IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 8, 2006 Session

R.D.M. v. STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S

SERVICES, IN THE MATTER OF: D.J.M.M., JR., D.O.B. 8/28/2000

Direct Appeal from the Juvenile Court for Roane County

No. 13497 Hon. Thomas A. Austin, Judge

No. E2006-00283-COA-R3-JV - FILED DECEMBER 19, 2006

Appellant, who was married to the mother at the birth of the child, claims the Trial

Court erred in failing to engage in a comparative fitness test in awarding the child to a person who

by DNA testing was shown to be the biological father. We affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.

HERSCHEL PICKENS FRANKS,P.J., delivered the opinion of the court, in whichCHARLES D.SUSANO,

JR., J., and SHARON G. LEE, J., joined.

Charles D. Buckholts, Nashville, Tennessee, for appellant.

Jennifer E. Raby, Rockwood, Tennessee, attorney ad litem.

Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney

General, Nashville, Tennessee, for Department of Children’s Services.

OPINION

This action originated when the State Department of Children’s Services filed a

Petition for Temporary Custody of D.J.M.M., Jr., alleging that he was a dependent and neglected

child. Subsequently, the guardian ad litem filed a Complaint to Establish Parentage, naming DCS,

the Mother, C.M., and R.D.M., along with J.A. The Complaint alleged that the mother, C.M., had

acknowledged that J.A. was actually the biological father of the child, and the Complaint asks for

genetic testing. R.D.M. objected to the testing, asserting that he was the legal father of the child due

to his marriage to the mother. Genetic testing was performed on J.A., showing him to be the

biological father of the child, and on October14, 2005, an Order of Parentage was entered by the
-2-

Trial Judge, finding that J.A. was the father of the child, and custody of the child was given to L.A.,

the paternal grandmother. C.M. was given visitation rights, and J.A. was ordered to pay child

support. R.D.M. filed Notice of Appeal. 

The issue on appeal is whether the Trial Court should have employed the best

interests analysis in finding J.A. to be the father, since there were competing presumptions of

paternity?

Appellant asserts that both he and J.A. had rebuttable presumptions of paternity

pursuant to Tenn. Code Ann. §36-2-304(a), since he was married to the child’s mother at the time

the child was born, and since J.A. had the positive DNA test. He argues that pursuant to Cihlar v.

Crawford, 39 S.W.3d 172 (Tenn. Ct. App. 2000), when two men have competing presumptions of

paternity, the court must engage in a best interests analysis to determine who is the legal father.

Appellant argues that the holding in Cihlar was followed by this Court’s decision in In re TKY, 2005

Tenn. App. LEXIS 415 (Tenn. Ct. App. 2005), which he asserts is factually on point in this case, but

admitted in his brief that permission to appeal had been granted in TKY, and that the Supreme

Court’s decision would likely control the outcome of this case. 

The guardian’s brief points out that the Supreme Court did issue a decision in TKY

on August 28, 2006, wherein this Court was reversed. The Supreme Court found that the biological

father (as shown by DNA testing) should be adjudged the legal father, and that it was constitutionally

impermissible to engage in a balancing test which had the result of stripping a biological parent of

his rights. In re TKY, 2006 WL 2467060 (Tenn. Aug. 28, 2006). TKY is factually on point with the

present case, as it involved a married woman who had an affair, and the child who was born during

her marriage was found to be the child of her paramour pursuant to DNA testing. Both men sought

to be declared the legal father of the child, and this Court found that they had competing

presumptions of paternity under Tenn. Code Ann. §36-2-304(a), and engaged in the best interests

analysis set forth in Cihlar. The Supreme Court reversed that judgment, stating:

Once the biological father has established his paternity, his constitutionally-protected

fundamental right to parent his child vests and he is the legal father. That right may

only be stripped pursuant to the statutory parental termination procedures - it may not

be forfeited in a balancing test or to another man who may appear to be a more ideal

father.

Id. at 8.

In this case J.A. has been shown to be the biological father of the child, and his rights

cannot be forfeited to the appellant by using the balancing test. Accordingly, we affirm the Judgment

of the Trial Court and remand, with the cost of the appeal assessed to R.D.M.

______________________________

HERSCHEL PICKENS FRANKS, P.J.