Facts: Mother is the parent of Child. Mother has a long history of struggling with drug addiction, homelessness, etc. Child was found dependent and neglected in Mother’s care and placed with a foster family. Eventually, Foster Parents petitioned to terminate Mother’s parental rights and adopt Child.

The trial court found clear and convincing evidence of grounds for termination and concluded that termination was in Child’s best interest.

Specifically, the trial court found clear and convincing evidence that Mother failed to manifest an ability—but not a willingness—to assume custody or financial responsibility for Child.

Mother appealed, and the Court of Appeals reversed the trial court as to that ground because the trial court didn’t find she failed to show the ability and willingness.

The Tennessee Supreme Court accepted this appeal to resolve a split among the appellate courts about interpreting this ground for termination.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals.

Tennessee Code Annotated § 36-1-113(g)(14) requires a party seeking to terminate parental rights to establish by clear and convincing evidence that:

[a legal] parent or guardian has failed to manifest, by act or omission, an ability and willingness to personally assume legal and physical custody or financial responsibility of the child, and placing the child in the person’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.

Thus, two prongs must be proven by clear and convincing evidence to terminate parental rights under this statute:

1. the parent or legal guardian failed to manifest an ability and willingness to personally assume legal and physical custody or financial responsibility of the child; and
2. placing the child in the parent’s legal and physical custody would pose a risk of substantial harm to the physical or psychological welfare of the child.

The first prong has been interpreted differently by the Court of Appeals.

One interpretation requires the petitioner to prove the parent is both unable and unwilling to assume custody or financial responsibility. Thus, unless both are proven by clear and convincing evidence, termination of parental rights cannot happen on this ground.

Stated differently, under this interpretation, one must prove A and B to terminate. Unless both A and B are proven, there can be no termination.

Another interpretation requires the petitioner to prove the parent is either unable or unwilling to assume custody or financial responsibility. Thus, proving either by clear and convincing evidence will sustain terminating parental rights on this ground.

Stated differently, under this interpretation, a parent must show A and B to avoid termination. Proving the parent’s failure to show A or B will establish grounds for termination.

The most basic principle of statutory construction requires courts to find and give effect to the legislative intent without unduly restricting or expanding a statute’s coverage beyond its scope. Thus, courts begin with the statute’s plain language.

When the statutory language is clear and unambiguous, courts apply its plain meaning in its normal and accepted use.

If there are two reasonable interpretations, an ambiguity exists, and courts may reference the broader statutory scheme, the history of the legislation, and other sources to figure out the statute’s meaning.

The Supreme Court began by determining that the statutory text is ambiguous.

The legislative testimony of one drafter of this statute revealed its intent to allow termination of parental rights upon proof of a parent’s “long-term either inability or unwillingness to provide for a child . . . and such conduct leads to harm to a child.”

Based on this, the Court concluded

[t]he expressed legislative intent for [the statute] is to require clear and convincing proof that a parent or legal guardian was either unable or unwilling to personally assume legal and physical custody or financial responsibility of a child.

*     *     *     *     *

[W]e conclude that [the statute] places a conjunctive obligation on a parent or guardian to manifest both an ability and willingness to personally assume legal and physical custody or financial responsibility for the child. If a person seeking to terminate parental rights proves by clear and convincing proof that a parent or guardian has failed to manifest either ability or willingness, then the first prong of the statute is satisfied.

Adopting the second interpretation noted above, the Supreme Court agreed with the trial court that Foster Parents proved this ground for termination. The Supreme Court went on to find that termination is in Child’s best interest. The Court of Appeals was reversed, and the trial court’s judgment terminating Mother’s parental rights was reinstated.

In re Neveah M. (Tennessee Supreme Court, December 10, 2020).

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