# FILED

February

28, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk STATE OF TENNESSEE, ) DEPARTMEN

T OF HUMAN SERVI

CES, ) ASSIGNEE OF: JUDY STANL EY, )

) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9605-CV-00231 v. ) ) Dickson Ci

rcuit JOHN FRAN KLI

N HOOPER, ) No. 8015 ) Defend ant/Appe

llant. )

COURT OF APPEALS OF TENNESSEE
MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CI RCUIT COURT FOR DI CKSON COUNTY AT CHARLOTTE, TENNESSEE

THE HONORABLE ROB ERT E. BURCH, JUDGE

CHARLES W. BURSON Attorney Gene

ral & Reporter

KIMBERL

Y M. FRAYN JE NNIF ER HELT ON S MALL 404 James Robertson Parkway Suite 1501 Nashville, Tennessee 37243-0499

ATTORNEYS FOR PLAI NTIFF/APPEL

LEE

BRIAN K. FRAZ

IER Neal & H arwell 2000 First Union Tower Nashville, Tennessee 37219-2498

ATTORNEY FOR DEFENDANT/APPEL LANT

REVERSED AND REMANDED

SAMUEL L . LEWIS, JUDGE-2- 

## OPINION

This appeal involves the application and constitutional ity of Tenn essee ’s law creating a conclusive presumption of p aterni ty when a DNA test shows the statistical probabilit

y of pa ternity is ninety -nine per

cent (99% ) or grea

ter. T he Dickson County Circuit C ourt held th at Tenne ss ee Code A nnotated se ction 24-7- 112(b)(2)(B) is constitutional. Since there was no dispute as to any mater ial fact, t he courtheld that th e State w as entitle d to sum mary judgm ent esta blishing the defen dant ’s paternity as a m atter of law. In addition, the court orde

red the de fendant to make weekly paym ents for th e care a

nd mai ntenance o f the child as w ell as for back child support dating from the time of the child’s birth. We find that the conclusive

presum ption o f section 24-7-112(b)(2)( B) violate s the Due P rocess Cl ause of the Fourte enth Am

endme nt and, the

refore, we reverse the decision of the trial court.

On 20 Septem

ber 1990, t

he State of Tenne ss ee , as assi gnee for J udy Stanley, filed

a suit to obtain a j udgmen t of pater nity an d support pay

ments against Defenda ntJohn Franklin Hooper for Antho ny Bry an Stanle y, a minor child born o ut of wedlock i n April of

1990. The

evidence shows th at Ms. Stanley

and Defendant met in 1986 and co habitated interm ittently for the next five years during which time Ms. Stanley was m

arried for three months to another man i n 1987. In N ovembe r of 1988, Ms. Stanley and Defendant had a child who w as born premature and survived only six days. As stated, Ms. Stanley had another child in 1990, Anthony Bry an Stan ley. Ms. Stanley’ s deposition testimony was that she was c ertain tha

t Defend ant
was the father of this child. She stated that she was living with Defendant and in an exclusive sexual re lationship w ith him a t the tim e of this c hild’s c onception. A DNA paternity tes t establi shed a 99.7 1% “probabili ty of paternity.”
ThoughDefenda

nt denied e ver staying overnight w ith Ms. Stan ley, he did admit having sexua

l relatio ns with her . The

record c ontains certain letters w ritten to Defenda ntby Ms. Stanley

comm unicating th at he wa s not the fathe r of this c hild. However, Ms. Stan ley te stified tha t she wrot

e these unde

r threat s to her lif

e from Defend ant’s mothe

r. Also , as indic ated by

a responsi ve letter

to Ms. St anley

from the district attorney ’s o ffice, Ms. Stanley r equ est ed t hat the pat ern ity s uit , on ce u nde rway,-3-

be dropped. In this letter, the district attorney advisedher against this declaring that he would not dis miss t

he case until he had a

n opportunity

to discuss it

in its entirety with Ms. Stanley . As is ob vious, the case wa s never dis misse d.

I.

In his first

issue, D efendant

asserts t hat Tenne ssee Code Annotated section 24-7-112(b) (2)(B) i s applicabl e only t o alleged f

athers w ho have volunt arily acknowledged pate rnity. Section 24 -7-112, i n which the specificstatute at

issue is found, is e nti tle d as fol low s: “Te sts to d eter mine p aren tag e - Ad miss ibi lit y i n evidence - Costs.” It pro vides, in p ertinent p art, tha t “[i ]n the tr

ial of any civil or criminal proceedi ng in which the question of parentage arises, the court before whom the matter may be brought

. . . s hall order

that all ne cessary

parties su bmit to any te sts and comparisons which have been developed an d adapted for purposes of establi shing

or d isp roving parentage [including] any blood, genetic, or DNA test utilized by an accredited labora tory.” Tenn. Code Ann. § 24-7-112(a)(1) (Supp. 1996). Further, “[t] he results of such tes ts and compa risons, in cluding the s tatistica l likelihood o f the alleged parent’s parentage, if available, m ay be adm

itted into evidence a s provided in subsection (b).” Id. The rel evant porti on of subsec tion (b), the specif ic statuteat issue in this case, i s as follow s: (B) An individual is conclusive ly pre sumed to be the father of a childif blood, genetic, or DNA tests show that the statistical probability

of pater nity is ninety -nine p ercent (99%) or greater. A rebuttabl e presum

ption of the

paternity of an indivi dual is established by blood, gen etic, or DNA t esting show ing a statistical probabilit

y of paternity of that indi vidual at ni nety- five percent (95%) or greater. Id. § 24-7-112(b)(2)(B) (Supp. 1996).

In support of his contention that the c onclusive pr

esump tion of sec tion 24- 7-112(b)(2)(B) requires a voluntar y ackn owledgm

ent, De fendant poi nts out that t his provision was passed as part

of a larger

bill, House Bill No. 2527, the bulk of which sets forth the relations hip betw een volunt ary a cknowledg ments of pater

nity, paternity tests, and r ebuttab le or conclusive presumptions. House Bill 2527 included provisions ame nding the cod e section entitled “ [v]olunt ary a cknowledg ment o f-4-

pat ern ity” which provides that a voluntary acknowledgment of p aternity become s conclusive

after a DNA paterni ty test result of 99% or grea ter. See id. § 24-7

- 118(d)(3). Thus, it

is Defe ndant’s a

rgumen t that, read in context of the entire applicable

law, th e conclusiv e presum ption in sec tion 24-7-11 2(b)(2)( B) is conditioned upon and can be applied

only in c ases in which a defendant has vol unt aril y ackn owl edg ed p ater nit y.

Defenda ntproffer s as another piece of textual evid ence for his interpr

etation of the statute the overlap in section 24-7-112(b)(2)(B) between the “ninet y-fi v e p ercent ( 95%) or gr

eater” and the “ ninety -nine per cent (99% ) or grea

ter” fig ures. This provision

is worded so thatthere is p otentially both a conc lusive and a

rebuttabl e presum ption between the 99% and 100%. In other words, t he language

of the sta tute does not indicat

e that the rebuttable

presum ption ends at

98%. T hus, acc ording to Defenda nt, the more logical interp r etation is t hat, for test results between 99% and 100%, the rebuttable presumption attaches if thereis no voluntary acknowle dgment and the conclu sive presum ption attac hes only

if there is such an admiss ion. Fin all y, Defenda ntpoints out that sec tion 36-2-10 4(d)(dea ling with pa

ym ent of child support into an escrow

account pe nding adjud

ication on t

he issueof

paternity) contem

plates
ajury trial in c ases in which a defendant has a pate

rnity result of 95% or more which includes result s of 99% or mor e. Tha t statute pr

ovides that “[i] f the def

endant requests a jury trial on the issue of patern ity after blood tests have been obtained which indicate a

presum ption of pat

ernity greater than ninety -five per

cent (95% ), the courtmay , in its dis cretion, in li eu of an ind emnity bond, order a defendant to pay childsupport to the

clerk of the court t

o be he ld in escrow pending final adjudication.” Id. § 36-2-104(d)(1996).

“Our role in con struing sta

tutes is to a scertain

and g ive effe ct to the legislativ e intent wit

hout unduly

restric ting or expa

nding a stat

ute’s c overage beyond its intended scope.” Roseman v. Roseman , 890 S.W .2d 27, 29 ( Tenn. 1994)(cit ing State v. Sliger , 846 S.W.2d 262, 263 (Tenn. 1993)). Where a statute is unam

biguous, this court m

ust ascer tain and give effect

to the intention and purpose of the General Assem bly as expres sed in the f our corne rs of the statu te. Ga be l v . L er ma , 812 S.W. 2d 580, 582 (T enn. App. 1990)(cit ing Memphis Pub ’g C o. V. Holt, 710 S.W .2d 513 (Tenn. 1986 )). An earl y expr ession of th e “f

our corne rs” rule, which is t

he most-5-

basic and fundam

ental rule of stat utory c onstruction , was r ecently quoted by

our Suprem e Court: [I]f [the legislative intent] is expressed in a manner d evoi d of con tradict ion and am

biguity, there is n o room

for inter pretation or construct ion, and the judges are not a

t liberty , on conside

ration of policy or hardship, to depart from the words of the statute; that they have no ri ght to m ake exce ptions or inse

rt qualifi cations, however abstract justice or the justice of a particular case may require i t. Carson Cr eek V

ac ation Resorts, Inc. v. State Dep’t of Reven ue , 865 S.W.2d 1, 2 (Tenn. 1993)(quoti ng Austin v . Memphis Pub l’g Co. , 655 S.W. 2d 146, 148 (Tenn. 1983)(quotin g Heiskell v. Lowe , 153 S.W. 284, 290 (Tenn. 1912)).

In Austin v. Memphis Publ’ g Co. , at issue was the interpretation of a statute which “sta

ted that a newsman, etc. , gather

ing inform

ation for p ublication, shall not be required

to disclo se t o an y T ennessee court, etc., ‘any information or the source of any informa

tion procured for the

publication or broadcast.’” Austin , 655 S.W .2d at 148 (q uoting Tenn. Code Ann. § 24-1-208 (1973)). The Court of Appeals had interpreted the statute

by inse rting the w ord “c onfide ntial” before “ inform ation” because it was “evi dent to [them] that t he statute was passe d to assure

confidenti ality in order to facilita

te the gath ering of

news and information, which confidentiality was not provided by [a certain United States Suprem e Court] decision.” Austin, 655 S.W. 2d at 147. R eversing th e lo wer cou rt’ s d eci si on , th e Te nn ess ee S up reme Court heldthat the “ four corn ers” rule “proh ibit[ed] the courts from

resortin g to ou tside sources to determine legislative intent.” Id. at 149.

In this case, the language of Te nnessee Co de Annotat ed section

24-7

- 112(b)(2)(B) very clearly create s a conclus ive presum ption of pat

ernity based upon DNA test results alone. It is true , as De fendant asserts, that

elsewhere in the code, a volun t ary acknowle dgment of pater nity f ollowed by

a DNA test result showing a probability of pater nity of 99% or gre ater ca

uses the volu ntary

acknowle dgment

to bec ome conclusi ve. See Tenn. C ode Ann. § 24- 7-118. H owever, the legisla ture did not con dition the conclusive presumption of section 24-7-112 upon a voluntary acknowle dgment

of pater nity, and as wa s the court

in Austin , we are prohibited from inserting any suchrequirement in to the sta tute. See Tenne ssee Manu

factured Hous.-6-

A ss’n v. Metro

politan Go v’t of N

ashville , 798 S.W.2d 254 , 257 (Tenn. App

. 1990)(cita

tions omit ted )(c ou rts “sho ul d p res ume thatthe Gene ral Asse mbly

chose its words carefully.”)

II.
Having ruled th at Tenne ssee Code Annotated section 24-7-112(b)(2)(B) wa s properly applied to t

his defendant, we turn to Defendant’s constitutional challenge. In this case, Defenda

nt asserts that secti on 24-7-112( b)(2)(B ), by

imposi ng a conclusive

presum ption of pat

ernity in cases where the DNA tests show a statistical probability

of 99% or greater, operates to deny putative f athers the due proce ss of law violating the Due P

rocess Cl ause of the

Fifth and Fourteent

h Ame ndment s of the Unit ed States Constitution and Artic le I, Se ction 8 of th e Tennes see Consti tution. The Fourteenth Amendm ent provides in part that “[n] o State sha ll . . . deprive a

ny personof life, li berty , or prope

rty, without due

process of law. ” U.S. Const. Amend. XIV. Our supreme c ourt h as co nsistently held that A

rticle 1, Section 8 o f the Tennessee Con stitution con fers the same protectio ns as does th e Fourteenth Ame ndment

. Brown v. Campbell County Bd. Of Educ. , 915 S.W .2d 407, 41 3 (Tenn. 1995), cert. denied , 116 S. C t. 1852 (199 6); State v. Tester , 879 S.W.2 d 823, 82 7 (Tenn. 1994).

“[P ]erm anent irrebuttable pre su mp tions have long been disfavored under the Due Process Clause.” Cleveland Bd. Of Educ. V . LaFleur , 41 4 U.S. 632, 644 (1974)(ci ting Vlandis v. Kline , 412 U.S. 441, 446 (1973)). In Vland is , the Cour

t held violative of due process a Connecticut stat ute which created a con clusive pr esump tion of non-residency fo r students who had non-C onnecticut addr esses at the tim

e of applyi ng for adm

ission to a Conn ecticut sc hool and whowere la ter atte mpting to qualify as reside nts for purpos es of redu ced tuition rates. The Court stat ed that “ it is forbidden by the Due Process Clause to deny an individual th e residen t rates on the basis of a perm

anent and irrebutta

ble presum

ption of non

r esidence, when that presum ption is not nece ssarily

or univers ally t

rue in fact.” Vlandis, 412 U.S. at 452;
see also Stanle

y v. Illi nois , 405 U. S. 645 (19 72)(holding that an Illinois sta tute containing

an irreb uttable pr

esump tion that unm

arried f athers ar e inc ompet

ent to rais e their chil dren viol ated the Due Process Clau se.)-7-

In an ear ly exa

mple o f its dissat

isfaction with the us e of conclusi v e
ev ide nce, the Tenne ssee legis lature am ended a 1741 statute inv olving the establishm

ent of patern ity. The stat

ute provide d that “ the person charged by the
woman before the justices was to be adjudgedthe reputed father, and nothing further
was to be done when the p roceed ings were returned to the count

y cour t but for the courtto ma

ke the order for maintenance.” Goddard v. State , 10 Tenn

. 96, 97 (1825). However, “[b]y

the act of 1822, ch. 29, the legislature provide[d] that the affidavi t of the woma n shall not be

conclusive

upon the county cour

t, and the reputed f ather cut off from all enquiry

in every possible ca se; but upon f iling his af

fidavit cl early

setting forththat just

ice requires an issu e to be made to try the truth of the charg e, it sha

ll be the duty of the court where such charge is pending to he ar proof a nd determ

ine the matter as to right and justice may appertain.” Id. at 98; 1822 T enn. Pub. Acts ch. 29, § 1.

Like the 1741 sta tute, the irrebutta ble presum

pti on o f Tennes see Code Annotated section 24- 7-112(b)( 2)(B) e ffectiv e ly deni es putative fathers the opportunity

to be heard. The Suprem e Co urt has hel d “due

process r

equires, at a min imu m, that absent a countervailing state interest of overriding significance, persons forced to settle their claim s of right a nd dutythroug h the judic ial proce ss must be given a m

eaningful o pportunity

to be heard.” Little v. Streater , 452 U.S. 1, 5-6 (1981)(c iting Boddie v. Connecticut , 401 U.S. 371, 377 (19 71)). I n determ ining what process is due in a par

ticular si tuation, t

hree fac tors m

ust be consid ered: (1) the private interest affecte d by the

officia l action; ( 2) the risk

of errone ous depriva

tion of the intere st through the procedu re s used and the probable va

lue, if a ny, of additional or subs titu te pro cedur al saf eguar ds; a nd fi nall y, (3) th e gov ernment ’s interest, including the

func tion involved and the fi scal and administrative burdens that the additional or substitute procedur a l requirement wou ld entail

. Mathews v. Eldridge , 424 U.S. 319, 335 (19 76); State v. Barn ett, 909 S.W .2d 4 23, 426 (Te nn. 1995).

In the case at b ar, the priva te interes ts are subs tantial. Little , 452 U.S. at13. In Little , the Court held thatdue proce ss was violated when a statute, which provided that the cost of

blood tests in paternity actions was to be borne by the party

requestin g the tests, operated

to deny such tests to an indige nt defenda nt. As in our situati on, the-8-

Little Court note d the pecuni ary i nterest of the putativ e fath e r in avoidin g a substantial support obligation and the liberty interest threatened by potential sanctions f

or failur e to com ply wi th child

support obligat ions. Id.; see Tenn. C ode Ann. § 36-5-104(1996) (providing that the failure to comply with orders to support minor children may be punished by im prisonm ent in the c ounty w orkhouseor county jail for up to si x (6) m

onths.) I n addition, the Court i n Little stressed the significance of the creation of the parent-child relationship. “Just as the term ination of such bonds dema nds proced u ral fairness, so too does their imposition.” Little , 452 U. S. at 13 (citation omitted). Further, the C ourt stated tha t “both the child and th e defenda nt in
apaternity

action hav e a com

pelling interest in the accuracy of such a determination .” Id. An Indiana court

which found that an indigent paternity defendant was entitled to both court- appointe d counse l and free blood grouping tests further expounded upon the ch ild’s interests: “The child’s rights of support, inheritance, a nd custody are directly affected by the proceeding s. The child’s health interests are affecte d as an accurat e fam ily m edical his tory c an be crit ical in th e diagnosis and treatment of a chil d’s injurie s and illnes ses. Th e adjudica ted fathe r ma y asse rt rights to custody

and

mus t give con sent before a child can be adopted.” Kennedy v. Wood , 439 N. E.2d 1367, 1370-71 (Ind. App. 1982).
Arrayed against the se substantial private interests are the State ’s inter ests. T he thr ust of the S tate’s interest, as artic ulated in it s brief, is the “huge and unwarranted fiscal a

nd administrative

burden on

the State and on mothers of children born out of

lawful wedlock” which wo uld result i f the stat ute is held u nconstitutio nal. Indeed, if the conc lusive pre sumpti on is held unconstituti onal, the rebuttabl e presum ption for test r

esu lts showing a 95 % or grea ter proba bility of paternity w ill still stand, an d defendan

ts, includ ing those w hose test

are above 99%, will be given the opportunity

to rebut the

presum ption of their p aternity

if they so desire. There i s no way to empir ically determ ine how m

any m ore hear ings on the iss ue of

paternity there will be in

the absenc e of the

con clu si ve p res ump ti on . Ho wev er, th e Su pre me Courthas sa id th at “[t]he S tate’s interest in adm inistrativ e ease a

nd certai nty cannot, in and of itse lf, save

the conclu sive presum

ption from

in validit y under

the Due Process Clause w here ther e are othe

r reasona

ble and pra

cticable mea ns of establishin g the pertinent facts on which the State’s objective is prem ised.” Vland

is , 412 U.S. at 451. H ere, a nother re asonable m

eans i s to give the put ative fat her the-9-

chance to reb ut the presumpti on of pater nity just as he wo uld have h ad if his DNA tes t res ult s ha d sh own a 98 .9% p rob abi lit y of p ater nit y.

We agree tha

t invalidat

ing the conc lus ive presum ption of sec tion 24-7- 112(b)(2)(B) will be m

ore costl y for the State of Tennesse e. “ Procedur e by presum ption is always cheaper and easier than individual iz ed determinati on.” Stanley , 405 U.S. at 656-57. Still, i n Little , while the Court acknowledged the St ate’s legitimate interest in children born out of wed lock and in t

he accur ate and j ust determ inationof their p aterni ty, it conclude d that “ the State ’s m onetary interest ‘is hardly significa nt enough to overcom

e private interests as impo rtant as tho se her e.’” Little , 452 U.S. at 16 (cit

ing Lassiter v. Dep’t

of Soc. Servs. , 452 U.S. 18, 28 (1981)).

Th e final consideration under Mathews v. Eldridge involves the risk o f inaccura telyadjudica

ting som eone a father

because t he conclusi ve presumption has foreclosed his ability

to demonstrate t

hat he is not the fat

her of a p articula

r child. To understand

this risk, it is essential to understand what the probability of pater nity percenta ge actually

mea ns. With a 9.98% pr

obability of pater nity, which is significa ntly highe r than De fendant’ s in this cas e, “ in a city with a sa me-race m ale population

of 500,000, or even 500,001, one hundred other men might t heoretic ally be the fathe

r. Tak ing this to a g lobal scal e, if the re are 5 00 mill ion men of the samerace on th e planet, 1 00,000 m en mig ht theoret

ically qualify as put ative fath ers.” E. Donald Shapir o et al, The DNA Paternity Test: Le gislating theFuture P aternity Action , 7 J.L. & Healt

h, 1, 44 ( 1992-93)(W

hile this artic le is highly s upportive of the

use of DNA

to determ

ine pater nity, it advocat

es a uniform paternity law

where there is a conclusi ve p res ump tion of pate rnity only in c ases in which the pro bability of paternity is 99.9999% or above). Although we acknowled ge that it is extre mely likely that the m

an nam ed in a pate

rnity action wi th a 99% or great er probabi lityof pater nity is the true father, “the fa ct remains that paternity indexes are n o t mathem atical ly solid.” Id
. In addition , there is the probl em of human error in the scientifi c analyses of th e DNA. See EdwardJ. Im winkelri ed, The Debate in the DNA Cases over

the Foundation for the A dmission of Scientific Evidence: The Importance of Human E

rror as a Causeof Forensi c Misanalysis , 69 W ash U.L.Q. 19, 22 (1991)(ind

icating that there

“is mounti ng evidence

of a signif

icant mar gin of err or in scientifi c analy sis . . . [and] that fift een perc ent of all medic al labora tory t ests are in-10-

error.”) It is indisputable t h at an opport unity tobe heard w ould be of va lue in guarding against an erroneous adjudication or paternity based upon a misle ading or an inaccu rate DN A test re sult.

Assessm ent of the fa ctors found

in Mathews v. Eldridge indicates that the conclusive presu mption of Tennessee Code A nnotated section 24-7-112(b)(2)(B) fail s to provide men in paternity proceedings with the process that is constitutionally due. The Sta te’s interests pale whe n comp ared to the impor tant priva te interests at stake in an adjudication of patern ity. Furtherm ore, wh ile the ri sk of an er

roneous deprivatio n of these private interests is small, there is great value in providing an opp ort unityto rebut the

evidence of paternity to a defendant

who m ight not be the true father. We the

refore findthat, in or

der to have

the “ meaningful oppor

tunity t o be heard” gu arantee d by the Due Proc ess Clause , the conclusive presum ption can not stand. We re verse the

decision of the trial court and remand the case to the trial court
so thatthis defen dant

may have an oppo rtunity

to rebut the

presum ption of pat

ernity attached to a 99.71% probabilit y of pa ternity . Costs sha

ll be taxed

against the

State of Tennessee.

____________________________________ SAMUEL L . LEWIS, JUDGE

CONCUR:

_____________________________________ HENRY F. TODD, P.J., M.S.

_____________________________________ WI LL IA M C. K OCH , JR. , J.