In Re Swanson

Summary

The Tennessee Supreme Court held that the definitions of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" in Tenn. Code Ann. § 36-1-102(1)(D) are unconstitutional because they create an irrebuttable presumption that four months' nonsupport constitutes abandonment regardless of intent, denying the individualized unfitness or substantial-harm determination required before terminating a parent's fundamental right to the care and custody of a child. The court declined to read a willfulness element into the statute, concluding the General Assembly deliberately omitted it, and instead elided subsection (D), reviving the prior 1994 definition that contained an intent element. Applying that prior law and giving the presumption of correctness to the circuit court's findings under Tenn. R. App. P. 13(d), the court concluded Harry Swanson did not abandon Brittany, reversed the Court of Appeals, and remanded for a plan restoring custody to him within ninety days.