        IN THE COURT OF APPEALS OF TENNESSEE
                    AT NASHVILLE


RE:  The Matter of
     Ashley Michele Menard
                                  )
                                  )            FILED
D.O.B.    5/7/96                  )
SSN:      [Redacted]              )           February 29, 2000
                                  )           Cecil Crowson, Jr.
By: MICHAEL GEORGE MENARD         )         Appellate Court Clerk
     and CAROL FRANCES MENARD, )
                                  Appe
                                  al No.
                                  )      M1999-00117-COA-R3-CV
          Petitioners/Appellees,  )
                                  )      Montgomery Chancery
and ANGELA VEYS MENARD,           )      98-02-0044
                                  )
          Co-Petitioner/Appellee, )
                                  )
VS.                               )
                                  )
BRYANT LEO MEEKS,                 )
                                  )
          Respondent/Appellant.   )

                     APPEAL FROM THE
          CHANCERY COURT OF MONTGOMERY COUNTY
                AT CLARKSVILLE, TENNESSEE

            THE HONORABLE MURIEL ROBINSON, JUDGE
                   SITTING BY DESIGNATION


FOR APPELLEES:                      FOR APPELLANT:

JOHN J. HOLLINS, SR.                MARK R. OLSON
Nashville, Tennessee                Clarksville, Tennessee

FRANK J. RUNYON
Clarksville, Tennessee


                     REVERSED AND REMANDED


                                    BEN H. CANTRELL,
                                    PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.

                             OPINION
             The trial court terminated the parental rights of a teenage father on

the ground of abandonment, and granted the adoption petition of the maternal

grandparents. We do not believe that the grandparents proved abandonment by

clear and convincing evidence. We therefore reverse the order terminating the

father’s parental rights and granting the grandparent’s adoption.



               I. A Wanted Child, but an Unwanted Father



             Bryant Leo Meeks (hereafter Leo Meeks) and Angela Veys Menard

dated each other in high school. Angela lived with her parents, petitioners

Michael George Menard and Carole Frances Menard. Leo Meeks lived with his

father, attorney Thomas Meeks. In November of 1995, after Angela discovered

that she was pregnant by Leo, a meeting between the prospective grandparents

took place at the Menard home.



             According to Thomas Meeks, Michael Menard began the meeting

by telling him “I am going to kill your son,” and Thomas Meeks responded that

Mr. Menard could “can that talk,” and calmed him down. Leo and Thomas

Meeks both testified to other verbal threats directed against Leo Meeks by

Michael Menard at different times, including talk of body bags. Mr. Menard

denied that he threatened Leo on this or any other occasion.



             Both families agreed that since they were all Catholic, abortion was

not an option . Michael Menard was adamant that he did not want Leo Meeks to

come around their house, and Thomas Meeks agreed to prevent Leo from doing

so because he was concerned for his son’s safety. He also said he would not file

a legitimation petition on behalf of Leo if the Menards did not file for adoption.



             Thomas Meeks agreed to pay half of Angela’s childbirth expenses,

and stated that he was willing to pay support after the child was born. In

                                       -2-
February of 1996, the Menards called Thomas Meeks’ office and told him what

his share of Angela’s medical expenses amounted to, and he tendered a check for

$476.95 to the Menards. The check was never cashed. The Menards made no

further request of either Thomas or Leo Meeks for medical expenses or for

support.



             When Angela Menard went into labor, no one from the Menard

family called Leo or Thomas Meeks. Leo Meeks heard about the impending

delivery from a friend, and left work to go to the hospital. The security officers

in the hospital lobby told him to leave, and threatened to have him arrested for

trespassing if he didn’t. The Menards claimed that they had told a hospital

employee that Leo should not be allowed in, because he made a drunken and

threatening phone call to Angela. When the birth certificate for Ashley Michelle

Menard was filled out, the place for the name of the father was left blank.



             After the baby was born, the Menards took her home and became

her primary caregivers. The record is clear that they did not allow Leo Meeks to

see Ashley. They claimed that they were just following their daughter’s wishes

in that regard. They also claimed that they were concerned about Leo’s influence

on the child, because he drank, smoked marijuana, and had a bad temper. The

Menards allowed other friends of Angela to visit at their house. When these

friends were cross-examined at trial, almost every one of them admitted drinking,

but refused to answer questions about marijuana use by invoking their Fifth

Amendment rights against self-incrimination.



             The evidence showed that Angela herself was ambivalent about Leo.

Before Angela learned that she was pregnant, Leo had started seeing someone

else. After the baby was born Angela wanted to get back together with him (at

least for a while). When Leo said he didn’t want to do that, she made it clear that

he would not get to see Ashley. However, Leo testified that he did see his

                                       -3-
daughter twice, when Angela brought her to Diane’s Diner for that purpose.

During her testimony, Angela denied that those meetings had taken place, or that

she had ever been in Diane’s Diner in her life.



             Angela was in the same high school classes as Leo, and they

sometimes passed notes back and forth about their situation. One of Angela’s

notes was entered into evidence. Among other things, she wrote:

             “If you want to see my daughter I told you, you could
             come to my house any time. I feel that it is not my
             responsibility to bring her to see you because if you had
             my daughter and your parents hated me, I would still walk
             through the doors . . . .

             I’m sorry sweetheart but sometimes you have to give up
             a lot in life and I have but you can’t. Like I told you
             before, if you want to give me child support open a bank
             account and when she’s old enough and she wants it she
             can have it but as for now she’s not old enough to make
             her own decision . . . .

             If you want to see my daughter bring your ass up there
             and see her. And child support, start putting the money
             away cause as of now we don’t need it.”



             Despite language in the note that may arguably indicate some

openness to allowing Leo to see his child, Angela and her family made it as

difficult as possible for him to establish a relationship with her. For example,

since Leo did not feel he could visit Ashley at the Menard home, he left a gift of

baby clothing on their doorstep late at night. The gift was never given to the

baby, but was returned to Leo at Angela’s direction by her girlfriend.



             During high school graduation in May of 1997, Angela and Leo sat

next to each other because their names followed each other alphabetically. Mrs.

Menard was higher up in the stands holding Ashley. Leo said he would go up

there to see the baby. Angela pleaded with him not to, and promised that if he

refrained, she would let him see Ashley after he returned from a post-graduation




                                       -4-
Florida trip. When Leo returned, Angela told Leo he could only see his daughter

if he took a drug test first.



                         II. Termination and Adoption



              On February 9, 1998, Michael and Frances Menard filed a petition

to adopt their granddaughter. Angela Menard joined as co-petitioner to surrender

her parental rights. Leo Meeks was referred to in the petition as “the alleged

biological father” and the petitioners prayed the court to terminate his parental

rights on the grounds of failure to seek reasonable visitation and failure to

support.



              All the judges of the 19th Circuit recused themselves from this action

because Thomas Meeks practiced in their courts. Judge Muriel Robinson of the

20th Circuit was appointed by the Supreme Court to hear the case. In the first

hearing on pending motions, the trial court legitimated Ashley as Leo Meeks’

daughter, vested legal and physical custody in the maternal grandparents, ordered

supervised visitation between Ashley and Leo every other Sunday for two hours,

enjoined the parties from making any threats against one another, and ordered

Angela and Leo to start paying child support to the grandparents.



              The final hearing on the adoption began on March 23, 1999. As co-

petitioner, Angela Menard testified that she wished to surrender her parental

rights only if her parents succeeded in adopting Ashley, and she reserved her

right to revoke the surrender if the Court did not agree. The hearing lasted three

days, and was hard-fought on both sides. Twenty witnesses were called to the

stand. At the conclusion of the evidence, the judge announced detailed findings

of fact from the bench, including the following:

                     “. . . the proof shows that the birth mother and her
              parents have interfered with the father’s relationship with
              this child. They interfered with visitation. They would

                                          -5-
             not accept support. They did not seek support other than
             this one-half of this medical bill that Mr. Tom Meeks
             paid.”



             Despite these findings, the trial judge terminated Leo Meeks’

parental rights. The Final Order of Adoption included the following:

                    15. The Court finds by clear and convincing
             evidence that the grounds for termination of parental
             rights have been established, and that the Respondent,
             Bryant Leo Meeks, has abandoned the child, Ashley
             Michelle Menard. For a period of four (4) consecutive
             months immediately preceding the filing of the Petition
             for Adoption, the Respondent, Bryant Leo Meeks, has
             willfully failed to visit and has willfully failed to support
             or make reasonable payments towards the support of the
             child, Ashley Michelle Menard.



             This appeal followed.



                          III. Statutory Constraints



             The apparent disjunction between the court’s finding that the

Menards interfered with Leo’s visitation and did not accept support, and its

conclusion that Leo Meeks had willfully failed to visit or to support his daughter

can be explained by an amendment to the adoption statute that purported to

remove the element of willfullness from the definitions of “willfully failed to

support” and “willfully failed to visit.”



             Though modified from time to time, the grounds and procedures for

termination of a parent’s rights to the society and companionship of his child

have been long established, and are to be found in the adoption statutes,

Tenn.Code.Ann. § 36-1-101, et seq.



             Tenn. Code. Ann. § 36-1-113 reads in pertinent part:

                    (a)    ...
                    (b)    ...

                                            -6-
                  (c) Termination of parental or guardianship rights
            must be based upon:

                  (1) A finding by the court by clear and convincing
            evidence that the grounds for termination of parental or
            guardianship rights have been established; and

                   (2) That termination of the parent's or guardian's
            rights is in the best interests of the child.

                   ...

                  (g) Initiation of 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;

                   ...



            The definition of abandonment found in Tenn. Code. Ann. §

36-1-102 reads:

                  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:

                   (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
            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;




            In 1995, the legislature modified the definition of abandonment by

adding the following language to Tenn. Code. Ann. § 36-1-102:

            (D) For purposes of this subdivision (1) “willfully failed
            to support” or “willfully failed to make reasonable
            payments towards 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.


                                         -7-
             ...

             (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 . . . .



             The effect of this language was to remove the element of intent from

the definition of abandonment, and to create an irrebuttable presumption of

abandonment where a parent fails to provide support for four months, regardless

of the circumstances. Judge Robinson had previously declined to terminate a

father’s parental rights in a case somewhat similar to the present one, and her

determination that the father had not abandoned his child had been reversed by

this court on the basis of the above definition. Bryant v. Bryant, Tenn. Ct. App.

No. 01A01-9806-CV-00337 (Filed Nashville, February 1, 1999).



                            IV. The Swanson Case



             After the trial court’s decision in the present case, but before oral

argument to this court, the Tennessee Supreme Court had the opportunity to

consider the constitutionality of the 1995 amendment to Tenn. Code. Ann. § 36-

1-102. The case was Swanson v. Tennessee Baptist Children’s Homes, Inc., ___

S.W. ___ (Tenn. 1999).



             Mr. and Mrs. Swanson were separated, and moved frequently to

different towns and states. Mrs. Swanson obstructed Mr. Swanson’s attempts to

maintain contact with his daughter. After Mrs. Swanson died, The Department

of Human Services held a dependency and neglect hearing, and took over

custody of the child. DHS was falsely informed that the father was dead.



             The Tennessee Baptist Children’s Homes filed for adoption.

Although they had learned that the father was alive, and that he lived somewhere


                                        -8-
in Missouri, they made no effort to contact him. The trial court terminated the

father’s rights, and we affirmed, because we felt compelled to apply the statutory

definition of abandonment.



             On appeal, the Supreme Court reasoned that a parent has a

constitutional right to the care and custody of his or her own child. Stanley v.

Illinois, 405 U.S. 645 (1972). Since the new statutory definition created an

irrebuttable presumption of abandonment where a parent fails to provide support,

regardless of whether or not the failure was intentional, this precluded the kind

of individualized decision-making that is required when a fundamental

constitutional right is at stake. The Court therefore found that Tenn.Code.Ann.

§ 36-1-102(D) was unconstitutional. The effect of the Court’s decision was to

restore the definition of abandonment as it existed before the 1995 amendment,

with the element of intent intact.



                               V. Proof of Intent



             Though much of the evidence in this case was controverted, it was

the petitioners’ burden to prove the grounds for termination by clear and

convincing evidence. Tenn. Code. Ann. § 36-1-113. Without the irrebuttable

presumption to rely upon, the evidence in the record simply does not support the

conclusion that Leo Meeks abandoned his child or that he willingly failed to

support her. The proof shows rather that Leo wanted to establish a relationship

with his daughter, but that the Menards did everything they possibly could to

prevent him from doing so.



             Though it is undisputed that Leo Meeks did not pay any child

support before the Menards filed their petition for adoption, there was evidence

that he would have been willing to pay such support if Angela or the Menards

had been willing to accept it. In particular, the failure of the Menards to cash the

                                        -9-
check from Thomas Meeks indicates their unwillingness. The note from Angela

to Leo, quoted above, creates an inference that Leo had made an offer of support,

but that it had been turned down.



             Though we must reverse the trial court, we must also state that we

are not determining the question of what custody arrangements will serve the

best interests of the child. Angela and Leo are both young, and both still desire

to get an education. It is probable that the grandparents will continue to play an

important role in Ashley’s upbringing, but that question need not be decided by

this court, nor for that matter by any court, if Ashley’s parents and her

grandparents can manage to come to an agreement.



                                       VI.



             The order terminating the parental rights of Leo Meeks and granting

the order of adoption is reversed. This cause is remanded to the Chancery Court

of Montgomery County for further proceedings consistent with this opinion. Tax

the costs on appeal to the appellees, Michael George Menard and Carole Frances

Menard.




                                        _______________________________
                                        BEN H. CANTRELL,
                                        PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM C. KOCH, JR., JUDGE




____________________________
PATRICIA J. COTTRELL, JUDGE

                                      -10-
-11-
