ILNews

Court rules on genetic testing on deceased

Jennifer Nelson
January 1, 2007
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The Court of Appeals ruled today that the interests and parties involved in a deceased person's estate must be represented when an order for genetic testing is given.

In the case, In the Matter of the Paternity of C.M.R., a child born out of wedlock, http://www.in.gov/judiciary/opinions/pdf/08070701tac.pdf Kari Schenkel brings an interlocutory appeal from the trial court's order for the genetic testing of her and her two children to determine if Joseph Miller, who is deceased, fathered C.M.R., the child of Jennifer Lee Randall. The Court of Appeals vacates the trial court's order and remands with instructions.

In December 1999, Jennifer Lee Randall gave birth to C.M.R., at which time Miller was involved in a relationship with Kari Schenkel. As a result of their relationship, Schenkel and Miller had two children, whose paternity was established in April 2002. In July of that year, Miller died. In April 2005, Randall filed a petition with the trial court to establish that Miller is the father of C.M.R., and in June 2005, Title IV-D prosecuting attorney Richard Brown filed a motion for paternity testing using genetic samples from Miller's autopsy on behalf of C.M.R. The trial court granted the motion that same day. In July 2006, the state filed another motion that stated Miller's remains were insufficient for testing and that Schenkel and her two children need to be tested to determine by way of comparison if Miller was C.M.R.'s father. Schenkel and her children were not named as parties to the paternity action.

The trial court entered an order for genetic testing Sept. 26, 2006, which states results of the test can be admitted as evidence to prove if Miller was the father of C.M.R.

On appeal, Schenkel argues the paternity action is untimely pursuant to Indiana Code section 31-14-5-5, stating a paternity action needs to be filed during the alleged father's lifetime or not later than five months after his death. Although the state argues that Schenkel waived this argument because she raised it for the first time on appeal, the Court of Appeals found it's not necessary to address the assertions because a cursory review of the records reveals necessary parties have not been joined in the paternity action. Randall, Schenkel, and her two children are not named as parties to the action, and Indiana Code 31-14-6-1 states only parties to a paternity action may be ordered to undergo genetic testing.

Also, the court found the order for genetic testing on Miller to be void because the state did not petition to open Miller's estate so that its interests could be represented. Therefore, the court vacated the order and remanded with instructions to determine which of the participants in the paternity action should be joined as parties and to allow those parties an opportunity to appear, answer, and defend their interests as appropriate.
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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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