IN THE MATTER OF: D.A.H., DOB 12/11/00, A CHILD UNDER EIGHTEEN (18) YEARS OF AGE, ET AL.
No. W2002-00733-SC-R11-JV
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
August 27, 2004
April 7, 2004 Session
We granted permission to appeal to determine whether the amendment to
The parental rights of any person who, at the time of the filing of a petition to terminate the parental rights of such person or, if no such petition is filed, at the time of the filing of a petition to adopt a child, is not the legal parent or guardian of such child or who is described in
§ 36-1-117(b) or (c) may also be terminated based upon any one (1) or more of the following additional grounds . . . .
Because the right of a legal parent to the care and custody of his or her child had vested under the 2001 statute, construed in Jones, we hold that the amended version of
Kevin W. Weaver, Cordova, Tennessee, for the appellant, Mid-South Christian Services, Inc.
Claiborne H. Ferguson, Memphis, Tennessee, for the appellee, Timothy Cope.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Douglas Earl Dimond, Assistant Attorney General, Nashville, Tennessee, for the Intervenor, Attorney General.
Opinion
I. Facts and Procedural History
D.A.H.1 was born on December 11, 2000, in Memphis, Tennessee, to unmarried parents. Several months before D.A.H. was born, the mother, Cynthia Ann Honeycutt, and the father, Timothy Wayne Cope, moved from Memphis, Tennessee, to Pensacola, Florida. However, Honeycutt retained their apartment in Memphis and continued to receive her prenatal care there.
Cope was informed of Honeycutt‘s pregnancy during the first trimester. When they lived in Memphis, Cope accompanied Honeycutt to her medical appointments. The couple shared living expenses. Although Honeycutt‘s insurance had covered most of the prenatal expenses, Cope contributed to the portion not covered by insurance. He also stated that he had paid many of their expenses when they moved to Florida.
Cope was not present at D.A.H.‘s birth, but he spoke with Honeycutt by telephone from his home in Florida after the birth. The birth certificate did not identify the father.2 Honeycutt returned to Pensacola without D.A.H. on December 15, 2000, and she told Cope that D.A.H. had an infection and was still in the hospital. Upon D.A.H.‘s discharge from the hospital on December 18, 2000, however, Honeycutt placed D.A.H. with her cousin and her cousin‘s spouse (“adoptive family“) with the intention that the couple adopt D.A.H. Cope was unaware of Honeycutt‘s intentions or actions at the time.
On December 19, 2000, Honeycutt entered into an interim foster care agreement with Mid-South Christian Services, Inc., a private adoption agency hired by the adoptive family to facilitate the adoption. Because the adoptive family lived in Kentucky, Mid-South had advised them that
Meanwhile, Cope confronted Honeycutt regarding why she had not brought D.A.H. home. He stated that she told him that she was being forced by her mother and her aunt to give D.A.H. up for adoption.
On January 3, 2001, Cope and Honeycutt telephoned Mid-South from Memphis and expressed a desire to parent their child. Cope also told Mid-South that he would like to see his child. Cope was told by Mid-South that he owed $600 for the foster care placement and that he would have to file papers with the court to gain custody of D.A.H. Although arrangements were in place for Cope and Honeycutt to visit the child that afternoon, neither parent appeared at the agency. Cope explains that as he was on his way to visit D.A.H., Honeycutt‘s family came to their apartment, threatened Cope, and followed his car. This conduct, he says, prevented him from visiting D.A.H. without an altercation. He also believed that Mid-South had made efforts to prevent the visit from occurring.
On January 10, 2001, Honeycutt, then with Cope in Florida, telephoned Mid-South and stated that she did not feel able to parent D.A.H. and that Cope would not agree to the adoption. The couple again went to Memphis on February 5, 2001; Honeycutt told Cope that she would go to Mid-South and get the baby. Instead, Mid-South assisted Honeycutt in presenting a voluntary surrender of her parental rights before the Juvenile Court on that very day. On the surrender form, she named Cope as the father. Although she admitted at the hearing that she still lived with Cope, she claimed not to know his address.
On February 20, 2001, Honeycutt telephoned Mid-South to ask about D.A.H., and she visited him on March 12, 2001. Honeycutt continued to conceal Cope‘s address or phone number from Mid-South. In order to locate Cope, Mid-South hired a private investigator. This effort was not successful. Honeycutt finally revealed to Cope that she wanted to surrender D.A.H., and she asked Cope to sign a document relinquishing his parental rights. He refused to sign the document and immediately severed his relationship with Honeycutt.3 Honeycutt finally informed Mid-South of Cope‘s address.
When the adoptive family‘s attorney contacted Cope, he learned where D.A.H. was living, and on March 20, 2001, Cope telephoned Mid-South and asked the director of the agency what he needed to do to gain custody of D.A.H. At some point, Cope also went to the juvenile court building in Memphis to determine how to proceed; he was told to hire an attorney. Cope contacted attorneys, but he could not afford to hire one. On March 29, 2001, nine days after Cope had contacted Mid-
An initial hearing on the termination petition was held on May 9, 2001, and Cope requested a deoxyribonucleic acid (“DNA“) test to establish paternity. The court appointed legal counsel for Cope. A report was issued indicating that the DNA testing established by a 99.999 percent probability that Cope is the father of D.A.H. On September 5, 2001, Cope filed a petition to establish parentage. He also sought visitation with D.A.H. which was denied by Mid-South. On October 4, 2001, Honeycutt signed a consent order naming Cope as the father of the child; on December 4, 2001, the juvenile court judge confirmed the consent order establishing parentage and making Cope a “legal parent.” A hearing was held regarding the termination petition on December 17, 2001.
The juvenile court found that the evidence supported several grounds for termination applicable to those who are not legal parents. See, e.g.,
Relying on Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002), the Court of Appeals held that because Cope had been adjudicated the legal father prior to the termination hearing, the trial court erred in terminating his parental rights based solely on the additional grounds found in
Pursuant to
II. Standard of Review
III. Analysis
Cope‘s parental rights were terminated pursuant to
A. Retroactivity of Tennessee Code Annotated Section 36-1-113(g)(9)(A)
The primary issue in this case is whether the amendment to
The parental rights of any person who, at the time of the filing of a petition to terminate the parental rights of such person or, if no such petition is filed, at the time of the filing of a petition to adopt a child, is not the legal parent or guardian of such child or who is described in
§ 36-1-117(b) or (c) may also be terminated based upon any one (1) or more of the following additional grounds . . . .
The amendment to
Under the
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 State Dep‘t of Human Servs. v. Defriece, 937 S.W.2d 954, 958 (Tenn. Ct. App. 1996)); see also Kuykendall v. Wheeler, 890 S.W.2d 785, 787 (Tenn. 1994). The eighth edition of Black‘s Law Dictionary further defines “remedial law” as legislation “passed to correct or modify an existing law” and as “a law that gives a party a new or different remedy when the existing remedy, if any, is inadequate.” However, “even a procedural or remedial statute may not be applied retrospectively if it impairs a vested right or contractual obligation in violation of [
The legislature did not clearly provide that the amendment to
The vested right at issue is the constitutionally-protected, fundamental right of biological parents to have the care and custody of their children. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972). According to Tennessee law, a parent‘s right to privacy, which is protected by the state and federal constitutions, includes a parent‘s right to care for his or her children. In re Askew, 993 S.W.2d 1, 4 (Tenn. 1999); Hawk v. Hawk, 855 S.W.2d 573, 577-79 (Tenn. 1993). This right extends to both natural parents who are married and also to natural parents who are unmarried. See Hawk, 855 S.W.2d at 582 (finding that married parents who are fit parents are entitled to the fundamental right of privacy); see also Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995) (deciding that a father of a child born out of wedlock has a fundamental interest in the care and custody of the child under the state and federal constitutions as long as he takes affirmative steps to develop a responsible relationship with the child); Nale, 871 S.W.2d at 680 (stating that there is no reason “why a fit parent should be denied the privilege of parenthood merely because of birth out of wedlock“). The denial of the privilege of parenthood through termination of parental rights is based only upon a determination of that parent‘s unfitness to be a parent. Nale, 871 S.W.2d at 680. Therefore, the critical issue in this case is whether Cope‘s vested right would be impaired by the retroactive application of amended
We have enumerated some of the factors helpful in determining whether application of a new law will “impair” an existing vested right.
“[I]n determining whether a retroactive statute impairs or destroys vested rights, the most important inquiries are (1) whether the public interest is advanced or retarded, (2) whether the retroactive provision gives effect to or defeats the bona fide
intentions or reasonable expectations of affected persons . . . (3) whether the statute surprises persons who have long relied on a contrary state of the law.”
Ficarra v. Dep‘t Regulatory Agencies, 849 P.2d 6, 16 (Colo. 1993). We add to these factors . . . an additional factor discussed above: the extent to which a statute appears to be procedural or remedial. Sundquist, 2 S.W.3d at 924. Another clearly important factor is whether application of the new law results in the loss of a fundamental right.
As mentioned earlier, Cope‘s right to have the care and custody of his child solely depends on which version of
B. The Application of the Holding in Jones v. Garrett
We have held that the amended version of
In Jones, an unwed mother wanted her child to be placed for adoption, and the father did not. Id. at 836-37. The father‘s parental rights were terminated under the statutory provisions applying only to individuals who had not established legal parentage, see id. at 837, which at the time of the Jones opinion, specifically stated:
The parental rights of any person who is not the legal parent or guardian of a child or who is described in
§ 36-1-117 (b) or (c) may also be terminated based upon any one (1) or more of the following additional grounds:(i) The person has failed, without good cause or excuse, to pay a reasonable share of prenatal, natal, and postnatal expenses involving the birth of the child in accordance with the person‘s financial means promptly upon the person‘s receipt of notice of the child‘s impending birth;
(ii) The person has failed, without good cause or excuse, to make reasonable and
consistent payments for the support of the child in accordance with the child support guidelines promulgated by the department pursuant to § 36-5-101 ;(iii) The person has failed to seek reasonable visitation with the child, and if visitation has been granted, has failed to visit altogether, or has engaged in only token visitation, as defined in
§ 36-1-102 (1) (C) ;(iv) The person has failed to manifest an ability and willingness to assume legal and physical custody of the child;
(v) Placing custody of the child in the person‘s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish paternity of the child within thirty (30) days after notice of alleged paternity by the child‘s mother, or as required in
§ 36-2-318 (j) , or after making a claim of paternity pursuant to§ 36-1-117 (c) (3) .
The trial court in Jones specifically terminated the father‘s parental rights based on his failure to establish legal paternity within thirty days of notice of the child‘s birth. 92 S.W.3d at 837. On appeal, this Court held that the additional grounds of termination for individuals who are not legal parents, pursuant to
Mid-South contends that the holding in Jones is limited to the subsection concerning the thirty-day window for making a claim of paternity after notice of the birth of a child. See
Addressing Mid-South‘s claim that the holding in Jones is limited to
C. Abandonment
In addition to the grounds for termination alleged under
Regarding the support of the child‘s mother, Cope testified that in the months preceding the child‘s birth, Honeycutt lived with him in Memphis and then in Florida. He testified that he contributed to all of their living expenses. He maintained that the expenses to which he contributed included those arising out of Honeycutt‘s pregnancy. No testimony was presented to rebut Cope‘s assertion that he made reasonable payments toward the support of Honeycutt during the four months preceding the child‘s birth. Thus, we conclude that this ground for abandonment is without merit.
We also conclude that Cope did not willfully fail to visit the child during the four months immediately preceding the filing of the termination petition. According to the record before us, Honeycutt deliberately misled Cope about the child‘s location. Then, without notifying Cope, Honeycutt placed the child with the adoptive family. Cope testified that when he found out what Honeycutt had done, he immediately expressed his interest in parenting the child. In addition to stating his intentions to Honeycutt, Cope called Mid-South to inform them that he did not wish to terminate his parental rights. Thus, sufficient evidence was presented that Cope did not willfully fail to visit the child. Moreover, we note that four months had not elapsed between the birth of the child on December 11, 2000, and the filing of the termination petition on March 29, 2001. This issue is without merit.
IV. Conclusion
Accordingly, the order of the juvenile court is vacated and the case is remanded to the Juvenile Court of Shelby County for immediate proceedings consistent with this opinion.
Costs on appeal are taxed to the appellant, Mid-South Christian Services, Inc., for which execution may issue if necessary.
ADOLPHO A. BIRCH, JR., JUSTICE