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Friday, April 04, 2014

Ind. Decisions - Supreme Court denies transfer in: In re Paternity of I.B. [Revised/Updated]

On March 13th the Supreme Court heard oral argument in the case of Paternity of I.B., K.H. v. L.B. You may view the oral argument here.

Today the Court has posted an order, filed yesterday, denying petition to transfer in the case, stating:

This matter is before the Indiana Supreme Court on a petition to transfer jurisdiction filed by Appellant pursuant to Appellate Rule 57, following the Court of Appeals opinion issued on October 7, 2013. See In re Paternity of I.B., No. 34A02-1305-JP-401 (Ind. Ct. App. 2013) (mem. dec.) The Court has reviewed the decision of the Court of Appeals. Any record on appeal that was submitted has been made available to the Court, along with all briefs filed in the Court of Appeals and all the materials filed in connection with the request to transfer jurisdiction. Also, the Court has heard oral argument on the transfer petition. Each member of the Court has had the opportunity to voice that Justice’s views on the case in conference with the other Justices, and each has voted on the petition.

Being duly advised, the Court now DENIES Appellant’s petition to transfer jurisdiction. This appeal is at an end.

The Court DIRECTS the Clerk to certify the Court of Appeals’ decision as final and to send copies of this order to all counsel of record.

Interestingly, at least to the ILB, this Court of Appeals ruling, which has now been examined in detail by the Supreme Court, including through briefing and oral argument, after which the Supreme Court has elected to deny transfer, STILL MAY NOT be cited as precedent in a future case, because it was designated as Not for Publication by the Court of Appeals panel.

[Updated 4/5/14] Either the ILB completely spaced out yesterday, or what was initially a one-page transfer denial has morphed into a denial with a 2-page dissent. Whatever, add the following to the above quoted passage:

Rucker, David, and Massa, JJ., concur.

Dickson, C.J., dissents to the denial of transfer with separate opinion, in which Rush, J., joins.

I respectfully dissent from the denial of transfer and would prefer for this Court to address whether DNA evidence should be required whenever a child may face the risk of losing the presumption of being the biological child of the birth mother's husband. * * *

Only DNA testing can satisfy the high standard of proof required to rebut the presumption of paternity—evidence that is "direct, clear, and convincing," Fairrow, 559 N.E.2d at 600, and that disproves the presumption "conclusively," Buchanan, 256 Ind. at 124, 267 N.E.2d at 157.

For this reason, I believe that in any proceeding in which the presumption of biological paternity is potentially impinged, DNA testing, if available, should be mandatory as the exclusive way of providing conclusive, direct, clear, and convincing evidence to rebut the presumption. Without supporting DNA genetic evidence, courts should not make any judicial determination that a child's biological father is someone other than the biological mother's husband when the child was born. Nothing less should suffice.

I would grant transfer so that this Court can consider adopting this new evidentiary requirement.

Rush, J., joins.

The fact that this transfer petition failed by a 3-2 vote also colors my original observations about the Court of Appeals opinion still being NFP after the oral argument and transfer denial.

Posted by Marcia Oddi on April 4, 2014 02:07 PM
Posted to Ind. App.Ct. Decisions | Ind. Sup.Ct. Decisions | Indiana Transfer Lists