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STATE OF TENNESSEE, DEPARTMENT OF HUMAN SERVICES, ASSIGNEE OF: JUDY STANLEY, Plaintiff/Appellee, v. JOHN FRANKLIN HOOPER, Defendant/Appellant.

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Appeal No. 01-A-01-9605-CV-00231 Dickson Circuit No. 8015

FILED
February 28, 1997 Cecil W. Crowson Appellate Court Clerk

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CIRCUIT COURT FOR DICKSON COUNTY AT CHARLOTTE, TENNESSEE

THE HONORABLE ROBERT E. BURCH, JUDGE

CHARLES W. BURSON Attorney General & Reporter

KIMBERLY M. FRAYN JENNIFER HELTON SMALL 404 James Robertson Parkway Suite 1501 Nashville, Tennessee 37243-0499 ATTORNEYS FOR PLAINTIFF/APPELLEE

BRIAN K. FRAZIER Neal & Harwell 2000 First Union Tower Nashville, Tennessee 37219-2498 ATTORNEY FOR DEFENDANT/APPELLANT

REVERSED AND REMANDED

SAMUEL L. LEWIS, JUDGE

OPINION
This appeal involves the application and constitutionality of Tennessee's law creating a conclusive presumption of paternity when a DNA test shows the statistical probability of paternity is ninety-nine percent (99%) or greater. The Dickson County Circuit Court held that Tennessee Code Annotated section 24-7112(b)(2)(B) is constitutional. Since there was no dispute as to any material fact, the court held that the State was entitled to summary judgment establishing the defendant's paternity as a matter of law. In addition, the court ordered the defendant to make weekly payments for the care and maintenance of the child as well as for back child support dating from the time of the child's birth. We find that the conclusive presumption of section 24-7-112(b)(2)(B) violates the Due Process Clause of the Fourteenth Amendment and, therefore, we reverse the decision of the trial court.

On 20 September 1990, the State of Tennessee, as assignee for Judy Stanley, filed a suit to obtain a judgment of paternity and support payments against Defendant John Franklin Hooper for Anthony Bryan Stanley, a minor child born out of wedlock in April of 1990. The evidence shows that Ms. Stanley and Defendant met in 1986 and cohabitated intermittently for the next five years during which time Ms. Stanley was married for three months to another man in 1987. In November of 1988, Ms. Stanley and Defendant had a child who was born premature and survived only six days. As stated, Ms. Stanley had another child in 1990, Anthony Bryan Stanley. Ms. Stanley's deposition testimony was that she was certain that Defendant was the father of this child. She stated that she was living with Defendant and in an exclusive sexual relationship with him at the time of this child's conception. A DNA paternity test established a 99.71% "probability of paternity."

Though Defendant denied ever staying overnight with Ms. Stanley, he did admit having sexual relations with her. The record contains certain letters written to Defendant by Ms. Stanley communicating that he was not the father of this child. However, Ms. Stanley testified that she wrote these under threats to her life from Defendant's mother. Also, as indicated by a responsive letter to Ms. Stanley from the district attorney's office, Ms. Stanley requested that the paternity suit, once underway,
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be dropped. In this letter, the district attorney advised her against this declaring that he would not dismiss the case until he had an opportunity to discuss it in its entirety with Ms. Stanley. As is obvious, the case was never dismissed.

I.

In his first issue, Defendant asserts that Tennessee Code Annotated section 24-7-112(b)(2)(B) is applicable only to alleged fathers who have voluntarily acknowledged paternity. Section 24-7-112, in which the specific statute at issue is found, is entitled as follows: "Tests to determine parentage - Admissibility in evidence - Costs." It provides, in pertinent part, that "[i]n the trial of any civil or criminal proceeding in which the question of parentage arises, the court before whom the matter may be brought . . . shall order that all necessary parties submit to any tests and comparisons which have been developed and adapted for purposes of establishing or disproving parentage [including] any blood, genetic, or DNA test utilized by an accredited laboratory." Tenn. Code Ann.

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