Litton v. Baugh

• Decision Date: 30 April 2019
• Docket Number: Court of Appeals Case No. 18A-JP-2066
• Parties: Michael LITTON, Appellant-Petitioner, v. Jason BAUGH, Appellee-Intervenor.
• Court: Indiana Appellate Court

122 N.E.3d 1034

Michael LITTON, Appellant-Petitioner,

v.Jason BAUGH, Appellee-Intervenor.

Court of Appeals Case No. 18A-JP-2066

Court of Appeals of Indiana.

Filed April 30, 2019

Attorney for Appellant: Donna Jameson, Greenwood, Indiana

Tavitas, Judge.

Case Summary

[1] Michael Litton ("Biological Father") appeals the trial court's denial of his petition to establish paternity. We affirm.

Issue

[2] Biological Father raises one issue, which we restate as whether the trial court properly dismissed Biological Father's petition to establish paternity. We affirm.

Facts

[3] 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.

[4] 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.

[5] 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.

[6] 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.

[7] 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 found:

.....

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 brother;

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 daughter.

Appellant's App. Vol. II pp. 10-12.

[8] After analyzing the relevant statutes, the trial court concluded:

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 concluded:

.....

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 alsoPoteet 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 request.

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 his paternity petition. Biological Father now appeals.

Analysis

[9] Biological Father argues that the trial court erred by dismissing his petition to establish paternity. Before addressing the merits of Biological Father's claim, we note that Legal Father did not file an appellee's brief. "When an appellee fails to submit a brief, we apply a...