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In re Paternity of S.A.M. (Child)

Court of Appeals of Indiana

October 13, 2017

In re the Paternity of: S.A.M. (Child),
M.H., Appellee-Petitioner, M.M., Appellant-Intervenor, S.B., Respondent

         Appeal from the Madison Circuit Court The Honorable Angela Warner Sims, Judge Trial Court Cause No. 48C01-1307-JP-184

          Attorney for Appellant Cody Cogswell Cogswell & Associates

          Attorney for Appellee M.H. David W. Stone IV Stone Law Office & Legal

          May, Judge.

         [¶1] When S.A.M. was born, M.M. ("Father") signed a paternity affidavit and became S.A.M.'s legal father. Over time, suspicion arose that another man, B.H., was S.A.M.'s biological father. However, B.H. died before paternity tests were conducted. Thereafter, B.H.'s father, M.H., filed a paternity action to determine whether S.A.M. was the biological child of B.H. During that proceeding, Father entered into a mediation agreement ("Mediation Agreement") with M.H. Father later asked the trial court to declare that Agreement void ab initio, but the trial court denied his motion.

         [¶2] Father now appeals that denial, raising the following restated issues:

(1) Whether the trial court erred when it concluded M.H. had standing as S.A.M.'s next friend to file a petition to establish B.H.'s paternity of S.A.M.;
(2) Whether the trial court abused its discretion in denying Father's request to declare void the Mediation Agreement;
(3) Whether the trial court abused its discretion in denying Father's request for attorney fees.

         We reverse and remand.

         Facts and Procedural History

         [¶3] S.A.M. was born out of wedlock to S.B. ("Mother") on May 8, 2007. When Mother became pregnant, she was in a relationship with both Father and B.H. On the day S.A.M. was born, Father executed a paternity affidavit acknowledging he was S.A.M.'s biological father. Father is also listed as S.A.M.'s father on S.A.M.'s birth certificate. Since S.A.M.'s birth, Father has shared custody of S.A.M. with Mother and has held himself out as S.A.M.'s father. S.A.M. refers to Father as "Dad." (Appellant's App. Vol. II at 106.)

         [¶4] The record indicates Father and B.H. had known each other and were "best friends" since they were roughly nine years old. (Id. at 105). However, the record is sparse with facts regarding whether B.H. had any involvement in S.A.M.'s life. On January 19, 2011, B.H. passed away. At the time of B.H.'s passing, paternity had not been established for B.H. through DNA testing or otherwise. Nevertheless, at some point, it came to be believed by the parties that B.H. was S.A.M.'s biological father.

         [¶5] On July 29, 2013, M.H. filed a petition as S.A.M.'s next friend to establish paternity of S.A.M. In the petition, M.H. alleged his deceased son, B.H., was the biological father of S.A.M. Mother was served with a copy of the petition, but Father was not. On August 28, 2013, M.H. filed a "Request for Custody or in the Alternative Request for Grandparent Visitation" of S.A.M. (Id. at 18.)

         [¶6] Father intervened in the action and upon his request, the court appointed him a public defender. On October 30, 2013, Father filed an Amended Motion to Dismiss, claiming M.H. was not a person who may file a paternity action under Indiana Code section 31-14-4-1. The court denied this motion.

         [¶7] On January 29, 2014, M.H. filed a motion for mediation. On February 6, 2014, the court ordered the parties to agree on a mediator and conduct mediation. The parties conducted mediation on March 19, 2014. Father and M.H. entered into the Mediation Agreement stipulating, among other things: (1) B.H. was the biological father of S.A.M.;[1] (2) Father and Mother had been "actively involved in the care and raising of [S.A.M.]" since S.A.M.'s birth and Father had been the "de facto custodian, " (id. at 20), of S.A.M. since S.A.M.'s birth; (3) Father and Mother shall have joint legal custody of S.A.M.; (3) Father shall have primary physical custody of S.A.M.; (4) neither Mother nor Father would have child support obligations to one another; (5) M.H. is the biological paternal grandfather of S.A.M.; and (6) M.H. and his wife, C.H., shall have "Grandparent visitation" with S.A.M. on certain dates set out in the agreement. (Id. at 21-23.) The parties also agreed to a "mutual restraining order, " (id. at 23), requiring, among other things:

[M.H.] shall not disclose, discuss, or communicate in any manner with [S.A.M.] the biological relationships of the parties and/or the identity of the biological FATHER without the expressed written authorization of [Mother] and [Father]. [M.H.] shall take all steps necessary to ensure that third parties including [C.H.] adhere to and honor this provision.

(Id. at 23-24) (emphasis in original). The trial court entered an order approving the Mediation Agreement that same day.

         [¶8] The arrangement between Father and M.H. fell apart. Father learned M.H. told S.A.M., during a visit with him, that B.H. was his biological father. As a result, Father stopped honoring the Mediation Agreement's provisions regarding visitation. M.H. also claimed Father was alienating S.A.M. from M.H. and C.H.

         [¶9] On August 15, 2014, M.H. filed an "Affidavit for Citation and Motion to Enforce Grandparent Visitation." (Id. at 7.) On August 29, 2014, the court held a hearing on M.H.'s motion and affidavit. Noting Father had been denying M.H. visitation pursuant to the Mediation Agreement, the court set out specific dates over the course of the next year for M.H. to have visitation with S.A.M. Furthermore, the court noted if Father denied M.H. visitation with S.A.M., "any and all law Enforcement Authorities shall be granted authority to assist" in enforcing visitation. (Appellee's App. Vol. II at 21.)

         [¶10] On July 15, 2016, M.H. filed a second Affidavit for Citation and Motion to Enforce Grandparent Visitation, alleging "[Father] and [Mother] had "holy [sic] failed and refused to allow [M.H.] to exercise Grandparent Visitation with [S.A.M.]" per the Mediation Agreement. (Appellant's App. Vol. II at 28.) M.H. requested a hearing and contemporaneously filed a "Request for Custody" of S.A.M. (Id. at 26.) M.H. also requested the court appoint a Guardian Ad Litem ("GAL") for S.A.M. On July 26, 2016, the court appointed a GAL.

         [¶11] On July 29, 2016, attorney Cody Cogswell entered his appearance in this cause on behalf of Father. That same day, Father filed a "Verified Petition to Terminate Grandparent Visitation, " (id. at 32), alleging he was "not effectively represented at the time of the mediation or else he would have been advised to not enter said 'Mediated Agreement.'" (Id.) Additionally, Father alleged M.H. lacked standing under the Grandparent Visitation Statute to bring petition for visitation. On September 30, 2016, the court held a hearing. The court noted it would take Father's petition under advisement, ordered the parties to submit briefing on the issue, and ordered the GAL to complete her report and recommendations.

         [¶12] A series of briefings, hearings, and continuances ensued between October 2016 and February 2017. On February 20, 2017, Father and Mother jointly filed an "Agreed Entry Establishing Paternity" in Father, [2] (id. at 63), and Mother filed an "Affidavit of [S.B.]" attesting Father "ha[d] been a wonderful Father to [S.A.M.][, ] and "it was [her] opinion that [M.H.] and [C.H.] ha[d] detrimentally injured [S.A.M.] mentally and emotionally by stating that [S.A.M.]'s Father was dead and that [Father] was not his Father." (Id. at 66-67.) On March 23, 2017, Father filed a "Petition to Dismiss Grandparent Visitation, to Establish Paternity, Motion for Order on the Pleadings, and Motion for Attorney Fees." (Id. at 85.) Attached to the petition was a copy of the paternity affidavit signed by Mother and Father the day S.A.M. was born at Community Hospital in Anderson, Indiana.

         [¶13] On March 29, 2017, the GAL filed her report. The GAL noted it was "a very difficult case" for her. (Id. at 113.) The GAL made the following recommendations:

1) It is my recommendation that custody be continued with [Father]. If this Court should decide to modify custody to [M.H.] and [C.H.] then visitation should be put in place between [S.A.M.] and [Father]. It will also be important to allow [S.A.M.] to visit with his sibling, [M.X.M.]
2) [M.H.] should be entitled to visitation and make up time should be afforded to him.
3) Mother should be ordered to have visitation as well.
4) That [S.A.M.] undergo a full mental health evaluation, and that [Father] follow all recommendations. [Father] provide [sic] this Court a copy of the mental health evaluation within 60 days of the date of the order.
5) The family engage in family counseling.
6) Through the help of a therapist, [S.A.M.] should be informed about his ...

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