STATE OF TENNESSEE,                        )
DEPARTMENT OF HUMAN SERVICES,              )
ASSIGNEE OF: JUDY STANLEY,                 )
                                           )
          Plaintiff/Appellee,              )       Appeal No.
                                           )       01-A-01-9605-CV-00231
v.                                         )
                                           )       Dickson Circuit
JOHN FRANKLIN HOOPER,                      )       No.   8015
                                           )
          Defendant/Appellant.             )
                                                                      FILED
                          COURT OF APPEALS OF TENNESSEE               February 28, 1997

                            MIDDLE SECTION AT NASHVILLE               Cecil W. Crowson
                                                                     Appellate Court Clerk

            APPEAL FROM THE CIRCUIT COURT FOR DICKSON COUNTY

                                AT CHARLOTTE, TENNESSEE


                     THE HONORABLE ROBERT E. BURCH, JUDGE




CHARLES W. BURSON
Attorney General & Reporter


KIMBERLY M. FRAYN
JENNIFER HELTON SMALL
404 James Robertson Parkway Suite 1501
Nashville, Tennessee 37243-0499
           ATTORNEYS FOR PLAINTIFF/APPELLEE


BRIAN K. FRAZIER
Neal & Harwell
2000 First Union Tower
Nashville, Tennessee 37219-2498
           ATTORNEY FOR DEFENDANT/APPELLANT




                                REVERSED AND REMANDED




                                                          SAMUEL L. LEWIS, JUDGE
                                     OPINION

          This appeal involves the application and constitutionality of Tennessee’s
law creating a conclusive presumption of paternity when a DNA test shows the
statistical probability of paternity is ninety-nine percent (99%) or greater. The
Dickson County Circuit Court held that Tennessee Code Annotated section 24-7-
112(b)(2)(B) is constitutional. Since there was no dispute as to any material fact, the
court held that the State was entitled to summary judgment establishing the
defendant’s paternity as a matter of law. In addition, the court ordered the defendant
to make weekly payments for the care and maintenance of the child as well as for
back child support dating from the time of the child’s birth. We find that the
conclusive presumption of section 24-7-112(b)(2)(B) violates the Due Process Clause
of the Fourteenth Amendment and, therefore, we reverse the decision of the trial
court.


          On 20 September 1990, the State of Tennessee, as assignee for Judy
Stanley, filed a suit to obtain a judgment of paternity and support payments against
Defendant John Franklin Hooper for Anthony Bryan Stanley, a minor child born out
of wedlock in April of 1990. The evidence shows that Ms. Stanley and Defendant
met in 1986 and cohabitated intermittently for the next five years during which time
Ms. Stanley was married for three months to another man in 1987. In November of
1988, Ms. Stanley and Defendant had a child who was born premature and survived
only six days. As stated, Ms. Stanley had another child in 1990, Anthony Bryan
Stanley. Ms. Stanley’s deposition testimony was that she was certain that Defendant
was the father of this child. She stated that she was living with Defendant and in an
exclusive sexual relationship with him at the time of this child’s conception. A DNA
paternity test established a 99.71% “probability of paternity.”


          Though Defendant denied ever staying overnight with Ms. Stanley, he did
admit having sexual relations with her. The record contains certain letters written to
Defendant by Ms. Stanley communicating that he was not the father of this child.
However, Ms. Stanley testified that she wrote these under threats to her life from
Defendant’s mother. Also, as indicated by a responsive letter to Ms. Stanley from the
district attorney’s office, Ms. Stanley requested that the paternity suit, once underway,


                                           -2-
be dropped. In this letter, the district attorney advised her against this declaring that
he would not dismiss the case until he had an opportunity to discuss it in its entirety
with Ms. Stanley. As is obvious, the case was never dismissed.


                                            I.


          In his first issue, Defendant asserts that Tennessee Code Annotated section
24-7-112(b)(2)(B) is applicable only to alleged fathers who have voluntarily
acknowledged paternity. Section 24-7-112, in which the specific statute at issue is
found, is entitled as follows: “Tests to determine parentage - Admissibility in
evidence - Costs.” It provides, in pertinent part, that “[i]n the trial of any civil or
criminal proceeding in which the question of parentage arises, the court before whom
the matter may be brought . . . shall order that all necessary parties submit to any tests
and comparisons which have been developed and adapted for purposes of establishing
or disproving parentage [including] any blood, genetic, or DNA test utilized by an
accredited laboratory.” Tenn. Code Ann. § 24-7-112(a)(1) (Supp. 1996). Further,
“[t]he results of such tests and comparisons, including the statistical likelihood of the
alleged parent’s parentage, if available, may be admitted into evidence as provided
in subsection (b).” Id. The relevant portion of subsection (b), the specific statute at
issue in this case, is as follows:
          (B) An individual is conclusively presumed to be the father of a
          child if blood, genetic, or DNA tests show that the statistical
          probability of paternity is ninety-nine percent (99%) or greater.
          A rebuttable presumption of the paternity of an individual is
          established by blood, genetic, or DNA testing showing a
          statistical probability of paternity of that individual at ninety-five
          percent (95%) or greater.

Id. § 24-7-112(b)(2)(B) (Supp. 1996).



          In support of his contention that the conclusive presumption of section 24-
7-112(b)(2)(B) requires a voluntary acknowledgment, Defendant points out that this
provision was passed as part of a larger bill, House Bill No. 2527, the bulk of which
sets forth the relationship between voluntary acknowledgments of paternity, paternity
tests, and rebuttable or conclusive presumptions.           House Bill 2527 included
provisions amending the code section entitled “[v]oluntary acknowledgment of

                                           -3-
paternity” which provides that a voluntary acknowledgment of paternity becomes
conclusive after a DNA paternity test result of 99% or greater. See id. § 24-7-
118(d)(3). Thus, it is Defendant’s argument that, read in context of the entire
applicable law, the conclusive presumption in section 24-7-112(b)(2)(B) is
conditioned upon and can be applied only in cases in which a defendant has
voluntarily acknowledged paternity.


          Defendant proffers as another piece of textual evidence for his interpretation
of the statute the overlap in section 24-7-112(b)(2)(B) between the “ninety-five
percent (95%) or greater” and the “ninety-nine percent (99%) or greater” figures.
This provision is worded so that there is potentially both a conclusive and a rebuttable
presumption between the 99% and 100%. In other words, the language of the statute
does not indicate that the rebuttable presumption ends at 98%. Thus, according to
Defendant, the more logical interpretation is that, for test results between 99% and
100%, the rebuttable presumption attaches if there is no voluntary acknowledgment
and the conclusive presumption attaches only if there is such an admission. Finally,
Defendant points out that section 36-2-104(d)(dealing with payment of child support
into an escrow account pending adjudication on the issue of paternity) contemplates
a jury trial in cases in which a defendant has a paternity result of 95% or more which
includes results of 99% or more. That statute provides that “[i]f the defendant
requests a jury trial on the issue of paternity after blood tests have been obtained
which indicate a presumption of paternity greater than ninety-five percent (95%), the
court may, in its discretion, in lieu of an indemnity bond, order a defendant to pay
child support to the clerk of the court to be held in escrow pending final
adjudication.” Id. § 36-2-104(d)(1996).


          “Our role in construing statutes is to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond
its intended scope.” Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994)(citing
State v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). Where a statute is unambiguous,
this court must ascertain and give effect to the intention and purpose of the General
Assembly as expressed in the four corners of the statute. Gabel v. Lerma, 812
S.W.2d 580, 582 (Tenn. App. 1990)(citing Memphis Pub’g Co. V. Holt, 710 S.W.2d
513 (Tenn. 1986)). An early expression of the “four corners” rule, which is the most

                                          -4-
basic and fundamental rule of statutory construction, was recently quoted by our
Supreme Court:
         [I]f [the legislative intent] is expressed in a manner devoid of
         contradiction and ambiguity, there is no room for interpretation
         or construction, and the judges are not at liberty, on consideration
         of policy or hardship, to depart from the words of the statute; that
         they have no right to make exceptions or insert qualifications,
         however abstract justice or the justice of a particular case may
         require it.

Carson Creek Vacation Resorts, Inc. v. State Dep’t of Revenue, 865 S.W.2d 1, 2
(Tenn. 1993)(quoting Austin v. Memphis Publ’g Co., 655 S.W.2d 146, 148 (Tenn.
1983)(quoting 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 “stated that a newsman, etc., gathering information for publication, shall not
be required to disclose to any Tennessee court, etc., ‘any information or the source
of any information procured for the publication or broadcast.’” Austin, 655 S.W.2d
at 148 (quoting Tenn. Code Ann. § 24-1-208 (1973)). The Court of Appeals had
interpreted the statute by inserting the word “confidential” before “information”
because it was “evident to [them] that the statute was passed to assure confidentiality
in order to facilitate the gathering of news and information, which confidentiality was
not provided by [a certain United States Supreme Court] decision.” Austin, 655
S.W.2d at 147. Reversing the lower court’s decision, the Tennessee Supreme Court
held that the “four corners” rule “prohibit[ed] the courts from resorting to outside
sources to determine legislative intent.” Id. at 149.


          In this case, the language of Tennessee Code Annotated section 24-7-
112(b)(2)(B) very clearly creates a conclusive presumption of paternity based upon
DNA test results alone. It is true, as Defendant asserts, that elsewhere in the code, a
voluntary acknowledgment of paternity followed by a DNA test result showing a
probability of paternity of 99% or greater causes the voluntary acknowledgment to
become conclusive. See Tenn. Code Ann. § 24-7-118. However, the legislature did
not condition the conclusive presumption of section 24-7-112 upon a voluntary
acknowledgment of paternity, and as was the court in Austin, we are prohibited from
inserting any such requirement into the statute. See Tennessee Manufactured Hous.


                                          -5-
Ass’n v. Metropolitan Gov’t of Nashville, 798 S.W.2d 254, 257 (Tenn. App.
1990)(citations omitted)(courts “should presume that the General Assembly chose its
words carefully.”)


                                          II.


          Having ruled that Tennessee Code Annotated section 24-7-112(b)(2)(B) was
properly applied to this defendant, we turn to Defendant’s constitutional challenge.
In this case, Defendant asserts that section 24-7-112(b)(2)(B), by imposing a
conclusive presumption of paternity in cases where the DNA tests show a statistical
probability of 99% or greater, operates to deny putative fathers the due process of law
violating the Due Process Clause of the Fifth and Fourteenth Amendments of the
United States Constitution and Article I, Section 8 of the Tennessee Constitution.
The Fourteenth Amendment provides in part that “[n]o State shall . . . deprive any
person of life, liberty, or property, without due process of law.” U.S. Const. Amend.
XIV. Our supreme court has consistently held that Article 1, Section 8 of the
Tennessee Constitution confers the same protections as does the Fourteenth
Amendment. Brown v. Campbell County Bd. Of Educ., 915 S.W.2d 407, 413 (Tenn.
1995), cert. denied, 116 S. Ct. 1852 (1996); State v. Tester, 879 S.W.2d 823, 827
(Tenn. 1994).


          “[P]ermanent irrebuttable presumptions have long been disfavored under
the Due Process Clause.” Cleveland Bd. Of Educ. V. LaFleur, 414 U.S. 632, 644
(1974)(citing Vlandis v. Kline, 412 U.S. 441, 446 (1973)). In Vlandis, the Court held
violative of due process a Connecticut statute which created a conclusive presumption
of non-residency for students who had non-Connecticut addresses at the time of
applying for admission to a Connecticut school and who were later attempting to
qualify as residents for purposes of reduced tuition rates. The Court stated that “it is
forbidden by the Due Process Clause to deny an individual the resident rates on the
basis of a permanent and irrebuttable presumption of nonresidence, when that
presumption is not necessarily or universally true in fact.” Vlandis, 412 U.S. at 452;
see also Stanley v. Illinois, 405 U.S. 645 (1972)(holding that an Illinois statute
containing an irrebuttable presumption that unmarried fathers are incompetent to raise
their children violated the Due Process Clause.)

                                          -6-
          In an early example of its dissatisfaction with the use of conclusive
evidence, the Tennessee legislature amended a 1741 statute involving the
establishment of paternity. The statute provided that “the person charged by the
woman before the justices was to be adjudged the reputed father, and nothing further
was to be done when the proceedings were returned to the county court but for the
court to make 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 affidavit of
the woman shall not be conclusive upon the county court, and the reputed father cut
off from all enquiry in every possible case; but upon filing his affidavit clearly setting
forth that justice requires an issue to be made to try the truth of the charge, it shall be
the duty of the court where such charge is pending to hear proof and determine the
matter as to right and justice may appertain.” Id. at 98; 1822 Tenn. Pub. Acts ch. 29,
§ 1.


          Like the 1741 statute, the irrebuttable presumption of Tennessee Code
Annotated section 24-7-112(b)(2)(B) effectively denies putative fathers the
opportunity to be heard. The Supreme Court has held “due process requires, at a
minimum, that absent a countervailing state interest of overriding significance,
persons forced to settle their claims of right and duty through the judicial process
must be given a meaningful opportunity to be heard.” Little v. Streater, 452 U.S. 1,
5-6 (1981)(citing Boddie v. Connecticut, 401 U.S. 371, 377 (1971)). In determining
what process is due in a particular situation, three factors must be considered: (1) the
private interest affected by the official action; (2) the risk of erroneous deprivation
of the interest through the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and finally, (3) the government’s
interest, including the function involved and the fiscal and administrative burdens that
the additional or substitute procedural requirement would entail. Mathews v.
Eldridge, 424 U.S. 319, 335 (1976); State v. Barnett, 909 S.W.2d 423, 426 (Tenn.
1995).


          In the case at bar, the private interests are substantial. Little, 452 U.S. at 13.
In Little, the Court held that due process was violated when a statute, which provided
that the cost of blood tests in paternity actions was to be borne by the party requesting
the tests, operated to deny such tests to an indigent defendant. As in our situation, the

                                            -7-
Little Court noted the pecuniary interest of the putative father in avoiding a
substantial support obligation and the liberty interest threatened by potential
sanctions for failure to comply with child support obligations. Id.; see Tenn. Code
Ann. § 36-5-104(1996) (providing that the failure to comply with orders to support
minor children may be punished by imprisonment in the county workhouse or county
jail for up to six (6) months.) In addition, the Court in Little stressed the significance
of the creation of the parent-child relationship. “Just as the termination of such bonds
demands procedural fairness, so too does their imposition.” Little, 452 U.S. at 13
(citation omitted). Further, the Court stated that “both the child and the defendant in
a paternity action have a compelling interest in the accuracy of such a determination.”
Id. An Indiana court which found that an indigent paternity defendant was entitled
to both court-appointed counsel and free blood grouping tests further expounded
upon the child’s interests: “The child’s rights of support, inheritance, and custody are
directly affected by the proceedings. The child’s health interests are affected as an
accurate family medical history can be critical in the diagnosis and treatment of a
child’s injuries and illnesses. The adjudicated father may assert rights to custody and
must give consent before a child can be adopted.” Kennedy v. Wood, 439 N.E.2d
1367, 1370-71 (Ind. App. 1982).


          Arrayed against these substantial private interests are the State’s interests.
The thrust of the State’s interest, as articulated in its brief, is the “huge and
unwarranted fiscal and administrative burden on the State and on mothers of children
born out of lawful wedlock” which would result if the statute is held unconstitutional.
Indeed, if the conclusive presumption is held unconstitutional, the rebuttable
presumption for test results showing a 95% or greater probability of paternity will
still stand, and defendants, including those whose test are above 99%, will be given
the opportunity to rebut the presumption of their paternity if they so desire. There is
no way to empirically determine how many more hearings on the issue of paternity
there will be in the absence of the conclusive presumption. However, the Supreme
Court has said that “[t]he State’s interest in administrative ease and certainty cannot,
in and of itself, save the conclusive presumption from invalidity under the Due
Process Clause where there are other reasonable and practicable means of
establishing the pertinent facts on which the State’s objective is premised.” Vlandis,
412 U.S. at 451. Here, another reasonable means is to give the putative father the

                                           -8-
chance to rebut the presumption of paternity just as he would have had if his DNA
test results had shown a 98.9% probability of paternity.


          We agree that invalidating the conclusive presumption of section 24-7-
112(b)(2)(B) will be more costly for the State of Tennessee.              “Procedure by
presumption is always cheaper and easier than individualized determination.”
Stanley, 405 U.S. at 656-57. Still, in Little, while the Court acknowledged the State’s
legitimate interest in children born out of wedlock and in the accurate and just
determination of their paternity, it concluded that “the State’s monetary interest ‘is
hardly significant enough to overcome private interests as important as those here.’”
Little, 452 U.S. at 16 (citing Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 28 (1981)).


          The final consideration under Mathews v. Eldridge involves the risk of
inaccurately adjudicating someone a father because the conclusive presumption has
foreclosed his ability to demonstrate that he is not the father of a particular child. To
understand this risk, it is essential to understand what the probability of paternity
percentage actually means.       With a 9.98% probability of paternity, which is
significantly higher than Defendant’s in this case, “in a city with a same-race male
population of 500,000, or even 500,001, one hundred other men might theoretically
be the father. Taking this to a global scale, if there are 500 million men of the same-
race on the planet, 100,000 men might theoretically qualify as putative fathers.” E.
Donald Shapiro et al, The DNA Paternity Test: Legislating the Future Paternity
Action, 7 J.L. & Health, 1, 44 (1992-93)(While this article is highly supportive of the
use of DNA to determine paternity, it advocates a uniform paternity law where there
is a conclusive presumption of paternity only in cases in which the probability of
paternity is 99.9999% or above). Although we acknowledge that it is extremely
likely that the man named in a paternity action with a 99% or greater probability of
paternity is the true father, “the fact remains that paternity indexes are not
mathematically solid.” Id. In addition, there is the problem of human error in the
scientific analyses of the DNA. See Edward J. Imwinkelried, The Debate in the DNA
Cases over the Foundation for the Admission of Scientific Evidence: The Importance
of Human Error as a Cause of Forensic Misanalysis, 69 Wash U.L.Q. 19, 22
(1991)(indicating that there “is mounting evidence of a significant margin of error in
scientific analysis . . . [and] that fifteen percent of all medical laboratory tests are in

                                            -9-
error.”) It is indisputable that an opportunity to be heard would be of value in
guarding against an erroneous adjudication or paternity based upon a misleading or
an inaccurate DNA test result.


          Assessment of the factors found in Mathews v. Eldridge indicates that the
conclusive presumption of Tennessee Code Annotated section 24-7-112(b)(2)(B) fails
to provide men in paternity proceedings with the process that is constitutionally due.
The State’s interests pale when compared to the important private interests at stake
in an adjudication of paternity.     Furthermore, while the risk of an erroneous
deprivation of these private interests is small, there is great value in providing an
opportunity to rebut the evidence of paternity to a defendant who might not be the
true father. We therefore find that, in order to have the “meaningful opportunity to
be heard” guaranteed by the Due Process Clause, the conclusive presumption can not
stand. We reverse the decision of the trial court and remand the case to the trial court
so that this defendant may have an opportunity to rebut the presumption of paternity
attached to a 99.71% probability of paternity. Costs shall be taxed against the State
of Tennessee.




                                            ____________________________________
                                            SAMUEL L. LEWIS, JUDGE


CONCUR:


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


_____________________________________
WILLIAM C. KOCH, JR., J.




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