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Appellate judges disagree about dismissal of paternity petition

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The Indiana Court of Appeals affirmed a trial court in dismissing a paternity petition, but one judge dissented, saying the ruling now leaves the child with no legally recognized father.

In In the Matter of the Paternity of S.C.; K.C. v. C.C. and B.H., No. 30A01-1107-JP-322, CC. and B.H. had disputed who was father of S.C., a child born to mother K.C. in 2008.

K.C. and C.C. began dating in high school, and both knew B.H. At some point, K.C. had a sexual relationship with B.H., and in 2007, she was at B.H.’s house when she learned she was pregnant.

K.C. told C.C. about the pregnancy and said she believed he was the father, although she wondered if the child might be B.H.’s. She ended her relationship with B.H., and C.C. was with her when she gave birth.

On July 29, 2008, B.H. filed a verified petition for immediate paternity order in the Fayette Circuit Court, alleging he was S.C.’s father, requesting an order that the mother and S.C. submit to a DNA test, and asking that it be performed before K.C. and S.C.’s discharge from the hospital.

K.C. and S.C. submitted to blood tests, and on Aug. 4, 2008, the DNA Diagnostic Center in Fairfield, Ohio issued a DNA test report indicating a 99.9997% probability that B.H. was S.C.’s biological father.

K.C. and B.H. received the DNA test results in October. About a week later, C.C., pro se, and on behalf of S.C., filed a verified petition to establish paternity in the Hancock Circuit Court. He alleged that he was S.C.’s father based upon a July 30 paternity affidavit he and K.C. created. On Oct. 22, the Hancock Circuit Court issued an order establishing C.C.’s paternity; the Fayette Circuit Court held a hearing on B.H.’s paternity action, ultimately dismissing it, holding that it was not a petition for paternity, but rather a petition to require DNA testing.  

On June 25, 2010, B.H., by counsel, filed his verified petition for relief of judgment for fraud upon the court (the petition for relief) in the Hancock Circuit Court, alleging that C.C.’s paternity order was obtained through fraud. The Hancock Circuit Court granted B.H.’s petition, holding – among other findings – the mother had suspected the child might be B.H.’s and that her lawyer had not notified B.H. of the petition for paternity that C.C. had filed in Hancock County.

The COA affirmed the court’s decision to set aside C.C.’s paternity petition, writing, “We reiterate that this decision does not leave S.C. without a father and Mother without options. Even assuming that the July 31, 2008 DNA test was faulty or legally inadmissible, the parties are free to have another test performed and do what they will depending upon those results, including the pursuit of support proceedings against B.H. or the initiation of adoption proceedings by C.C.”

But Judge Patricia Riley dissented, writing, “All that has occurred here is the judicially imposed removal of that obligation since B.H. has not been legally recognized as S.C.’s father. This leads to an unjust result whereby B.H. is free to abandon his claim to S.C.’s paternity leaving S.C. with no one obliged to support her.”

 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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