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In re Mya H.

Court of Appeals of Tennessee, Jackson

July 26, 2017

IN RE MYA H.

         Session: June 27, 2017

         Appeal from the Chancery Court for Shelby County No. CH-14-1729-2 Jim Kyle, Chancellor

         Presumptive 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.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed in Part; Vacated in Part; and Remanded

          James Franklin, Jr., Memphis, Tennessee, for the appellant, Fred E.

          Kevin W. Weaver, Cordova, Tennessee, for the appellee, Life Choices of Memphis, Inc.

          J. Steven Stafford, P.J., W.S., delivered the opinion of the court, in which W. Neal McBrayer and Brandon O. Gibson, JJ., joined.

          OPINION

          J. STEVEN STAFFORD, JUDGE

         Background

         On 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.[1] 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.

         On 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 Appellant.

         Having 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.

         On May 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 the child.[2]

         Life 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 ...


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