June 27, 2017
from the Chancery Court for Shelby County No. CH-14-1729-2
Jim Kyle, Chancellor
Legal Father appeals the trial court's finding that the
presumption of parentage had been rebutted without the
benefit of an evidentiary hearing and his resulting dismissal
from this termination of parental rights proceeding. Because
the statute relied upon to dismiss Presumptive Legal Father
from this proceeding is inapplicable to the case-at-bar, we
reverse the trial court's decision to dismiss Presumptive
Legal Father. We also vacate the trial court's finding
that the presumption of parentage had been rebutted and
remand for an evidentiary hearing.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Reversed in Part; Vacated in Part; and Remanded
Franklin, Jr., Memphis, Tennessee, for the appellant, Fred E.
W. Weaver, Cordova, Tennessee, for the appellee, Life Choices
of Memphis, Inc.
Steven Stafford, P.J., W.S., delivered the opinion of the
court, in which W. Neal McBrayer and Brandon O. Gibson, JJ.,
STEVEN STAFFORD, JUDGE
November 26, 2014, Life Choices of Memphis, Inc. ("Life
Choices") filed a petition to terminate the parental
rights of Fred E. ("Appellant") and Unknown Father
to Mya H. ("the child"), born in October
2014. Because the child was born to the marriage
of Appellant and Jennifer H. ("Mother"), Appellant
was presumed to be the legal father of the child.
Appellant's name, however, was not listed on the
child's birth certificate. The petition alleged that
Mother had surrendered the child to Life Choices on November
13, 2014, and that Appellant was currently incarcerated. The
petition alleged several grounds for termination against both
Appellant and Unknown Father, including that both men
abandoned the child by willfully failing to visit Mother
during the pregnancy, abandonment by willful failure to pay
support during the pregnancy, failure to seek visitation with
the child after her birth, and failure to manifest a
willingness and ability to assume custody of the child.
November 26, 2014, the same day the termination petition was
filed, Life Choices filed a motion requesting permission to
serve both Appellant and Unknown Father by publication. The
motion was accompanied by an affidavit of due diligence.
Therein, counsel for Life Choices stated that Mother
indicated that Appellant was not the biological father of the
child because their physical relationship ended in 2004.
Because of "her lifestyle" thereafter, Mother
informed Life Choices that she did not know who the Father of
the child was or the names of "any of these men"
that could potentially be the child's biological father.
The affiant further stated that publication on Unknown Father
was being sought because no genetic testing had been
performed on Appellant. On December 8, 2014, the trial court
entered an order allowing publication on Unknown Father. It
appears, however, that Appellant was served "by process
service." As such, on December 12, 2014, Appellant sent
a letter to the trial court indicating that he wanted to
oppose the termination of his parental rights to the child.
The trial court thereafter appointed an attorney to represent
served Unknown Father by publication, Life Choices filed a
motion for default judgment against him on February 9, 2015.
The trial court granted the motion for default judgment on
February 13, 2015. On April 23, 2015, Appellant, by and
through his counsel, filed an answer to the termination
petition, generally denying that he had abandoned the child.
Additionally, Appellant's answer specifically stated that
Appellant was the presumptive legal father of the child.
29, 2015, Life Choices filed a motion to compel Appellant to
participate in genetic testing. The motion further asked that
a guardian ad litem be appointed for the child. In September
2015, two identical orders were entered requiring Appellant
to submit to genetic testing. Appellant refused to consent to
the genetic testing. As a result, on October 29, 2015, Life
Choices filed a motion to rebut the presumption of parentage
and "disestablish [Appellant] as legal father" of
Choices' motion was heard and granted on November 13,
2015, without an evidentiary hearing. By order of December 2,
2015, the trial court concluded that "completion of
genetic testing is an appropriate action to rebut a
presumption of parentage" and Appellant's refusal to
submit to such testing "rebuts his presumption of
parentage by ...