State of Indiana Hancock County Prosecutor, Appellant-Petitioner v. Robert Osewski, et al., Appellees-Respondents (2026)

Case Summary

[1] The Hancock County Prosecutor's Office (the State) initiated this paternity action against Robert Osewski (Alleged Father), seeking to establish that he is the father of D.O. (Child). The State also named Ashley Obrosky (Mother) as a party but did not expressly name Child as a party. On Alleged Father's motion, the trial court dismissed the action with prejudice on statute-of-limitations grounds. Thereafter, the trial court permitted the State to amend the pleadings to make clear that the State filed the action, as next friend, on behalf of Child. Despite this amendment, the trial court upheld the prior dismissal and stated that “prejudice shall apply to all captions for paternity actions within [Child, Mother, and Alleged Father].” Appendix Vol. 2 at 43. The State appeals, arguing that the trial court abused its discretion in granting Alleged Father's Ind. Trial Rule 12(B)(6) motion to dismiss.

[2] We reverse and remand.

Facts & Procedural History

[3] Child was born out of wedlock in January 2014 to Mother, and Alleged Father is believed by Mother to be Child's father. Mother is a resident of DuPage County, Illinois, and Father is a resident of Hancock County, Indiana. In 2025, Mother/State of Illinois filed an application for Title IV-D child support services with the Indiana Department of Child Services. At that time, the paternity of Child had not been determined by any court.

[4] As a result of the Title IV-D application, on July 29, 2025, the State filed a petition to establish paternity of Child. Though captioned “IN RE PATERNITY OF: [Child]” with Mother and Alleged Father listed as parties, the petition does not expressly designate on whose behalf the State was filing. Contemporaneously, the State filed a motion to intervene in which it “request[ed] permission to intervene herein insofar as support matters are concerned by virtue of an Application for Child Support Services executed pursuant to Title IV-D of the Social Security Act.” Id. at 9. The State also filed a motion for paternity testing.

[5] The trial court granted the State's request to intervene and ordered Alleged Father, among other things, to submit to paternity testing on August 27, 2025. Alleged Father filed a motion to dismiss with prejudice on August 18, in which he designated Mother as the petitioner and argued that she had filed the action outside the two-year statute of limitations prescribed by Ind. Code § 31-14-5-3(b).¹ On August 19, the trial court gave the State ten days to respond to the motion to dismiss. Thereafter, Alleged Father also sought a stay of DNA testing, which the trial court granted.

[6] On September 2, 2025, without having received a response from the State, the trial court granted Alleged Father's motion to dismiss the paternity action with prejudice pursuant to I.C. § 31-14-5-3. The court noted that Child was eleven years old and thus the petition was outside the two-year statute of limitations. That same day, the State filed an objection to the motion to dismiss and a request for the trial court to reconsider its dismissal order.² The State argued that Mother had not filed the paternity action but rather the State had done so on behalf of Child and thus the action was not time-barred.

[7] The next day, the trial court set the matter for a hearing on November 5, which was later continued to December 3, 2025. In the meantime, on September 9, the State filed a motion to amend all pleadings to be captioned with the petitioner being “[Child], B/N/F Hancock County Prosecutor's Office.” Appendix Vol. 2 at 30. The State noted that the purpose of the amendment was to “correct a clerical error” and “properly identify the actual party filing the action.” Id. The trial court granted the motion to amend.

[8] At the brief hearing on December 3, the State argued that it had filed the paternity action as next friend of Child and that it was statutorily authorized to file on Child's behalf because Mother had applied for Title IV-D services in Indiana. The State noted that pursuant to statute Child has until his twentieth birthday to file a paternity action. See I.C. § 31-14-5-2(b). Alleged Father argued, however, that the State originally filed on Mother's behalf, not Child's, and thus “missed their bite at the apple” by designating the wrong petitioner. Transcript at 8. Alleged Father contended that it was “too late” for the State to amend the pleadings to correct the mistake to extend the statute of limitations beyond the two years applicable to Mother. Id.

[9] At the conclusion of the hearing, the trial court denied the State's motion to correct error. In its written ruling issued that same day, the trial court indicated that the September 2025 dismissal with prejudice remained in full force and effect and was applicable to “all captions for paternity actions within [Child, Mother, and Alleged Father].” Appendix Vol. 2 at 43.

[10] The State now appeals. Additional information will be provided below as needed.

Standard of Review

[11] A motion to dismiss for failure to state a claim tests the legal sufficiency of the claim, not the facts supporting it. Thus, our review of a trial court's grant or denial of a motion based on Trial Rule 12(B)(6) is de novo. When reviewing a motion to dismiss, we view the pleadings in the light most favorable to the nonmoving party, with every reasonable inference construed in the nonmovant's favor. Inasmuch as motions to dismiss are not favored by the law, they are properly granted only when the allegations present no possible set of facts upon which the complainant can recover. Put another way, a dismissal under Rule 12(B)(6) will not be affirmed unless it is apparent that the facts alleged in the challenged pleading are incapable of supporting relief under any set of circumstances.

City of E. Chicago, Ind. v. E. Chicago Second Century, Inc., 908 N.E.2d 611, 617 (Ind. 2009) (internal citations and quotations omitted).

Discussion & Decision

[12] The State argues that the trial court abused its discretion and misinterpreted the law when it dismissed the paternity action with prejudice and foreclosed Child from ever establishing his paternity. We agree.

[13] “When the complaint shows on its face that the statute of limitations has run, the defendant may file a Trial Rule 12(B)(6) motion.” Chenore v. Plantz, 56 N.E.3d 123, 126 (Ind. Ct. App. 2016). If such a motion is granted, the claimant is entitled to amend the pleading once as a matter of right pursuant to Ind. Trial Rule 15(A) “within ten [10] days after service of notice of the court's order sustaining the motion[.]” T.R. 12(B); see also DeCola v. Steinhilber, 207 N.E.3d 440, 445 (Ind. Ct. App. 2023) (“[A] dismissal under Rule 12(B)(6) must be one without prejudice, given that the Rule provides for a ten-day period during which a complainant may amend her complaint to rectify the deficiencies that led to its dismissal.”).

[14] Here, the original petition filed by the State did not expressly list Child as a party, but the petition did indicate that Mother/State of Illinois “executed an application for Title IV-D Child Support Services with the Indiana Division of Family and Children.” Appendix Vol. 2 at 11. And the contemporaneously filed motion to intervene observed that the State sought to intervene “insofar as support matters are concerned by virtue of an Application for Child Support Services executed pursuant to Title IV-D of the Social Security Act.” Id. at 9.

[15] The State argues that although its original caption did not make clear on whose behalf it was petitioning – Mother's or Child's – the contents of the petition plainly stated the Title IV-D purpose of the State's involvement. The State asserts that Alleged Father was put on notice that the State was acting as Child's next friend “because [the information in the petition] showed that the paternity action was initiated in response to [Mother's] application for Title IV-D services, which pursuant to Indiana Code Section 31-14-4-3(a), authorized the State to act as [Child's] next friend.” Appellant's Brief at 16.

[16] We need not determine whether the original pleadings, when viewed in the light most favorable to the State, showed that the statute of limitations had or had not run. Regardless of the answer to that question, the amended petition dispelled any ambiguity regarding on whose behalf the State was filing the paternity action. Pursuant to T.R. 12(B), the State timely amended the pleadings within ten days of the dismissal order to clarify that the State was filing the petition as Child's next friend.

[17] I.C. § 31-14-4-3 provides:

(a) The department or a prosecuting attorney operating under an agreement or contract described in IC 31-25-4-13.1, may file a paternity action as next friend of the child if:

(1) the mother ․

has executed an assignment of support rights or applied for IV-D services under Title IV-D of the federal Social Security Act (42 U.S.C. 651 through 669) and IC 31-25-4-19.

(b) A filing under subsection (a) by the department or prosecuting attorney must be made within the period that would apply if the child were filing on the child's own behalf under IC 31-14-5-2.

Pursuant to I.C. § 31-14-5-2(b), Child (and thus the State proceeding under I.C. § 31-14-4-3) “may file a paternity petition at any time before [he] reaches twenty (20) years of age.” I.C. § 31-14-5-2(b); see also Matter of Paternity of M.A.M., 137 N.E.3d 1019, 1021-24 (Ind. Ct. App. 2019) (discussing the authority of prosecuting attorneys to file paternity actions and their statutory exemption from the two-year limitations period applicable to parents filing such actions), trans. denied.

[18] Alleged Father does not dispute that if the State filed as next friend of Child, dismissal on statute-of-limitations grounds would be improper. He argues only that the State failed to originally name Child as a party and then waited too long to correct the error. That is, he notes that the trial court gave the State ten days to respond to the motion to dismiss but that the State failed to timely respond. Alleged Father cites no authority on appeal for his implicit premise that a party's failure to timely respond to a motion to dismiss forecloses amendment to the pleadings after dismissal is granted.

[19] As set forth above, T.R. 12(B) plainly allows an amendment as a matter of right when a motion to dismiss is sustained for failure to state a claim under subdivision (B)(6). Such amendment must be made “within ten [10] days after service of notice of the court's order sustaining the motion and thereafter with permission of the court pursuant to such rule.” T.R. 12(B). The State amended the petition on September 9, 2025, within ten days of the September 2 dismissal order, and thus timely cured any statute of limitations problem apparent on the face of the petition. Cf. DeCola, 207 N.E.3d at 447 (observing that even if a trial court erroneously orders a T.R. 12(B)(6) dismissal with prejudice, the plaintiff has two options: “(1) determine that the claims only currently lack merit because of the way in which they are pleaded – a matter of form – and correct the pleadings; or (2) reject the trial court's ruling and its implication and challenge the ruling on appeal.”).

[20] In sum, the trial court erred in the first place by dismissing the action with prejudice. Then, after the State amended the pleadings as a matter of right and made clear that it was filing on Child's behalf, the trial court abused its discretion by leaving the dismissal order in place. The State is entitled to proceed with the paternity action pursuant to the amended petition.

[21] Reversed and remanded for further proceedings.

FOOTNOTES

1.   I.C. § 31-14-5-3(b) provides that, unless certain exceptions apply, “[t]he mother, a man alleging to be the child's father, or the department or its agent must file a paternity action not later than two (2) years after the child is born[.]”

2.   Though styled as a motion to reconsider, it was in fact a motion to correct error because it was filed after the trial court entered a final order dismissing the case. See Waas v. Illinois Farmers Ins. Co., 722 N.E.2d 861, 863 (Ind. Ct. App. 2000) (“[A]lthough substantially the same as a motion to reconsider, a motion requesting the court to revisit its final judgment must be considered a motion to correct error.”) (internal quotations omitted).

Altice, Judge.

Vaidik, J. and Foley, J., concur.