### IN THE SUPREME COURT OF TENNESS EE AT JACKSON Heard at Nashville June 4, 2003 Session

In the M atter of

D.L. B., A Minor

Appeal by P

ermis sion from

the Court

of Appeals Chancery Court for Shelby County No. CH-01-0200-2 Kenny W. Armstrong, Special Chancellor

No. W2001-02245-SC-R11-CV - Filed October 20, 2003

This appeal involves an action to terminate parental rights filed by t he prospective ad

optive pa rents of a child. T

he child’ s father

asserts that the chancery

court erred in terminating his parental rights

on the basis that he abandoned his child for the four-month period set forth in Tenne ssee Code Annotatedsection 3 6-1-102( 1)(A)(i). To com putethe four-month period, the chancery court used the date on which the Court Appointed Special Advocate (“CASA”) filed a petition in juvenile court to terminat

e the fa ther’s p arenta

l rights. CASA’s pe

tition was later dis missed. Th e Court of Appeals affirmed the chancery

court’s te rmination of parental rig hts under Tennessee Code Annotated section 36-1-102 (1)(A) (i) and found an additional ground for abandonment a s definedby Tennessee Code Ann otated section 3 6-1-102( 1)(A)(iii). Ten nessee C ode Annot

ated section 36-1- 102(1)(A)(iii) specifies that parental rights may be terminated if the father “willfully failed to make reasonabl e pay ments toward the support of the child’s mother during the four (4) month s immediat

ely preceding the birth of the child.” We granted permission to appeal. We hold that the commence ment of the four-mo nth period of abandonment under Te nnessee Code Anno tated se ction 36- 1-102(1) (A)(i) is properl y computed from the date on which the petition to terminate paren tal rights w as filed in chancery court, not from

the filing date of the earlier juvenile cour tpetition. We further hold that the Court of A

ppeals e rred in te rminating the father’s pa

rental r ights b ased upon Tennessee Code Annotatedsection 36-1-102(1)(A)(iii). Accordingly , we reverse the Court of Appeals and remand this case to the tria

l court.

Tenn. R. App.P. 11 Appe al by Per mission; Judgment

of the Cour

t of Appeals R

eversed; Case Remanded to Trial Court

J ANICE M. H OLDER , J., delive red the o pinion of t

he court
, in which F RANK F. D ROWOT A , III, C.J., and E. R IL EY A NDERSON , A DOLPHO A. B IRCH , J R ., and W IL LI AM M. B ARKER , JJ., joined.

Barba ralette G. Davis, Webb A. Brewer, and Nancy Percer Kessler, Memphis, Ten nessee, for the Appellant-Respondent, David Moore.-2-

Larry E. Parrish, Memphis, Tennessee, for the Appellee s-Petitioners, De nise Nick leson and Donald Joe Nickleson.

Paul G. Summers, Attorney General and

Reporter; Michael E. Moore, Solicitor General; and Dianne Stamey Dy

cus, Deputy Attorne

y Gener al, for the Appellee-Respondent, Tennessee Depar tment of Children’ s Service s.

OPINION

I. Factual and Proc edural Background

The appellant, David Moore (“Mr. Moore”), a nd Georgia Smith Bady

(“Mrs. Bady ”) are the biological parents of a girl, D.L .B., who was born prematurely at the Regional Med ical Ce nter in Memphis, Tenness ee, on Au gust 31, 1998. Mrs. Bady

was married to Jessie Bady at the time of the child’s concep tion and bi rth bu t had b een li ving fr om ti me to t ime wi th Mr. Moore . Duri ng h e r pr eg na nc y, Mrs. Bady

stayed with Mr. Moore a

few day s each month. During those visits Mr. Moore sometimes provided Mrs. Bady with $10 or $20 for food or cloth ing. Approximat

ely six weeks in

to her pregnancy , Mrs. Bady

told Mr. Moore that she thought he was the child’s father. Becau se Mrs. Bady used prostitution as a means of su pporting her addiction to crack coca ine, Mr. Moore was uncerta in if Mrs. Bady ’s belief was correct. Mr. Moore e ncouraged

Mrs. Bady

to seek prenatal care, but she declined to do so.

Mr. Moore never registered a s a put ative father. See Tenn. Code Ann. § 36-2-318 (2001) (providing that the Tennessee Department of Children’s Services (“DCS”) shall maintain a putative father registry

containing the names of persons who have filed w ritten notice of

an intent to claim paternity of a c hi ld pr io r t o o r w it hi n t hi rt y da ys after such child’s birth). No father was named on D.L.B.’s birth certificate. However, Mr. Moore was present at the hospital when D.L.B. was born. M r. Moore also visited D.L.B. in the hospital’s I ntensive Care Unit on September 4, 1998; September

11, 199 8; Sep tember 24, 1998; and October 9, 1998, and telephoned the hospital on September 8, 1998.

Mrs. Bady a

dmitted using crack cocaine during her pregnancy

with D.L.B. On October 16, 1998, a Children’s Services Referral Form was completed by a

member of the hospital staff. The form included statemen ts that Mrs . Bady

was using

drugs, that she failed to follow a drug treatment progra m, and that

she had n o family

support, no income, and no stable home. Mr. Moore was listed as the putative father on this form, and his address was provided.

On October 20, 1998, DCS filed a petition in the Juvenile Court of Shelby County alleging that D.L .B. was a depen dent and n eglec ted child

due to Mrs. Bady ’s history of drug abuse and her1 Th e juve nile co urt reco rd co ncern ing D .L.B . is not pa rt of the re cord in this case

.
-3- fail ure to m aintain a stable home. 1 The juvenile court entered a protective c ustody order recommending that D.L.B. be plac ed in the c usto dy of DCS. On October 29, 1998, D .L.B. was discharged

to the custody

of DCS. She

was immed

iately placed in the foster home of Donald Joe Nickleson and his wif

e, Denis e Nic kleson, th e appellees. This placement was made throug h the AGAPE Agency , which has a contract with DCS for the placement of children in DCS custo dy into foster h omes. D.L .B. has r emained in the Nicklesons’ care since her releas e from the

hospital.

About two weeks after

his last visit with D.L.B., Mr. Moore returned to the hospital. He was told that D.L.B. was g one. When he asked one of the nurses about her loca tion, he was tol d that “they” c ame and got her. He was not told who “they ” were or where D.L .B. was taken.

Mr. Moore testified that he spoke to a DCS caseworker in November of 1998 and the caseworker

refu sed to giv e hi m an y inf orm ati on a bou t D. L.B. unt il he l egi ti mat ed t he c hi ld . In December

of 1998 and in November of 1999, Mr. Moore at tempted to

establish paternity of D.L.B. in the juvenile court. However, no petition to establish parentage was filed on either

of these dates. An employee of the

Shelby County Juvenile Court testified that it was the juvenile court’s policy not to use its resources to file actions in cases in which biological fa thers seek to e stablish pa

ternity of children bor n during

a marriage. I

n December of 1999, Mr. Moore was contacted by an attorne y regarding the establishment of parentage for the purposes of support. The attorney ’s office told Mr. Moore that a DNA test would be scheduled.

In M ay of

2000, CASA

filed a p etition in t

he Juvenile

Court of Shelby

County seeking to terminat e the pare ntal rig hts of Mr s. Ba dy, her husband, and any unknown fathers. In July of 2000, the juvenile court held a

hearing on CASA’s petitionto terminate parental rights. Mr. Moore was present at this hearing, but Mr. and Mrs. Bady

failed to appear. The

juvenile court terminated the parental rights of Mr. and Mrs. Ba dy, and their

parenta l rights are not a

t issue in th

is appea l. CASA requested leave to amend the petition to include Mr. Moore as a res pondent. The juvenile court granted this requ est and c ontinued t he hear ing to allow a pate

rnity test to be perf

ormed. CA SA amended its petition to include Mr. Moore in August of 2000.

On September 15, 2000, following DNA testing, Mr. Moore was adjudicated the biological and legal f

ather of D.L. B. and w as order

ed to pay child supp ort. In No vember o f 2000, the juvenile court entered an order allowing Mr. Moore limited visita tion with D. L.B . DCS requ ested tha t CASA dismiss its petition to terminate Mr. Moore’s parental rights. A DCS caseworker

acknowledged that DCS had not made reasonable efforts to assist Mr. Moore in obtaining custody of his child prio

r to learning the results of the DNA test. DCS, therefore, requested additional time to work with Mr. Moore to determine his fitness to parent D.L.B. On Marc

h 22, 2001, the juvenile court dismissed CASA’s amended petition to terminate the parental rights of Mr. Moore. This dismissal was not on the merit s.2 Effective June 2, 200 3, an e nactm ent of T enne ssee’s G enera l Assem bly amended Tenn esse e Code Annot ated,

Title 36, Chapt

er 1, Part 1. See Act of May, 15, 2003, 2003 Tenn. Pub. Acts 231. As part of thi s enact ment, Tennes see

(con tinued ...)

-4- In the meantime, on January 31, 2001, the Nicklesons filed the present action in the Shelby County Chancer y Court seek

ing to te rminate M

r. Moore ’s pare

nta l r ights and to adopt D.L.B. At the time the Nicklesons filed this pet ition, Mr. M oore wa s pay ing chil d support a

nd visiting

with D.L.B.

Followin g a heari n g in June of 2001, the chancery court entered an order terminating the parental rights o f Mr. Moor e on the ba sis of abandonment as defined by Tennessee Code Annotated section 36-1-102(1)(A)(i). This finding was base d solely upon Mr. Moore’s c onduct in the fo urmonth period pr eceding the May 2000 petit

i on to ter minate hisparenta l rights f iled by CASA in juvenile court. The chancery

court did not specifically addr

ess any of the a

dditional grounds for the terminat ion of par ental rig hts that we

re asse rted by the Nickl esons.

The Court

of Appeals affirmed the ruling of the c hancery court. Applying

Tennessee Code Annotatedsection 36-1-102(1)( A)(i), the intermediate appellate court held that Mr. Moore ’s conduct prior to the filing of CASA’s juvenile court petition constitutes a basis for termination of his parental rights in the pre sent act

ion. The Co

urt of App eals also

held that Mr. Moore ’s pare

ntal rig hts should be terminated upon an additional ground of abandonment, d efined by Tennessee

Code Annotated

s ection 36-1-102(1)(A)(iii). This section specifies that parenta l rights may be

terminated if the father “willfully failed to make r easonable pay

ments towardthe support of the child’s mother during the four (4) months immediately prec eding the birth of the child.” Tenn. Code Ann. § 36-1-102(1)(A)(iii) (2001).

We gran ted perm ission to ap

peal.

II . Analy sis

A. Tennessee Code Annotated Section 36-1-102(1)(A) (i)

Tennessee Code Annotated section 36-1- 1 02(1)(A)(i) provides that for the purposes of terminat ing par ental rig hts, “aba ndonment”

may be estab lished by

showing that:

For a period of four (4) consecutive months immediately preceding the filing o f a proc eeding

or plead ing to te rminate t he pare ntal rig hts of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adop tion, that the parent( s) or gua

rdian(s ) either

have willfully

failed to visit o r ha ve willf ully failed to support or make reasonable pay ments toward t h e support of the child[.] 22 (.. .cont inu ed) Cod e Anno tated section 36 -1-102(1 )(A)(i) was am ended as follows:

For a peri od of four ( 4) co nsecu tive mo nths imm ediate ly prec eding the filing of a proceeding or pleading to t ermi nate the paren tal rig hts of t he par ent( s) or guardian(s) of t

he chi ld wh o is the subj ect of the pet it ion for t ermination of par ental rights or adoption, that the pare nt(s ) or guar dian (s) either ha ve willfully failed to visit or have wi llf

ull y fai led to support or have willf ully f ailed to make reaso nab le
paym ents tow ard the supp ort of the child[.]

Id.

-5- In this case , it is clear that during the four months preceding

the Nickl esons’ f

iling of the petiti on to terminat e parenta l rights, Mr. Moore paid child support and visited with D.L.B. The chancery court and Court of Appea ls, howev er, relied upon Mr . Moore’ s failure to pay child supp ort or visi

t with D.L.B. in the four-month period pr ecedi ng the f iling of CASA’s Ma

y 20 00 petition

to termina

te parenta l rights.

Construction of statute s and app lication o f law to facts are questions of law, which we review under a purely de

novo standard, according no defe rence to the conclusions of law made by the

lower courts. See Ganzevoo

rt v. Russe

ll
, 949 S.W.2d 293, 296 (Tenn. 1997). I n constru ing stat utes, this Court’s role is “‘ to ascer

tain and g ive eff ect to the legisla tive intent without unduly restricting or expanding a statute’s coverage bey ond its intended scope.’” Houghton v. Aramark Educ. Res., I nc. , 90 S.W.3d 676, 678 (Tenn. 2002) (quot ing Owens v. State , 908 S.W.2d 923, 926 (Ten n. 1995); State

v. Sliger , 846 S.W.2d 26 2, 263 (Tenn. 1993)). Leg islative intent is derived from the plain and ordinary meaning of the sta tutory langua ge unle ss the stat

ute is ambiguous. See Owens , 908 S.W.2d at 926. If s tatut ory language is ambiguous, then we mu st look to the entire st atutory scheme t o determine legislative intent. Id. Component parts of a statute should be construed, if possible, consistently and rea sonably. See State v. Alford , 970 S.W.2d 944, 946 (Tenn. 1998).

The lower courts erred in interpreting Te nnessee Code Anno t ated sections 36-1 -102(1) (A)(i) and 36-1-102(1)(F). While Tennessee Code Annotated section 36 -1-1 02(1)(A)(i) use s the phra se

“ a procee ding or p leading to terminate parental rights” in this same statutory section, the legislature also uses the phrase “ the petition for termination of parental rights or adoption.” (Emphasis adde d). Read as a whole, we conclude that Tennessee C ode Annotated section 36-1-102(1)(A)(i) re quires that the willful fa

ilure to visit, supp ort, or ma

ke reas onable pa

yme nts towar d the suppo

rt of the c hild must have oc curred

in the fou

r months imm

ediately preced in g the f iling of the petiti on curre

ntly before the cour t.

The lan guag e in Tennessee Co de Annota ted sect ion 36-1- 102(1)(

F) does not compel a contrary result. Tennessee Code Annotated section 3 6-1-1 02(1)(F) states that a parent may not repent of abandonment

by resuming

visitation or support subsequent to the filing of “ any petition” seeking to termina

te pare ntal rig hts. (Emph asis adde d). The w ord “any ” has a va riety of meani ngs. See, e.g. , Indu s. Risk I

nsurersv. Hartf

ord Steam

Boiler I nspecti on & In s. Co. , 779 A.2d 737, 748-6-

(Conn. 2001) (observing that “[t]he wo rd ‘any’ ca n be used to denote ‘all,’ ‘every ,’ ‘some’ or ‘one’”). Because the

word “any”in Tennessee Code Annotated section 36-1-102(1)(F ) could have different me anings, we conclude that this statutory provision is ambiguous. See LeTellier v. LeTellier
, 40 S.W.3d 490 , 498 (Te nn. 2001) (stating

that “‘[a ] statute is ambiguous if the sta tute is capable of con veying mor e than one me aning’ ”) (quo ting Brya nt v. HCA Heal

th Servs. of N. Tenn., Inc.
, 15 S.W.3d 804, 809 (Tenn. 2000)). Therefore, we must look to the entire statutory fr amework to ascertain the legislature’s intent. See Ow ens , 908 S.W.2d at 926. In order to ascertain the legislature’s intent, “ ‘[w]e must seek a rea sonable c onstruct ion in light of the pur

poses, ob jectives
, and spirit of the statute based on good sound reasoning.’” Scott v. Ashland Healthcare Ctr., I nc. , 49 S.W. 3d 281 , 286 ( Tenn. 2001) (quot ing State v. Turner , 913 S.W.2d 158, 160 (Tenn. 1995)).

Read in the context of the statutory scheme that governs the termination of pare ntal rig hts,

we conclude that the word “any ” is addressed only

to petitions present ly under the court’s consideration. This inter

pretatio n best

effectuates legislative

intent without unduly impinging upon the fundamental rights of parents. Clearly, the leg islature did not inte

nd that pa

rents be able to repent of their abandonment after a petition currently under consideration

is filed. However, there is no indication that the legislature intended that conduct occurring prior to dismissal of an earlier petition to terminate parent al ri ghts that was brought by one party should be use d as a ground for terminating parental rights in a subsequent proceeding initiated by another

party. Acc ordingly, we hold that only a pare

nt’s conduct in the four months immediately preceding thefiling of a petition then before the court may be used as grounds to termin ate parental rights under Tennessee Code Annotated section 36-1-102(1)(A)(i). Since there is no dispute that Mr. Moore paid child support and visited D.L.B. in the four months immediately preceding the petition filed in the chancery court by the Nickl esons, the

lower co urts err ed in ter minating Mr. Moore ’s pare

ntal rights b ase d upon Tennessee Code Annotated section 36-1-102(1)(A)(i).

B. Tennessee Co de Annota ted Secti on 36-1-1 02(1)(A)(iii)

Tennessee Code Annotated section 36-1-102(1)(A)(iii) provides that pare ntal rights may be terminatedif the fa

ther “wi llfully

failed to make re asonable

pay ments t oward t he support of the child’s mother

during the four (4) months immediately preceding the birth of the child.” There mu st be clear and c onvincing evidence in the record to support the termination of pare ntal rights. See Tenn. Code Ann. § 36-1-113(c)(1) (2001). The record shows that during her pregnancy Mrs. B ady typ ically st aye d w it h M r. Mo or e o nl y a f ew da ys at a time. She would then be absent f rom his home for periods of

about a month. Mr. Moore provided money to Mrs. B ady on some of the oc casions when she stayed a

t his home in the four months immediately prece ding D.L.B.’sbirth. Mr. Moore said that he would not give Mrs. Bady money if she intended to use it to buy crack c ocaine. Howeve r, if Mrs. Bady

indicate d that she

needed to buy food or c lothes, he

would give her $10 or $20. Mr. Moore

testifie d that he a

lso encouraged Mrs. Bady to seek prenatal care, but she ref used to do so.-7-

The Court of Appeals held that the pay ments Mr. Moore gave

to Mrs. Bady dur

ing the four months immediately preceding D.L.B.’s birth we re unreasonable. However, the Court o f Appea ls failedto address whether Mr. Moore’s conduct was willful. Under T ennessee Code Annotated section 36-1-102 (1) (A)(iii), parental rights may be terminated only if the payments toward the support of the child’s mother during the four months immediately preceding the b ir th of the c hild

were unreasonable and

the failure to make reasonable pay ments was willful. In Tenness ee Bap tist Children’s Homes , Inc. v. Swan son ( In re Swanson ), 2 S.W.3d 180, 188 (Tenn. 1999), this Court held that defining abandonment as the mere non-pay ment of support w as uncon stitutiona l becaus e this language crea

tes an irrebuttable presumption of abandonment, irrespective of intent. Swanson dictates that an element of intent must also be applied to the definition of abandonment in Tennessee Code Annotated section 36-1-102(1)(A)(iii). Theref ore, the Court of Appeals erred in terminating Mr. Moore’sp arent al righ ts based u

pon Tenne ssee Code

Annotate d section

36-1-102 (1)(A) (iii) because the cour t did not ad

dress the require d elemen

t of willfulness.

Furthermore, w e hol d that the trial court is the proper court to make a determination of willfulne ss pursuant to Tennessee Code Annotated section 36-1-10 2(1) (A)(iii). Mr. Moore’s testimonyis critical to the determination of whether his conduct toward Mrs. Bady in the four months immediately preceding D.L.B.’sbirth was willful. Moreover, the determination of whether the support Mr . Moore pr ovided to M

rs. Bady w as reasonable involves a finding of fact, which the trial court is in the best position to make.

The trial court

is requir ed to find only one statu tory ground for term ination of parenta l rights. See Tenn. Code Ann. § 36-1-113 (20 0 1). However, given the importance of establishing the permanent

placement of

a child who is the subject of a termination of parental rights proce eding, the trial court shouldinclude in its final order findings of fact and conclusions of law with regard to eac h ground presented. If the tria

l court addresses each ground tha t is raised in a te rmina tion procee ding, the child’s permanent placement will not be unnecessarily delayed due

to a remand

for findings on alterna te grounds. Unfortunately , the trial court made no findings of fact with reg ard to Mr. Moore’s conduct to wa rd Mr s. Ba dy i n t he fo ur mo nt hs im me di at el y pr ec ed in g D .L. B. ’s bi rt h. Co ns eq ue nt ly,

we remand t

his case to the tria

l co urt to consider abandonment under Tennessee Code Annota ted secti on 36-1-102(1)(A)(iii) and all other gr ounds for termination of parental rights asserted in th e Nicklesons’ petition.

II I. Conclusion

We hold that the lower courts erred in determining the a pplicable four-mont h period of consideration for abandonment under Tennessee Code Annotated section 36-1-102(1)(A)(i) and t hat the Court of App ea ls erred in determining that Mr. Moore abandone d his child under Tennessee Code Annotate d section

36-1-102 (1)(A) (iii). B ecause ground s for ter

minating the pare ntal rig hts of Mr. Moore have not been established, we do not reach the best interest of the child analy sis. See Tenn. Code Ann. § 36-1-11 3(c) (2 001) (requir in g first a “finding by

the court by cle ar and convincing evidence that the gr ounds for termination of

parental or guardianship rights ha ve been-8-

established” and then a finding that the “termination of the pare nt’s or guard ian’s rig hts is in the bes t interests of the child”). Accordingly , we reverse the Court of Appeals and remand this case to the trial court. We

direct th e trial c ourt to ad

dress each ground for termination of parental rights asserted by the Nicklesons. In or

der to expedi te this case, the trial court’s judgment should be entered no later than sixty day s from the entry of this judgment. See Tenn . Code Ann. § 36-1-124 (2001) (providing that contested terminations of parental rights and adoptions shall be expedited at trial and on appeal).

Costs of this appeal are taxed to the appellees, David Joe Nickleson and his wife, De nise Ni ck le so n, an d t he ir su re ty, fo r w ho m e xe cu ti on ma y is su e i f n ec es sa ry.

___________________________________ JANICE M. HOL DER, JUSTI

CE