J.A.C. ex rel. Colter v. Koenig

ROBB, Judge,

concurring in result.

I respectfully concur in result. However, I write separately to clarify a few issues I believe must be addressed.

I believe that the instant case presents a factual situation wherein Colter had followed the mandates of Indiana Code section 16-37-2-2.1 and had established his paternity prior to any of the proceedings to determine paternity which occurred at the juvenile court. Further, because Koe-nig is not a step-parent, Worrell is instructive: under no circumstances would Koe-nig have been entitled to visitation.

Pursuant to Indiana Code section 16-37-2-2.1, when a child is born out of wedlock and a paternity affidavit is executed, the paternity affidavit “establishes paternity ... and gives rise to parental rights and responsibilities.... ” Colter’s paternity over J.C. was established with the affidavit which was filed two days after J.C.’s birth on November 18, 1997. Thus, it was completely unnecessary for Colter to have to prove his paternity over J.C. at a later date and the juvenile court’s finding that “no steps were taken regarding officially determining paternity until October 2, 1998” was erroneous.3 Because Colter is *1061J.C.’s father, J.C. should have been immediately turned over to Colter when Bark-dull died. As such, the previous decision of the probate court to appoint Koenig temporary guardian was also in error.

However, regardless of the errors which occurred throughout this dispute, the fact still remains: even if Koenig was temporarily J.C.’s guardian, she is not entitled to visitation. Worrell is clear in its mandate that third-party visitation is only extended to step-parents. Koenig is not a stepparent and therefore is not eligible for third-party visitation.4

Thus, although I agree with the majority opinion that the findings of fact and conclusions of law are not sufficient, I think it is necessary to emphasize that because Colter had already been determined to be J.C.’s father, regardless of what occurred after Barkdull died, Koenig was not entitled to visitation.5 Therefore, I respectfully concur in result.

ORDER

This Court having heretofore handed down its opinion in this appeal on August 16, 2000, marked Memorandum Decision, Not for Publication; and,

Comes now the Appellant, by counsel, and files herein Motion to Publish, alleging therein that the Memorandum Decision clarifies various points of law and provides useful guidance on legal and factual issues of unique interest and substantial public importance and prays this Court to Publish its Memorandum Decision, which said Motion is in the following words and figures, to-wit:

(H. I.)

And the Court, having examined said Motion and being duly advised, now finds that the same should be granted.

IT IS THEREFORE ORDERED as follows:

1. This Court’s opinion in this case heretofore handed down on August 16, 2000, marked Memorandum Decision, Not of Publication, is now ordered published.

. Additionally, both Colter and Koenig stipulate to the fact that Colter is J.C.’s biological father.

. We note that although Colter testified that he believed J.C. should stay in contact with Koenig, and that he did not want to deny Koenig visitation, his testimony in no way bound him from appealing the erroneous decision of granting Koenig visitation.

. As with the majority, I express no opinion as to the application of Troxel because if resolution can be reached on some other basis, we do not look to the constitutional question.