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FOR PUBLICATION

FILED
May 20 2008, 9:49 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: MICHAEL K. AUSBROOK Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN RE: THE PATERNITY OF R.J.S., ROBERT & LINDA MULLEN, NEXT FRIENDS, Appellants-Petitioners, vs. ANTHONY AND MARY STOCKTON, GUARDIANS, and AMANDA STOCKTON, MOTHER, Appellees-Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 47A05-0712-JV-678

APPEAL FROM THE LAWRENCE CIRCUIT COURT The Honorable Andrea McCord, Judge Cause No. 47C01-0707-JP-350

May 20, 2008

OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Robert and Linda Mullen appeal the dismissal of their petition to establish paternity of R.J.S. We affirm. Issue The dispositive issue is whether the Mullens, as alleged paternal grandparents, have standing to seek an order establishing paternity of R.J.S. Facts R.J.S. was born on April 23, 2005, to Amanda Stockton. Amanda represented to the Mullens that their son, Ryan Mullen, was the child's father. Ryan had died on February 2, 2005. Anthony and Mary Stockton, Amanda's parents, were named R.J.S.'s guardians. On July 25, 2007, the Mullens filed a petition to establish paternity of R.J.S., naming themselves next friends of R.J.S. On the same date, they filed a petition for grandparent visitation with R.J.S. On August 3, 2007, the Stocktons filed a motion to dismiss the petition to establish paternity, claiming that the Mullens lacked standing to file such a petition and that, in any event, the petition was time barred by two different statutes of limitation. The trial court granted the motion to dismiss on August 15, 2007; the dismissal was with prejudice. The Mullens did not receive notice of the trial court's dismissal until August 27, 2007. Before that date, but after the motion to dismiss already was issued, the Mullens had filed a response to the motion to dismiss, claiming the Stocktons were equitably estopped from moving to dismiss. Attached to the response was an affidavit signed by 2

the Mullens, asserting that the Stocktons always had acknowledged Ryan as R.J.S.'s father, that they had told the Mullens that they could have visitation with R.J.S., and that the Mullens had had some visitation with R.J.S. On September 12, 2007, the Mullens filed a combined motion for leave to amend their paternity petition and motion to correct error. The trial court did not rule on these motions. After the motion to correct error was deemed denied, the Mullens initiated this appeal. The Mullens filed a motion with this court, requesting that we suspend

consideration of the appeal and remand to the trial court for a ruling on the motion for leave to amend. Our motions panel denied this motion, and the case is now before us on the merits. Analysis The Stocktons have not filed an appellee's brief. When an appellee fails to file a brief, we need not develop arguments for him or her. Blimpie Int'l, Inc. v. Choi, 822 N.E.2d 1091, 1094 (Ind. Ct. App. 2005). This circumstance does not relieve us of our obligation to decide the law as applied to the facts in the record in order to determine whether reversal is required. Id. Rather, we may reverse the trial court if the appellant makes a prima facie showing of reversible error. Id. "Prima facie" in this context is defined as "at first sight, on first appearance, or on the face of it." Id. If an appellant does not meet this burden, we will affirm. Id. The Stocktons moved to dismiss the Mullens' petition to establish paternity for three reasons: that the Mullens lacked standing to file such a petition, and that it was

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filed outside the time provided by two different statutes of limitation.1 The trial court did not specify upon what basis it was granting the motion to dismiss. We will affirm the granting of a motion to dismiss if it is sustainable on any theory or basis found in the record. Hammons v. Jenkins-Griffith, 764 N.E.2d 303, 305 (Ind. Ct. App. 2002). We will focus our analysis on whether the Mullens had standing to file a paternity petition. A motion to dismiss for lack of standing is properly treated as a motion to dismiss under Indiana Trial Rule 12(B)(6). State ex rel. Steinke v. Coriden, 831 N.E.2d 751, 754 (Ind. Ct. App. 2005), trans. denied. When reviewing a ruling on a Rule 12(B)(6) motion, we take as true all allegations upon the face of the complaint. Id. A court may dismiss only if the plaintiff would not be entitled to relief under any set of facts admissible under the allegations of the complaint. Id. We review the granting of a motion to dismiss for lack of standing de novo. demonstrated." Id. Indiana Code Section 31-14-4-1 states: A paternity action may be filed by the following persons: (1) (2) The mother or expectant mother. A man alleging that: (A) (B) he is the child's biological father; or he is the expectant father of an unborn child. Id. "Reversal is appropriate if an error of law is

1

Indiana Code Section 31-14-5-3 provides generally that a paternity action not filed by the child must be filed within two years of a child's birth, subject to certain exceptions not applicable here. Notwithstanding this statute, Indiana Code Section 31-14-5-5 provides that such a paternity action must be filed either within the lifetime of the alleged father or within five months of his death.

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(3)

The mother and a man alleging that he is her child's biological father, filing jointly. The expectant mother and a man alleging that he is the biological father of her unborn child, filing jointly. A child. The department or a county office of family and children under section 3 of this chapter. The prosecuting attorney under section 2 of this chapter.

(4)

(5) (6)

(7)

Clearly, as alleged grandparents, the Mullens do not fall under any of the statute's express declarations of who may file a petition to establish paternity. Thus, the Mullens seek to have standing to file a paternity action as R.J.S.'s next friend. Indiana Code Section 31-14-5-2(a) states, "A person less than eighteen (18) years of age may file a petition if the person is competent except for the person's age. A person who is

otherwise incompetent may file a petition through the person's guardian, guardian ad litem, or next friend."2 There is no statutory definition of "next friend." There also is scant case law defining that term. This court, however, recently addressed the issue in Jemerson v. Watterson, 877 N.E.2d 487 (Ind. Ct. App. 2007). There, the sister of a child's deceased

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We note that a child may file a paternity petition at any time before the child reaches twenty years of age. Ind. Code

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