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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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