In the Matter of the Paternity of B.L.H.: B.F.H. v. K.E.G. (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Oct 30 2020, 8:58 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joe Keith Lewis STATE OF INDIANA
Lewis & Foust, LLP Curtis T. Hill, Jr.
Marion, Indiana Attorney General of Indiana
Natalie F. Weiss
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Paternity of October 30, 2020
B.L.H.: Court of Appeals Case No.
20A-JP-1122
Appeal from the Grant Superior
B.F.H., Court
Appellant, The Honorable Dana J. Kenworthy,
Judge
v.
The Honorable Brian F. McLane,
Magistrate
K.E.G., et al.,
Trial Court Cause No.
Appellees. 27D02-1908-JP-113

Bailey, Judge.

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 Case Summary
[1] B.F.H. (“Father”) appeals the trial court order denying his petition to rescind

his paternity affidavit and request for genetic testing. He raises two issues on

appeal, but we address only the following restated, dispositive issue: whether

the trial court erred when it denied his petition.

[2] We affirm.

Facts and Procedural History
[3] B.L.M. (“Child”) was born on September 4, 2018. K.E.G. (“Mother”) and

Father executed a paternity affidavit for Child two days later, on September 6,

2018. In December 2018, when Child was three months old, Father and

Mother ended their romantic relationship. Father subsequently obtained a

mail-in two-party genetic test through DNA Direct Solutions that involved only

him and Child. Father obtained this test on his own more than sixty days after

he signed the paternity affidavit. The test results allegedly indicated that there

was a zero probability that Father was Child’s biological father. Father did

nothing with the test results when he first received them.

[4] On August 1, 2019, the State of Indiana, on behalf of Mother, filed a petition to

establish child support. At the September 26, 2019, hearing on the petition,

Father requested genetic testing, and his request was denied. On October 7,

2019, the trial court entered a judgment of support directing Father to pay $285

per week and established an arrearage of $2,568. On November 8, 2019, Father

Court of Appeals of Indiana | Memorandum Decision 20A-JP-1122 | October 30, 2020 Page 2 of 9
 filed a petition to rescind his paternity affidavit and a request for genetic

testing,1 attaching the private DNA test as an exhibit. 2

[5] On January 9, 2020, the trial court held a hearing on Father’s petition. At the

hearing, Mother testified in relevant part as follows:

[Father] knew in the hospital when he signed that paternity
affidavit that there was a chance that [Child] was not his. He
knew and he refused a DNA test at the hospital.… He knew
there was a chance due to us breaking up for three months, that
there was a chance that he wasn’t the father because we got back
together. He said that he didn’t want a DNA test, he did not
want a DNA test, he was her’s [sic] regardless[,] those was [sic]
his words.… This is not about him not wanting to be [Child’s]
dad, this is about his paycheck and not wanting to, he was
perfectly fine being her legal father, he came to my house
multiple times saying he did want to be her dad and asking me if
he could be her dad. And it was all his idea to be her father until
I put him on child support.

Tr. at 15-16. Mother further testified that she had reached out to Child’s

alleged biological father and he “refuses to be [Child’s] father.” Id. at 18.

Father testified that he “didn’t think there was any chance that [he] was not the

Father,” although Mother had “told [him] that she had been sleeping with

somebody else.” Id. at 17.

1
Although Father’s petition does not state a request for genetic testing, the trial court “interpret[ed it] as a
request for genetic testing.” Tr. at 17.
2
Father offered the private DNA test as an exhibit at the hearing on his petition, but it was not entered into
evidence. Tr. at 13-14.

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[6] In an order dated May 11, 2020, the trial court denied Father’s petition to

rescind his paternity affidavit and request for genetic testing. In doing so, the

court cited the parties’ testimony and stated, in relevant part:

***

13. Respondent seeks to bolster his allegation of a material
mistake of fact by relying on a genetic test he obtained without
court approval.

14. The court recognizes there is a substantial public policy
favoring the correct identification of a biological father.

15. However, Respondent[’s] reliance on the genetic test obtained
without court approval is unjustified. Respondent’s argument, if
accepted by the court, would render any burden on a man
executing a paternity affidavit meaningless. Any man who
properly executes a paternity affidavit could obtain a genetic test,
without court approval, and then rely on that test to justify their
request for a court-ordered genetic test.

16. Further, Respondent was aware that he may not have been
the biological father of the child when he executed the paternity
affidavit. The court acknowledges that he may have been
mistaken when he indicated he thought there was no possibility
he was not the father. However, the testimony from both parties
indicates Mother informed Respondent that she was involved in
a relationship with another man.

The Respondent has failed to show there was duress, fraud or a
material mistake of fact to justify the rescission of the paternity
affidavit. ACCORDINGLY, Respondent’s request to rescind the
paternity affidavit and request for genetic testing is denied.

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[7] App. at 8. This appeal ensued.

Discussion and Decision
[8] Father appeals the trial court’s denial of his petition to rescind his paternity

affidavit and request for genetic testing. Thus, he appeals from a negative

judgment, and we will reverse the trial court only if the judgment is contrary to

law. Burnell v. State, 56 N.E.3d 1146, 1150 (Ind. 2016). A judgment is contrary

to law if the evidence leads to but one conclusion and the trial court reached an

opposite conclusion. Id. In determining whether the trial court’s judgment is

contrary to law, we consider the evidence in the light most favorable to the

prevailing party, together with all reasonable inferences therefrom. Id.

[9] Moreover, the trial court entered special findings and conclusions pursuant to

Indiana Trial Rule 52(A). Thus, our standard of review is two-tiered: first, we

determine whether the evidence supports the findings, and second whether the

findings support the judgment. In re Paternity of B.M., 93 N.E.3d 1132, 1135

(Ind. Ct. App. 2018). The trial court’s findings and conclusions will be set aside

only if they are clearly erroneous, and we neither reweigh the evidence nor

reassess the credibility of the witnesses. Id. Rather, we must accept the

ultimate facts as stated by the trial court if there is evidence to sustain them. Id.

[10] A paternity affidavit conclusively establishes paternity without further

proceedings by a court and gives rise to parental rights and responsibilities

regarding the right to obtain child support, health insurance, and parenting

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 time. Ind. Code § 16-37-2-2.1(j), (p). Indiana Code Section 16-37-2-2.1(k) gives

a man sixty days after executing a paternity affidavit to file a court action to

request genetic testing. After sixty days have passed, a court may only rescind a

paternity affidavit when: (1) the court has determined that fraud, duress, or

material mistake of fact existed in the execution of the paternity affidavit; and

(2) at the request of the man seeking rescission of his affidavit, the court has

ordered a genetic test, which yields a result indicating that the man is excluded

as the father of the child. I.C. § 16-37-2-2.1(l); see also In re Paternity of T.M., 953

N.E.2d 96, 99 (Ind. Ct. App. 2011) (“[A] man who executed a paternity

affidavit may not fail to timely request genetic testing under Indiana Code

section 16-37-2-2.1 and then, as a matter of course, request such testing as a

fishing expedition.”), trans. denied. Moreover, a man who is the legal father by

reason of a paternity affidavit may challenge paternity only “in extreme and

rare instances,” and the challenge must be made by “evidence that has become

available independently of court action.” Id. (quotations and citations omitted);

see also J.O. v. Ortiz, 141 N.E.3d 1246, 1249 (Ind. Ct. App. 2020).

[11] Here, the trial court found that no fraud, duress, or material mistake of fact

existed in Father’s execution of the paternity affidavit. That conclusion is

supported by the testimony of both Mother and Father. While Father claims

that he made a material mistake of fact when he executed the paternity affidavit

because he believed he was Child’s biological father, it is undisputed that

Mother told Father there was a possibility that he was not the biological father

and that Father was aware of that possibility at the time he executed the

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 paternity affidavit. As is true in other areas of the law, a mistake of fact must be

reasonable, and a reasonable mistake of fact is not one in which a party

willfully ignores all or some of the relevant facts. See, e.g., I.C. § 35-41-3-7

(emphasis added) (“It is a defense [to a criminal charge] that the person who

engaged in the prohibited conduct was reasonably mistaken about a matter of

fact, if the mistake negates the culpability required for commission of the

offense.”); Restatement (Second) of Contracts: Mistake Defined § 151 (Am.

Law Inst. 1981) (emphasis added) (defining, in the context of contracts, a

“mistake” as an “erroneous belief” as to a fact when the party “makes an

assumption with respect to [the fact], without being aware of alternatives.”).

[12] Thus, the evidence supports the trial court’s finding that Father did not

mistakenly believe at the time he signed the paternity affidavit that he was the

only possible biological father of Child; rather, Father was aware of the

possibility that he was not. And that finding supports the conclusion that

Father failed to prove a mistake of fact pursuant to Indiana Code Section 16-37-

2-2.1(l). See In re Paternity of B.M., 93 N.E.3d 1132, 1136 (Ind. Ct. App. 2018)

(holding that the father failed to prove a material mistake of fact existed at the

time he executed a paternity affidavit where he knew there was a possibility that

he was not the child’s biological father).

[13] The trial court also correctly concluded that the genetic test Father obtained

without court approval did not “bolster” his claim of mistake of fact. App. at 8.

First, the results of the test were not admitted into evidence, and Father does

not challenge that ruling on appeal. Second, even if it had been admitted, the

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 result of the genetic test obtained over three months after the paternity affidavit

was signed cannot be evidence that a “material mistake of fact existed in the

execution of the paternity affidavit,” i.e., at the time Father signed the affidavit.

I.C. § 16-37-2-2.1(l) (emphasis added). And third, any challenge to paternity

must be made by evidence that has become “available independently of court

action,” i.e., by “externally obtained clear medical proof.” Fairrow v. Fairrow,

559 N.E.2d 597, 600 (Ind. 1990); see also In re Paternity of E.M.L.G., 863 N.E.2d

867, 870 (Ind. Ct. App. 2007). “‘Externally obtained’ means that the evidence

establishing non-paternity was not actively sought by the putative father but

was discovered almost inadvertently in a manner that was unrelated to child

support proceedings.” Tirey v. Tirey, 806 N.E.2d 360, 363 n.2 (Ind. Ct. App.

2004), trans. denied. Here, there is no question that Father obtained the genetic

test solely to challenge his paternity of Child, not inadvertently in the course of

obtaining ordinary medical care; thus, the genetic test was not valid medical

proof of non-paternity. Id.; see also In re Paternity of K.M., 651 N.E.2d 271, 276

(Ind. Ct. App. 1995) (holding that “one who comes into court to challenge an

otherwise valid order establishing paternity, without medical proof

inadvertently obtained through ordinary medical care, should be denied relief as

outside the equitable discretion of the trial court”).

Conclusion
[14] The trial court did not err when it denied Father’s petition to rescind his

paternity affidavit and request for genetic testing on the grounds that Father

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 failed to prove that fraud, duress, or material mistake of fact existed in the

execution of the paternity affidavit per Indiana Code Section 16-37-2-2.1(l).

[15] Affirmed.

Vaidik, J., and Weissmann, J., concur.

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