In re: Brittany Swanson, a minor ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE,
AT JACKSON
_______________________________________________________
)
IN RE: BRITTANY SWANSON, ) Tipton County Circuit Court
A Minor Under 18, )
)
No. 4532
FILED
TENNESSEE BAPTIST CHILDREN’S )
HOMES, INC., ) May 14, 1998
)
Petitioner/Appellant ) Cecil Crowson, Jr.
) Appellate C ourt Clerk
VS. ) C.A. No. 02A01-9709-CV-00233
)
HARRY SWANSON, )
)
Respondent/Appellee. )
)
______________________________________________________________________________
From the Circuit Court of Tipton County at Covington.
Honorable Joseph H. Walker, Judge
H. William Scott, III, Brentwood, Tennessee
Frank C. Ingraham, Nashville, Tennessee
Attorney for Petitioner/Appellant.
James H. Bradley, Covington, Tennessee
Attorney for Respondent/Appellee.
OPINION FILED:
REVERSED AND REMANDED
FARMER, J.
HIGHERS, J.: (Concurs)
LILLARD, J.: (Concurs)
This is an appeal by the Tennessee Baptist Children’s Home (TBCH) from a
judgment entered by the trial court denying its petition to terminate the parental rights of Harry Lee
Swanson as to his daughter Brittany Swanson, born June 10, 1990. The record establishes that
Brittany was removed from the custody of her biological parents and placed in the legal custody of
the Department of Human Services (DHS) on May 4, 1993 after a determination of dependency and
neglect was made by the juvenile court. Since June 30, 1993, Brittany has resided in a foster care
home through placement by TBCH. In December 1994, the foster care goal was changed from
reunification with the parents to adoption and in June 1995, TBCH filed a petition for legal custody
of the child. DHS transferred legal custody of Brittany to TBCH by court order entered August 1,
1995.
On January 25, 1996, TBCH filed a petition to declare Brittany abandoned by her
parents, as such is defined under T.C.A. § 36-1-102(1), and to terminate their parental rights.1 The
petition alleged that both parents resided in Tupelo, Mississippi, albeit in separate residences. It was
alleged that upon consulting the putative father registry, no claim existed as to the paternity of the
child and that no other claim or potential claim to the paternity of the child existed. TBCH sought
termination on the statutory ground that the parents had willfully failed to visit or had willfully failed
to pay support or make reasonable payments toward the child’s support for a period of four (4)
consecutive months immediately preceding the filing of its petition. TBCH asserted that it was
therefore in the best interest of Brittany that the parental rights of her natural parents be terminated.
After a hearing on June 6, 1996, the juvenile court entered an order terminating the
parental rights of both parents on the ground of abandonment after both failed to make an appearance
in the juvenile court or answer the petition. The court therefore held that the allegations in the
petition were to be “taken as confessed as to Brigitte Lee Stanford and Harry Lee Swanson . . . .”2
Mr. Swanson appealed from this decision to the circuit court.3 The circuit court entered an order
1
The petition identified the natural mother of the child as Brigitte Lee Stanford.
2
The order states that service of process of the petition was attempted on both parents
through certified mail at each of their last known addresses and ultimately accomplished through
publication pursuant to court order.
3
The child’s natural mother did not appeal from the juvenile court’s decision.
setting aside the “default” judgment entered against Mr. Swanson and held that he be given an
opportunity to contest the allegations of abandonment. The cause was remanded for further hearing.
A hearing on the merits was conducted in the juvenile court on October 17, 1996
resulting in an order by the court terminating Mr. Swanson’s parental rights on the ground of
abandonment “as defined in T.C.A. § 36-1-102(1)(A).” The court held that the ground of
abandonment had been established by clear and convincing evidence and that it was in the best
interest of the child that Swanson’s parental rights be terminated. Swanson again appealed from the
juvenile court’s decision. The circuit court conducted a hearing on April 25, 1997 and thereafter
entered an order reversing the decision of the juvenile court and denying the petition to terminate
Swanson’s parental rights. The trial court’s factual findings include the following:
The father and Brigitte Swanson separated in the summer of
1991 in Tipton County, Tennessee. They had been living with Ms.
Swanson’s father.
Mr. Swanson moved to Mississippi for a short while, then to
Missouri, where he has lived since December, 1991. Ms. Swanson
moved from Tipton County to various places in Shelby County, and
Mississippi, and did not reside any place very long.
Mr. Swanson tried to maintain contact with his wife through
her father, but was not successful.
. . . . In September, 1992, approximately a year after she and
Mr. Swanson separated, [Brigitte Swanson] applied for a marriage
license in Mississippi, stating under oath that her marriage to Mr.
Swanson had ended in his death. That was not correct.
Mr. Fortenberry, the DHS case worker, testified that the
records with DHS reflect that at one point in time no attempt was
made to notify Mr. Swanson, because Ms. Swanson asserted that Mr.
Swanson was deceased.
Mr. Swanson testified that he had made numerous attempts to
try to see his daughter, Brittany, but was denied visitation by Ms.
Swanson. That he had contacted Ms. Swanson’s father, Mr.
Ellingburg, who lives in Tipton County, trying to find the location of
Ms. Swanson and Brittany. Mr. Ellingburg reported that he never
knew their location.
At some point Mr. Swanson learned Brigitte had remarried,
and he came to try to see if she had obtained a divorce from him. He
was told by third parties that she claimed he was deceased. In
January, 1995, he filed for divorce against her in Missouri. He tried
to obtain custody in that divorce proceeding in Missouri, but was told
that since the child was not in the State of Missouri that the Court
could not award custody to one party or the other.
After he married his present wife, they traveled to Tennessee
on occasions, as they could financially afford to do so, in an attempt
to find his ex-wife and child.
Brigitte Swanson died in October, 1996.
....
Mr. Swanson learned of the proceedings to terminate his
parental rights when someone informed him they had read the notice
in the newspaper in Tipton County, and he traveled to Tennessee but
learned that the proceeding had been taken by default. He
immediately appealed, and the matter was sent back for hearing, and
he is appealing from that decision.
Mr. Swanson testified that he wants to support his child, that
he had children by a prior marriage, that he has a child by his present
marriage, and he wants his child to live with him.
Based upon these findings, the court held:
[T]he proof fails to show by clear and convincing evidence that Mr.
Swanson willfully failed to support his child, Brittany. Mr. Swanson
attempted to locate his child, and the mother, but was unable to do so.
He was a man with limited financial means, and as he was financially
able would travel to Mississippi, and Tennessee, attempting to locate
his child and her mother. He was not given aid by his wife’s father,
and in fact, his wife was telling people that he was deceased. He did
not voluntarily relinquish custody of the child, and there has been no
showing that he is an unfit parent. In fact, he is raising his present
wife’s children, and has another child with his present wife. There
was no showing that he had a bad home environment, and no showing
of bad conduct on his behalf prior to his wife leaving with the child.
While the petition alleges Mr. Swanson did not do everything
he should have done to locate his child, the Court can not find that he
willfully abandoned his child under all the circumstances of this case.
The court additionally held that the case be remanded to the juvenile court “for the placement of the
child with the natural father.” It is from this decision that TBCH now appeals to this Court.4
TBCH presents the following issues for our review:
1. Did the trial court err in finding no abandonment by using
cases and definitions under prior law that had been legislatively
4
The record indicates that TBCH filed a motion for a partial stay of the judgment in
respect to the trial court’s order that the child be returned to her natural father pending the
outcome of this appeal.
overruled by the current statute defining abandonment, T.C.A. § 36-1-
102?
2. Did the court err in ordering the minor child who was in
foster care by court order returned to her father when he had made no
such request?
As to the first issue, it is suggested that the trial court, in making its decision of no
abandonment, relied upon case law no longer applicable to termination cases on the ground of
abandonment due to the legislature’s enactment of T.C.A. § 36-1-102 which, in effect, “legislatively
overruled” the prior case law. The judgment of the trial court expressly indicates a reliance on
various case law, particularly the court of appeals decision of O’Daniel v. Messier, 905 S.W.2d 182(Tenn. App. 1995), from which the court quoted extensively. 5 O’Daniel was decided in 1995 with
5
The trial court quoted from O’Daniel, in part, as follows:
The Tennessee Supreme Court has articulated the standards for
determining abandonment in adoption cases as follows:
Abandonment 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 . . . .
In re Adoption of Bowling, 631 S.W.2d at 389 (quoting Ex parte Wolfenden, 49
Tenn.App. at 5, 349 S.W.2d at 714). See also In re Adoption of Female Child
(Bond v. McKenzie), 896 S.W.2d at 547. This court has held that the evidence of
abandonment must show a “conscious disregard or indifference” for parental
obligations and must demonstrate that there has been
an actual desertion, accompanied with an intention to entirely
sever, so far as it is possible to do so, the parental relationship and
throw off all obligations growing out of the same.
Fancher v. Mann, 58 Tenn.App. 471, 476, 432 S.W.2d 63, 65 (1968).
Accordingly, we conclude that the conduct must amount to “an absolute, complete
and intentional relinquishment of all parental control and interest . . . [in] the
child” in order to constitute abandonment. Fancher v. Mann, 58 Tenn. App. At
478, 432 S.W.2d at 66.
The courts have consistently used the standards in Ex Parte Wolfenden
and Fancher v. Mann to determine whether a parent has abandoned his or her
child. These decisions demonstrate that the courts consider the following matters
when determining whether an abandonment has occurred: (1) the parent’s ability
to support the child; (2) the amount of support the parent has provided to the
child; (3) the extent and nature of the contact between the parent and the child; (4)
the frequency of gifts on special occasions; (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 the removal of the child. . . . No single factor is controlling.
Abandonment inquiries are heavily fact-oriented, so the courts may consider any
fact that assists in deciding whether the parent’s conduct demonstrates a conscious
or willful disregard of all of his or her parental duties.
the court noting that at that time, “Tennessee lack[ed] uniform standards for determining whether
a parent has abandoned his or her child.” O’Daniel, 905 S.W.2d at 186.
Appellant contends that the trial court was bound by the current provisions of § 36-1-
102, which became effective on January 1, 1996 and which define “abandonment” as follows:
As used in this part, unless the context otherwise requires:
(1)(A) “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:
(iii) 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 insignificant 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” means that, for a period of four (4) consecutive
months, no monetary support was paid or that the amount of support
paid is token support;
(E) For purposes of this 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;
Section 36-1-102(1)(G) further provides:
“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;
O’Daniel v. Messier, 905 S.W.2d at 187 (some citations omitted).
The appellee asserts that the trial court’s decision is correct and that the case law cited was merely
“for guidance in determining whether [TBCH] met its burden of proving by clear and convincing
evidence that [Mr. Swanson] either willfully failed to visit or willfully failed to support his child.”
T.C.A. § 36-1-103(b) states that “[a]doptions and terminations of parental rights
pending on January 1, 1996, . . . shall be governed by prior existing law.” The petition in the instant
matter was filed on January 25, 1996 and we believe clearly falls within the provisions of the current
statute and the statutory definition of abandonment. Under the plain language of the statute, a natural
parent’s willful failure to support or make reasonable payments toward the support of their child for
a four month period immediately preceding the filing of the petition to terminate is an abandonment
of that child and a ground for termination of that person’s parental rights.6 The statute proceeds to
define a “willful” failure to support as where no monetary support is paid for a consecutive four
month period.
The legislature makes clear under § 36-1-102(G) that abandonment has no definition
other than that set forth in the statute. It is undisputed that Mr. Swanson has made no effort toward
the support of his child for the entire period she has been in either TBCH’s custody or that of DHS,
a period of several years. Clearly, this failure falls within the definition of the statute.
We are cognizant of the unusual circumstances presented here. Most significantly,
the undisputed testimony that Ms. Swanson falsely informed various agencies that Mr. Swanson was
deceased; that during the years after Mr. and Mrs. Swanson separated, she relocated with the child
several times; and that it appears that efforts were not made to contact Mr. Swanson during the initial
proceeding to determine the child dependent and neglected. We, nonetheless, are bound to follow
the plain language of the statute as prescribed by the legislature. Although the end result here may
seem harsh, we believe it within the legislature’s domain to carve out exceptions to the foregoing
definition and that it is not within the realm of this Court to make such determination or to redefine
the ground of abandonment when the legislature has clearly spoken on the issue. We therefore find
6
T.C.A. § 36-1-113(g)(1) states: “[t]ermination of parental or guardianship rights may be
based upon any of the following grounds: (1) [a]bandonment by the parent or guardian, as
defined in § 36-1-102, has occurred;”
that the trial court erred in denying TBCH’s petition to terminate the parental rights of Mr. Swanson
as to his daughter Brittany.
The second issue concerns whether the trial court erred in remanding the case to the
juvenile court to enter an order returning custody of the child to Mr. Swanson. As we find merit in
the first issue presented, we likewise conclude that the trial court erred in remanding this cause for
such action. In any event, we note that the record before us does not include a petition for custody
filed on Mr. Swanson’s behalf.
It results that the judgment of the trial court is reversed and this cause remanded
thereto for further necessary proceedings. Costs are assessed against the appellee, for which
execution may issue if necessary.
____________________________________
FARMER, J.
______________________________
HIGHERS, J. (Concurs)
______________________________
LILLARD, J. (Concurs)