                    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)
