By: Jennifer Nelson, www.theindianalawyer.com

A trial court erred in ordering a southern Indiana teen to undergo genetic testing to establish paternity of a stillborn child, the Indiana Court of Appeals held Thursday. It found the state, which filed the petition for paternity on behalf of the mother, had no authority to bring the action because there were no custody or support issues to be determined.

In In re the Paternity of D.M.: J.W. v. C.M., 10A01-1306-JP-253, C.M. and her mother asked the Clark County Prosecutor’s Office for assistance in establishing paternity of D.M. C.M. gave birth at home to D.M., who was stillborn. C.M. indicated that she did not know that she was pregnant and did not have any prenatal care. She said J.W. was the father, which he denies.

C.M. assigned her rights to the state pursuant to an assignment for persons not receiving public assistance and Title IV-D of the Social Security Act. J.W. filed a motion to dismiss, arguing because of the circumstances of D.M.’s birth, there were no prenatal, birth or postnatal expenses to be reimbursed, nor was C.M. receiving services or assistance from the state which could be reimbursed.

The trial court, noting there is a “dearth of guidance by our appellate courts” in cases such as these, denied J.W.’s motion. The judge found J.W. should bear the cost of DNA testing if he chooses to do so.

The Court of Appeals agreed there is a “dearth of guidance” on the particular point raised by this case, but disagreed with the decision to deny J.W.’s motion. In general, C.M., even though not receiving Title IV-D assistance, is allowed under state law to request the state’s assistance in pursuing a paternity action, and the state is authorized to do so.

But the purpose of Title IV-D and the Indiana Child Support program is to enforce support obligations owed to custodial parents and their children. Because J.W. would owe no support to D.M. even if his paternity was established, the state has no authority under the Indiana Child Support Program to bring this paternity action.

The prosecutor’s only interest in bringing a paternity action is to represent the child’s interests, but a stillborn child does not have any interests, the court held.

Paternity can still be established for a stillborn child, but just not in an action brought by the state. I.C. 31-14-4-1 provides a list of people or entities that may file a paternity action within two years of the child’s birth.

“Therefore, in an appropriate case, paternity of a stillborn child may be established for the purpose of recouping those costs,” Judge Margret Robb wrote.

“Although we understand and sympathize with C.M. and her family and their wish to legally establish paternity for purposes of closure, respect, and learning the truth, these are not issues that the paternity statutes are intended to remedy,” she continued in a footnote.

Dear CCO Readers

A lot of information has been going around regarding the recently overturned smoke-free air ordinance by the Indiana Supreme Court. There is one simple solution to all of this; pass a new smoke-free ordinance that includes the casino. Those who work in the smoky environment cannot afford another day of having their health put on the line for a paycheck. In an interview with Tropicana’s general manager Jason Gregorec said, “People have a choice to game or not and with this gamers like adult beverages and like to smoke.” This is an interesting statement considering that Americans for Nonsmokers’ Rights says that studies show that 80% of casino patrons do not smoke. He goes on to say that allowing smoking is a “competitive advantage” over the Illinois casino. This is also hard to believe when 73% of Illinois voters support Illinois’s smokefree law that includes casinos, racetracks, and other gaming facilities according to “Commercial tobacco-free Illinois Frequency Questionnaire,” Greenberg Quinlan Rosner Research, June 1, 2008. Ohio Voters also approved smoke-free casinos in their state survey and Nate Forbes co-owner of Horseshoe Casino Cleveland said that one of the top two comments he has received about the casino is how people are so thankful for it being a completely smoke-free environment.

Gregorec also went on to say how he saw firsthand how the casino industry in Illinois was negatively affected after going smoke free in 2008. This is true but the state of the economy was more to blame and not the smoke free law. The Center for Policy Analysis (CFPA) conducted a survey in 2011 of reasons why Illinois patrons stopped going to the casinos as much and 40% said the cost of gasoline and 35% said it was because of the increased cost of living. Following the recession Illinois unemployment rate went from 6% to 12.4% and the cost of gasoline went up over a dollar a gallon. In this survey not a single person indicated that the smoking ban was the reason for gambling less frequently in Illinois.

Evansville has already proven that we accept the smoke free ordinance and want all workers to have the same chances when it comes to their health. There are more than 500 state-regulated gambling facilities across the United States that are required to be 100% smoke-free indoors. Tropicana needs to get with the times and show that they stand up for their workers and patrons by accepting that the future is smoke-free.

Sincerely,

Vanderburgh County Smoke Free Committee

THIS  LETTER  WAS  POSTED  WITHOUT OPINION, EDITING OR BIAS.