IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEF NOVEMBER 29, 2006

STATE OF TENNESSEE ex rel., ELIZABETH WRAY v. 

KELLY COLLINS

Direct Appeal from the Juvenile Court for Gibson County

No. 8093A Robert W. Newell, Judge

No. W2006-00119-COA-R3-JV - Filed March 20, 2007

This appeal involves a series of cases – a paternity action, a dependency and neglect proceeding, and

the present case, a petition to establish paternity and set child support. The first paternity suit had

been dismissed by the mother after genetic testing had taken place, but before the court entered an

order of parentage. During subsequent dependency and neglect proceedings, a grandmother had

received temporary custody of the child. Finally, the State of Tennessee filed this case on the

grandmother’s behalf to establish paternity and collect child support from the child’s biological

father. The father insisted that he had never been properly served in the dependency and neglect

proceeding, so the trial court dismissed the State’s petition. For the following reasons, we reverse

and remand.

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

Remanded

ALAN E. HIGHERS,J., delivered the opinion of the court, in which DAVID R. FARMER,J., and HOLLY

M. KIRBY, J., joined.

Paul G. Summers, Attorney General and Reporter, Warren Jasper, Assistant Attorney General,

Nashville, TN, for Appellant, State of Tennessee ex rel., Elizabeth Wray

No Appearance for Appellee, Kelly Collins

OPINION

I. FACTS & PROCEDURAL HISTORY

In 2003, Lisa Riggins (“Mother”) filed a Petition to Establish Paternity in the Juvenile Court

of Gibson County alleging that Kelly Collins was the natural father of her child (“R.E.R.”). Mother

also requested that Mr. Collins be ordered to pay child support if he was found to be the father. The

court ordered the parties to submit to parentage testing, and the test showed a 99.99% statistical
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probability that Mr. Collins was R.E.R’s father. However, following the parentage test, the case was

dismissed at Mother’s request. The court never entered an order declaring Mr. Collins to be the

father, and child support was not addressed. 

On April 28, 2005, the Department of Children’s Services (“DCS”) filed a petition in the

Juvenile Court of Gibson County alleging that R.E.R. and Mother’s two other children were

dependent and neglected. According to the petition, Mr. Collins’s whereabouts were “currently

unknown,” and Mother’s house had no electricity, heat, or running water. The petition also stated

that Mother had taken a drug test that tested positive for methamphetamine. DCS requested that

Thomas and Elizabeth Wray (“Grandmother”) be awarded temporary custody of the children. 

On the same date, the juvenile court entered a protective custody order placing temporary

custody of the children with Grandmother. After a preliminary hearing, the court entered a

preliminary order appointing a guardian ad litem for the children, appointing attorneys for each of

the parents, and again awarding temporary custody to Grandmother. Another hearing was held in

June of 2005, and thereafter, the court entered an order finding that the children were dependent and

neglected. The court ordered DCS to prepare a home study of Mother’s home, but temporary

custody of the children was to remain with Grandmother subject to further orders of the court. 

On September 20, 2005, the State of Tennessee filed the present case in the Gibson County

Juvenile Court on behalf of Grandmother pursuant to Tenn. Code Ann. § 71-3-124(c), seeking to

establish the paternity of Mr. Collins and to have child support set for R.E.R. 

On November 9, 2005, the court took further action in the dependency and neglect

proceedings, restoring custody of the children to Mother because she had cooperated and complied

with all Targeted Case Management services offered to her, and she had tested negative on random

drug screens. 

In December, the juvenile court held a hearing on the State’s petition brought on behalf of

Grandmother to establish paternity and set child support. Mr. Collins appeared and informed the

court that he had never received notice of the earlier dependency and neglect proceedings. The

juvenile court subsequently entered an order dismissing the petition to establish paternity and set

support, with the following explanation:

The Court finds that this matter shall be dismissed due to the fact that

[Grandmother] received custody pursuant to a dependent and neglect

action in which [Mr. Collins] was named as a party yet never received

notice. Therefore, the Court finds that due to the lack of notice on the

dependent and neglect action, [Grandmother] does not have standing

to pursue support in this action for the period of time that she had the

minor child pursuant to the dependent and neglect action.

Although the order does not explain the court’s reasoning in also dismissing the issue of paternity,

at the hearing the judge had explained that the State, acting on behalf of Grandmother, had no
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standing to establish paternity. The judge stated that “[Mr. Collins] or the mother” can establish

paternity. 

The State filed a notice of appeal on behalf of Grandmother on January 4, 2006. 

II. ISSUES PRESENTED

1. Whether paternity and child support should have been established before the trial court

summarily disposed of the State’s petition. 

For the following reasons, we reverse the decision of the juvenile court and remand for further

proceedings. 

III. STANDARD OF REVIEW

A trial court’s factual findings are presumed to be correct, and we will not overturn those

factual findings unless the evidence preponderates against them. Tenn. R. App. P. 13(d) (2006);

Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). We review a trial court’s conclusions of law

under a de novo standard upon the record with no presumption of correctness. Union Carbide Corp.

v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus.,

Inc., 788 S.W.2d 815, 817 (Tenn. Ct. App. 1989)).

IV. DISCUSSION

A. Standing to File an Action to Establish Paternity

If a mother and father affirmatively acknowledge their parentage of a child, a court may enter

an order of parentage upon their agreement, or the court may order genetic testing on its own motion.

Tenn. Code Ann. § 36-2-305(a) (2005). Alternatively, a complaint to establish parentage of a child

may be brought by the child, the child’s mother, a man claiming to be the child’s father, or the

Tennessee Department of Human Services. Tenn. Code Ann. § 36-2-305(b)(1) (2005);In re C.K.G.,

173 S.W.3d 714, 722 (Tenn. 2005). Another statute also authorizes the Department of Human

Services to file paternity actions in accordance with the Social Security Act. Tennessee Code

Annotated § 71-3-124(c) provides that: 

(1) Upon the filing of an application by an individual not otherwise

eligible for support services under this section, the department may

initiate support actions for an individual, in accordance with the

provisions of Title IV-D of the Social Security Act, as amended.

(2) The department . . . shall have authority and standing to file any

legal actions to establish paternity or to establish, modify or enforce

child or spousal support in any judicial or administrative proceeding
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on behalf of the department and the state for persons who have

assigned rights of support to the department pursuant to this section,

or who have otherwise applied for child or spousal support services

pursuant to the provisions of subdivision (c)(1) or Title IV-D of the

Social Security Act. The department or its contractors may file such

legal actions without the necessity of intervening in an existing action

or naming the state as a party to the action. The department or its

contractors shall not be required to provide proof that the obligor, the

obligee or the child has applied for or is receiving Title IV-D child

support services in order to meet the requirements for conducting

Title IV-D child support judicial or administrative actions.

Tenn. Code Ann. § 71-3-124(c) (2004). 

In this case, the State of Tennessee filed a complaint designated “IV-D” on behalf of

Grandmother pursuant to Tenn. Code Ann. § 71-3-124(c). The State had standing to file the

complaint to establish parentage of R.E.R., even if the case is styled “State of Tennessee ex rel.

[Grandmother].” See State ex rel. Bissonette v. Marland, No. E2000-02089-COA-R3-CV, slip op.

at 3 (Tenn. Ct. App. E.S. Apr. 26, 2001) (finding that the State had standing to file a paternity suit,

even if styled ‘ex rel.’). According to the statute, the Department of Human Services is not even

required to name the State as a party to the action. See Tenn. Code Ann. § 71-3-124(c)(2).

Therefore, the petition to establish paternity should not have been dismissed.

B. Standing to Seek Child Support

Grandmother was awarded temporary custody of R.E.R. on April 28, 2005, and custody was

restored to Mother by order on November 14, 2005. The State contends that the juvenile court erred

in dismissing Grandmother’s petition for child support when it found that Mr. Collins was not

properly served in the dependency and neglect proceeding whereby Grandmother had received

custody of R.E.R. The State claims that only physical custody of a child is necessary in order to

receive child support, and that Mr. Collins must pay child support to Grandmother regardless of the

validity of service of process and the temporary custody order in the previous proceedings.

The Tennessee Supreme Court recently addressed a child’s right to support from his or her

parents in Kirkpatrick v. O’Neal, 197 S.W.3d 674 (Tenn. 2006). Specifically, the Court addressed

the issue of whether a non-residential parent must continue to pay child support when the residential

parent dies, and custody of the child is awarded to a third party. Id. at 676. The Court noted that in

Tennessee, both parents are equally and jointly charged with the care, nurture, welfare, education and

support of a child. Id. at 679. The parents’ duty continues until the child reaches the age of

majority, and no court order is needed to obligate a parent to support the child during minority. Id.

at 680. The parents’ support obligation exists regardless of where or with whom the child lives. Id.

Even though support is paid to an obligee parent or custodial third party, the payment is received on

behalf of the child because the duty of support is owed to the child, not to the other parent. Id.
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The Supreme Court ultimately held that “parents are liable to private third parties for child

support retroactive from the date their children are placed in third party custody.” Kirkpatrick, 197

S.W.3d at 680-81. In Kirkpatrick, the children’s grandparents had taken “physical possession of

them” in June when their mother had died. Id. at 676. A court had granted full custody of the

children to the grandparents in September. Id. When the Supreme Court remanded the case, it

instructed the trial court to calculate child support owed from the date a court had legally granted the

grandparents full custody of the children, not when they received physical custody. Id. at 681. Still,

we find the present case to be distinguishable from Kirkpatrick because this is a Title IV-D child

support case.

Tenn. Code Ann. § 36-5-101(b) (2005) reads as follows:

(1) Notwithstanding any other provision of law to the contrary,

neither the department of human services, nor any Title IV-D child

support contractor of the department, nor any recipient of public

assistance in this or any other state or territory, nor any applicant for

either public assistance in this or any other state or territory or for

Title IV-D child support services from the department or any other

Title IV-D agency in this or any other state or territory, shall be

required to demonstrate to a court or administrative tribunal that the

caretaker of the child for whom child support is sought is vested with

any more than physical custody of the subject child or children, in

order to have standing to petition for child support from the legal

parent of the child or children for whom support is sought, or to seek

enforcement or modification of any existing orders involving such

child or children.

(2) Legal custody of a child to whom a child support obligation is

owed shall not be a prerequisite to the initiation of any support

action or to the enforcement or modification of any support obligation

in such cases, whether or not the obligation has been assigned to this

state or any other state or territory by operation of law.

(Emphasis added). This statute was recently applied in a case similar to the case before us, State ex

rel. Hannah v. Beard, No. W2005-02350-COA-R3-JV, slip op. at 3 (Tenn. Ct. App. W.S. Jun. 7,

2006). In Hannah, a grandmother had taken in her grandson because his mother was “having trouble

in her household.” Id. at 1. The grandson lived with the grandmother for approximately five

months, during which time the grandmother received assistance from the Department of Human

Services. Id. The State of Tennessee filed a petition on behalf of the grandmother seeking child

support from the mother, but the trial court refused to set support because the grandmother did not

have legal custody of her grandson. Id. In discussing Tenn. Code Ann. § 36-5-101(b), we

determined that the grandmother was not required to have legal custody of the grandson before the

initiation of an action for child support, whether the action was initiated by the grandmother or the
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State on her behalf. Id. at 4. “[N]othing more than physical custody of a child” was required in

order to have the legal right to petition for child support. Id.

The present case falls within the reasoning of Beard, and Grandmother, or the State on her

behalf, can seek child support from Mr. Collins if the trial court establishes that he is the father of

R.E.R. Grandmother had physical custody of R.E.R. for over six months, and she could initiate a

support action despite the challenge to service of processin the dependency and neglect proceeding.

As we noted in Beard:

The statutes governing the State’s action do not require notice be

given to the biological parent of a child that should they leave that

child in the care and control of another adult, and that adult seeks

TANF benefits on the child’s behalf, that the adult will be able to

seek child support from them. Tennessee law imposes a legal

obligation on parents to support their minor children. T.C.A. §

34-1-102(a); Wade v. Wade, 115 S.W.3d 917, 920 (Tenn. Ct. App.

2002). It is well established that this duty does not terminate when a

parent relinquishes physical custody of their child. See T.C.A. §

34-1-102; Smith v. Gore, 728 S.W.2d 738, 750 (Tenn. 1987); State ex

rel. Vaughn v. Kaatrude, 21 S.W.3d 244, 247 (Tenn. Ct. App. 2000).

Slip op. at 4.

V. CONCLUSION

For the aforementioned reasons, the petition to establish paternity and set support should not

have been dismissed. Therefore, we reverse the decision of the juvenile court and remand for further

proceedings. Costs of this appeal are taxed to Appellee, Kelly Collins, for which execution may

issue if necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE