IN RE: BRITTANY SWANSON, A MINOR, TENNESSEE BAPTIST CHILDREN‘S HOMES, INC., Appellee, v. HARRY LEE SWANSON, Appellant.
No. 02S01-9810-CV-00103
IN THE SUPREME COURT OF TENNESSEE AT JACKSON
October 4, 1999
Hon. Joe H. Walker, Judge
FOR PUBLICATION; TIPTON CIRCUIT
For the
James H. Bradley
Covington, Tennessee
Webb A. Brewer &
Debra N. Brittenum
Memphis Area Legal Services, Inc.
Memphis, Tennessee
(Amicus Curiae)
For the Appellee:
H. William Scott, III
Brentwood, Tennessee
Frank C. Ingraham
Nashville, Tennessee
Paul G. Summers
Attorney General & Reporter
(Amicus Curiae)
Douglas E. Dimond
(Amicus Curiae)
Robert D. Tuke
Tuke, Yopp & Sweeney
Nashville, Tennessee
(Amicus Curiae)
OPINION
REVERSED AND REMANDED
BARKER, J.
This case concerns the termination of appellant Harry Swanson‘s parental rights over his biological child, Brittany Swanson, who is now nine years old and in the custody of the appellee Tennessee Baptist Children‘s Homes, Inc. (Baptist Children‘s Home). Although Mr. Swanson‘s parental rights were originally terminated by the Tipton County Juvenile Court, the circuit court of Tipton County denied the petition to terminate parental rights on an appeal by Mr. Swanson. The Court of Appeals reversed the decision of the circuit court and found that Mr. Swanson had “abandoned” Brittany because he had “willfully failed to support” her or “willfully failed to make reasonable payments toward [her] support” within the meaning of
BACKGROUND
Harry and Brigitte Swanson1 were married in May 1989. Their daughter, Brittany Swanson, was born on June 10, 1990. Subsequently, the family lived with Mrs. Swanson‘s father, Jim Ellingburg, in Drummonds, Tennessee, a town located in Tipton County. Mr. and Mrs. Swanson separated in the summer of 1991, and Mr.
Swanson went to Memphis to work for Delta Airlines. Thereafter, he moved to Mississippi and lived there for a short time before moving to Missouri where he has lived since December of 1991. Mrs. Swanson moved from Tipton County to various places in Shelby County and Mississippi. Mr. Swanson attempted to maintain contact with his daughter during that time, but he testified that the child‘s mother refused to allow visitation. He also attempted to maintain relations by contacting Mr. Ellingburg, Brittany‘s maternal grandfather, but Mr. Ellingburg told him that he did not know the whereabouts of Mrs. Swanson or Brittany.2
On May 4, 1993, Brittany was placed in the legal custody of the Tennessee Department of Human Services (“DHS“) after a dependency and neglect determination was made the juvenile court. Beginning in June of 1993, Brittany resided in foster care through placement by the Baptist Children‘s Home in the hope that Brittany would be reunified with her parents. In December of 1994, the goal of foster care was changed from reunification with her parents to adoption,3 and in June of 1995,
The Baptist Children‘s Home then filed a petition on January 25, 1996 to declare Brittany abandonеd by her parents and to terminate their parental rights. The
petition alleged specifically that Mr. Swanson had “legally abandoned [Brittany] within the meaning of
Mr. Swanson learned of the termination proceeding through someone who saw the published notice in the newspaper. When Mr. Swanson arrived in Tipton County, he learned that a default judgment had аlready been entered against him, which he appealed. The circuit court entered an order setting aside the judgment and held that Mr. Swanson should be given an opportunity to contest the allegations of abandonment.
Subsequently, a hearing was held in the Tipton County Juvenile Court, wherein the court entered an order terminating the parental rights of Mr. Swanson. Mr. Swanson appealed this termination order to the circuit court which held a hearing on the issue of whether he had abandoned Brittany. The circuit court found no evidence that “he willfully abandoned his child under all the circumstances of this case,” and it ordered that the case be remanded to the juvenile court for the placement of Brittany
with Mr. Swanson. On appeal by the Baptist Children‘s Home, the Court of Appeals reversed the circuit court based upon its finding that Mr. Swanson had abandoned Brittany within the statutory definition of
“Willfully failed to support”
In 1951, the General Assembly overhauled Tennessee‘s adoption laws and listed “abandonment” as a ground for termination of parental rights. 1951 Tenn. Pub. Acts, ch. 202 (codified as Williams Tenn. Code §§ 9572.15 to 9572.52 (Supp. 1952)). The Act provided that:
an abandoned child shall be any child undеr the age of eighteen years who shall be willfully abandoned at least four consecutive months immediately preceding institution of an action or proceeding to declare the child to be [an] abandoned child.
For the purpose of this chapter an “abandoned child” shall be:
1. A child whose parents have willfully failed to visit or have willfully failed to support or make payments toward his support for four consecutive months immediately preceding institution of action or proceeding to declare the child to be an abandoned child; . . .
1961 Tenn. Pub. Acts, ch. 227, § 1 (codified as
Abandoned child means a child whose parents have wilfully failed to visit or have wilfully failed to support or make reasonable payments toward his support for four (4) consecutive months immediately preceding
institution of an action or proceeding to declare the child to be an abandoned child. For purposes of this chapter, a father who has wilfully failed to visit or wilfully failed to support or make reasonable payments toward the support of the child‘s mother during the four (4) months immediately preceding the birth of the child shall be deemed to have wilfully failed to visit or wilfully failed to support or make reasonable payments toward the support of said child. In no instance, however, shall a final order terminating the parental rights of a parent pursuant to this section be entered until at least thirty (30) days have elapsed since the date of the birth of the child.4
1978 Tenn. Pub. Acts, ch. 704, § 1 (codified as
These definitions applied only to proceedings to terminate parental rights filed in circuit or chancery courts. In 1970, the General Assembly enacted statutory definitions of abandonment for failure to support that were to be used in proceedings to terminate parental rights filed in juvenile court. These definitions tracked the language found in Title 36 of the Code. See 1970 Tenn. Pub. Acts, ch. 600, § 2 (codified as
The courts of this state also articulated a standard that was used to determine “abandonment” in adoption cases. In 1959, the Court of Appeals held that trial courts were not bound by the statutory definition of “abandonment” when making such a determination in an adoption proceeding. The Court held that “[a]bandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child. . . ,” Ex parte Wolfenden, 49 Tenn. App. 1, 5, 349 S.W.2d 713, 714 (1959) (quoting 1 Am. Jur. Adoption of Children § 42). This Court adopted an identical standard in In re Adoption of Bowling, 631 S.W.2d 386, 389 (Tenn. 1982).
To determine whether the parent‘s conduct had evinced “a settled purpose to forego all parental duties and to relinquish all parental claims to the child,” the courts developed several factors: (1) the parent‘s ability to support the child; (2) the amount of support provided; (3) the extent and nature of the contact between the parent and the child; (4) the frequency of gifts; (5) whether the parent voluntarily relinquished custody of the child; (6) the length of time the child has been separated from the parent; and (7) the home environment and conduct of the parent prior to removal. See O‘Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn. Ct. App. 1995).
It was against this background that the legislature amended the adoption code in 1995. See 1995 Tenn. Pub. Acts, ch. 532 (codified as
(g) Termination of parental or guardianship rights may be based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
“Abandonment” means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or make reasonable payments toward the support of the child;
. . . .
(B) For purposes of this subdivision (1), “token support” means that the support, under the circumstances of the individual case, is insignificаnt given the parent‘s means;
(C) For purposes of this subdivision (1), “token visitation” means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child;
(D) For purposes of this subdivision (1), “willfully failed to support” or “willfully failed to make reasonable payments toward such child‘s support” mean that, for a period of four (4) consecutive months, no monetary support was paid or that the amount of support рaid is token support;6
(E) For purposes of subdivision (1), “Willfully failed to visit” means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation;
(F) Abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of a child; and
(G) “Abandonment” does not have any other definition except that which is set forth herein, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively overruled;
The Court of Appeals determined that this case was entirely controlled by the statute, that the proof was clear and convincing regarding Mr. Swanson‘s non-support, and that it was therefore bound with regard to the result reached.7 Mr. Swanson contends that the statutory definition
Conversely, the Baptist Children‘s Home asserts that the Court of Appeals correctly construed the statutory definition of abandonment and correctly found that Mr. Swanson abandoned Brittany within the meaning of the statute. It also asserts that the statutory definitions of “willfully failed to support” and “willfully failed to make reasonable payments toward such child‘s support” do not violate Mr. Swanson‘s fundamental right to parent his child.
Since the constitutionality of a state statute has been questioned, the Attorney General was requested file a brief and has done so. See Tenn. R. App. P. 32. The Attorney General asserts that the element of willfulness should be read into the
definition of “willfully failed to support.” He contends that reading the element into the statutory definition avoids constitutional problems.8
The first issue we must address is whether it is appropriate to read an element of intent into the statutory definition of “willfully failed to support.” It is abundantly clear from the language used by the General Assembly that it intended to limit the discretion of trial judges when making a determination as to whether abandonment has occurred. See
Notwithstanding the plain language of the statute, Mr. Swanson and the Attorney General would have us read the word “willfully” into the definition of “willfully failed to support” аnd “willfully failed to make reasonable payments toward such child‘s support.” They argue that the word “willfully” should be included in order to effectuate the intent of the legislature and in order to preserve the constitutionality of the statute.
We recognize that there are occasions in which it is appropriate to reject a literal reading of a statute when it would result in the statute being declared unconstitutional. State v. Hudson, 562 S.W.2d 416, 418-19 (Tenn. 1978); Kirk v.
State, 126 Tenn. 7, 13, 150 S.W. 83, 85 (Tenn. 1911). Moreover, courts may supply words when reasonably called for. Metropolitan Gov‘t v. Poe, 215 Tenn. 53, 74, 383 S.W.2d 265, 274 (1964). Nevertheless, it is the prerogative of the legislature, and not the cоurts, to amend statutes. Manahan v. State, 188 Tenn. 394, 397, 219 S.W.2d 900, 901 (1949).
In this case, we find that it is inappropriate for this Court to supply the element of intent in the definition of “willfully failed to support” and “willfully failed to make reasonable payments toward such child‘s support.” It appears to us that the definition was carefully crafted by the legislature against a backdrop of both judicial interpretation and legislative enactment. Throughout its forty-four-year history, the definition of “abandonment” as it pertained to failure to support always contained an element of intent or purposefulness. We cannot conclude that the legislature excluded the willfulness aspect of failure to support inadvertently or mistakenly, particularly in light of the legislature‘s pronouncement that the only definition of abandonment which should be applied is that which is included in the statute.9 It is evident that the legislature consciously and deliberately excluded the element of intent. We therefore decline to read the statute as suggested by Mr. Swanson and the Attorney General, but instead we will construe its constitutionality as drafted and enacted by the General Assembly.
Constitutionality of Tenn. Code Ann. § 36-1-102(1)(D)
Both the United States and Tеnnessee Constitutions protect a parent‘s right to the custody and upbringing of his or her child. Stanley, 405 U.S. at 650; Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994). In Stanley, the United States Supreme Court held that an unwed father was entitled, as a matter of due process, to a hearing on his fitness as a parent before his children were taken from him. The Supreme Court has also emphasized that unwed fathers must seize upon the opportunity to shoulder significant responsibility for the child‘s rearing before due process rights are implicated. Once that opportunity has been seized, the child may not be removed in the absence of a finding of рarental unfitness. Quilloin v. Walcott, 434 U.S. 246, 256 (1978). See also Caban v. Mohammed, 441 U.S. 380, 395 (1978) (holding unconstitutional a statute that distinguishes between rights of unmarried mothers and unmarried fathers because unwed fathers have a fundamental right to parent children when their identity is known and when they have manifested a significant paternal interest in their children).
Similarly, this Court has held that the Tennessee Constitution provides for a parental right to privacy to care for children without unwarranted state intervention unless there is a substantial danger of harm to the children. Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993).10 This Court has also held that the State and federal constitutions require an unwed biological father‘s рarental rights to be determined before the court may proceed with the issue of adoption. See Robertson, 871 S.W.2d
at 678.11 It is therefore beyond question that before a parent‘s rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.12 Certainly, a parent who has abandoned his child, either by willfully failing to visit or by willfully failing to support, is unfit. However,
Since the statutory definitions of “willfully failed to support” and “willfully failed to make reasonable payment toward such child‘s support” in effect create an irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional, we hold that those definitions are unconstitutional. The statutory definitions simply do not allow for the type of individualized decision-making which must take place when a fundamental constitutional right is at stake. Therefore, they impеrmissibly infringe upon a parent‘s right to the care and custody of his or her children.
The federal and state constitutions require the opportunity for an individualized determination that a parent is either unfit or will cause substantial harm to his or her child before the fundamental right to the care and custody of the child can be taken away. Stanley, 405 U.S. at 658-59; Bond, 896 S.W.2d at 548. As the Supreme Court noted in Stanley, a procedure which elevates a presumption over a requirement of proof of unfitness may be cheaper and easier to administer than an individualized determination, but it “needlessly risks running roughshod over the important interests of both parent and child.” Id. at 658.
We further hold that only that portion of the statute contained at
It is hereby declared that the sections, clauses, sentences and parts of the Tennessee
Code are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if the code would otherwise be unconstitutional or ineffective. If any one (1) or more sections, clauses, sentences or parts shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, сlause, sentence or part in any one (1) or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.
We recognize that the legislature‘s endorsement of elision does not automatically make it applicable to every situation; however, when a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion
omitted, then elision of the unconstitutional portion is appropriate. See State v. Tester, 879 S.W.2d 823, 830 (Tenn. 1994); State v. Murray, 480 S.W.2d 355, 356-57 (Tenn. 1972).
In this casе, the unconstitutional definitions were but a small part of a large act overhauling this state‘s adoption laws. See 1995 Tenn. Pub. Acts, ch. 532. This Act was enacted after extensive study by the Commission to Study the Adoption Laws of the State of Tennessee. See S.J. Res. 17, 98th Gen. Assembly (1993). Given the breadth and scope of the act and the fact that the definitions of abandonment as related to failure to support were but a small portion of the Act, it seems apparent to us that the General Assembly would have enacted the Act notwithstanding the unconstitutional sections. We therefоre determine that the unconstitutional definitions are properly elided.
Since the Court of Appeals applied the unconstitutional definitions in
When the appropriate standard is applied and the presumption of correctness is given to the circuit сourt‘s findings of fact, see Tenn. R. App. P. 13(d), it follows that
Brittany was not abandoned by her father.15 We therefore conclude that Mr. Swanson‘s parental rights to Brittany should not be terminated, and we remand the case to the trial court for preparation and implementation of a plan returning custody of Brittany to Mr. Swanson. The trial court is directed to prepare a plan for Brittany‘s return which will minimize the trauma to the child by providing for her gradual return. The plan shall provide that she be returned to Mr. Swanson‘s custody no later than ninety days from the entry of the judgment in this case.
Costs of this appeal shall be paid by thе appellee, Baptist Children‘s Home.
William M. Barker, Justice
CONCUR:
Anderson, C.J.
Drowota, Birch, Holder, JJ.