                                                                                        01/31/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                January 9, 2018 Session

                                 IN RE MICHAEL J.

               Appeal from the Juvenile Court for Rutherford County
                    No. 10726C Donna Scott Davenport, Judge
                     ___________________________________

                           No. M2016-01985-COA-R3-JV
                       ___________________________________


Putative father appeals the juvenile court’s adjudication of parentage, arguing that the
court erred in considering a paternity test report previously entered as an exhibit in
proceedings before a magistrate. Although the court erred in taking judicial notice of the
report, we conclude the error was harmless. We also conclude that the preponderance of
the evidence supports the court’s paternity determination. Thus, we affirm.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.

Casey A. Long, Franklin, Tennessee (on appeal), for the appellant, Michael J.

Terry R. Clayton, Nashville, Tennessee, for the appellee, Alicia B.


                                       OPINION

                                            I.

       Alicia B. (“Mother”) and Michael J. had a romantic relationship in 2012. After
Mother became pregnant, she informed Michael J. that he was the father. He demanded
proof. And immediately after the child’s birth, he took both Mother and child to a
genetic testing center for a paternity test. But the test results were compromised.

       Undaunted, Michael J. purchased a DNA testing kit from Walgreens, personally
collected new DNA samples, and mailed them to the indicated lab. After he received the
Walgreens test report, he told Mother that the test showed a 99.9% probability that he
was the child’s biological father. Even so, he refused to voluntarily acknowledge
paternity because he viewed the Walgreens test as “unofficial.”

        On January 3, 2014, the State of Tennessee, on behalf of Mother, filed a petition to
establish parentage in the Juvenile Court for Rutherford County, Tennessee. At Michael
J.’s request, the juvenile court magistrate ordered the parties and the child to submit to
another paternity test. The court-ordered paternity test, conducted by Laboratory
Corporation of America (“LabCorp”), also revealed a 99.9% statistical probability of
paternity.

       After a hearing on August 14, 2014, the magistrate issued a preliminary order
declaring Michael J. to be the child’s biological father and ordering him to pay $397 in
monthly child support. On February 6, 2015, the magistrate issued a final order, which
increased the amount of child support awarded and granted Mother a judgment for birth-
related expenses.

       Michael J. requested a rehearing before the juvenile court.1 The juvenile court
hearing spanned three separate days. The first day focused on the issue determinative of
this appeal: Mother’s proof of parentage.

       Mother testified that she had sexual relations with Michael J. in June 2012, which
resulted in her pregnancy. Her son, Michael, was born in February 2013. Mother
maintained that Michael J. was the father. At his request, she acquiesced to three rounds
of paternity testing.

       She acknowledged that there was a problem with the first test because the DNA
swabs were mislabeled. But she testified that Michael J. admitted that the Walgreens test
showed a 99.9% probability that he was the father of her child. And the third paternity
test, which was ordered by the magistrate, also revealed a 99.9% probability of paternity.

       Mother moved to admit the third test report into evidence. Michael J. initially
objected because the proposed exhibit was a copy, not the original. After discovering
that the LabCorp report had been admitted as an exhibit in the hearing before the
magistrate, the juvenile court announced its intention to take judicial notice of the
document because it was in the court record. Michael J. then objected that the juvenile
court hearing was de novo. The court admitted the report over the objection.

       For his part, Michael J. agreed that the parties had participated in three paternity
tests. He even corroborated Mother’s testimony about the first two tests. But he refused

       1
          On October 21, 2015, the State was released from the case, and Mother has pursued the
parentage petition on appeal.

                                              2
to produce his copy of the Walgreens test report because the test was “unofficial.”

      He claimed that the LabCorp test results were unreliable based on his observations
when providing his DNA sample. But he conceded that he was not an expert and that he
had agreed to the selection of LabCorp as the testing laboratory.

       On April 14, 2016, the juvenile court issued a parentage order finding that Michael
J. was the child’s biological and legal father. After hearing additional evidence, the court
set child support and entered a judgment against Michael J. for Mother’s birth-related
expenses. This appeal followed.

                                             II.

       In a nonjury case, our review of the trial court’s factual findings is de novo upon
the record, accompanied by a presumption of the correctness of the findings, unless the
preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Our review of
questions of law is de novo, with no presumption of correctness. Armbrister v.
Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

       We review evidentiary decisions for an abuse of discretion. White v. Beeks, 469
S.W.3d 517, 527 (Tenn. 2015), as revised on denial of reh’g, (Aug. 26, 2015). “A trial
court abuses its discretion by applying an incorrect legal standard or reaching an illogical
or unreasonable decision that causes an injustice to the complaining party.” Id.

                                             A.

       The General Assembly has created “a single cause of action to establish parentage
of children.” Tenn. Code Ann. § 36-2-301 (2017). In the absence of an agreement or
acknowledgment of parentage, the child’s mother, among others, may file a complaint to
establish parentage. Id. § 36-2-305(b)(1), (2) (2017). The goal of any parentage action is
to establish paternity. In re T.K.Y., 205 S.W.3d 343, 349 (Tenn. 2006).

       “A man is rebuttably presumed to be the father of a child if . . . [g]enetic tests have
been administered as provided in § 24-7-112, an exclusion has not occurred, and the test
results show a statistical probability of parentage of ninety-five percent (95%) or
greater.” Tenn. Code Ann. § 36-2-304(a)(5) (2017); see also Tenn. Code Ann. § 36-1-
102(28)(A)(iv), (B) (2017) (defining legal parent to include a man adjudicated the legal
father of a child based on genetic testing conducted pursuant to Tenn. Code Ann. § 24-7-
112). This presumption “is based upon the modern-day availability and accuracy of
genetic testing.” In re T.K.Y., 205 S.W.3d at 350.

       Paternity tests in parentage actions are governed by Tennessee Code Annotated
§ 24-7-112. Tenn. Code Ann. § 36-2-309(a) (2017). In any contested paternity action,
                                            3
the court is authorized to order the parties and the child “to submit to genetic tests to
determine the child’s parentage.” Id. § 24-7-112(a)(1)(A) (2017). The court-ordered
testing must be conducted by an accredited laboratory, and the test results are admissible
in evidence as provided in subsection (b). Id. § 24-7-112(a)(3), (4).

       Subsection (b) governs both the admissibility of the paternity test report and its
evidentiary effect. The report “is admissible without the need for any foundation
testimony or other proof of the authenticity or accuracy of the test unless a written
objection is filed with the court and served upon all parties thirty (30) days prior to the
date of the hearing.” Id. § 24-7-112(b)(2)(A). And if the test results show a statistical
probability of paternity of ninety-five percent or greater, a rebuttable presumption of
paternity arises. Id. § 24-7-112(b)(2)(B).

       If the test results show a statistical probability of paternity of ninety-nine percent
or greater, the presumption of paternity is nearly conclusive. See id. § 24-7-112
(b)(2)(C). In such a case, the putative father may only rebut the presumption “by filing a
motion with the tribunal and establishing upon clear and convincing evidence one (1) or
more of only the following circumstances”:

              (i) The putative father had undergone a medical sterilization
       procedure prior to the probable period of conception, or other medical
       evidence demonstrates that he was medically incapable of conceiving a
       child during the probable period of conception;
              (ii) That the putative father had no access to the child’s mother
       during the probable period of conception;
              (iii) That the putative father has, or had, an identical twin who had
       sexual relations with the child’s mother during the probable period of
       conception; or
              (iv) The putative father presents evidence in the form of an affidavit
       that another man has engaged in sexual relations with the mother of the
       child in question during the period of probable conception. In this case, the
       court shall order genetic testing of that other man in conformity with this
       section. The results of that genetic test must indicate that the other man has
       a statistical probability of paternity of ninety-five (95%) or greater to
       establish an effective defense pursuant to this subdivision.

Id.

       Once paternity is established, the court must issue an order adjudicating parentage
and resolving such issues as custody, visitation, and child support. Id. § 36-2-311(a).



                                             4
                                                     B.

       On appeal, Michael J. argues that the juvenile court erred in considering the
LabCorp report because he was entitled to a de novo hearing. See Tenn. Code Ann. § 37-
1-107(e) (2014). We agree that juvenile court review of magistrate decisions is de novo.2
See Kelly v. Evans, 43 S.W.3d 514, 515-16 (Tenn. Ct. App. 2000). But the juvenile court
hearing was de novo. The juvenile court conducted an evidentiary hearing during which
the parties testified and were allowed to submit evidence. See Massey v. Casals, 315
S.W.3d 788, 798-99 (Tenn. Ct. App. 2009) (holding that a juvenile court hearing, which
included witness testimony and the submission of documentary evidence, met the
statutory requirement); Gilland v. Gilland, No. M2002-02276-COA-R3-CV, 2004 WL
2583885, at *6 (Tenn. Ct. App. Nov. 9, 2004) (holding that a full evidentiary hearing is a
de novo hearing).

       We conclude that the court erred in taking judicial notice of the LabCorp test.3
But the error was harmless because Mother’s copy of the report was clearly admissible
under Tennessee Code Annotated § 24-7-112(b)(2)(A). See Tenn. R. App. P. 36(b). The
test was ordered by the magistrate in a contested paternity action. And, as noted above,
the written report of a court-ordered paternity test is admissible “unless a written
objection is filed with the court and served upon all parties thirty (30) days prior to the
date of the hearing.” Tenn. Code Ann. § 24-7-112(b)(2)(A). As Michael J. failed to file
any written objections to the LabCorp report, Mother’s copy of the report was admissible
as evidence in the juvenile court hearing. See State v. Garrett, No. 01A01-9506-JV-
00262, 1996 WL 252317, at *1 (Tenn. Ct. App. May 15, 1996) (holding test report
admissible in the absence of timely-filed objection); Tenn. R. Evid. 1003 (“A duplicate is
admissible to the same extent as an original unless a genuine question is raised as to the
authenticity of the original.”).



        2
          Although, at the time Michael J. requested a rehearing, the statute merely provided for “a
hearing” before the juvenile court, our courts interpreted the statutory language as requiring a de novo
hearing. See Tenn. Code Ann. § 37-1-107(e) (2014); Kelly v. Evans, 43 S.W. 3d 514, 515-16 (Tenn. Ct.
App. 2000). After recent amendments, the statute now expressly provides for a de novo hearing. See
Tenn. Code Ann. § 37-1-107(d) (Supp. 2017) (“Any party may, within ten (10) days after entry of the
magistrate’s order, file a request with the court for a de novo hearing by the judge of the juvenile court.”).
        3
          Tennessee Rule of Evidence 201 limits judicial notice to adjudicative facts. Tenn. R. Evid.
201(a). “[A]djudicative facts help to ‘explain who did what, when, where, how, and with what motive
and intent.’” Counts v. Bryan, 182 S.W.3d 288, 292 (Tenn. Ct. App. 2005) (alteration in original)
(quoting NEIL P. COHEN ET AL., TENNESSEE LAW OF EVIDENCE § 2.01[3] (4th ed. 2000)). Additionally,
the fact must be one that is “not subject to reasonable dispute” and must be “capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Tenn. R.
Evid. 201(b). The LabCorp report does not meet those criteria.

                                                      5
       Because the LabCorp report showed a statistical probability of paternity of ninety-
nine percent or greater, Michael J. had an extremely high burden of proof to rebut the
statutory presumption of paternity. See Tenn. Code Ann. § 24-7-112(b)(2)(C). He failed
to meet that burden. The evidence in this record supports the juvenile court’s paternity
determination.4

                                                    C.

        Mother seeks an award of attorney’s fees as damages for a frivolous appeal. See
Tenn. Code Ann. § 27-1-122 (2017). The statute authorizing an award of damages for a
frivolous appeal “must be interpreted and applied strictly so as not to discourage
legitimate appeals.” See Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977)
(citing the predecessor to Tennessee Code Annotated § 27-1-122). A frivolous appeal is
one “utterly devoid of merit.” Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202, 205
(Tenn. 1978). We do not find this appeal devoid of merit or perceive that it was taken
solely for delay. Thus, we decline to award Mother her attorney’s fees on this basis.

                                                   III.

        For the foregoing reasons, we affirm the juvenile court’s decision.




                                                          _________________________________
                                                          W. NEAL MCBRAYER, JUDGE




        4
          Michael J.’s second issue on appeal is whether the juvenile court erred in considering the results
of the Walgreens test based on the parties’ testimony instead of a written report. Even without the
Walgreens test results, the evidence supports the juvenile court’s paternity determination. Thus, we
decline to address his second issue.
                                                     6
