from the Circuit Court for McMinn County No. 2015-CV-316
Lawrence H. Puckett, Judge
H. Jenne, Cleveland, Tennessee, for the appellant, Tony P.
Ruben Flores and Corrin Fulton, Chattanooga, Tennessee, for
the appellees, Erica N. and Jon F.
R. Frierson, II, J., delivered the opinion of the court, in
which D. Michael Swiney, C.J., and Charles D. Susano, Jr.,
R. FRIERSON, II, JUDGE
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.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed as Modified; Case Remanded
Factual and Procedural Background
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.
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.
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.
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.
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
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
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.
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.
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.
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)."
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.
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
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.
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
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.
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
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.
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
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 ...