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

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

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

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

Father registered with the putative father registry.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

dissolution proceeding in which Husband listed children other than Child as

children of the marriage.

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

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

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

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

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

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

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

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

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

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

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

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

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

granted the same day. This appeal ensued.

Discussion and Decision
Issue One: Dismissal of Husband as Party

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

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

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

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

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

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

court abused its discretion.

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

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

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

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

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

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

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

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

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

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

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

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

dismissed Husband as a party. 3

Issue Two: Opportunity to Present Materials

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

opportunity to present relevant materials after converting her motion to dismiss

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

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

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

pertinent to such a motion by Rule 56.”

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

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

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

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

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

reasonable opportunity to present” relevant materials. Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Issue Three: Denial of Motion for Summary Judgment

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

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

is well settled. The Indiana Supreme Court has explained that

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

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

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

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

alterations original to Hughley).

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

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

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

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

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

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

omitted).

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

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

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

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

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

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

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

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

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

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

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

petition outside the two-year statute of limitations.

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

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

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

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

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

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

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

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

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

is the child’s biological father.”

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

dispute that the prosecuting attorney was operating under an agreement

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

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

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

State’s petition was timely filed.

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

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

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

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

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

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

marriage to Husband.

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

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

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

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

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

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

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

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

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

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

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

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

I.C. § 31-14-7-1(1).

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

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

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

Court has observed that the presumption of fatherhood created by Indiana

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

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

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

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

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

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

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

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

established, the prosecuting attorney was authorized to file the paternity

petition. See I.C. § 31-14-4-1(7)(B).

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

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

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

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

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

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

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

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

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

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

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

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

petition was untimely.

Registration with Putative Father Registry

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

summary judgment because Putative Father had not registered with the

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

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

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

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

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

19-5.

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

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

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

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

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

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

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

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

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

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

register with the putative father registry.

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

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

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

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

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

Court stated that

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

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

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

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

paternity. Id. at 1198.

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

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

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

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

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

father fails to timely register, he cannot circumvent that registration

requirement by filing a petition to establish paternity.

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

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

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

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

putative father’s registry imposes registration requirements on putative fathers

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

affirm the trial court.

[32] Affirmed.

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

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

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