Nale v. Robertson
| Citation | 871 S.W.2d 674 |
| Parties | Randy Scott NALE and Wife, Petitioners-Appellants, and Tennessee Conference Adoption Service, Intervening Plaintiff-Appellant, v. Darrell Raymont ROBERTSON, Defendant-Appellee. |
| Decision Date | 18 February 1994 |
| Court | Supreme Court of Tennessee |
Robert D. Tuke, Garry K. Grooms, Kathryn A. Stephenson, Farris, Warfield & Kanaday, Nashville, for petitioners-appellants.
Julia J. Tate, Gracey, Ruth, Howard, Tate & Sowell, Nashville, for defendant-appellee.
Charles W. Burson, Atty. Gen. and Reporter, Dianne Stamey Dycus, Sr. Counsel, for intervening plaintiff-appellant.
This case presents for determination the competing claims of Darrell Raymont Robertson, the natural father of David, a child born out of wedlock, and Randy Scott Nale and Nancy Jane Bell Nale, who have custody of and seek the adoption of David. The Court of Appeals reversed the judgment of the trial court granting the Nales's petition for adoption and dismissing Robertson's petition for legitimation and remanded the case to the trial court for further consideration of the petition for legitimation. This Court finds that Robertson's petition for legitimation should be granted and the Nale's petition for adoption and the petition to terminate parental rights should be dismissed.
Prior to the birth of the child, Robertson told the expectant mother and her sister that he wanted custody of the baby if the mother should choose not to retain custody. At that time, the mother, who was "pretty sure" Robertson was the father, said she would never give the child up for adoption. Robertson was not requested to and did not provide any support for the expectant mother during the pregnancy.
David was born October 26, 1990. Upon being advised by the mother's sister of the child's birth, Robertson went immediately to the hospital, but he was not allowed to see the child. Two days after the child was born he was surrendered for adoption by the mother to the Tennessee Conference Adoption Service, the intervening petitioner, and placed by the Conference with the Nales. Robertson did not receive notice of the surrender or placement.
On October 31, 1990, when the child was five days old, Robertson, pursuant to the provisions of T.C.A. § 36-2-209, filed with the Department of Human Services putative father registry a "notice of intent to claim paternity" of the child. After filing the notice, Robertson, upon inquiry with the Department was told, erroneously however, that he would be contacted in the event the child should be surrendered for adoption. The Conference did not learn that Robertson had filed with the registry a notice claiming paternity until more than three months later, in February 1991. The Conference immediately notified the Nales of the putative father's identity; however, the Conference's single letter to Robertson advising that it had custody of the child was returned undelivered.
On March 28, 1991, the Conference filed a petition in juvenile court to terminate Robertson's paternal rights on the ground that Robertson had abandoned the child. Robertson first learned that the Conference had custody of the child in May 1991, when he received from the clerk of the juvenile court a copy of the Conference's petition. At that time, the child was seven months old. Immediately upon learning that the Conference had custody of the child, Robertson petitioned the juvenile court for an order allowing him to visit the child, which petition the Conference opposed. On May 21, 1991, the Conference gave its consent for the adoption of the baby by the Nales. On June 4, 1991, Robertson responded to the petition to terminate his parental rights and also filed with the juvenile court a petition to legitimate the child.
On August 20, 1991, the Nales filed in the circuit court a petition for adoption seeking the termination of Robertson's parental rights, again on the ground of abandonment. At that time, there had been no hearing in juvenile court on the Conference's petition to terminate Robertson's parental rights or Robertson's petition to have himself declared the father of the child.
On August 30, 1991, Robertson petitioned the circuit court for an order allowing visitation with the child. On September 13, 1991, he filed a response to the Nales's petition to adopt and also a petition seeking to legitimate the child. On September 18, 1991, the circuit court allowed the Conference to intervene on behalf of the Nales and denied Robertson's petition for visitation privileges.
Beginning in October 1991, Robertson voluntarily sent money to the Nales for the support of the child. He also sent presents, and he tried, though unsuccessfully, to be allowed to visit with the child.
On June 5, 1992, the Nales amended their petition for adoption, withdrawing the charge that Robertson had abandoned the child and asserting that adoption was in the child's best interest. An order was entered by the court stating that the determinative issue was the child's best interest and limiting proof to that issue.
On July 24, 1992, the circuit court found the adoption by the Nales to be in David's best interest, and, on August 13, 1992, an order was entered granting the petition for adoption and dismissing the petition for legitimation. The child at that time was almost 22 months old.
On appeal, the Court of Appeals found that the trial court had erred in failing to dispose of Robertson's petition for legitimation before considering the petition for adoption, and ordered a remand for that purpose.
After the Court of Appeals rendered its opinion, the parties entered into an agreed order allowing Robertson certain visitation privileges with David.
The Nales insist that T.C.A. § 36-1-111 allows the adoption of a child born out of wedlock if the adoption is in the child's best interest, notwithstanding a pending legitimation proceeding, the lack of consent of the natural father, and the absence of an adjudication of abandonment. Robertson asserts that the provision of T.C.A. § 36-1-111, excluding as a necessary party to adoption proceedings the natural father of a child born out of wedlock and not legitimated, is a denial of constitutional due process. The following provisions of the statute are relevant to this case:
(a) In the case of a child born out of wedlock and when the child has not been legitimated prior to the initiation of proceedings for the adoption of the child, the natural father of the child shall not be a necessary party to nor shall the natural father have a right to notice of the adoption proceedings except as provided in subsection (b).
(b) Except as provided in subsection (c), the following persons shall be entitled to written notice of a proposed adoption in either a separate proceeding or in the adoption proceeding and shall be given the opportunity to present proof as to the best interests of the child; provided, that such notice and opportunity to be heard shall not prevent a court from entering a decree of adoption if it finds adoption to be in the best interest of the child regardless of whether or not the natural father of a child born out of wedlock consents or is determined to have abandoned the child.
(1) Any person adjudicated by a court in this state to be the father of the child prior to the initiation of proceedings for the adoption of the child;
. . . . .
(3) Any person who has filed an unrevoked notice of intent to claim paternity or an acknowledgement of paternity with the putative father registry pursuant to chapter 2, part 2 of this title prior to the initiation of proceedings for the adoption of the child; provided, that such person has not waived the right to notice by failing to timely notify the registry of any change of address;
. . . . .
(8) Any person who has filed a petition to legitimate the child in a court in this state.
The Court of Appeals held correctly that a petition to legitimate a child filed prior to an adoption petition must be decided, and decided adversely to the putative father, before the adoption petition may be considered. See In re Adoption of Dearing, 572 S.W.2d 929, 932 (Tenn.App.1978); In re Adoption of Hutto, 777 S.W.2d 353, 354 (Tenn.App.1989). The parent's right to have the legitimation issue considered prior to and separate from the adoption is significant procedurally and substantively.
A father whose child has been legitimated can defeat an adoption by withholding his consent to the adoption, but a father whose child has not been legitimated may, at most, present proof regarding the child's best interest. T.C.A. § 36-1-111(b). Also, in the legitimation proceeding, the essential issue is the fitness of the father as a parent; while, in the adoption proceeding, the issue is the best interest of the child. These rights of a father cannot be defeated by the filing of a petition for adoption prior to the adjudication regarding legitimacy.
The Court of Appeals characterized the burden of proof upon a natural parent to sustain a petition for legitimation as a "relatively easy burden of persuasion." The court also stated:
In considering the application for legitimation, the Trial Court should determine:
1. Whether the applicant is in fact the natural father of the child.
2. Whether the reasons stated for legitimation exist.
3. Whether there is any justifiable reason why the legitimation should not be ordered. Such reasons should be confined to those which would support a termination of parental rights. (Emphasis added.)
The Court of Appeals, in an appropriate response to the Nales' contention that the determinative issue was David's best interest, stated:
Any child's interest will be served by being raised by two loving parents in a happy home with sufficient resources at hand to help the child realize his or her full potential. However, visions of the idealized traditional nuclear family must give way to the stark reality that more children are born out of wedlock...
To continue reading
Request your trial
-
Planned Parenthood v. Sundquist
...a fundamental right of privacy and may not be abridged absent a compelling state interest. See Hawk, 855 S.W.2d at 577; Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn.1994); Bond v. McKenzie (In re Adoption of Female Child), 896 S.W.2d 546, 547-48 (Tenn.1995); Petrosky v. Keene, 898 S.W.2d 72......
-
Smith v. Malouf
...his child. Section 93-17-5, as a bar to the instant action, then cannot stand up to constitutional scrutiny. See also Nale v. Robertson, 871 S.W.2d 674 (Tenn.1994) (ruling that a Tennessee statute, which allowed adoption to occur before an unwed father's parental rights had been determined,......
-
Blackwell v. Sky High Sports Nashville Operations, LLC
...the holding in Hawk to be applicable to all fit parents, not merely those part of "an intact, nuclear family[.]" Nale v. Robertson, 871 S.W.2d 674, 678 & 680 (Tenn. 1994).A similar situation was at issue in the United States Supreme Court's decision in Troxel v. Granville. In Troxel, the pa......
-
In re Adoption of A.A.T.
...761 (2001) (court order prevented father's contact with mother but father placed support payments in savings account); Nale v. Robertson, 871 S.W.2d 674 (Tenn.1994) (father timely filed notice with putative father registry but adoption agency did not learn of notice; adoptive parents told o......