In Re: Francis P

06/26/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
May 22, 2017 Session

IN RE FRANCIS P.

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

No. E2016-02493-COA-R3-PT

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
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.

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.

OPINION

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

2
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.

3
 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

1
Subsection (C) provides: “If the presumption of paternity set out in subdivisions (28)(A)(ii)-(iv) is
rebutted as described in § 36-2-304, the man shall no longer be a legal parent for purposes of this chapter
and no further notice or termination of parental rights shall be required as to this person.” Tenn. Code
Ann. § 36-1-102(28)(C) (Supp. 2016). However, this subsection was not enacted until March 23, 2016,
subsequent to the commencement of this action in 2015. See 2016 Tenn. Pub. Acts, Ch. 636 § 4 (S.B.
2531).

4
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

5
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 a frivolous appeal.

4. Whether the costs on appeal should be taxed to Tony P.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are

6
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has recently explained:

The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).

7
 ***

In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

As our Supreme Court has explained with regard to a motion to dismiss, “When
the trial court’s grant of a Rule 12.02(6) motion to dismiss is appealed, we must take the
factual allegations contained in the complaint as true and review the lower courts’ legal
conclusions de novo without a presumption of correctness.” Doe v. Sundquist, 2 S.W.3d
919, 922 (Tenn. 1999). “It is well-settled that a complaint should not be dismissed for
failure to state a claim unless it appears that the plaintiff can prove no set of facts in
support of his or her claim that would warrant relief.” Trau-Med of Am., Inc. v. Allstate
Ins. Co., 71 S.W.3d 691, 696 (Tenn. 2002). “Such a motion challenges the legal
sufficiency of the complaint, not the strength of the plaintiff’s proof, and, therefore,
matters outside the pleadings should not be considered in deciding whether to grant the
motion.” Id.

IV. Dismissal of Termination and Adoption Petition

Tony P. contends that the trial court erred by dismissing his petition for
termination and adoption. Relying on In re Shelby L.B., 2011 WL 1225567, at *8, the
court dismissed Tony P.’s Petition because he did not seek the termination of Mother’s
parental rights. In Shelby, the mother and a male friend, to whom the mother was not
married, filed a petition seeking to terminate the parental rights of the child’s estranged
father so that the mother’s friend could adopt the child. Id. at *1. The father filed a
motion to dismiss, asserting that the termination and adoption statutes clearly provided
that the parental rights of both parents had to be terminated or surrendered before anyone
except a stepparent could adopt a child. Id. at *2. This Court agreed, stating:

It is axiomatic that an adoption cannot occur as long as the parental
rights of the legal or biological parent(s) still exist and are in effect. Both
8
 statutory and case law make it clear that there can be no legal adoption
without a valid surrender or termination of parental rights. See, e.g., Tenn.
Code Ann. § 36-1-102(1)(A) (defining abandonment “for purposes of
terminating the parental . . . rights of parent(s) . . . of a child in order to
make that child available for adoption”); Tenn. Code Ann. § 36-1-
113(d)(3)(A)(iii) (requiring that a petition describe whether parental rights
have been terminated or surrendered and whether “any other such rights
must be terminated before the child can be made available for adoption”);
Tenn. Code Ann. § 36-1-116(b)(11) (requiring that an adoption petition
contain a statement that there has been full compliance with the law
regarding surrender or termination of rights or a statement of intent to effect
compliance with requirements for surrender or termination “as part of the
adoption proceeding”); Tenn. Code Ann. § 36-1-120(a)(6)(D) (requiring
that the order of adoption include a statement that termination of all
necessary parental rights by court order or surrender of those rights has
occurred).

“There can be no valid adoption without a valid termination of
parental rights.” In re Riggs, 612 S.W.3d 461, 469 (Tenn. Ct. App. 1980).
“[B]efore an adoption can occur the parents must either consent or have
been determined to have abandoned the child.” Johnson v. Hall, 678
S.W.2d 65, 68 (Tenn. Ct. App. 1984); see In re A.B., J.B., C.H., and B.H.,
198 S.W.3d 757, 767 (Tenn. Ct. App. 2006) (explaining that terminating
mother’s rights would allow children’s integration into a stable and
permanent environment through adoption); O’Daniel v. Messier, 905
S.W.2d 182, 186 (Tenn. Ct. App. 1995) (explaining that parents whose
rights are terminated become legal strangers to the child while the adoptive
parents acquire “all the parental rights and responsibilities”); Ross v.
Estrada, 1990 WL 156284, at *9 (Tenn. Ct. App. Oct. 19, 1990) (holding
that a court must terminate a parent’s relationship with a child if
permanency and stability can be achieved through adoption); In re adoption
of Lay, 1988 WL 130345, at *2 (Tenn. Ct. App. Dec. 7, 1988) (stating that
termination of parental rights is a crucial element of an adoption
proceeding).

In re Shelby L. B., 2011 WL 1225567, at *6. This Court further explained: “A
comprehensive reading of the statutes governing termination of parental rights and
adoption leaves no doubt that an adoption is not authorized absent a stepparent situation
as discussed below, unless the rights of both parents are terminated or voluntarily
relinquished.” Id. at *7 (emphasis added).

9
 Noting that the male petitioner in Shelby had asserted the right to file a petition to
terminate the father’s parental rights even if he could not legally adopt the child, basing
his standing on the fact that he was a “prospective adoptive parent” as someone who had
filed a petition for adoption, this Court stated:

We interpret the legislative scheme for termination and adoption, taken as a
whole, as contemplating that a “prospective adoptive parent” is one who
not only harbors the intention or desire to adopt, but who also has the legal
capacity or ability to do so. Thus, when the face of a petition for
termination of parental rights and adoption reveals that the petitioner does
not have such legal capacity to adopt, it is appropriate to dismiss that
petition.

Id. at *10. Based on this clear precedent, we determine that the trial court
appropriately dismissed Tony P.’s petition seeking to terminate the rights of Jon F.
because such petition did not also seek to terminate the rights of Mother. We therefore
affirm the trial court’s dismissal of Tony P.’s termination and adoption petition.

V. Termination of Tony P.’s Parental Rights

Tony P. also argues that the trial court erred by terminating his parental rights
because he had executed a VAP and was thereby the legal father of the Child. As our
Supreme Court has explained with regard to determination of legal father:

The determination of the child’s legal father is a two-step process. First,
we look to the parentage statutes, Tennessee Code Annotated sections 36-2-
301 to -322, to determine the child’s father. Then, we look to the adoption
and termination statutes to determine whether the parentage father is also
the legal father. See id. §§ 36-1-101 to -142.

In re T.K.Y., 205 S.W.3d at 349.

The parentage statutes provide in pertinent part:

(a) A man is rebuttably presumed to be the father of a child if:

(1) The man and the child’s mother are married or have been
married to each other and the child is born during the
marriage or within three hundred (300) days after the
marriage is terminated by death, annulment, declaration of
invalidity, or divorce;
10
 (2) Before the child’s birth, the man and the mother have
attempted to marry each other in compliance with the law,
although the attempted marriage is or could be declared
illegal, void and voidable;

(3) After the child’s birth, the man and the mother have
married or attempted to marry each other in compliance with
the law although such marriage is or could be declared illegal,
void, or voidable; and:

(A) The man has acknowledged his paternity of
the child in a writing filed under the putative
father registry established by the department of
children services, pursuant to § 36-2-318;

(B) The man has consented in writing to be
named the child’s father on the birth certificate;
or

(C) The man is obligated to support the child
under a written voluntary promise or by court
order;

(4) While the child is under the age of majority, the man
receives the child into the man’s home and openly holds the
child out as the man’s natural child; or

(5) Genetic tests have been administered as provided in § 24-
7-112, an exclusion has not occurred, and the test results
show a statistical probability of parentage of ninety-five
percent (95%) or greater.

Tenn. Code Ann. § 36-2-304 (2014). Based on the above provisions, Jon F. is the Child’s
parentage father based on subsection (a)(5) and the results of the DNA test. See In re
T.K.Y., 205 S.W.3d at 349.

In the termination and adoption statutes, a legal parent is defined as:

(i) The biological mother of a child;

11
 (ii) A man who is or has been married to the biological mother of the child
if the child was born during the marriage or within three hundred (300)
days after the marriage was terminated for any reason, or if the child was
born after a decree of separation was entered by a court;

(iii) A man who attempted to marry the biological mother of the child
before the child’s birth by a marriage apparently in compliance with the
law, even if the marriage is declared invalid, if the child was born during
the attempted marriage or within three hundred (300) days after the
termination of the attempted marriage for any reason;

(iv) A man who has been adjudicated to be the legal father of the child by
any court or administrative body of this state or any other state or territory
or foreign country or who has signed, pursuant to §§ 24-7-113, 68-3-
203(g), 68-3-302 or 68-3-305(b), an unrevoked and sworn acknowledgment
of paternity under Tennessee law, or who has signed such a sworn
acknowledgment pursuant to the law of any other state, territory, or foreign
country; or

(v) An adoptive parent of a child or adult[.]

Tenn. Code Ann. § 36-1-102(28)(A) (2014) (emphasis added). Furthermore, Tennessee
Code Annotated § 36-1-102(28)(B) provides:

A man shall not be a legal parent of a child based solely on blood, genetic,
or DNA testing determining that he is the biological parent of the child
without either a court order or voluntary acknowledgement of paternity
pursuant to § 24-7-113. Such test may provide a basis for an order
establishing paternity by a court of competent jurisdiction, pursuant to the
requirements of § 24-7-112[.]

Therefore, based on the provisions of the termination and adoption statutes, Tony P. met
the statutory definition of a legal father at the time of the trial court’s hearing. As our
Supreme Court has explained, “[t]he legal father may or may not be the biological father
of a child.” In re T.K.Y., 205 S.W.3d at 351.

As Tennessee Code Annotated § 24-7-113(a) (2000) provides, a VAP “shall
constitute a legal finding of paternity on the individual named as the father of the child in
the acknowledgment . . . .” See In re T.M.S., No. W2012-02220-COA-R3-JV, 2013 WL
3422975, at *4 (Tenn. Ct. App. July 8, 2013) (“Unless rescinded, a VAP is conclusive of
the parentage of the man who executes it, without a court order.”). As the trial court
12
explained, however, an action can be filed to rebut the VAP’s presumption of paternity
based upon a material mistake of fact. See Tenn. Code Ann. § 24-7-113(e)(1). The
statute provides that a “challenger must institute the proceeding upon notice to the other
signatory and other necessary parties . . . within five (5) years of the execution of the
acknowledgment . . . .” See Tenn. Code Ann. § 24-7-113(e)(2). The trial court properly
treated Jon F.’s petition, which was filed within five years of the VAP’s execution, as an
action challenging the validity of the VAP executed by Tony P.2

The statute further provides that, following genetic testing, “[i]f the acknowledged
father is found to be excluded by the tests, an action seeking support shall be dismissed or
the acknowledgment of paternity shall be rescinded, as appropriate.” See Tenn. Code
Ann. § 24-7-113(e)(3). Furthermore, “[i]f . . . the voluntary acknowledgment is
rescinded by order of the court based upon tests conducted pursuant to subsection (e)
which excluded a person as parent, no further action may be initiated against such
excluded person.” See Tenn. Code Ann. § 24-7-113(g)(2). It likewise follows that such a
person, who no longer maintains an obligation of support, would also no longer possess
parental rights to the child. See, e.g., In re C.A.F., 114 S.W.3d at 529-30; see also Welch
v. Welch, 195 S.W.3d 72, 76 (Tenn. Ct. App. 2005) (explaining that the “duty to support
arises out of the parent-child relationship”). As this Court has explained:

Tenn. Code Ann. § 24-7-113 [the VAP statute] creates a mechanism
for establishing paternity without the intervention of the court. Its main
purpose is to make it possible to decree child support orders without first
having to go through a paternity proceeding. See Tenn. Code Ann. § 24-7-
113(b)(1). It was not meant to allow a non-parent to obtain parental rights
over a child without having to go through an adoption proceeding. We
agree with DCS that its use for such a purpose is in violation of the public
policy of this state, as unequivocally stated in the adoption statutes.

In re C.A.F., 114 S.W.3d at 530.

In In re C.A.F., an incarcerated mother’s male friend, Mr. F., signed a VAP and
agreed to be listed as the father on the infant child’s birth certificate in order to prevent
the Tennessee Department of Children’s Services (“DCS”) from taking custody of the
child at birth. See 114 S.W.3d at 525-26. The child was placed in the custody of DCS
two years later, with DCS filing a petition to terminate the parental rights of the mother
and Mr. F. Id. at 526. The trial court refused to terminate Mr. F’s rights, however,
determining that the VAP created a conclusive presumption of paternity that could only
2
This Court has previously explained that a VAP may be challenged by someone other than the
signatories to the acknowledgment. See In re C.A.F., 114 S.W.3d at 529. Further discussion of In re
C.A.F. follows.
13
be rescinded under very limited circumstances. Id. at 527. The trial court held that DCS
had no standing to challenge the validity of the VAP, despite DNA test results
demonstrating that Mr. F. was not the child’s biological father. Id. The trial court also
determined that even if DCS did have standing to challenge the VAP, DCS had not
proven the statutory grounds for rescission: fraud, duress, or mutual mistake of fact. Id.;
see Tenn. Code Ann. § 24-7-113(e)(1). The trial court further found that grounds for
terminating Mr. F’s parental rights had not been proven. Id.

On appeal to this Court in In re C.A.F., DCS argued that the trial court had
construed Tennessee Code Annotated § 24-7-113 too narrowly and in such a manner as to
violate the public policy of Tennessee. Id. at 528. This Court agreed, explaining:

In the present case, considerations of economy (DNA testing is very
expensive) and judicial non-interference in family matters have made it
possible for a non-parent to legally assume the paternal role under Tenn.
Code Ann. § 24-7-113 without scientific proof of actual paternity. Under
different circumstances, a child’s interest in legitimacy and support creates
a common law presumption of paternity in the husband where a child is
born to a married couple, no matter how soon the birth follows the
marriage. Shell v. Law, 935 S.W.2d 402 (Tenn. Ct. App. 1996). In neither
of these situations, however, is the presumption of paternity irrebuttable.
See State ex rel Cihlar v. Crawford, 39 S.W.3d 172 (Tenn. Ct. App. 2000);
Granderson v. Hicks, App. No. 02A01-9801-JV-00007, 1998 WL 886559
(Tenn. Ct. App. Dec. 17, 1998); Jackson v. Thornton, 133 Tenn. 36, 179
S.W. 384 (1915).

The normal operation of Tenn. Code Ann. § 24-7-113 makes it
possible for an unwed mother to confer a constitutionally protected parental
status upon any male willing to sign a voluntary acknowledgment of
paternity. By limiting paternity challenges to the signatories to a voluntary
acknowledgment, the trial court would make that status virtually
unassailable, even to challenge by the actual biological father. This is an
inappropriate construction of Tenn. Code Ann. § 24-7-113, for it would
defeat the clear intent of the paternity statutes.

In re C.A.F., 114 S.W.3d at 529. Determining that fraud or, at most, mutual mistake of
fact had been involved in the execution of the VAP, this Court reversed the trial court’s
determination regarding the validity of the VAP. Id.; see Tenn. Code Ann. § 24-7-
113(e)(1). Having determined that the VAP had been appropriately challenged, this
Court reversed the trial court’s decision “to allow Mr. F. to retain the parental status he
had obtained as a result of his voluntary acknowledgment of paternity.” Id. at 528.
14
 Similarly, in this action, the trial court determined that the VAP executed by Tony
P. should be rescinded for mutual mistake of fact regarding its execution pursuant to
Tennessee Code Annotated § 24-7-113(e)(1). As a result, Tony P. maintained no parental
rights with regard to the Child. See In re C.A.F., 114 S.W.3d at 528-29.3

Rather than determining that Tony P. had no parental rights to terminate, however,
the trial court relied upon Tennessee Code Annotated § 36-1-102(28)(C) to terminate
Tony P.’s parental rights. The trial court, in essence, applied subsection (C)
retrospectively because the subsection was not added to the statute until March 2016,
which was several months after this action had been filed. See 2016 Tenn. Pub. Acts, Ch.
636 § 4 (S.B. 2531). Pursuant to the Tennessee Constitution, “no retrospective law, or
law impairing the obligations of contracts, shall be made.” See Tenn. Const. art. 1, § 20;
In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004). Therefore, “statutes are presumed to
operate prospectively unless the legislature clearly indicates otherwise.” In re D.A.H.,
142 S.W.3d at 273 (citing Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn.
1998)).

Upon review, we determine that the trial court erred in applying subsection (C)
retrospectively. As the Supreme Court noted in In re D.A.H., retrospective application is
reserved for certain types of statutes:

Statutes deemed remedial or procedural apply retrospectively to
causes of action arising before such acts became law and to suits pending
when the legislation took effect.

A procedural or remedial statute is one that does not affect the
vested rights or liabilities of the parties. A procedural statute is one that
addresses the mode or proceeding by which a legal right is enforced.
Remedial statutes are defined as “legislation providing means or method
whereby causes of action may be effectuated, wrongs redressed and relief
obtained . . . .”

Id. (quoting Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn. 1998)).

3
We note that the presence of Tony P.’s name on the Child’s birth certificate does not confer parental
rights. See In re Amadi A., No. W2014-01281-COA-R3-JV, 2015 WL 1956247, at *4 (Tenn. Ct. App.
Apr. 24, 2015) (“Although a birth certificate provides ‘“‘prima facie evidence of the facts stated,’”’
pursuant to Tenn. Code Ann. § 68-3-202, the names listed on the birth certificate ‘are not a finding of
parentage nor do they create or terminate parental rights.’”) (quoting In re Adoption of A.F.C., No.
M2013-00583-COA-R3-CV, 2014 WL 3540670 (Tenn. Ct. App. July 16, 2014), perm. app. denied
(Tenn. Nov. 20, 2014)).
15
In general, a statute is procedural “if it defines the . . . proceeding by which a legal right
is enforced, as distinguished from the law which gives or defines the right.” Sundquist, 2
S.W.3d at 923 (citing Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn. 1994)).
Similarly, “[a] statute is remedial if it provides the means by which a cause of action may
be effectuated, wrongs addressed, and relief obtained.” Id. (citing Dowlen v. Fitch, 264
S.W.2d 824, 826 (Tenn. 1954)). However, “even a procedural or remedial statute may
not be applied retrospectively if it impairs a vested right or contractual obligation in
violation of [Tennessee Constitution] article I, section 20.” Id. at 923-24. A “vested
right” is defined as a right which “is proper for the state to recognize and protect and of
which [an] individual could not be deprived arbitrarily without injustice.” Id. at 923
(quoting Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978)).

Our Supreme Court has established certain factors to be utilized in determining
whether application of a new law will “impair” an existing vested right:

“[I]n determining whether a retroactive statute impairs or destroys vested
rights, the most important inquiries are (1) whether the public interest is
advanced or retarded, (2) whether the retroactive provision gives effect to
or defeats the bona fide intentions or reasonable expectations of affected
persons . . . (3) whether the statute surprises persons who have long relied
on a contrary state of the law.”

Sundquist, 2 S.W.3d at 924 (quoting Ficarra v. Dep’t of Regulatory Agencies, 849 P.2d 6
(Colo. 1993)). The Court further provided, “We add to these factors . . . an additional
factor discussed above: the extent to which a statute appears to be procedural or
remedial.” Sundquist, 2 S.W.3d at 924.

Our Supreme Court has previously addressed this issue as related to the
constitutionally protected right that parents have to the custody and care of their children.
See In re D.A.H., 142 S.W.3d at 274. The D.A.H. Court determined that an amendment
regarding the statutory grounds for termination of parental rights, if applied
retrospectively, would cause the father to lose his constitutional and vested rights as a
parent.4 Therefore, the Court held that pursuant to article 1, section 20 of the Tennessee
Constitution, the amendment could not be applied retroactively. See In re D.A.H., 142
S.W.3d at 274 (citing Tenn. Const. art. 1, § 20). The facts in the case at bar are on point
with the factual circumstances in In re D.A.H. We therefore conclude that the trial court
erred in applying the amendment to Tennessee Code Annotated § 36-1-102(28)
4
The amendment in question concerned Tennessee Code Annotated § 36-1-113(g)(9)(A), and added
statutory authority to apply the additional grounds for termination enumerated in subsection 36-1-
113(g)(9)(A) to persons who established legal parentage subsequent to the filing of a petition seeking
termination of their parental rights. See In re D.A.H., 142 S.W.3d at 272-73.
16
retrospectively to terminate Tony P.’s parental rights. However, having determined that
Tony P. no longer possessed parental rights following rescission of the VAP, we further
determine this error to be harmless. We therefore modify the judgment to reflect that
Tony P. possessed no parental rights to be terminated following the court’s rescission of
the VAP.

VI. Attorney’s Fees and Costs

Both of the issues raised by Mother and Jon F. concern attorney’s fees and costs
predicated on their assertion that Tony P.’s appeal is frivolous. They argue that Tony P.’s
principal brief is insufficient pursuant to Tennessee Rule of Appellate Procedure 27,
which governs the content and form of appellate briefs. Upon review, we determine that
none of the slight insufficiencies or errors cited by Mother and Jon F. would warrant
dismissal or waiver of the issues raised. We also note that Mother and Jon F. present an
argument regarding Tony P.’s unclean hands in their responsive brief not properly raised
in their statement of issues. See Tenn. R. App. P. 27(a)(4).

Mother and Jon F. seek attorney’s fees and costs based on their characterization of
Tony P.’s appeal as frivolous. Tennessee Code Annotated § 27-1-122 (2000) provides:

When it appears to any reviewing court that the appeal from any court of
record was frivolous or taken solely for delay, the court may, either upon
motion of a party or of its own motion, award just damages against the
appellant, which may include but need not be limited to, costs, interest on
the judgment, and expenses incurred by the appellee as a result of the
appeal.

A frivolous lawsuit is one that is devoid of merit or one that has no reasonable chance of
succeeding. See Young v. Barrow, 130 S.W.3d 59, 67 (Tenn. Ct. App. 2003). We do not
determine Tony P.’s appeal to be frivolous; therefore, an award of fees and costs is
unwarranted.

VII. Conclusion

For the foregoing reasons, we affirm the trial court’s dismissal of Tony P.’s
termination petition. Although we have determined that the trial court erred in
retrospectively applying Tennessee Code Annotated § 36-1-102(28)(C) to terminate Tony
P.’s parental rights, we further 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
further decline to award attorney’s fees or costs. This case is remanded to the trial court,
17
pursuant to applicable law, for enforcement of the judgment and collection of costs
assessed below. Costs on appeal are taxed one-half to the appellant, Tony P., and one-
half to the appellees, Erica N. and Jon F.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

18