Id.Interest of A.W., 2012 ND 153, ¶¶ 9–10, 820 N.W.2d 128. [¶ 13] The mother relies primarily on Interest of D.Q., 2002 ND 188, 653 N.W.2d 713, to argue the juvenile court's decision should be reviewed de novo.
The defendant bears the burden of demonstrating that the plaintiff has failed to join a required party, seeDecatur Ventures, LLC v. Stapleton Ventures, Inc., 2006 WL 3305122, at *5 (S.D. Ind. 2006), and federal courts must carefully scrutinize motions to dismiss under Rule 12(b)(7) because "[d]ismissal . . . is not the preferred outcome under the Rules," Askew, 568 F.3d at 634. The Court agrees with Mr. Wesolowski that Dr. Sundaram is not a required party under Rule 19. Indiana's comparative fault law permits juries to apportion fault attributable to nonparties, even where the nonparties have not been joined as defendants. E.g., Witte v. Mundy ex rel. Mundy, 820 N.W.2d 128, 133 (Ind. 2005) (citing Ind. Code § 34-6-2-88)); see, e.g., Zigler v. United States, 954 F.2d 430, 433 (7th Cir. 1992) (applying state-law negligence fault scheme to FTCA case). Given that the VA could assert Dr. Sundaram's negligence as an affirmative defense even if he were not joined, the VA has not established how it would be unduly prejudiced by not having Dr. Sundaram joined as a party to this action. The Court therefore declines to dismiss Count I under Rule 12(b)(7).
We further note that the Department of Health and Human Services payment history report, received into evidence as exhibit 10, reveals that Jack's inconsistent and untimely payment history continued from 2011 up until the time of the termination hearing in 2013. Even the consistent payment of child support, by itself, is insufficient to prevent a finding of abandonment, In re Interest of A.W., 820 N.W.2d 128 (N.D. 2012), and, in this case, Jack's child support payments have been both untimely and inconsistent. Even though Jack points out that he did have two visits with his children after the complaint for modification requesting termination of his parental rights was filed, abandonment is not an ambulatory thing the legal effects of which a parent may dissipate at will by token efforts at reclaiming a discarded child.