                                                                                                      07/26/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      June 27, 2017 Session

                                         IN RE MYA H.

                   Appeal from the Chancery Court for Shelby County
                       No. CH-14-1729-2 Jim Kyle, Chancellor
                       ___________________________________

                              No. W2016-01285-COA-R3-PT
                          ___________________________________


Presumptive Legal Father appeals the trial court’s finding that the presumption of
parentage had been rebutted without the benefit of an evidentiary hearing and his
resulting dismissal from this termination of parental rights proceeding. Because the
statute relied upon to dismiss Presumptive Legal Father from this proceeding is
inapplicable to the case-at-bar, we reverse the trial court’s decision to dismiss
Presumptive Legal Father. We also vacate the trial court’s finding that the presumption of
parentage had been rebutted and remand for an evidentiary hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
                     in Part; Vacated in Part; and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which W. NEAL
MCBRAYER and BRANDON O. GIBSON, JJ., joined.

James Franklin, Jr., Memphis, Tennessee, for the appellant, Fred E.

Kevin W. Weaver, Cordova, Tennessee, for the appellee, Life Choices of Memphis, Inc.

                                             OPINION

                                            Background

       On November 26, 2014, Life Choices of Memphis, Inc. (“Life Choices”) filed a
petition to terminate the parental rights of Fred E. (“Appellant”) and Unknown Father to
Mya H. (“the child”), born in October 2014.1 Because the child was born to the marriage
of Appellant and Jennifer H. (“Mother”), Appellant was presumed to be the legal father
        1
         In cases involving termination of parental rights, it is the policy of this Court to remove the
names of minor children and other parties in order to protect their identities.
of the child. Appellant’s name, however, was not listed on the child’s birth certificate.
The petition alleged that Mother had surrendered the child to Life Choices on November
13, 2014, and that Appellant was currently incarcerated. The petition alleged several
grounds for termination against both Appellant and Unknown Father, including that both
men abandoned the child by willfully failing to visit Mother during the pregnancy,
abandonment by willful failure to pay support during the pregnancy, failure to seek
visitation with the child after her birth, and failure to manifest a willingness and ability to
assume custody of the child.

       On November 26, 2014, the same day the termination petition was filed, Life
Choices filed a motion requesting permission to serve both Appellant and Unknown
Father by publication. The motion was accompanied by an affidavit of due diligence.
Therein, counsel for Life Choices stated that Mother indicated that Appellant was not the
biological father of the child because their physical relationship ended in 2004. Because
of “her lifestyle” thereafter, Mother informed Life Choices that she did not know who the
Father of the child was or the names of “any of these men” that could potentially be the
child’s biological father. The affiant further stated that publication on Unknown Father
was being sought because no genetic testing had been performed on Appellant. On
December 8, 2014, the trial court entered an order allowing publication on Unknown
Father. It appears, however, that Appellant was served “by process service.” As such, on
December 12, 2014, Appellant sent a letter to the trial court indicating that he wanted to
oppose the termination of his parental rights to the child. The trial court thereafter
appointed an attorney to represent Appellant.

       Having served Unknown Father by publication, Life Choices filed a motion for
default judgment against him on February 9, 2015. The trial court granted the motion for
default judgment on February 13, 2015. On April 23, 2015, Appellant, by and through his
counsel, filed an answer to the termination petition, generally denying that he had
abandoned the child. Additionally, Appellant’s answer specifically stated that Appellant
was the presumptive legal father of the child.

       On May 29, 2015, Life Choices filed a motion to compel Appellant to participate
in genetic testing. The motion further asked that a guardian ad litem be appointed for the
child. In September 2015, two identical orders were entered requiring Appellant to
submit to genetic testing. Appellant refused to consent to the genetic testing. As a result,
on October 29, 2015, Life Choices filed a motion to rebut the presumption of parentage
and “disestablish [Appellant] as legal father” of the child.2

        2
          The statutes at issue in this case variously use “presumption of parentage” and “presumption of
paternity” to describe the presumption at issue in this case. See Tenn. Code Ann. § 36-2-304 (using the
phrase “presumption[] of parentage”); Tenn. Code Ann. § 36-1-102(28)(C) (using the phrase
“presumption of paternity”). Unless involving a direct quote, we choose to utilize the term contained in
section 36-2-304, as section 36-1-102(28)(C) is inapplicable in this case, as discussed in detail, infra.
                                                  -2-
       Life Choices’ motion was heard and granted on November 13, 2015, without an
evidentiary hearing. By order of December 2, 2015, the trial court concluded that
“completion of genetic testing is an appropriate action to rebut a presumption of
parentage” and Appellant’s refusal to submit to such testing “rebuts his presumption of
parentage by a preponderance of the evidence.” In the meantime, trial was set for May
18, 2016.

        On April 18, 2016, however, Life Choices filed a motion to dismiss Appellant as a
party based upon newly enacted Tennessee Code Annotated section 36-1-102(28)(C),
discussed in detail, infra. At the May 2, 2016 hearing, Life Choices’ counsel relied upon
the trial court’s previous finding that the presumption of parentage had been rebutted.
Appellant, however, expressed his desire to be included in the proceedings as the legal
parent of the child based upon the presumption of parentage and the fact that no other
father was ever located. The trial court delayed its ruling on the motion for ten days to
allow Appellant time to complete genetic testing. Because Appellant still refused genetic
testing, by order of May 18, 2016, the trial court dismissed Appellant as a party from the
termination action. The termination proceedings were ultimately completed, and
Appellant thereafter appealed to this Court.

                                     Issue Presented

       Appellant raises a single narrow issue in this case, which is taken from his brief:
“Whether it was reversible error for the [trial] [c]ourt to rebut the presumption of
paternity finding that a preponderance of the evidence burden of proof had been met,
without having an evidentiary hearing?” After our review, we agree that the trial court
erred in this case.

                                       Discussion

                                             I.
       This case stems from a termination of parental rights proceeding. In the typical
case, the party seeking termination of a parent’s parental rights must prove both the
existence of one of the statutory grounds for termination and that termination is in the
child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Because of the
fundamental nature of the parent’s rights and the grave consequences of the termination
of those rights, courts must require a higher standard of proof in deciding termination
cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination and the
best interest inquiry must be established by clear and convincing evidence. Tenn. Code
Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. This standard of proof applies
regardless of whether the parent is a legal parent, a presumptive legal parent, or merely a
putative biological father. See Tenn. Code Ann. § 36-1-102(28)(A) (defining a legal
                                            -3-
parent as, inter alia, the biological mother of the child and “[a] man who is or has been
married to the biological mother of the child if the child was born during the marriage or
within three hundred (300) days after the marriage was terminated”); Tenn. Code Ann. §
36-2-304 (defining a presumptive legal parent as, inter alia, a man married to the child’s
mother at the time of the child’s birth or “within three hundred (300) days after the
marriage is terminated”); Tenn. Code Ann. § 36-1-117(c) (defining a putative father as,
inter alia, a biological father recorded on the child’s birth certificate as the child’s father).
Rather, the substantive difference between a legal parent and a putative biological father
in this situation generally only involves the grounds for termination that may be alleged.
Compare Tenn. Code Ann. § 36-1-113(g)(1–8, 10)(outlining the grounds for termination
as to legal parents), with § 36-1-113(g)(9)(outlining the grounds applicable to putative
fathers).3 Here, there is no dispute that Appellant was married to Mother at the time of the
child’s birth and therefore, at the time the termination petition was filed, qualified as both
a legal parent and a presumptive legal father in this case.

        In 2016, however, the Tennessee General Assembly created a new distinction
between legal parents and mere presumptive legal fathers in the termination of parental
rights context. See 2016 Tennessee Laws Pub. Ch. 636 (S.B. 2531), eff. March 23, 2016.
Specifically, Tennessee Code Annotated section 36-1-102(28)(C) now provides that
where a presumed father’s “presumption of paternity” is rebutted, “the man shall no
longer be a legal parent for purposes of this chapter and no further notice or termination
of parental rights shall be required as to this person[.]”4 Unlike the grounds for
termination, which must be proven by clear and convincing evidence, only a
preponderance of the evidence is required to rebut the presumption of parentage. Tenn.
Code Ann. § 36-2-304(b)(3). In order to meet this burden, a party may seek to rebut the
presumption of parentage “in an appropriate action.” Tenn. Code Ann. § 36-2-304(b)(1).
Because this issue is a question of fact, we review a trial court’s finding that the
presumption of parentage has been rebutted de novo with a presumption of correctness,
unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). For the evidence to

        3
           Prior to March 2016, under the previous version of this statute, there was some question
regarding whether these additional grounds were applicable to putative fathers. See In re Bernard T.,
319 S.W.3d 586, 599 (Tenn. 2010) (citing In re D.A.H., 142 S.W.3d 267, 272–73 (Tenn. 2004)) (“The
grounds for termination in Tenn. Code Ann. § 36–1–113(g)(9) 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.”). But see In re Dixie M.M., No. M2012-01226-COA-R3-PT, 2012 WL
4474155, at *8 (Tenn. Ct. App. Sept. 27, 2012) (affirming the trial court’s termination of the putative
father’s parental rights on the ground of failure to seek reasonable visitation with the child pursuant to
Tennessee Code Annotated section 36-1-113(g)(9)(A)(iii)). On March 23, 2016, the legislature amended
the wording of the statute to explicitly state that these additional grounds applied to “the putative father of
the child.” See 2016 Pub. Acts, c. 636, § 5, eff. Mar. 23, 2016. This amendment did not take effect until
after the termination petition at issue was filed. We cite the current version of the statute merely to
illuminate the current state of the law. The change in the statute is not relevant to the issue on appeal.
         4
           Only a man’s status as a “legal parent” may be rebutted under section 36-2-304. See Tenn.
Code Ann. § 36-1-102(28)(C).
                                                    -4-
preponderate against a trial court’s finding of fact, it must support another finding of fact
with greater convincing effect. 4215 Harding Road Homeowners Ass’n. v. Harris, 354
S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney Gilreath & Assocs., 40
S.W.3d 66, 71 (Tenn. Ct. App. 2000).

       Although not argued by the parties in this case, there is a significant issue that this
Court must address—the applicability of the statutory provision relied on by the trial
court to dismiss Appellant, which provision was not enacted until after this termination
petition was filed. In other situations, this Court has addressed similar issues sua sponte,
as we do now. See In re Braxton M., No. E2016-02172-COA-R3-PT, 2017 WL
2859806, at *13 (Tenn. Ct. App. July 5, 2017) (addressing the applicability of an
amended statute governing grounds for termination notwithstanding both parties’ failure
to argue that issue on appeal based on “the fundamental constitutional interest involved”).

       Here, as noted above, the termination petition at issue was filed on November 26,
2014. The statutory provision relied upon by the trial court to dismiss Appellant from the
termination proceeding was not enacted until over a year later, on March 23, 2016. See
2016 Tennessee Laws Pub. Ch. 636 (S.B. 2531), eff. March 23, 2016. This Court has
recently held that section 36-1-102(28)(C) may not be applied retroactively to a
termination petition filed before the effective date of the amendment. See In re Francis
P., No. E2016-02493-COA-R3-PT, 2017 WL 2733793 (Tenn. Ct. App. June 26, 2017).
In In re Francis, like in this case, the termination petition at issue was filed prior to the
enactment of the statutory provision allowing dismissal of a presumptive legal father after
the presumption of parentage had been rebutted. Id. at *1–*2.The trial court nevertheless
relied upon the language of section 36-1-102(28)(C) to terminate the rights of the child’s
presumptive legal father. Id. at *2.

       We concluded, however, that the trial court erred in relying on section 36-1-
102(28)(C) because that provision had not been enacted until after the termination
petitions had been filed. Id. at *9. We further noted that, in order to apply section 36-1-
102(28)(C), the “trial court, in essence, applied subsection (C) retrospectively.” Id. We
explained:

       Pursuant to the Tennessee Constitution, “no retrospective law, or law
       impairing the obligations of contracts, shall be made.” See Tenn. Const. art.
       1, § 20; In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004). Therefore,
       “statutes are presumed to operate prospectively unless the legislature
       clearly indicates otherwise.” In re D.A.H., 142 S.W.3d at 273 (citing Nutt
       v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn. 1998)).




                                            -5-
            Upon review, we determine that the trial court erred in applying
      subsection (C) retrospectively. As the Supreme Court noted in In re
      D.A.H., retrospective application is reserved for certain types of statutes:

             Statutes deemed remedial or procedural apply retrospectively
             to causes of action arising before such acts became law and to
             suits pending when the legislation took effect.

             A procedural or remedial statute is one that does not affect the
             vested rights or liabilities of the parties. A procedural statute
             is one that addresses the mode or proceeding by which a legal
             right is enforced. Remedial statutes are defined as “legislation
             providing means or method whereby causes of action may be
             effectuated, wrongs redressed and relief obtained . . . .”

      Id. (quoting Nutt v. Champion Int’l Corp., 980 S.W.2d 365, 368 (Tenn.
      1998)). In general, a statute is procedural “if it defines the . . . proceeding
      by which a legal right is enforced, as distinguished from the law which
      gives or defines the right.” Sundquist, 2 S.W.3d at 923 (citing Kuykendall
      v. Wheeler, 890 S.W.2d 785, 787 (Tenn. 1994)). Similarly, “[a] statute is
      remedial if it provides the means by which a cause of action may be
      effectuated, wrongs addressed, and relief obtained.” Id. (citing Dowlen v.
      Fitch, 264 S.W.2d 824, 826 (Tenn. 1954)). However, “even a procedural or
      remedial statute may not be applied retrospectively if it impairs a vested
      right or contractual obligation in violation of [Tennessee Constitution]
      article I, section 20.” Id. at 923–24. A “vested right” is defined as a right
      which “is proper for the state to recognize and protect and of which [an]
      individual could not be deprived arbitrarily without injustice.” Id. at 923
      (quoting Morris v. Gross, 572 S.W.2d 902, 905 (Tenn. 1978)).

In re Francis, 2017 WL 2733793 at *9–10. We thereafter reiterated several factors
outlined by the Tennessee Supreme Court for “‘determining whether a retroactive statute
impairs or destroys vested rights,’” including “‘whether the retroactive provision gives
effect to or defeats the bona fide intentions or reasonable expectations of affected
persons[.]’” Id. at *10 (quoting Sundquist, 2 S.W.3d at 924). Finally, we noted that the
Tennessee Supreme Court previously held that:

       [A]n amendment regarding the statutory grounds for termination of
      parental rights, if applied retrospectively, would cause the father to lose his
      constitutional and vested rights as a parent. Therefore, the Court held that
      pursuant to article 1, section 20 of the Tennessee Constitution, the
      amendment could not be applied retroactively.

                                           -6-
In re Francis, 2017 WL 2733793 at *10 (footnote omitted) (citing In re D.A.H., 142
S.W.3d at 274). Based upon the “factual similarities” between the situation in In re
D.A.H. and the facts in In re Francis, we held that section 36-1-102(28)(C) likewise
could not be applied retroactively. We agree with the sound reasoning expressed in In re
Francis regarding the retrospective application of section 36-1-102(28)(C). We therefore
likewise conclude that the trial court erred in applying section 36-1-102(28)(C)
retroactively to this case. Because neither the motion to dismiss nor the order of dismissal
cite any other bases for the dismissal of Appellant from this termination of parental rights
proceeding, we reverse the trial court’s order dismissing Appellant as a party. Given that
Appellant was not properly dismissed and therefore remained a proper party to this
termination proceeding, we must also reverse the trial court’s May 20, 2016 order
terminating all parental rights to the child at issue.

                                                     II.

       Although the dismissal of Appellant was not proper in this case, the inapplicability
of section 36-1-102(28)(C) does not negate Life Choices’ ability to institute “an
appropriate action” to rebut Appellant’s presumption of parentage under section 36-2-
304(b), for whatever purpose that action may serve.5 See generally Tenn. Code Ann. §
36-2-304(b); In re T.K.Y., 205 S.W.3d 343, 352 (Tenn. 2006) (“Viewing the parentage,
adoption and termination statutes as a whole, and in light of the constitutionally-protected
rights of biological parents, however, our view is that the rights of the biological father
are superior.”).6 Under section 36-2-304(b), however, Life Choices was required to rebut
the presumption of parentage by a preponderance of the evidence. From our review of the
record, however, no evidence was actually presented to the trial court on this issue.

        While there is no dispute in this appeal that Father failed to participate in genetic
testing as ordered by the trial court, the record simply contains no proof presented to the
trial court of this fact. Life Choices’ motion to rebut the presumption of parentage is not
accompanied by any documents or affidavits, nor is it a sworn petition. Unsworn
allegations are not evidence. See Washington v. Tennessee Dept. of Corr., No. 01A-01-
9603-CH-00131, 1996 WL 334359, at *1 (Tenn. Ct. App. June 19, 1996) (“Unsworn
allegations of fact in pleading or brief do not create an issue as to facts shown by sworn
evidence.”). Likewise, counsel for both parties informed the trial court of Appellant’s
refusal; the record, however, contains no stipulations by the parties of this fact, nor any
testimony concerning Appellant’s refusal. Tennessee courts have repeatedly held that
statements of counsel are not evidence. See, e.g., Elliott v. Cobb, 320 S.W.3d 246, 250
        5
          During one hearing in the trial court, counsel for Life Choices stated: “[U]nder 36-2-304 . . .
[u]nfortunately . . . at that time there was no mechanism that if you rebutted the presumption . . . you still
had a, quote, legal father under the adoption statute that you still couldn’t do anything with.” Counsel
explained, however, that the 2016 amendment to section 36-1-102 allowed Life Choices to pursue
dismissal of Appellant.
        6
          We note that no other purported father actually participated in these proceedings.
                                                    -7-
(Tenn. 2010) (“[S]tatements and arguments of counsel are neither evidence nor a
substitute for testimony.”) (citing Metro. Gov’t of Nashville & Davidson Cnty. v.
Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977); Hathaway v. Hathaway, 98 S.W.3d 675,
681 (Tenn. Ct. App. 2002)). Finally, the record also contains an affidavit of due diligence
from Life Choices, detailing the facts leading Life Choices to believe that Appellant was
not the biological father of the child. Again, this affidavit was not entered by stipulation
of the parties or through appropriate testimony.7

        Even assuming, however, that the trial court had appropriate evidence from which
to find that Appellant refused to take part in genetic testing, we are troubled by the trial
court’s refusal to entertain other evidence on this issue. To be sure, nothing in section 36-
2-304(b) specifies that the refusal to submit to genetic testing, standing alone, would
conclusively rebut the presumption of parentage. We can certainly discern how an
adverse inference may be taken in proper circumstances when a party refuses to
participate in ordered genetic testing. See State Dep’t of Children’s Servs. v. F.R.G., No.
E2006-01614-COA-R3-PT, 2007 WL 494996, at *12 (Tenn. Ct. App. Feb. 16, 2007),
perm. app. denied (Tenn. May 21, 2007) (holding that a trial court drawing an adverse
inference from the parent’s refusal to testify in a termination of parental rights proceeding
was not unconstitutional)); In re Chloe R.P., No. E2010-01257-COA-R3-PT, 2011 WL
578534, at *3 (Tenn. Ct. App. Feb. 17, 2011), perm. app. denied (Tenn. May 5, 2011)
(same); see also Dep’t of Revenue v. B.P., 412 Mass. 1015, 1016, 593 N.E.2d 1305,
1307 (1992) (allowing an adverse inference where a father refused to submit to genetic
testing); M., on Behalf of S. v. R., 127 Misc. 2d 931, 933, 487 N.Y.S.2d 685, 688 (N.Y.
Fam. Ct. 1985) (same); c.f. Tenn. Code Ann. § 36-5-2316, cmt. (noting that the Uniform
Interstate Family Support Act’s express provision allowing an adverse inference where a
party refuses to testify in a civil hearing may also support a related rule “that refusal to
submit to genetic testing may be admitted into evidence and a trier of fact may resolve
the question of parentage against the refusing party on the basis of an inference that the
results of the test would have been unfavorable to the interest of that party”). Such an
inference, however, would generally not be conclusive as to the fact at issue. See Nat’l
Life & Acc. Ins. Co. v. Eddings, 188 Tenn. 512, 520, 221 S.W.2d 695, 698 (1949)
(holding that an adverse inference “does not amount to substantive proof which can be
substituted for a fact required to make out his adversary’s case”); Tenn. L. of Evid.
3.01[2][b] (describing an inference as “permit[ting], but [] not requir[ing], the jury [or
fact-finder] to find a ‘presumed’ fact”). Rather, the opposing party is typically permitted
to offer “contrary proof” on the issue. Tenn. L. of Evid. 3.01[2][b].




        7
          The affidavit of due diligence contains several statements purportedly made by Mother
concerning the conception of the child. Because no evidentiary hearing was ever held, Father was not
permitted to object to these statements on the basis of hearsay or to cross-examine Mother regarding these
statements.
                                                  -8-
       Here, Appellant was not permitted to offer any contrary proof in an attempt to
thwart Life Choices’ effort at rebutting his presumption of parentage. Indeed, the trial
court held no evidentiary hearing, and no proof was taken. Clearly, with no actual
evidence before it, the trial court’s decision that the presumption of parentage had been
rebutted is not supported by the preponderance of the evidence. Other courts in similar
circumstances have upheld a party’s attempt to rebut the presumption of parentage only
where an evidentiary hearing took place or the parties entered into stipulations
concerning the proof. See In re T.K.Y., 205 S.W.3d at 346, 352 (indicating that one
presumptive legal father’s parentage had been rebutted where the parties stipulated to the
admissibility of evidence concerning the biological father of the child). Based upon the
lack of evidence before the trial court, we conclude that the evidence in the record
preponderates against the trial court’s finding that the presumption of parentage had been
rebutted by a preponderance of the evidence. We therefore vacate the trial court’s
judgment and remand for an evidentiary hearing on this issue.

                                       Conclusion

       The judgment of the Shelby County Chancery Court is reversed in part, vacated in
part, and remanded for further proceedings as are necessary and consistent with this
Opinion. Costs of this appeal are taxed to Appellee Life Choices of Memphis, Inc., for
which execution may issue if necessary.


                                                _________________________________
                                                J. STEVEN STAFFORD, JUDGE




                                          -9-
