Split COA: Prosecutor can file for paternity at putative father’s request

A divided panel of the Indiana Court of Appeals has reversed the dismissal of an alleged father’s time-barred petition seeking to establish paternity of a child. The majority held a prosecutor is authorized to pursue such a request outside the general two-year statute of limitations. A dissenting judge, however, warned the holding “makes a mockery” of the two-year statute of limitations in paternity cases.

Chief Judge Nancy Vaidik wrote for the majority joined by Judge Cale Bradford that the Miami Circuit Court erred in granting a mother’s motion to strike in In the Matter of the Paternity of M.A.M. State of Indiana by the IV-D Prosecutor of Miami County v. T.M., 19A-JP-771. Genetic testing showed a 99.999999996% probability that alleged father was M.A.M.’s father.

The litigation began in November 2018, when B.S., the alleged father of then-4-year-old M.A.M., applied for child support services through the Miami County Prosecutor’s Office. According to the record, the child never lived with alleged father.

The trial court granted mother’s motion to strike an amended petition filed by the prosecutor’s office, which acknowledged alleged father’s original petition was filed after the two-year statute of limitations. The amended petition further acknowledged the original paternity action “was erroneously filed by the State of Indiana as though the alleged father was the petitioner” and asserted that the petition “should have been filed by the State of Indiana on behalf of the child with the Miami County Prosecutor as the next friend of the minor child.”

Sorting through a tangle of sometimes conflicting statutes, the majority wrote, “The sole issue in this appeal is whether the Prosecutor was statutorily authorized to file the Amended Petition.” Men asserting paternity must bring an action within two years of a child’s birth under Indiana Code § 31-14-5-3, but the majority looked to I.C. 31-25-4-13.1(b) to find local prosecutors authorized “‘to undertake activities required to be performed under Title IV-D’” of the Social Security Act “including ‘establishment of paternity’.”

The trial court, however, agreed with mother’s argument that because neither she nor the Department of Child Services in this case executed an assignment of child support rights, the alleged father was required to file for paternity within two years and that the prosecutor lacked authority to file on alleged father’s behalf.

“…(W)e disagree,” Vaidik wrote for the majority. “… Title IV-D (42 U.S.C. §§ 651-669b) and Indiana’s corresponding IV-D statutes (Indiana Code chapter 31-25-4) specifically contemplate the State filing paternity actions in circumstances beyond those set forth in Section 31-14-4-3.” The majority pointed to 42 U.S.C. § 654(4)(A), which provides that a state will provide services including the establishment of paternity with respect to “any … child, if an individual applies for such services with respect to the child.”

“To be sure, there is tension between the statutes just discussed, which grant prosecutors very broad authority to file paternity actions, and Section 31-14-4-3, which seems to restrict that authority. But we think the legislature has established a tiebreaker,” the majority wrote. “Specifically, in the first section of Indiana’s paternity code, Indiana Code section 31-14-1-1, the General Assembly has explicitly stated that it ‘favors the public policy of establishing paternity under this article of a child born out of wedlock.’ To the extent that the statutes above are at odds, this express policy indicates to us that the ambiguity should be resolved in favor of allowing a paternity action to proceed. … And if the legislature believes that the paternity action in this case is not one that should be allowed to proceed, we trust that it will amend the statutes accordingly.”

Dissenting Judge Patricia Riley, however, would affirm the trial court. She seized on another provision of 42 U.S.C. § 654(4)(A) that she said the majority ignored, “which states that the State can provide ‘services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations, as appropriate, under the plan[.] … Unlike the majority, I consider this seemingly endless objective of establishing paternity to be procedurally limited by our Code.

“… Here, Alleged Father, the Child’s biological father, applied to the Title IV-D office and requested it to represent him in the establishment of the Child’s paternity by assigning his support rights. However, after the amendment of the paternity statute in 2015, the State can no longer commence a paternity suit at the request of a biological father, unless the biological father is the ‘person with whom the child resides.’ See I.C. § 31-14-4-3. Because the Child did not reside with Alleged Father, the State cannot initiate the paternity action,” Riley wrote.

“Seemingly arguing for unbridled rights to bring paternity actions, the State contends that ‘prosecutors are required to provide Title IV-D services, including establishment of paternity, to people who are not receiving public assistance,’” the dissent continued. “… Thus, based on the State’s argument, any putative father could avoid his two-year statute of limitations by simply requesting the State to file a petition of paternity as the child’s next friend. This effectively makes a mockery of the statute of limitations.”