In re Swanson

• Decision Date: 04 October 1999
• Citation: 2 S.W.3d 180
• Parties: In re: Brittany SWANSON, a Minor, Tennessee Baptist Children's Homes, Inc., Appellee, v. Harry Lee Swanson, Appellant.
• Court: Tennessee Supreme Court

2 S.W.3d 180

In re: Brittany SWANSON, a Minor,

Tennessee Baptist Children's Homes, Inc., Appellee, v. Harry Lee Swanson, Appellant.

Supreme Court of Tennessee, at Jackson.

October 4, 1999.

James H. Bradley, Covington, Webb A. Brewer & Debra N. Brittenum, Memphis Area Legal Services, Inc. Memphis, Tennessee (Amicus Curiae), for Appellant.

H. William Scott, III, Brentwood, ,Frank C. Ingraham Nashville, Paul G. Summers, Attorney General & Reporter (Amicus Curiae), Douglas E. Dimond, Assistant Attorney General (Amicus Curiae), Robert D. Tuke, Tuke, Yopp & Sweeney, Nashville, Tennessee (Amicus Curiae), for Appellee.

OPINION

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 Tennessee Code Annotated section 36-1-102(1)(D) (1996). We hold that the statutory definition of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" is unconstitutional because it creates 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. This presumption violated Mr. Swanson's federal and state constitutional right to the care and custody of his daughter. Accordingly, for the reasons discussed below, the judgment of the Court of Appeals is reversed, and this case is remanded to the circuit court for entry of an order returning custody to Mr. Swanson.

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 filed a petition for legal custody of Brittany. On August 1, 1995, the Baptist Children's Home obtained legal custody of Brittany from DHS by court order.

The Baptist Children's Home then filed a petition on January 25, 1996 to declare Brittany abandoned by her parents and to terminate their parental rights. The petition alleged specifically that Mr. Swanson had "legally abandoned Brittany within the meaning of Tenn.Code Ann. § 36-1-102(a) in that he had willfully failed to visit or had willfully failed to support or to make reasonable payments toward Brittany's support for four (4) consecutive months immediately preceding the filing of the petition." At the termination hearing, the representative from the Baptist Children's Home testified that he had no record of contact from Mr. Swanson prior to filing a petition to terminate his parental rights on January 25, 1996. At one point, the Baptist Children's Home asked Mr. Ellingburg whether he knew the location of Brittany's father, but Mr. Ellingburg stated only that he thought Mr. Swanson was "somewhere in Missouri." The Baptist Children's Home made no further investigation to locate Mr. Swanson in part "because Missouri's a big state," and they did not know where to search. No one at the Baptist Children's Home asked Brittany's mother about Mr. Swanson's whereabouts.

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 already 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 Tennessee Code Annotated section 36-1-102(1)(A).

"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 under 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.

Id. § 2 (codified as Williams Tenn.Code § 9572.16(5) (Supp.1952)). The definition was amended in subsequent years. In 1961, the General Assembly enacted the following provision:

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 Tenn.Code Ann. § 36-102(5) (Supp.1962)). In 1978, the statutory definition was changed to provide as follows:

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 Tenn.Code Ann. § 36-1-102(1)(A) (1984)).⁵

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 Tenn.Code Ann. § 37-202(7) (Supp.1970)); 1978 Tenn. Pub. Acts, ch. 704, § 3 (codified as Tenn.Code Ann. § 37-1-102(1)(A) (1984)); Tenn.Code Ann. § 37-1-102(b)(1) (Supp.1994).

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 "`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....'" 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;...