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In re Francis P.

Court of Appeals of Tennessee, Knoxville

June 26, 2017

In re FRANCIS P.

         Appeal from the Circuit Court for McMinn County No. 2015-CV-316 Lawrence H. Puckett, Judge

          Joshua H. Jenne, Cleveland, Tennessee, for the appellant, Tony P.

          Robin Ruben Flores and Corrin Fulton, Chattanooga, Tennessee, for the appellees, Erica N. and Jon F.

          Thomas R. Frierson, II, J., delivered the opinion of the court, in which D. Michael Swiney, C.J., and Charles D. Susano, Jr., J., joined.

          OPINION

          THOMAS R. FRIERSON, II, JUDGE

         The appellant, Tony P., filed a "Complaint and Petition to Terminate Parental Rights and/or for Adoption" in the Circuit Court for McMinn County ("trial court") on September 18, 2015. This petition sought to terminate the parental rights of the "unknown father" of a child for whom Tony P. had signed a voluntary acknowledgment of paternity ("VAP"). Jon F. filed a motion to intervene, asserting that he was the biological father of the child. The trial court allowed Jon F. to intervene in the action pursuant to an agreed order. The child's mother later filed a motion seeking to dismiss Tony P.'s petition for failure to state a claim upon which relief could be granted and lack of subject matter jurisdiction. By oral motion, Jon F. joined with the mother in seeking dismissal. The trial court entered a Memorandum and Order on August 15, 2016, finding that (1) Jon F. was the biological and legal father of the child, (2) Tony P.'s VAP had been rebutted, and (3) any and all parental rights of Tony P. as legal father were "terminated by operation of law under Tenn. Code Ann. § 36-1-102(28)(C)." The trial court entered a subsequent order dismissing the petition filed by Tony P. Tony P. timely appealed. Having determined that the trial court properly found that Jon F. challenged and rebutted the VAP executed by Tony P., we conclude that Tony P. no longer enjoyed any parental rights with regard to the child. Although we determine that the trial court erred by applying Tennessee Code Annotated § 36-1-102(28)(C) retrospectively to this action filed before the statutory subsection's enactment, we determine this error to be harmless inasmuch as Tony P.'s parental rights were a nullity. We therefore modify the judgment to reflect that Tony P. had no parental rights to be terminated following the court's rescission of the VAP. We affirm the trial court's dismissal of Tony P.'s petition seeking termination of Jon F.'s parental rights. We decline to award fees and costs to the mother and Jon F.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed as Modified; Case Remanded

         I. Factual and Procedural Background

         Tony P. and Erica N. ("Mother") maintained an intermittent dating relationship prior to and at the time Mother became pregnant. Shortly before Mother realized she was pregnant and during a period of time when she and Tony P. were separated, she also had a sexual relationship with Jon F. Francis P. ("the Child") was born in October 2012.

         Tony P. was present at the time the Child was born. While at the hospital, he and Mother executed a VAP. In addition, Tony P. was listed as the father on the Child's birth certificate. Tony P. and Mother testified that upon the Child's birth, they believed Tony P. to be the Child's biological father. Tony P. and Mother resided together sporadically from the time of the Child's birth until approximately May 2014, at which time the couple ended their romantic relationship. Following their separation and until August 2015, Tony P. and Mother managed to work together to exchange the Child for co-parenting visitation. However, Mother explained that in December 2014, she began to suspect that the Child might not be Tony P.'s biological child because of the Child's physical appearance. At that time, Mother attempted to contact Jon F. but received no response. Mother indicated that Tony P. also occasionally expressed doubts regarding his parentage of the Child.

         In August 2015, Mother married another man and informed Tony P. that she planned to move to Texas with her new husband and the Child. According to Tony P., he became upset, not only because Mother wished to relocate the Child with her but also because she married one of his friends. In response, Tony P. filed a petition to establish paternity in the Hamilton County Circuit Court on August 17, 2015, seeking to establish his paternity of the Child. He also filed a petition seeking an ex parte restraining order to prevent Mother from leaving Tennessee with the Child, alleging that Mother intended to "abscond" with the Child.

         The Hamilton County Circuit Court entered an ex parte order on September 1, 2015, prohibiting Mother from leaving the jurisdiction with the Child and setting a hearing on the merits for September 22, 2015. Mother relocated to Texas in early September 2015, leaving the Child in Tony P.'s physical custody upon her receipt of a letter from Tony P.'s counsel informing her of the restraining order's entry. This letter also informed Mother that until she agreed to abide by the restraining order, the Child would not be returned to her. Mother testified during the instant proceeding that she did not have the benefit of legal counsel at that time. Mother further explained that she was told by Tony P. and his counsel (or his counsel's staff) that Tony P. had obtained custody of the Child.

         Meanwhile, on September 18, 2015, Tony P. filed a "Complaint and Petition to Terminate Parental Rights and/or for Adoption" in the trial court, naming Mother as the only respondent. Tony P. alleged, inter alia, that he was the legal father of the Child based upon his execution of the VAP. He attached a copy of a DNA test, which excluded him as the biological father, and requested that the court terminate the parental rights of the "unknown father" to enable Tony P. to adopt the Child. Tony P. also attached a copy of his Petition to Establish Paternity filed in Hamilton County. Although Mother related that Tony P. always maintained doubts concerning his parentage of the Child, Tony P. stated that he did not know for certain that he was not the Child's biological father until he received the DNA test results.

         According to Mother, when she subsequently appeared for the September 22, 2015 hearing in Hamilton County Circuit Court regarding the restraining order, the only relief granted was the transfer and consolidation of the pending Hamilton County proceeding with the action filed in the trial court. In the case at bar, Mother testified that Tony P. would not permit her to see the Child while she was in Tennessee and that she was misled by Tony P. and his counsel's staff into believing that she only had the right to supervised visitation.

         On February 3, 2016, Jon F. filed a motion to intervene in the instant action, attaching a DNA test that established his parentage of the Child. Jon F. testified that he did not learn that he was the biological father of the Child until receiving the results of a DNA test in December 2015. The trial court granted Jon F.'s intervention pursuant to an Agreed Order entered on February 22, 2016. Jon F. subsequently filed an answer to Tony P.'s petition, asserting that due to his lack of knowledge that he was the Child's biological father until very recently, any failure to support or visit was not willful. Jon F. thereafter filed a counterclaim seeking to establish his paternity of the Child as well as a motion seeking visitation. Tony P. subsequently filed a motion seeking a restraining order to prevent Mother from visiting with the Child unless Tony P. was permitted to supervise.

         On June 22, 2016, attorney Robin Ruben Flores filed a Notice of Appearance as counsel for Mother. Subsequently, on July 18, 2016, Mother filed a motion to dismiss the petition filed by Tony P. In support, Mother asserted that Tony P. maintained no standing to seek a termination of Jon F.'s parental rights and that, absent standing, the trial court lacked subject matter jurisdiction. By oral motion, Jon F. joined with Mother in seeking dismissal. On July 27, 2016, Mother also requested a telephonic hearing regarding an emergency oral motion to require Tony P. to immediately return physical custody of the Child to Mother. The trial court thereafter ordered that the Child be returned to Mother and remain in her custody pending further order of the court.

         On August 12, 2016, the trial court conducted a hearing regarding the competing paternity petitions filed by Tony P. and Jon F., as well as Mother's motion to dismiss. The respective order, entered August 15, 2016, recites that the court heard testimony regarding the execution of the VAP and the child's welfare. The court determined that at the time the VAP was executed, both Mother and Tony P. held the mistaken belief that Tony P. was the Child's father. The court specifically found that neither party executing the VAP did so with the intent to defraud the other or Jon F.

         The trial court further found that based on the DNA evidence, Jon F. was in fact the Child's biological father, which was sufficient to rebut the VAP. Consequently, the court declared Jon F. to be the Child's biological and legal father. The court concluded that "any and all rights of Mr. P. as legal father are hereby terminated by operation of law under Tenn. Code Ann. § 36-1-102(28)(C)."[1]

         The trial court also found that Tony P. became angry with Mother in 2015 when she married his friend and that Tony P. filed the action in Hamilton County Circuit Court to prevent Mother from relocating with her new husband. The court further found that while Tony P. only learned that he was not the Child's biological father when he received the DNA test results, Jon F. likewise did not know he was the father until he received the DNA test results.

         The trial court determined Mother to be credible in her assertion that Tony P. told her he had been granted legal custody of the Child by the Hamilton County Circuit Court. The court thereby concluded that Mother was forced to make a "Hobson's choice" of either relocating with her new husband and her child with that husband or remaining in Tennessee to be with the Child. The court also found that while Mother was residing out of state, Tony P. visited her and attempted to convince her to resume their relationship. She nonetheless refused. The court noted that Mother had since returned to Tennessee and currently maintained a stable home.

         The trial court found that although Tony P. loved the Child, his "manipulation of Mother through legal maneuvering and false representation to her concerning her legal relationships with the Hamilton County court and her child to the detriment and harm of the child from being kept from her" was motivated by his desire to resume his relationship with Mother. The court further determined that Mother, Jon F., and Tony P. were morally fit and suitable custodians for the Child.

         Concerning jurisdiction, the trial court concluded that it maintained subject matter jurisdiction over this action based on the Child's residence in McMinn County and Jon F.'s petition seeking to establish paternity, which was properly filed in a court of general jurisdiction in the county wherein the Child resided. See Tenn. Code Ann. § 36-2-307 (2014). Ultimately, the court designated Mother as the primary custodian of the Child, allowing Tony P. reasonable visitation "in order to prevent needless harm and upset to the child." Additionally, the court appointed a guardian ad litem to make recommendations regarding the Child's visitation with Tony P. and with Jon F. Regarding the matter, the court found that Jon F.'s interaction with the Child should increase while Tony P.'s interaction with the Child would correspondingly decrease.

         The trial court also noted that it was statutorily required to adjudicate the paternity action before considering the termination or adoption petitions. See In re T.K.Y., 205 S.W.3d 343, 352 (Tenn. 2006). In concluding that Jon F. was the biological and legal father of the Child, the court quoted with approval from In re T.K.Y., wherein the Supreme Court explained that "once paternity has been established, the biological father becomes the legal father" and "the rights of the biological father are superior to the rights of another would-be father." Id. at 352.

         The trial court further concluded that a VAP could be rebutted based upon a material mistake of fact. See Tenn. Code Ann. § 24-7-113(e)(1). Based upon Jon F.'s assertion of paternity, the court found that Jon F. had properly instituted a challenge to the validity of the VAP pursuant to Tennessee Code Annotated § 24-7-113(e)(2). The court also noted that Jon F. maintained standing to challenge the VAP based on Tennessee Code Annotated § 24-7-113(e) and In re C.A.F., 114 S.W.3d 524, 529-30 (Tenn. Ct. App. 2003). The court again stated that Tony P.'s parental rights were terminated as a matter of law based upon rebuttal of the VAP, pursuant to Tennessee Code Annotated § 36-1-102(28)(C). The trial court concluded that because termination of Mother's parental rights was not sought, the court was required to dismiss Tony P.'s petition for termination and adoption. See In re Shelby L.B., No. M2010-00879-COA-R9-PT, 2011 WL 1225567, at *8 (Tenn. Ct. App. Mar. 31, 2011) (explaining that, except in actions to adopt filed by a stepparent, in order for a petition for termination and adoption to proceed, the biological mother and father must both "be made parties to the adoption suit for purposes of terminating their rights.").

         On November 15, 2016, the trial court entered an order dismissing the petition for termination and adoption filed by Tony P., incorporating the August 15, 2016 Memorandum and Order by reference. The court declared the order to be final pursuant to Tennessee Rule of Civil Procedure 54.02. The court also entered a legitimation order on November 21, 2016, determining Jon F. to be the Child's biological and legal father. Tony P. filed a timely notice of appeal regarding the November 15, 2016 order.

         II. Issues Presented Tony P. presents the following issues for our review, which we have restated slightly:

1. Whether the trial court erred in dismissing Tony P.'s petition seeking termination of Jon F.'s parental rights.
2. Whether the trial court erred in terminating Tony P.'s parental rights.

         Mother and Jon F. present the following additional issues for our review, which we have also restated slightly:

3. Whether Mother and Jon F. should be granted an award of attorney's fees for Tony P.'s filing of ...

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