# FILED
March 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: March 30, 1998

MICHAEL SCOTT EVANS, ) ) Petitioner/Appellant, ) ) DAVIDSON COUNTY ) JUVENILE Vs. ) ) ) HON. ANDREW J. KAREN MARIE BISSON STEELMAN, ) SHOOKHOFF, JUDGE ) Respondent/Appellee, ) ) NO. 01S01-9701-JV-00019 ) ) and

IN THE MATTER OF: SEAN MIC HAEL ) CRAWFORD, A CHILD UNDER 18 ) YEARS OF AGE, THOMAS MI CHAEL ) CIHLAR, ) DAVIDSON CIRCUIT ) Petitioner/Appellant, ) ) Vs. ) HON. THOMAS W. BROTHERS, ) JUDGE ) MARY ANN CRAWFORD and ) RONALD SHANE CRAWFORD, ) ) Respondents/Appellees. ) NO. 01S01-9703-CV-00046-2-

Attorney

s for Appellan

t Evans: Attorneys for A ppellee Steelman: Clark Lee Shaw Philip W. Duer Nashville, Tennessee Nashville, Tennessee Mary Arline Evans Nashville, Tennessee
Attorney

for Appellan

t Cihlar: Attorney for A ppellees Crawford: Wayne Detring John L. Schlechty Hendersonville, Tennessee New York, New York
Attorney

for Amicus C uriae, Attorney for the State of T

ennessee: Samuel T. Bartle, M.D.: R. Miles Mason John Knox Walkup Memphis, Tennessee Attorney General & Repor ter Of Counsel: Michael E. Moore Professor Barbara Kritchevsky Solicitor General Memphis, Tennessee Linda A. Ross Associate Solicitor Gener al Kimberly M . Frayn Assistant Attorney Gener al Nashville, Tennessee



## O P I N I O N

COURT OF APPEALS AFFIRMED. ANDERSON, C.J.-3- We granted the applications for permission to appeal and consolidated these two cases to decide whether, pursuant to Tenn. Code Ann. § 36-2-202 (1996 Repl.)(repealed 1997), a child is “born out of wedlock” when the child’s mother is married, but not to the biological father, at the time of the child’s birth. If not “born out of wedlock,” the biolog ical father has no standing t o legitimate the child.
At this juncture, we r

ecognize that after the g ranting of the applications in these cases, the Legislature repealed the statute unde r interpretation. Moreover, at the same time that it repealed the statute, it established “ a single cause of action to establish parentage of chil dren . . . .” Under the new legislation, “chil d born out of wedlock” is specific

ally defined to mean “a chil d born to parents who are n ot married to each other when the chil d was born.” The new l egislation, howev er, does not apply to the cases before the Court since the General Assembly specif ically declined to make it retroactive. 1997 Tenn. Pub. Acts, ch.744, §§ 1 & 2.

We hold in the cases bef ore the Court that the phrase “not born in lawful wedlock,” as used in Tenn. Code Ann. § 36-2-202(a), applies only to a child born to an unmarried woman. We f urther reject the contention that this interpre tation vio lates due process a nd equal p rotectio n princip les. Cons equently, the Court of Appe als’ decis ions hold ing that t he putat ive fathe rs in these cases have no standing under Tenn. Code Ann. § 36-2-202 to f ile a petition for legitimation are affirmed.

BACKGROUND Evans v. Steelman Karen Marie Steelman marrie d Jamie R. Steelman in July 1993. In January 1994, Karen Steelman l eft her husband. The petitioner, Mi chael Scott Evans, and Karen Steelman moved into an apartment , after which they regularly had sex. After discover ing that she was preg nant in March 1994, Steelman-4-

acknowledged to Evans and his family, as wel l as to medical provider s and other acquaintances, that Evans was the child’s father.

Later, the relationship betw een Steelman and Evans deterior ated. On November 24, 1994, Steelman gav e birth to a son, Jacob Ry an Steelman. She listed her husband, Jamie Steel man, as the child’s father. Ev ans found out about the child’s birth and on December 13, 1994, filed a petitio n to legitimate the child in the Davidson County J uvenile Court. Karen St eelman opposed the legitimation petition, asserting that Evans had no standing under Tenn. Code Ann. § 35-2-202(a) to file such a petition since Jacob Steelman was born in lawful wedlock. On June 15, 1995, Evans filed a formal a cknowledgment that he w as Jacob’s biological father with the Putative Father Registry mai ntained by the Tennessee Department of Human Services. Thereafter, the juvenile court judg e dismissed the legitimati on petition on the grounds that E vans had no standing. A maj ority of the Court of Appeals affirmed, while Judge Koch dissented.

In the Matter of Sean Michael Crawford Mary Ann Crawford and Ronald Sean Crawford were married in July 1988. In early 1991, during a period in which the Crawfords were separated, Mary Crawford and the petitioner, Thomas Cihlar, had a romantic relationship; Cihlar asserts that Crawford lived with him for approximately four months, during which time she became pregnant. Cra wford later reunited w

ith her husband. On November 29, 1991, Craw ford gave birth to a son, Sean Michael Crawford.
Two and one-half years late r, on July 26, 1994, Cihl ar filed a petition to legitimate the child all eging that he is the father o f Sean; that he has at all times acknowledged his paternity; that since the child’s birth, he has exercised weekly visitation with him; and that he has paid child s upport to Crawford. In December 1994, after the Crawfords filed a response to Cihlar’s pe tition, the trial court entered an agreed order granti ng Cihlar’s petitio n, establishing a vi sitation schedule and-5-

setting child support. In January 1995, after Cihl ar filed a petition seeking custody of Sean, the Crawfords moved to vacate the agreed order.The trial court granted the motion to vacate the agr eed order except for the prov isions relating to v

isitation; the court also ordered that the Crawfords re-pay Cihlar all the child support he had paid and to pay his attorney’s fees.

In March 1995, the Craw fords filed a motion to dismiss the legitimation petition on the ground that the legitimation statute, Te nn. Code Ann. § 36-2-202 did not apply because the phrase “not born in lawful wedl ock” did not apply to Sean. They also asserted that Ci hlar had no standing to bri ng the legitimation acti on. Cihlar opposed the motion and g ave notice to the attorney general that he intended to challenge the constitutionality of Tenn. Code Ann. § 36 -2-202. The trial court entered an order finding that the statute was not facially unconstitutional under either the stat e or federal Con stitutions. Af ter conducting a n evidentiary heari ng, however, the trial

court denied the motion to dismi ss. The trial court ex plained its ruling, stating that “[i]t would be a mocker y to the concept of marriag e to describe the erratic relationship of Mary Ann and Ronald Crawford as being ‘lawful wedlock’.” The Court of Appeals reversed.

STANDING

Pursuant to the common law, a c hild born to a married w oman was presumed to be her husband’s legitimate child. This presump tion was universally accepted and has been repeatedly noted by this Court. Gower v. State , 155 Tenn. 138, 290 S.W. 978 (1927); Jackson v. Thornton , 133 Tenn. 36, 179 S.W. 384 (1915); Cannon v. Cannon , 26 Tenn. 410 (1846).

Actions for legitimation w ere unknown at common law. Allen v. Harvey , 568 S.W.2d 829 (Tenn. 1978); Cunningham v. Golden , 652 S.W.2d 910, 911 (Tenn. App. 1983), appeal dismissed , 466 U.S. 966, 104 S.Ct. 2336, 80 L. Ed.2d 810 (1984). Moreover, children born to unwed mothers could not inherit from the ir-6-

biological father; they

were considered to be the children of nobody. Allen v. Harvey , 568 S.W.2d at 831-32. In order to allevi ate these disabilities, th e General Assembly enacted the first l egitimation statute in 1805. Id. , n. 2; 1805 Tenn. Pub. Acts, ch. 2, § 1. In 1858, the l egitimation statute prov ided: The application to legitimat e a child not born in lawful wedloc

k is made by a petition in writing, sig ned by the person wishi ng to legitimate such child, and setting forth the reasons therefore. 1858 Code of Tennessee, § 3640 (1858).

The statute under which the peti tions in this case wer

e brought, Tenn. Code Ann. § 36-2-202, has practi cally the identical l anguage of the 1858 statute. Tenn. Code Ann. § 36-2-202 provi des in part:

(a) An application to leg itimate a child not born in lawful wedloc

k is made by petition, in writing, sig ned by the person wishi ng to legitimate such child, and setting forth the reasons therefor and the state and dat e of the child's birth.
The Court of Appeals has previ ously construed the phras e, “child not born in lawful wedloc

k” to mean a child born to an unmar ried woman. Cunningham v. Golden , 652 S.W.2d at 911-12. The Court recogniz ed the nature of legitimation statutes as being abrogations of the common law and noted that for the “presumption of legitimacy to make sense a child born in wedlock must mean a ch ild born to a married woman and a c hild born out of wedlock one born to an unmarried woman.” Id. at 912. See also Cooper v. Thompson , 710 S.W.2d 944, 946 (Tenn. App. 1985)(“The legitimati on statutes are for the protecti on of the child, and are not for the purpose of allowing parents, biological or otherwise, to stake out claims to the child.”).

After the Cunningham and Cooper decisions, the Legislature amended Tenn. Code Ann. § 36-2-202 in 1992 and 199 4, prior to its complete r epeal in 1997.-7-

The Legislature did not chang e the language “not born i n lawful wedlock” i n either 1992 or 1994. We agree with the Court of Appe als’ conclusion that thi s failure to change the language of the st atute evidences an intent on the part of the Legislature to keep the sc ope of the legislation narro w. Hamby v. McDaniel , 559 S.W.2d 774 (Tenn. 1974) (“[t]he legislatur e is presumed to know the i nterpretation which courts make of its e nactments.”). Moreove r, such a conclusion is consistent with the public policy of the state as it existed during the time of the statute’s existence. As the Court of Appeals noted in Cunningham , [The legislature] did not i ntend that a married woman livi ng happily with he r husband and three children shoul d be forced into court to respond to a petition of this type filed b y a man who might alle ge only a single isol ated indiscretion. Cunningham , 652 S.W.2d at 913.

We therefore hold that the Court of Appeals correc tly concluded that the petitioners in these cas es lack standing pursuant to Tenn. Code Ann. § 36-2-202 to file legitimation petitions.

DUE PROCESS

The petitioners assert that the interpretation of Tenn. Code Ann. § 36- 2-202 denying their standing violates their procedural and substantive due process rights by denying them a fair hearing and opportunity to establish a legal relationship with their childre n. The United States Supreme Cour t has rejected this arg ument as it applies to the federal constitution. In Michael H. v. Gerald D. , 491 U.S. 110, 109 S.Ct. 2333, 2341-42, 2345, 105 L.Ed.2d 91 (1989), the Court found no vi olation of procedural due process under the Fourteenth Amendment to the United States Constitution. With regard to substanti ve due process, the Court stated: [T]he Due Process Clause affords only those protections “so roote d in the traditions and conscience of our people as to be ranked as fundamental.” . . . Thus,-8- the legal issue in the pr esent case reduces to whether the relations hip between persons in the situation of Mi chael and Victoria has been treated as a protected family unit under histori c practices of our society, or whether on any other basis it ha s b ee n a

ffo rd ed sp ec ia l p rote ct io n. We think it impossible to find that it has. In fact, quite to t he contra ry, our trad itions ha ve protected the marital family (Gerald, Carole, and the child they acknow ledge to be theirs) against the sor

t of claim Michael asserts. . . . It is a qu estion of legislative policy and not constituti onal law whether California will al low the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted.
The petitioners also assert that the interpretation of the statute in this manner violates their du e process rights under Article I, § 8 of the Tennessee Constitution. The issue for us to determine, as it was for the Supreme Court under the Fourteenth Amendment, is whether the parent-child rel ationship under the circumstances of the legitimacy statute rises to the level of a protected interest deserving of due process protection. We hold that it does not.

We acknowledge that the parent-child r elationship implicates a r ight of privacy guaranteed

by the Tennessee Constitutio n. Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993). Moreover, the parent-child relations hip may give ris e to a liberty interest. Nale v. Robertson , 871 S.W.2d 674 (Tenn. 1994). The statute in this cas e, however, does not remov e a parent-child relation ship where one exist ed; it seeks to create su ch a relat ionship. In other wo rds, the s tatute c reates rig hts for p utative fathers; it does not take them aw ay. Since there are no pr otected interests implicated, there is no due pr ocess violation.

EQUAL PROTEC

TION The petitioners contend that the i nterpretation placed upon Tenn. Code Ann. § 36-2-202 violat es the equal protection pr ovisions of the Fourteenth Amendment to the United States Consti tution and the equal protecti on provisions of-9-

the Tennessee Constitution, Arti cle 1, § 8 and Article 11, § 8. This Court has traditionally utilized the framework developed by the United States Supreme Court for analyzing equal

protection claims. Newton v. Cox , 878 S.W.2d 105, 109 (Tenn. 1994), cert. denied , 513 U.S. 869, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994); Tennessee Small School Systems v. McWherter , 851 S.W.2d 139, 152-54 (Tenn. 1993). The concept of equal protec tion guarantees that persons similarly situated shall be treated alike. Id . at 153. Equal protection analysis requires strict scrutiny of a legislative cl assification only wh en the classification inter feres with the exerci se of a “fundamental right” or oper ates to the peculiar disadv antage of a “suspect class.” Newton v. Cox , 878 S.W.2d at 109. If no fundamental right or suspect class is affect ed, the c ourt mus t determ ine wheth er there i s some rat ional bas is to justi fy a classification set out in a statute. Id . at 110.

We conclude that the statute in the present case does not affect a fundamental right or a suspect class and that the State’s interest in preserving the integrity of the family

is a rational basis for the statute that overrides the interest of the putative father. See In the Matter of “A” , 735 S.W.2d 232, 237 (Tenn. App. 1987)(finding three State int erests which justify

prohibition of suits seeki ng to establish paternity by

persons such as petitioner s: marital harmony, pres ervation of the family unit, and the best i nterests of the child). Mor eover, we agree that

with the Court of Appeals that “a person seeking to legitimate a child born to a married woman is also in a fundamentally different position from a man seeking to legitimate a child born to an unmarried w oman.” Accordingly,the classification created by the statute does not treat similarly situated persons differently. We therefore find no equal protection viol ation in our interpretati on of Tenn. Code Ann. § 36-2-202.

CONCLUSION For the reasons discussed above, the judgments of the Cour t of Appeals are affirmed. Costs are t axed to petitioners, Mi chael Scott Evans and Thomas Matthew Cih lar, for wh ich execut ion may iss ue if nec essary.-10- RILEY ANDERSON, Chief Justice

CONCUR: Drowota, Reid, Birch, and Holder, JJ.