                    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 which CHARLES 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
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.

                                                  -2-
