In Re Swanson

IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

IN RE: BRITTANY SWANSON, ) FOR PUBLICATION
FILED
A MINOR, ) October 4, 1999
) FILED: October 4, 1999
TENNESSEE BAPTIST CHILDREN’S ) Cecil Crowson, Jr.
HOMES, INC., ) TIPTON CIRCUIT Appellate Court Clerk
)
Appellee, ) Hon. Joe H. Walker
) Judge
v. )
) Supreme Court
HARRY LEE SWANSON, ) No. 02S01-9810-CV-00103
)
Appellant. )

For the Appellant: For the Appellee:

James H. Bradley H. William Scott, III
Covington, Tennessee Brentwood, Tennessee

Webb A. Brewer & Frank C. Ingraham
Debra N. Brittenum Nashville, Tennessee
Memphis Area Legal Services, Inc.
Memphis, Tennessee Paul G. Summers
(Amicus Curiae) Attorney General & Reporter
(Amicus Curiae)

Douglas E. Dimond
Assistant Attorney General
(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 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.

1
Brigitt e Sw ans on die d in O ctob er of 1996 . Her pare ntal rig hts w ere n ever at iss ue in th is
litigation.

2
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

2
Acc ordin g to M r. Sw ans on’s pres ent w ife, M r. Sw ans on pla ced over one- hun dred phon e calls
to Mr. Ellingburg to discover the location of Brittany and her mother. Often, these phone calls were not
answe red.

3
The c ase m anage r for Brittany tes tified that DH S had n o record of supp ort from Mr. Swa nson.
DHS had made no effort to locate Mr. Swanson in part because DHS had been told by Mrs. Swanson
that he was deceased. This information was seemingly collaborated to some extent a false statement
made by Ms. Swanson on a Mississippi marriage license application in September of 1992 to the effect
that her pr evious m arriage h ad end ed in the de ath of he r husba nd.
In March of 1993, two months before DHS was granted custody of Brittany, Ms. Swanson
obtained an annulme nt of her marriage on the groun ds that the she was not legally divorced from Mr.
Swan son. Altho ugh D HS ha d a reco rd of the a nnulm ent— and ther efore m ust have know n that acc ounts
of Mr. S wanso n’s death were inac curate— DHS still made no appa rent effor t to contac t him.

3
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

4
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

5
 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 “‘[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

4
In accor d with the m ost rece nt version of the statu te, see Tenn. Code Ann. § 36-102(1)(D)
(1996), w e use the term “w illfully.”

5
This definition contained in the Tennessee Code sections on adoption was in effect just prior
to the ado ption of the new lang uage in 1 995. See Tenn. Code A nn. § 36-1-102(1)(A) (1994).

6
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 Tenn. Code Ann. §§ 36-1-

101 to 36-1-206 (1996 & Supp. 1998)). Since the petition to terminate parental rights

in this case was filed on January 25, 1996, this case is governed by the new adoption

law enacted in 1995 and effective January 1, 1996. See Tenn. Code Ann. § 36-1-

103(b) (“Adoptions and terminations of parental rights pending on January 1, 1996,

and surrenders and consents executed prior to January 1, 1996, shall be governed by

prior existing law.”). Section 36-1-113 provides in relevant part:

(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;

Id. § 36-1-113(g)(1). Also, section 36-1-102(1)(A) provides:

7
 “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 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” mean that, for a period of four (4) consecutive months, no
monetary support was paid or that the amount of support paid 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;

Id. § 36-1-102(1)(A) (emphasis added).

6
This prov ision s pec ifically d elete d any r equ irem ent fo r willfu lnes s in th e def inition of “w illfully
failed to sup port” and “willfully failed to m ake re asona ble paym ent towa rd such child’s sup port.”

8
 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 of “willfully failed to support” and “willfully failed to

make reasonable payments toward such child’s support” is unconstitutional because

the definition contains no element of intent with regard to failure to support. He

argues that the definition creates a conclusive presumption that a failure to provide

monetary support for four months preceding the filing of the petition to terminate

renders a parent unfit. He further argues that this presumption fails to comport with a

parent’s fundamental constitutional right to the care and custody of his or her children.

See, e.g., Stanley v. Illinois, 405 U.S. 645, 650 (1972); Bond v. McKenzie (In re

Adoption of Female Child), 896 S.W.2d 546 (Tenn. 1995).

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

7
The Court of Appeals noted the unusual circumstances of this case, particularly Mrs.
Swa nso n’s inf orm ing ag enc ies th at Mr . Swa nso n wa s dea d, Mr s. Sw ans on’s reloc ation with th e child
severa l times, an d the lack of any attem pt to conta ct Mr. Sw anson during the initial proceed ing to
determ ine wheth er Brittany wa s depe ndent an d neglec ted.

9
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 Tenn. Code Ann. § 36-1-102(1)(G) (1996 & Supp. 1998)

(“‘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.”).

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” and “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.

8
Two interested parties also filed amicus briefs in this Court. The Memphis Area Legal
Services filed a brief in support of Mr. Swanson’s position, asserting that the definition of abandonment
is unconstitutional since it creates an irrebuttable presumption of unfitness. Robert Tuke, an attorney
and member of the Comm ission to Study the Adoption Laws of the State of Tennessee created by the
General Assembly in 1993, also filed an amicus brief. Mr. Tuke contends that this Court should construe
the definition of “willfully failed to support” to contain a willfulness element; when so construed, according
to Mr . Tuk e, the statu te is c ons titution al.

10
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 courts, 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. W e 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)

9
We note, as argued by the Attorney General, that other sections governing abandonment do
contain th e willfulness eleme nt. For ex amp le, a sepa rate definition is given for “w illfully failed to visit.”
Tha t term “me ans the w illful failu re, fo r a pe riod o f fou r (4) c ons ecu tive m onth s, to v isit or e nga ge in
more than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E). The Attorney General argues that since
the willfulness element is included elsewhere in the statute, the General Assembly must have intended
that it be included in the sections concerning “failure to support.” However, it is just as possible that the
legisla ture, by exc luding the w illfulne ss te rm from the d efinitio n of “f ailure to su ppo rt,” m ean t to de fine it
diffe rently.

11
 Both the United States and Tennessee 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 parental 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 parental rights to be determined

before the court may proceed with the issue of adoption. See Robertson, 871 S.W.2d

10
See also Lewis v. Donoho (In the matter of Bianca Arnesche Askew), 993 S.W .2d 1, 4
(Tenn. 1999) (“The magnitude of a parent’s constitutional right to rear and have custody of his or her
children w ould nec essitate a clear finding of subs tantial harm .”); Petrosky v. Keene, 898 S.W.2d 726,
727-28 (Tenn. 1995) (holding that if an unwed father has taken affirmative steps to develop a substantial
relationsh ip with his ch ild, the state m ay not interfe re exce pt to protec t the child from harm ); Bond, 896
S.W.2d at 548 (“[I]n a contest between a parent and a non-parent, a parent cannot be deprived of the
custody of a child unless there has been a finding, after notice required by due process, of substantial
harm to the child. Only th en m ay a co urt en gag e in a g ene ral ‘be st inte rest o f the c hild’ ev aluat ion in
mak ing a dete rmina tion of cus tody.”).

12
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, Tennessee Code Annotated section 36-1-102(1)(D) may be read to

permit termination of parental rights even when the failure to pay support was not

intentional.13

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 impermissibly infringe upon a parent’s right to the care and custody of

his or her children.

11
In Robertson, this Cour t emp hasized th at the biolog ical father h ad gras ped eve ry opportu nity
to develop a substantial relationship with his son and had accepted responsibility for his care and
custody. 871 S.W.2d at 678.

12
We note in passing that the circumstances of Mr. Swanson’s relationship to Brittany at her
birth and for at least a year thereafter are different than the circumstances of the unwed fathers
disc uss ed in m ost o f the c ase s. Mr . Swa nso n wa s m arrie d to B rittany’s mo ther a t the tim e of B rittany’s
birth and was merely separated from her when he lost contact with Brittany. He therefore stands in a
stronger position than the unwed fathers who merely had an inchoate right to the care and custody of
their c hildre n. It is n ece ssa ry for th e unw ed fa thers to se ize up on th e opp ortun ity to pa rent b efor e the ir
right to pare nt is entitled to d ue proc ess pro tection. See Lehr v. Robertson, 463 U.S . 248, 262 (1983).
Mr. Swanson’s right to the care and custody of Brittany was not inchoate; it already existed because of
his ma rriage to he r moth er.
13
We reject the contention contained in Mr. Tuke’s amicus brief that at some point the fact that
the child has been in the custody of a non-parent for a period of time means that a lesser standard can
be applied in determining whether parental rights may be terminated. Such a standard would increase
the likelihood for delaying cases in order that the child remain in foster care. We can not approve of a
standa rd that wo uld poten tially cause tha t result.

13
 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.” 405 U.S. at 658.

We further hold that only that portion of the statute contained at Tennessee

Code Annotated section 36-1-102(1)(D), which includes the unconstitutional

definitions, is hereby invalidated. Under the circumstances of this case, we are able to

elide the unconstitutional portion of the statute, and the remaining provisions of the

Act may be enforced. Our legislature has specifically declared that the provisions of

the Tennessee Code are severable. Tennessee Code Annotated section 1-3-110

provides:

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, clause, 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

14
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 case, the unconstitutional definitions were but a small part of a large act

overhauling this state’s adoption laws. See 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 therefore determine that the unconstitutional definitions

are properly elided.

Since the Court of Appeals applied the unconstitutional definitions in

Tennessee Code Annotated section 36-1-102(1)(D) to determine that Mr. Swanson

had abandoned Brittany, the judgment of the Court of Appeals is reversed. Until

otherwise amended by our legislature, the definition that was in effect under prior law

shall be applied.14 Leech v. American Booksellers Ass’n Inc., 582 S.W.2d 738, 740

(Tenn. 1979) (holding that prior law is in full force and effect when an act is held

unconstitutional); see also State v. Driver, 598 S.W.2d 774, 776 (Tenn. 1980).

When the appropriate standard is applied and the presumption of correctness

is given to the circuit court’s findings of fact, see Tenn. R. App. P. 13(d), it follows that

14
We wish to make it clear that the definition previously in effect was the definition as it existed
in 1994. U nder the prior statute , the definition o f “aband oned c hild” conta ined an e leme nt of intent bo th
in failures to vis it and failures to suppo rt. See Tenn . Code A nn. § 36- 1-102(1 )(A)(i) (Su pp. 1994 ).

15
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 the appellee, Baptist Children’s Home.

William M. Barker, Justice

CONCUR:

Anderson, C.J.
Drowota, Birch, Holder, JJ.

15
The circu it cou rt fou nd th at Mr . Swa nso n had not w illfully ab and one d Britt any. T he cir cuit
court also considered the specific circumstances of this case and determined that returning custody of
Brittany to her father would not cause substantial harm to her.

16