In Re: Francis P
532 S.W.3d 356
Tenn. Ct. App.2017Background
- Child born Oct. 2012; Tony P. and mother executed a voluntary acknowledgment of paternity (VAP) at the hospital; Tony listed on birth certificate and exercised parenting time.
- Mother later suspected Tony was not biological father; Tony obtained DNA excluding him and filed suit (Sept. 2015) to terminate an "unknown father's" rights and to adopt.
- Biological father (Jon F.) learned of paternity via DNA in Dec. 2015 and intervened (Feb. 2016) with DNA proving he is the biological father; he sought adjudication of paternity and visitation.
- Trial court found (Aug. 15, 2016) Jon is biological and legal father after rescission of Tony’s VAP for mutual mistake; concluded Tony’s parental rights were terminated and dismissed Tony’s termination/adoption petition because Mother’s rights were not being terminated.
- Court later (Nov. 21, 2016) entered legitimation for Jon; on appeal the Court of Appeals affirmed dismissal, held the VAP was properly rebutted, ruled the trial court erred (but harmlessly) in applying a 2016 statutory subsection retroactively, and denied appellate attorneys’ fees.
Issues
| Issue | Plaintiff's Argument (Tony) | Defendant's Argument (Mother & Jon) | Held |
|---|---|---|---|
| 1. Dismissal of Tony’s termination/adoption petition | Tony argued he had standing as the legal father (VAP signatory) and could seek termination of the unknown biological father to permit his adoption. | Mother & Jon argued petition was defective because adoption/termination statutes require both biological parents be parties (unless stepparent); Tony lacked capacity to adopt so petition must be dismissed. | Court affirmed dismissal: petition properly dismissed because Tony did not seek termination of Mother’s rights and lacked capacity to adopt absent termination/surrender of both parents. |
| 2. Rescission of VAP / Termination of Tony’s parental rights | Tony argued the VAP made him the legal father and could not be nullified as to his parental rights. | Jon and Mother argued Jon timely challenged the VAP within 5 years under Tenn. Code § 24-7-113(e); DNA excluded Tony and rescission was appropriate for mutual mistake, leaving Tony with no parental rights. | Court held the VAP was properly rebutted and rescinded; Tony had no parental rights following rescission. |
| 3. Use of Tenn. Code Ann. § 36-1-102(28)(C) to terminate rights | Tony implicitly challenged application of the new statutory subsection to terminate his rights. | Mother & Jon relied on the new subsection (enacted Mar. 2016) which states a man rebutted under parentage statute "shall no longer be a legal parent" and that no further termination is required. | Court found trial court erred in applying subsection (C) retroactively (statute enacted after suit filed) but deemed the error harmless because the VAP rescission already rendered Tony without parental rights; judgment modified to reflect no rights remained after rescission. |
| 4. Award of appellate attorneys’ fees as frivolous appeal | Tony contended his appeal raised meritorious arguments. | Mother & Jon requested fees under Tenn. Code § 27-1-122, calling the appeal frivolous and citing brief deficiencies. | Court denied fees: appeal not frivolous; minor brief deficiencies did not justify sanctions. |
Key Cases Cited
- In re T.K.Y., 205 S.W.3d 343 (Tenn. 2006) (once paternity is established, biological father becomes legal father and his rights are superior)
- In re C.A.F., 114 S.W.3d 524 (Tenn. Ct. App. 2003) (VAP may be challenged by the biological father and rescinded for fraud or mutual mistake to prevent a non-parent from obtaining parental status)
- In re D.A.H., 142 S.W.3d 267 (Tenn. 2004) (retroactive application of statutes affecting parental rights is constrained by vested-rights and constitutional protections)
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (termination of parental rights requires heightened procedural protections and clear-and-convincing proof)
- In re Bernard T., 319 S.W.3d 586 (Tenn. 2010) (clarifying the clear-and-convincing standard and appellate review in parental termination cases)