IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

Heard at Nashville

June 4, 2003 Session

In the Matter of D.L.B., A Minor

Appeal by Permission 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 the prospective adoptive parents

of a child. The 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 Tennessee Code

Annotated section 36-1-102(1)(A)(i). To compute the four-month period, the chancery court used

the date on which the Court Appointed Special Advocate (“CASA”) filed a petition in juvenile court

to terminate the father’s parental rights. CASA’s petition was later dismissed. The Court of Appeals

affirmed the chancery court’s termination of parentalrights under Tennessee Code Annotated section

36-1-102(1)(A)(i) and found an additional ground for abandonment as defined by Tennessee Code

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

specifies that parental rights may be terminated if the father “willfully failed to make reasonable

payments toward the support of the child’s mother during the four (4) months immediately preceding

the birth of the child.” We granted permission to appeal. We hold that the commencement of the

four-month period of abandonment under Tennessee Code Annotated section 36-1-102(1)(A)(i) is

properly computed from the date on which the petition to terminate parental rights was filed in

chancery court, not from the filing date of the earlier juvenile court petition. We further hold that

the Court of Appeals erred in terminating the father’s parental rights based upon Tennessee Code

Annotated section 36-1-102(1)(A)(iii). Accordingly, we reverse the Court of Appeals and remand

this case to the trial court.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals Reversed;

Case Remanded to Trial Court

JANICE M. HOLDER, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J.,

and E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., and WILLIAM M. BARKER, JJ., joined.

Barbaralette G. Davis, Webb A. Brewer, and Nancy Percer Kessler, Memphis, Tennessee, for the

Appellant-Respondent, David Moore.
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Larry E. Parrish, Memphis, Tennessee, for the Appellees-Petitioners, Denise Nickleson and Donald

Joe Nickleson.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Dianne

Stamey Dycus, Deputy Attorney General, for the Appellee-Respondent, Tennessee Department of

Children’s Services.

OPINION

I. Factual and Procedural Background

The appellant, David Moore (“Mr. Moore”), and Georgia Smith Bady (“Mrs. Bady”) are the

biological parents of a girl, D.L.B., who was born prematurely at the Regional Medical Center in

Memphis, Tennessee, on August 31, 1998. Mrs. Bady was married to Jessie Bady at the time of the

child’s conception and birth but had been living from time to time with Mr. Moore. During her

pregnancy, Mrs. Bady stayed with Mr. Moore a few days each month. During those visits Mr. Moore

sometimes provided Mrs. Bady with $10 or $20 for food or clothing. Approximately six weeks into

her pregnancy, Mrs. Bady told Mr. Moore that she thought he was the child’s father. Because Mrs.

Bady used prostitution as a means of supporting her addiction to crack cocaine, Mr. Moore was

uncertain if Mrs. Bady’s belief was correct. Mr. Moore encouraged Mrs. Bady to seek prenatal care,

but she declined to do so.

Mr. Moore never registered as a putative 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 written notice of an intent to claim

paternity of a child prior to or within thirty days 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.

Mr. Moore also visited D.L.B. in the hospital’s Intensive Care Unit on September 4, 1998;

September 11, 1998; September 24, 1998; and October 9, 1998, and telephoned the hospital on

September 8, 1998.

Mrs. Bady admitted 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 statements that Mrs. Bady was using drugs, that she failed to follow a drug treatment

program, and that she had no 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 dependent and neglected child due to Mrs. Bady’s history of drug abuse and her
1

The juvenile court record concerning D.L.B. is not part of the record in this case. 

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failure to maintain a stable home.1 The juvenile court entered a protective custody order

recommending that D.L.B. be placed in the custody of DCS. On October 29, 1998, D.L.B. was

discharged to the custody of DCS. She was immediately placed in the foster home of Donald Joe

Nickleson and his wife, Denise Nickleson, the appellees. This placement was made through the

AGAPE Agency, which has a contract with DCS for the placement of children in DCS custody into

foster homes. D.L.B. has remained in the Nicklesons’ care since her release 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 gone. When he asked one of the nurses about her location, he was told that

“they” came 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 refused to give him any information about D.L.B. until he legitimated the child. In

December of 1998 and in November of 1999, Mr. Moore attempted 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 fathers seek to establish paternity of

children born during a marriage. In December of 1999, Mr. Moore was contacted by an attorney

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 May of 2000, CASA filed a petition in the Juvenile Court of Shelby County seeking to

terminate the parental rights of Mrs. Bady, her husband, and any unknown fathers. In July of 2000,

the juvenile court held a hearing on CASA’s petition to 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. Bady, and their parental rights are not at issue in this appeal. CASA

requested leave to amend the petition to include Mr. Moore as a respondent. The juvenile court

granted this request and continued the hearing to allow a paternity test to be performed. CASA

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 father of D.L.B. and was ordered to pay child support. In November of 2000, the juvenile

court entered an order allowing Mr. Moore limited visitation with D.L.B. DCS requested that 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 prior 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 March 22, 2001, the juvenile court dismissed

CASA’s amended petition to terminate the parental rights of Mr. Moore. This dismissal was not on

the merits.
2

Effective June 2, 2003, an enactment of Tennessee’s General Assembly amended Tennessee Code Annotated,

Title 36, Chapter 1, Part 1. See Act of May, 15, 2003, 2003 Tenn. Pub. Acts 231. As part of this enactment, Tennessee

(continued...)

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In the meantime, on January 31, 2001, the Nicklesons filed the present action in the Shelby

County Chancery Court seeking to terminate Mr. Moore’s parental rights and to adopt D.L.B. At

the time the Nicklesons filed this petition, Mr. Moore was paying child support and visiting with

D.L.B.

Following a hearing in June of 2001, the chancery court entered an order terminating the

parental rights of Mr. Moore on the basis of abandonment as defined by Tennessee Code Annotated

section 36-1-102(1)(A)(i). This finding was based solely upon Mr. Moore’s conduct in the fourmonth period preceding the May 2000 petition to terminate his parental rights filed by CASA in

juvenile court. The chancery court did not specifically address any of the additional grounds for the

termination of parental rights that were asserted by the Nicklesons.

The Court of Appeals affirmed the ruling of the chancery court. Applying Tennessee Code

Annotated section 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 present action. The Court of Appeals also held that Mr. Moore’s parental rights should

be terminated upon an additional ground of abandonment, defined by Tennessee Code Annotated

section 36-1-102(1)(A)(iii). This section specifies that parental rights may be terminated if the father

“willfully failed to make reasonable payments toward the support of the child’s mother during the

four (4) months immediately preceding the birth of the child.” Tenn. Code Ann.

§ 36-1-102(1)(A)(iii) (2001).

We granted permission to appeal.

II. Analysis

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

Tennessee Code Annotated section 36-1-102(1)(A)(i) provides that for the purposes of

terminating parental rights, “abandonment” may be established by showing that:

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[.]2
2

(...continued)

Code Annotated section 36-1-102(1)(A)(i) was amended as follows:

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 have willfully failed to make reasonable

payments toward the support of the child[.]

Id.

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In this case, it is clear that during the four months preceding the Nicklesons’ filing of the petition to

terminate parental rights, Mr. Moore paid child support and visited with D.L.B. The chancery court

and Court of Appeals, however, relied upon Mr. Moore’s failure to pay child support or visit with

D.L.B. in the four-month period preceding the filing of CASA’s May 2000 petition to terminate

parental rights.

Construction of statutes and application of law to facts are questions of law, which we review

under a purely de novo standard, according no deference to the conclusions of law made by the lower

courts. See Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997). In construing statutes, this

Court’s role is “‘to ascertain and give effect to the legislative intent without unduly restricting or

expanding a statute’s coverage beyond its intended scope.’” Houghton v. Aramark Educ. Res., Inc.,

90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995); State

v. Sliger, 846 S.W.2d 262, 263 (Tenn. 1993)). Legislative intent is derived from the plain and

ordinary meaning of the statutory language unless the statute is ambiguous. See Owens, 908 S.W.2d

at 926. If statutory language is ambiguous, then we must look to the entire statutory scheme to

determine legislative intent. Id. Component parts of a statute should be construed, if possible,

consistently and reasonably. See State v. Alford, 970 S.W.2d 944, 946 (Tenn. 1998).

The lower courts erred in interpreting Tennessee Code Annotated sections 36-1-102(1)(A)(i)

and 36-1-102(1)(F). While Tennessee Code Annotated section 36-1-102(1)(A)(i) uses the phrase

“a proceeding or pleading 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 added).

Read as a whole, we conclude that Tennessee Code Annotated section 36-1-102(1)(A)(i) requires

that the willful failure to visit, support, or make reasonable payments toward the support of the child

must have occurred in the four months immediately preceding the filing of the petition currently

before the court.

The language in Tennessee Code Annotated section 36-1-102(1)(F) does not compel a

contrary result. Tennessee Code Annotated section 36-1-102(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 terminate parental rights. (Emphasis added). The word “any” has a variety of meanings.

See, e.g., Indus. Risk Insurers v. Hartford Steam Boiler Inspection & Ins. Co., 779 A.2d 737, 748
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(Conn. 2001) (observing that “[t]he word ‘any’ can 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 meanings, we conclude that this statutory provision is ambiguous. See LeTellier v.

LeTellier, 40 S.W.3d 490, 498 (Tenn. 2001) (stating that “‘[a] statute is ambiguous if the statute is

capable of conveying more than one meaning’”) (quoting Bryant v. HCA Health Servs. of N. Tenn.,

Inc., 15 S.W.3d 804, 809 (Tenn. 2000)). Therefore, we must look to the entire statutory framework

to ascertain the legislature’s intent. See Owens, 908 S.W.2d at 926. In order to ascertain the

legislature’s intent, “‘[w]e must seek a reasonable construction in light of the purposes, objectives,

and spirit of the statute based on good sound reasoning.’” Scott v. Ashland Healthcare Ctr., Inc., 49

S.W.3d 281, 286 (Tenn. 2001) (quoting State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)).

Read in the context of the statutory scheme that governs the termination of parental rights,

we conclude that the word “any” is addressed only to petitions presently under the court’s

consideration. This interpretation best effectuates legislative intent without unduly impinging upon

the fundamental rights of parents. Clearly, the legislature did not intend that parents 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 parental rights that was brought by one party should be used as a ground for

terminating parental rights in a subsequent proceeding initiated by another party. Accordingly, we

hold that only a parent’s conduct in the four months immediately preceding the filing of a petition

then before the court may be used as grounds to terminate 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 Nicklesons, the lower courts erred in terminating Mr. Moore’s parental rights based upon

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

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

Tennessee Code Annotated section 36-1-102(1)(A)(iii) provides that parental rights may be

terminated if the father “willfully failed to make reasonable payments toward the support of the

child’s mother during the four (4) months immediately preceding the birth of the child.” There must

be clear and convincing evidence in the record to support the termination of parental rights. See

Tenn. Code Ann. § 36-1-113(c)(1) (2001). The record shows that during her pregnancy Mrs. Bady

typically stayed with Mr. Moore only a few days at a time. She would then be absent from his home

for periods of about a month. Mr. Moore provided money to Mrs. Bady on some of the occasions

when she stayed at his home in the four months immediately preceding D.L.B.’s birth. Mr. Moore

said that he would not give Mrs. Bady money if she intended to use it to buy crack cocaine.

However, if Mrs. Bady indicated that she needed to buy food or clothes, he would give her $10 or

$20. Mr. Moore testified that he also encouraged Mrs. Bady to seek prenatal care, but she refused

to do so.
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The Court of Appeals held that the payments Mr. Moore gave to Mrs. Bady during the four

months immediately preceding D.L.B.’s birth were unreasonable. However, the Court of Appeals

failed to address whether Mr. Moore’s conduct was willful. Under Tennessee 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 birth of the child

were unreasonable and the failure to make reasonable payments was willful. In Tennessee Baptist

Children’s Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180, 188 (Tenn. 1999), this Court

held that defining abandonment as the mere non-payment of support was unconstitutional because

this language creates 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). Therefore, the Court of Appeals erred in terminating

Mr. Moore’s parental rights based upon Tennessee Code Annotated section 36-1-102(1)(A)(iii)

because the court did not address the required element of willfulness.

Furthermore, we hold that the trial court is the proper court to make a determination of

willfulness pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(iii). Mr. Moore’s

testimony is critical to the determination of whether his conduct toward Mrs. Bady in the four

months immediately preceding D.L.B.’s birth was willful. Moreover, the determination of whether

the support Mr. Moore provided to Mrs. Bady was reasonable involves a finding of fact, which the

trial court is in the best position to make.

The trial court is required to find only one statutory ground for termination of parental rights.

See Tenn. Code Ann. § 36-1-113 (2001). However, given the importance of establishing the

permanent placement of a child who is the subject of a termination of parental rights proceeding, the

trial court should include in its final order findings of fact and conclusions of law with regard to each

ground presented. If the trial court addresses each ground that is raised in a termination proceeding,

the child’s permanent placement will not be unnecessarily delayed due to a remand for findings on

alternate grounds. Unfortunately, the trial court made no findings of fact with regard to Mr. Moore’s

conduct toward Mrs. Bady in the four months immediately preceding D.L.B.’s birth. Consequently,

we remand this case to the trial court to consider abandonment under Tennessee Code Annotated

section 36-1-102(1)(A)(iii) and all other grounds for termination of parental rights asserted in the

Nicklesons’ petition.

III. Conclusion

We hold that the lower courts erred in determining the applicable four-month period of

consideration for abandonment under Tennessee Code Annotated section 36-1-102(1)(A)(i) and that

the Court of Appeals erred in determining that Mr. Moore abandoned his child under Tennessee

Code Annotated section 36-1-102(1)(A)(iii). Because grounds for terminating the parental rights

of Mr. Moore have not been established, we do not reach the best interest of the child analysis. See

Tenn. Code Ann. § 36-1-113(c) (2001) (requiring first a “finding by the court by clear and

convincing evidence that the grounds for termination of parental or guardianship rights have been
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established” and then a finding that the “termination of the parent’s or guardian’s rights is in the best

interests of the child”). Accordingly, we reverse the Court of Appeals and remand this case to the

trial court. We direct the trial court to address each ground for termination of parental rights asserted

by the Nicklesons. In order to expedite this case, the trial court’s judgment should be entered no

later than sixty days 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, Denise

Nickleson, and their surety, for whom execution may issue if necessary.

___________________________________ 

JANICE M. HOLDER, JUSTICE