A mother contesting a paternity petition concerning her child could not convince the Indiana Court of Appeals on Thursday that her motion for summary judgment was wrongly denied.
When Wendy Sonora Hernandez’s child was nearly 5 years old, the State of Indiana as the child’s next friend filed a petition to establish paternity. It alleged in the petition that the child was born to Sonora Hernandez out of wedlock and that Fredy Sanchez Cortez was the father.
Sonora Hernandez filed a motion to dismiss the petition on the ground that the State had failed to name her husband – Margarito Guzman – as a party, and had not timely filed the petition within two years of the child’s birth. She also argued that Sanchez Cortez had not registered with the putative father registry.
After the trial court granted a motion to join Guzman as a party and mother had filed her motion to dismiss, Sanchez Cortez registered with the putative father registry. Before ruling on her motion to dismiss, the trial court ordered the parties to submit DNA tests, which ultimately found a greater than 99% that Sanchez Cortez was the father.
During a later evidentiary hearing, neither party testified and only Sanchez Cortez presented evidence, including Guzman’s divorce petition that stated while the child was born during his marriage to mother, the child “is not a child of the marriage[.]”
The trial court ultimately denied mother’s motion, which it noted was being treated as a motion for summary judgment. It also found that it could not overlook the facts of the DNA test results and concluded “by clear and convincing evidence” that Sanchez Cortez is the father of the child.
Thus, the trial court granted a petition to remove Guzman from the action, which was appealed in In Re the Paternity of J.G.; Wendy Sonora Hernandez and Margarito Guzman v. Fredy Sanchez Cortes and State of Indiana, 19A-JP-2429.
In affirming the trial court, the Indiana Court of Appeals first found that mother and husband have not met their burden on appeal to demonstrate an abuse of discretion in dismissing husband as a party. Specifically, it noted that neither offered any argument to explain why the court was required to wait until the 30-day period in which they could file a notice of appeal had elapsed before it could rule on putative father’s motion to dismiss husband as a party to the proceeding.
The appellate court further rejected her second argument concerning the opportunity to present materials, noting that Sonora Hernandez had several months’ notice that the court would hear evidence. As such, it found that she has not shown that she was prejudiced by the trial court’s failure to provide her with explicit notice of its intent to treat her motion as one for summary judgment.
Additionally, the appellate court addressed mother’s assertion concerning the timeliness of the paternity petition, finding that because the prosecuting attorney was filing on behalf of child, he was authorized to file the petition at any time before child turned 20 years old.
“As Child was less than five years old at the time the State filed its petition, the petition was timely. The trial court did not err when it denied Mother’s motion for summary judgment on the ground that the State’s petition was untimely,” Judge Edward Najam wrote for the appellate court.
It concluded by finding that Sanchez Cortez was not required to register with the putative father registry before the State could file the paternity petition.
“As such, the court did not err when it denied Mother’s motion for summary judgment on the ground that Putative Father had not registered with the putative father registry. We therefore affirm the trial court’s denial of Mother’s motion for summary judgment,” it wrote.