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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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