Copeland v. Carter (In re Carter)

31 N.E.3d 1047 (Table)

In the Matter of the PATERNITY OF Ta'Tiyona Maree CARTER.

Bonny Gail Copeland, Appellant–Petitioner

v.Anthony E. Carter, Appellee–Respondent.

No. 71A03–1407–RS–261.

Court of Appeals of Indiana.

April 17, 2015.

Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Randall K. Arndt, South Bend, IN, Attorney for Appellee.

MEMORANDUM DECISION

CRONE, Judge.

Case Summary

[1] Pursuant to the Uniform Interstate Family Support Act (“UIFSA”), the St. Joseph County prosecuting attorney (“the State”) filed a petition to establish paternity of Ta'Tiyona Maree Carter (“Child”) naming Anthony E. Carter (“Father”) as Child's putative father.¹ Although an unofficial DNA test (“the First DNA Test”) indicated a 99 percent probability of Father's paternity, Father denied paternity. The trial court then ordered a DNA test (“the Second DNA Test”), to which Father submitted and that indicated a 99.99 percent probability of Father's paternity. Eventually, Father stipulated to the admission of the Second DNA Test results, Father admitted that he was Child's father, and the trial court issued an order (“Paternity Order”) establishing Father's paternity. Father did not appeal the Paternity Order.

[2] Four years later, Father moved to vacate paternity finding and for genetic testing, asserting that paternity had been based on the wrong DNA test. The trial court could not find the Second DNA Test results in its file and therefore granted Father's request for another genetic test and deferred a ruling on his motion to vacate paternity finding.

[3] The State² appeals the trial court's order (“Order”) granting Father's motion for genetic testing. The State argues that the trial court abused its discretion in granting Father's motion for genetic testing based solely on the absence of the Second DNA Test results from the trial court's file four years after paternity was established. Our review of the record shows that Father and his attorney were very familiar with the Second DNA Test results, Father stipulated to their admission, and they were properly admitted into evidence. We conclude that the trial court abused its discretion in granting Father's motion for genetic testing and therefore reverse the Order and remand for further proceedings.

Facts and Procedural history

[4] Child was born July 17, 2007. In June 2008, the State filed a petition to establish paternity in cooperation with Nebraska pursuant to UIFSA.³ In October 2008, a hearing on the petition was held, at which Father appeared without an attorney. Father and the prosecutor acknowledged that Father had already taken the First DNA Test, which established Father's paternity. The First DNA Test is not in the record before us.⁴ Despite the positive results from the First DNA Test, Father denied paternity. In addition, the documents and fingerprints that were supposed to be with the test results were absent. Therefore, the trial court ordered Father, Bonny Gail Copeland (“Mother”), and Child to submit to the Second DNA Test. The trial court ordered Nebraska to make the arrangements and pay for the genetic testing subject to reimbursement by Father.

[5] On January 20, 2009, Father submitted a specimen for the Second DNA Test. In March 2009, a hearing on the Second DNA Test results was held. Father appeared and was represented by an attorney. Both the First and Second DNA Test results were discussed by the trial court and the parties. Father and his attorney acknowledged that they had seen the Second DNA Test results. Father's attorney acknowledged that both tests established Father's paternity. However, he requested a continuance for time to seek interpretation of the results because the tests were different: “One was 1 in 500,000 and one was 1 in 26,000.” March 24, 2009 Tr. at 6 –7. The trial court granted Father's motion for a continuance.

[6] The State later clarified that the DNA test results were different because each test compared Father's DNA with a different category of men. The First DNA Test compared Father's DNA against the North American male population and provided a combined paternity index of 26,000 to 1. The Second DNA Test compared Father's DNA against the North American black male population and provided a combined paternity index of 500,000 to 1. The combined paternity index expresses the likelihood that the subject is the father as opposed to a random man based upon the same genetic markers. Lyons v. Stovall, 188 F.3d 327, 330 (6th Cir.1999), cert. denied. (2000). Significantly, both DNA tests showed a 99 percent probability that Father is Child's biological father, with the Second DNA Test showing a 99.99 percent probability of paternity.⁵ October 22, 2009 Tr. at 6 ; Appellant's App. at 15.

[7] In October 2009, another hearing on the Second DNA Test was held. Father and his attorney appeared. Father's attorney had copies of the results from both DNA tests. The trial court asked to see them and observed that both tests were “indusionary.” October 15, 2009 Tr. at 4. Even though both DNA tests established Father's paternity, Father requested a blood test because the results of the DNA tests were not exactly the same. Ultimately, the trial court denied Father's request for a blood test and set a paternity hearing for January 14, 2010.

[8] In December 2009, the State filed a motion for summary judgment, arguing that it was entitled to judgment as a matter of law because (1) the Second DNA Test indicated a 99 percent probability that Father is Child's biological father and (2) the Second DNA Test results were admissible as evidence of paternity because Father had failed to object to their admissibility thirty days before the hearing at which they were to be offered as evidence .⁶ The State attached a child support worksheet and a copy of the Second DNA Test results. Appellant's App. at 15. This copy shows that Father submitted a specimen for DNA testing on January 20, 2009. In addition, the copy shows that the report was certified as “conducted in accordance with standard protocol” and as “true and correct” on January 22, 2009. Id.

[9] In January 2010, the hearing (“Paternity Hearing”) establishing Father's paternity was held. Both Father and his attorney appeared. Father stipulated to the admissibility of both the First and Second DNA Test results. Father also “stipulate[ed] to the paternity so long as the genetic testing reports [were] relying on the certification that the samples or specimens were not tampered with in any way.” January 14, 2010 Tr. at 3. The trial court asked where the other test result was. The prosecutor informed the trial court that the State was submitting only the “test results based on your [o]rder here in Indiana. That's the only one I am submitting.” Id. at 3–4. The trial court admitted the DNA test results tendered by the State. Father testified that he reviewed the Second DNA Test results with his attorney and admitted that he engaged in sexual activity with Child's mother about nine months before Child was born and was Child's father. Id. at 5.

[10] The same day, the trial court issued its Paternity Order establishing Father's paternity of Child “based upon the genetic test results which are accepted into evidence in this case without objection by the Parties.” Appellant's App. at 16. The Paternity Order also required Father to pay child support. Father did not pursue a direct appeal.

[11] More than three and a half years passed. In September 2013, the State filed a motion for rule to show cause alleging that Father owed $14,974.50 in child support. In November 2013, a hearing was held with a new magistrate presiding. Father was not represented by his previous attorney but by a public defender. The trial court found Father in contempt. In January 2014, a sentencing hearing was held. The State showed Father's child support arrearage at $14,749.50, which took into account a lump sum payment of $729 Father had recently made. The trial court continued the sentencing hearing to give Father time to find a job and scheduled the sentencing hearing for March 19, 2014.

[12] On February 11, 2014, a new attorney entered his appearance for Father. On March 10, 2014, over four years after the Paternity Order was issued, Father filed a motion to vacate paternity finding and for genetic testing. The motion alleged that the finding of paternity was based on a “faulty” report and that Father “recently heard from mutual friends that Mother claim[ed] the child is not his.” Appellant's App. at 19.

[13] In March 2014, the State filed a motion to dismiss Father's motion to vacate paternity finding and for genetic testing, alleging that Father was attempting to relitigate paternity and was barred from doing so by res judicata and that he also failed to identify the statutory authority upon which the relief he sought could be granted.

[14] In March 2014, a hearing was held. Father's attorney told the trial court that he had reviewed the court's file and found the First DNA Test results. The trial court continued the hearing to have the clerk pull the court's file from the archives so that it could see what was actually in it.

[15] In April 2014, a hearing was held, at which the trial court examined its file. The file contained the First DNA Test results, but not the Second DNA Test results. The State contended that Father's paternity had been established based on the Second DNA Test results. The State explained that the Second DNA Test results were attached to its summary judgment motion, which was in the court's file, and that Father and his previous attorney had reviewed the Second DNA Test results and stipulated to their admissibility. The trial court stated that it had not listened to the Paternity Hearing. Father argued that the trial court had the authority to grant the relief he sought based on the provisions of Indiana Trial Rule 60(B) governing relief from judgment. The...