from the Johnson Circuit Court The Honorable K. Mark Loyd,
Judge Trial Court Cause No. 41C01-1710-JP-192
Attorney for Appellant Donna Jameson Greenwood, Indiana
Michael Litton ("Biological Father") appeals the
trial court's denial of his petition to establish
paternity. We affirm.
Biological Father raises one issue, which we restate as
whether the trial court properly dismissed Biological
Father's petition to establish paternity. We affirm.
Jessica Boyd ("Mother") was in a relationship with
Jason Baugh ("Legal Father"), and they had a child
in 2005. Mother and Legal Father were estranged at some point
during 2008, and she had a brief relationship with Biological
Father. Mother and Legal Father resumed their relationship,
and Mother had another child, K.B., who was born in January
2009. Mother and Legal Father executed a paternity affidavit
listing Legal Father as K.B.'s biological father shortly
after K.B.'s birth. Mother's relationship with Legal
Father ended sometime in 2010.
Mother married Andy Boyd ("Stepfather") in June
2010. In December 2010, Legal Father filed a petition to
establish paternity regarding K.B. and his older child with
Mother. The trial court issued an order establishing
paternity in Legal Father with respect to K.B. and the older
child. The trial court awarded Mother and Legal Father joint
legal custody of the children with Mother having primary
physical custody and Legal Father having parenting time
pursuant to the Indiana Parenting Time Guidelines.
In April 2017, Legal Father filed a petition for modification
of parenting time and a motion for rule to show cause to
address parenting time issues and other disputes between
Legal Father and Mother. Mother contacted Biological Father
in the spring of 2017 and asked him to take a private DNA
test. DNA testing in June 2017 revealed a 99.9% probability
that Biological Father is K.B.'s biological father.
On October 12, 2017, Biological Father and Mother filed a
joint verified petition to establish paternity under Indiana
Code Section 31-14-7-1(3). At that time, Biological Father
was incarcerated at the Marion County Jail. Legal Father was
joined as a necessary party. Legal Father also filed a motion
to intervene in the action, which the trial court granted.
The trial court appointed a guardian ad litem
("GAL"). In June 2018, Biological Father and Mother
filed a petition to amend the caption to file as next friends
on behalf of K.B.
After a hearing, the trial court entered findings of fact and
conclusions of law dismissing Biological Father's and
Mother's petition to establish paternity. The trial court
27. [ ] The GAL submitted a report which was admitted into
evidence. The Court finds the following points articulated by
the GAL as salient to the present issues before the Court:
a. [Older child] and [K.B.] are well adjusted despite the
conflict between the parents;
b. Biological Father was likely to only be a tangential part
of [K.B.'s] life in the long run given his history;
c. Mother was primarily responsible for the heightened
hostility between she and Legal Father;
d. [T]he GAL questioned Mother's timing in seeking out
Biological Father given Legal Father's Petition for
Modification of Parenting Time;
e. [I]t is not in [K.B.'s] best interest to substitute
Biological Father for Legal Father in her life and be
separated from her brother [ ] during parenting time rotation
with Legal Father;
f. Biological Father has a criminal history which includes a
term in the Indiana Department of Corrections for pointing a
firearm, multiple citations for driving while suspended and
seven (7) substance abuse related cases;
g. Mother's choice to not only draw [Biological Father]
into this situation but to tell the child about him, shows a
deeply disturbing lack of perspective and principle;
h. [K.B.] has developed a nine (9) year bond with Legal
Father, spent consistent time with him, had him come to
school functions and established a life with him and with her
i. [K.B.] has shared the same schedule, going between Legal
Father and Mother's house her entire life; and,
j. [W]hen asked about Biological Father, [K.B.] responded
with short, curt answers about her familiarity with him and
denied much knowledge or involvement.
28. Legal Father has acted as [K.B.'s] father since
birth, seeking to establish paternity and providing regular
financial support. [K.B.] accepted Legal Father as her father
and until recently he was the only father she had known.
29. Biological Father is a recovering opiate addict. He has
only periodic, but not meaningful contact, with his other
four (4) children . . . . He only pursued establishment of
paternity for one (1) of those four (4) children. According
to Biological Father, [K.L.] is the only child he's
ordered to pay child support on, and he is more than $5,
000.00 in arrears on that obligation.
30. Despite Biological Father's track record of
lackluster parenting, Mother has chosen at this juncture to
involve him in [K.B.'s] life, going so far as to allowing
regular contact with Biological Father contrary to her
daughter's best interests.
31. There is no dispute that the possibility of adoption of
K.B. by Mother's current husband, should Legal
Father's parental rights be terminated, has been
discussed. It appears that Mother is paying Biological
Father's expenses in this action.
32. Mother's timing, the nature of conversations, and the
true motives behind the filing of this joint petition with
Biological Father are transparent.
33. Her motivations have little, if anything, to do with the
child's best interest. Legal Father's request for
contempt and a modification seeking more time with his
children is telling. The Court finds the true motivation for
the joint filing of this petition by Mother is to eliminate
Legal Father from [K.B.'s] life. Mother had an
opportunity to have DNA testing done at the time the Petition
for Paternity was filed, but instead, she voluntarily entered
into an agreement acknowledging Legal Father as [K.B.'s]
biological and natural parent.
34. Biological Father had unprotected sexual relations with
Mother, learned that Mother was pregnant soon thereafter, and
failed to make any further inquiries as to the biology of the
child Mother carried. Biological Father did not file a
petition to establish paternity within two (2) years after
[K.B.] was born.
35. Counsel for Petitioner proposed in her findings and
conclusions that Mother's motivations are unknown. As
stated herein, the Court disagrees.
36. The Court does agree that Biological Father's motives
are unknown. However, the Court can only conclude that he
will not voluntarily assume financial responsibility for
[K.B.] any more than he has for his other children. He is
clueless and uninterested.
37. Mother suggests she had suspicions from early on that
[K.B.] may not be the biological child of Legal Father and,
without excuse, failed to pursue legal remedies that were
available to her until [K.B.] was eight (8) years of age, had
bonded with Legal Father, and developed familial
relationships with Legal Father's extended family.
38. Mother and Biological Father now ask this Court to enter
an Order that is completely contrary to [K.B.'s] best
interest, removing the only father she had ever known. The
circumstances in this matter have changed dramatically with
the passing of time, given the established and long-standing
relationship which developed between [K.B.] and Legal Father.
39. To disestablish paternity in Legal Father is contrary to
[K.B.'s] best interests and damaging and injurious to
Legal Father given the close relationship he has with his
Appellant's App. Vol. II pp. 10-12.
After analyzing the relevant statutes, the trial court
There is no doubt that Legal Father is the legal father of
[K.B.] Likewise, Mother and Biological Father have not
alleged fraud, duress, or material mistake of fact. Further,
Legal Father has not requested DNA testing. Therefore, it
would appear there is no basis for rescinding the Paternity
Affidavit signed by Mother and Legal Father.
Id. at 13. The trial court concluded that neither
Mother's nor Biological Father's actions were in
K.B.'s best interest. The trial court also concluded that
Mother could not collaterally attack the prior paternity
affidavit and prior paternity proceedings, to which she was a
party. As to Biological Father, however, the trial court
58.The same may not be said as it relates to the Biological
Father and/or the child, however. Neither was a party to the
2011 paternity action. As a result, neither is precluded from
a collateral attack on the Legal Father's paternity.
In Re Paternity of SRI, 602 N.E.2d 1014 (Ind. 1992);
see also Poteet v. Rodgers, 92 N.E.3d 1158
(Ind.Ct.App. 2018); and, Davis v. Trensey, 862
N.E.2d 308 (Ind.Ct.App. 2007).
59.The Joint Petition asserts Indiana Code 31-14-4-1(3) as
its only basis for the paternity filing. Of course, other
provisions of that statute may be available to the Biological
Father, should he choose to pursue the same and have his day
in Court. However, until those issues are appropriately
framed, the Court is unable to address the merits of his
Id. at 15. The trial court then dismissed the
petition to establish paternity. The trial court, however,
noted that the dismissal was without prejudice as to
Biological Father and/or child "to reinitiate the same
on other grounds." Id. The trial court allowed
Biological Father twenty days to amend ...