Facts: Child was born to unmarried parents in April 2013. From birth, Child resided continually in Mother’s custody.

Father testified he had no knowledge of Child’s birth or existence until June 2013, when Child was approximately three months old. Mother and Child began residing with Father at his sister’s home in July 2013. According to Mother, she and the child were soon forced to leave the home because of Father’s alcohol and marijuana use.

In mid-August 2013, Mother discussed the possible adoption of Child with an adoption agency. Mother informed the adoption agency that Father was the biological parent.

Shortly thereafter, Mother voluntarily surrendered her parental rights and named Father as the biological parent in a sworn affidavit. Child was placed with a pre-adoptive family on August 19, 2013.

On September 20, 2013, Father was contacted about the possible adoption of Child. Father unequivocally objected to Child’s adoption. Despite instructions on how to do so, Father failed to establish paternity or obtain DNA testing showing him to be the biological parent of Child.

In October 2013, the adoption agency petitioned to terminate Father’s parental rights on grounds set forth in Tennessee Code Annotated § 36-1-113(g)(9)(A), namely that Father failed to establish paternity, failed to manifest an ability and willingness to assume custody of Child, and failed to provide reasonable support.

Subsequent DNA testing in March 2014 established Father as the biological parent of Child. Thus, at the time the termination petition was filed, Father had not established that he was the legal parent of Child.

The trial court found none of the grounds contained within Tennessee Code Annotated § 36-1-113(g)(9)(A) were applicable because Father “timely exercised any knowledge that he had as far as the process and procedure that was necessary for him to establish parentage of the minor child and [has] taken the necessary steps to establish parentage.” Thus, Father’s parental rights were not terminated.

The adoption agency appealed.

On Appeal: The Court of Appeals begrudgingly affirmed the trial court.

The issue concerns the applicability of the grounds for termination of parental rights provided for in Tennessee Code Annotated § 36-1-113(g)(9)(A). The adoption agency argued they apply to Father because he was not the child’s legal parent at the time the termination petition was filed. Father argued those particular grounds cannot be used to terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.

The grounds outlined in Tennessee Code Annotated § 36-1-113(g)(9)(A) are limited to termination proceedings involving a person who is not the legal parent of the child or putative biological fathers.

“Putative father” was defined by the Tennessee Supreme Court in In re Bernard T. as follows:

A biological father will be considered to be a child’s “putative biological father” only if (1) he has filed a petition to establish his parentage of the child, (2) he has filed a timely statement with the putative father registry, (3) the child’s mother has identified him as the child’s biological father in a sworn, written statement, (4) he has been identified as the child’s biological father by information that the court deems to be credible and reliable, (5) he has claimed to certain individuals that he believes that he is the child’s biological father, (6) his name is recorded on the child’s birth certificate, (7) he is living openly with the child and holding himself out to be the child’s father, or (8) he has entered into a permanency plan or plan of care under Tennessee law or under similar laws of other states or territories.

In other words, where a biological father engages in any of the actions outlined above, he will be considered the child’s putative father. The Bernard Court went on to specifically hold that the “grounds for termination in Tennessee Code Annotated § 36-1-113(g)(9) cannot be used terminate the rights of a person who is a child’s biological parent, legal parent, or putative biological father at the time the termination petition is filed.”

Put simply, the Bernard Court clearly and unequivocally held that the grounds contained in § 36-1-113(g)(9)(A), which includes the ground of failure to establish paternity, may not apply to putative biological fathers.

The Court of Appeals clearly disagreed with the Bernard Court’s holding, explaining:

Section 36-1-113(g)(9)(A) expressly states that it applies not only to “any person who . . . is not the legal parent or guardian of such child,” but also to “any person . . . who is described in § 36-1-117(b) or (c).”  The Bernard Court held that the descriptions contained within Sections 36-1-117(b) and (c) are used to determine whether a purported father is a putative biological father. Thus, the Bernard Court indicated that the descriptions under Sections 36-1-117(b) and (c) are essentially synonymous with the legal status of putative biological father. Because the language of Section 36-1-113(g)(9)(A) expressly indicates that the grounds contained therein may apply to any person “described in § 36-1-117(b) or (c)[,]” we can only conclude that the Tennessee General Assembly intended that the less stringent grounds contained in Section 36-1-113(g)(9)(A) must apply to putative biological fathers. Stated another way, the language of (g)(9)(A) declares that the grounds listed apply to putative biological fathers, while the holding of Bernard provides otherwise.

Nonetheless, the Court of Appeals is bound to follow the ruling of the Tennessee Supreme Court. The Court reasoned:

In sum, the Tennessee Supreme Court in Bernard deemed a putative biological father on par with a legal parent or guardian and, therefore, declined to apply the grounds contained in Tennessee Code Annotated Section 36-1-113(g)(9)(A) to putative biological fathers. In so holding, the Bernard Court relegated the grounds contained in Section 36-1-113(g)(9)(A) to applying only to those parents whose claims to children are so gossamer as to be virtually non-existent. Regardless of our concerns regarding the Bernard Court’s interpretation of Tennessee Code Annotated Section 36-1-113(g)(9)(A), however, we are not free to depart from the Tennessee Supreme Court’s unequivocal holding….

Based upon the holding in Bernard, the grounds contained within Tennessee Code Annotated Section 36-1-113(g)(9)(A) do not apply where the defendant parent is a putative biological father. Here, there is no dispute that Father qualifies as a putative biological father. Therefore, the trial court did not err in declining to terminate Father’s parental rights under any of the grounds contained in Section 36-1-113(g)(9)(A).

Accordingly, the trial court was affirmed.

K.O.’s Comment: It is rare to see the Court of Appeals say “we think the Tennessee Supreme Court got it wrong.” By itself, that makes this case noteworthy.

The Court of Appeals specifically notes that Justice Kirby heard the Bernard case when she was on the Court of Appeals and filed a dissenting opinion in which she said she would have terminated parental rights in that case. In other words, the Court of Appeals suggests Justice Kirby agreed with their interpretation when she sat on the Court of Appeals. They seem to be not-so-subtly suggesting to the adoption agency that there is at least one (powerful and persuasive, especially regarding family law) vote on the Tennessee’s Supreme Court to overturn the holding in Bernard should the adoption agency choose to request permission to appeal from the Supreme Court.

In re Ashton B. (Tennessee Court of Appeals, Western Section, March 15, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family Law Attorney.