Fetus Is a Child for Purposes of Terminating Parental Rights in Manchester, TN: In re Adrianna S.

knoxville divorceFacts: Mother and Father are the parents of Child. At the time of Child’s birth, Father was incarcerated serving an effective 19-year prison sentence, although he will be eligible for parole in 2017. Child was removed from Mother’s care because of her substance abuse, mental health problems, and reports of neglect. The Department of Children’s Services (DCS) placed Child in foster care.

DCS petitioned to terminate Mother and Father’s parental rights so Child could be adopted. The grounds for terminating Father’s parental rights was that he has been sentenced to prison for 10 or more years and Child was under eight years of age at the time the sentence was entered.

Father argued the grounds should not apply because Child had not yet been born at the time of Father’s sentencing.

The trial court disagreed and terminated Father’s parental rights.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

In order to terminate the parental rights of a biological parent, a petitioner must first prove, by clear and convincing evidence, at least one of the listed grounds for termination. Among these grounds, Tennessee Code Annotated § 36-1-113(g)(6) provides a parent’s rights may be terminated if:

The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.

In a case of first impression in Tennessee, Father argued the statutory requirement that there be a “child under eight (8) years of age at the time the sentence is entered”was not satisfied because Child had not yet been born when Father was sentenced.

The question of whether a fetus constitutes a “child” or a “person” is one of the most divisive and hotly contested issues of our time. While the determination of public policy is primarily within the province of the legislature, it is the court’s duty to ascertain and give effect to the legislature’s intention and purpose.

When the statutory language is clear and unambiguous, courts must apply its plain meaning in its normal and accepted use, without a forced interpretation that would limit or expand the statute’s application. Where an ambiguity exists, courts must look to the entire statutory scheme and elsewhere to ascertain the legislative intent and purpose. The statute must be construed in its entirety, and it should be assumed that the legislature used each word purposely and that those words convey some intent and have a meaning and a purpose. The background, purpose, and general circumstances under which words are used in a statute must be considered, and it is improper to take a word or a few words from its context and, with them isolated, attempt to determine their meaning.

The Court first determined the plain language of the statute is ambiguous:

[T]he question of whether a fetus constitutes a “person” or “child” is a contentious issue about which reasonable minds continually disagree. Because of this vast disagreement, it is unclear by simply examining the terms “child” and “person” whether the legislature intended for a fetus to be considered a “child under eight” for purposes of Section 36-1-113(g)(6). Therefore, because the statutory language is ambiguous, we must look elsewhere to ascertain the legislative intent.

When statutory language is ambiguous, courts may reference the broader statutory scheme in deciphering legislative intent. It is a well-settled rule of construction that statutes in pari materia —  those relating to the same subject or having a common purpose — are to be construed together, and the construction of one such statute, if doubtful, may be aided by considering the words and legislative intent indicated by the language of another statute.

Further, in ascertaining the intent of the legislature, courts may look to a statute’s subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.

The Court said the obvious purpose of § 36-1-113(g)(6) is to achieve permanency for children whose parents are subjected to the possibility of lengthy prison sentences.

The Court also noted the term “child” has been interpreted as including the period of pregnancy for at least two other statutory grounds for termination, namely wanton disregard for the welfare of the child and severe child abuse.

The Court concluded that, in this context, “child” includes an unborn child:

If we were to adopt Father’s interpretation of Section 36-1-113(g)(6), it would operate to contravene this legislative purpose. Under Father’s interpretation, a child born even one day after a parent is sentenced to ten or more years imprisonment would be deprived of the possibility of a stable home environment for the entirety of the parent’s incarceration, while a child born a day before sentencing would be afforded this protection. Such a result is contrary to reason. On the other hand, a construction of the statute to include the period of pregnancy serves the legislative goals of providing permanency and protecting the day-to-day needs of children.

Therefore, both the broader statutory scheme and the purpose behind the statute at issue support the conclusion that Tennessee Code Annotated § 36-1-113(g)(6) is an applicable grounds for terminating Father’s parental rights in this case.

Accordingly, the trial court’s judgment was affirmed. Father’s parental rights are terminated.

K.O.’s Comment: In In re Anthony R., the Court held the “wanton disregard” statute applies only when the parent has knowledge of the child’s existence. After all, you cannot disregard a child you don’t know exists.

Here, Father argued for the application of the same rule because he claimed he was unaware that Child had been conceived at the time of his sentencing. The Court rejected this argument because “termination under the statute at issue in this case is not based on the parent’s actions or knowledge, but is based on the parent’s status — i.e., having received a prison sentence of 10 or more years. Therefore, Father’s knowledge of the child at the time of sentencing is irrelevant.”

So it matters not whether the parent is aware of the child’s conception — if the parent of a fetus receives a prison sentence of 10 years or more, grounds exist to terminate his or her parental rights.

In re Adrianna S. (Tennessee Court of Appeals, Middle Section, September 29, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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