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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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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