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In re Audrey S.8/25/2005
2-303 (2001); Baskette v. Streight, 106 Tenn. 549, 556, 62 S.W. 142, 144 (1901); Taxonomy of Children's Rights, 11 Wm. & Mary Bill Rts. J. at 859 & n.28. The juvenile court effectively removed Audrey S. from Jamie F.'s home when it entered the March 21, 1996 restraining order and the March 28, 1996 order awarding temporary custody of Audrey S. to Wilma S. The juvenile court effectively removed Victoria L. from Jamie F.'s home when it entered the March 30, 2001 restraining order, an order the juvenile court maintained until October 17, 2001 when it changed custody of Victoria L. to Justin L. Jamie F. never regained custody of her children following the entry of these initial orders.
Jamie F. argues that these prior orders do not fall within the ambit of Tenn. Code Ann. § 36-1-113(g)(3) because they arose in the context of child custody disputes. She warns that if the orders removing Audrey S. and Victoria L. from her custody qualify as predicate orders of removal under Tenn. Code Ann. § 36-1-113(g)(3), then every custody order that results in a change in the primary residence of a child can serve as a basis for the later termination of the non- residential parent's parental rights. Jamie F. contends that such a result would be untenable, and she invites us to avoid it by carving out an exception to Tenn. Code Ann. § 36-1-113(g)(3) for court orders that arise in the context of child custody disputes.
The statutory text provides no basis for the broad categorical exception urged by Jamie F. It does, however, suggest a narrower limitation on the scope of this ground for termination of parental rights. The statute refers both to the original "conditions which led to the child's removal" and to "other conditions" which in all reasonable probability would cause a child to be subjected to "further abuse and neglect." Tenn. Code Ann. § 36-1-113(g)(3)(A)(i) (emphasis added). The reference to "further" abuse and neglect suggests, albeit obliquely, that the statute was intended to apply only where the prior court order of removal was based on a judicial finding of abuse or neglect. Tenn. Code Ann. § 36-1-113(g)(3)(A)(i).
The historical development of the statute also suggests that it was intended to be limited to cases in which the prior order of removal was based on a judicial finding of dependency, neglect, or abuse. The General Assembly created the ground for termination of parental rights that is presently codified at Tenn. Code Ann. § 36-1-113(g)(3) in 1977. Prior to that time, Tennessee courts were statutorily authorized, and in some cases required, to remove "dependent" and "neglected" children from the custody of their parents. The words "dependent" and "neglected" were used as terms of art, and they were statutorily defined to include cases of child abuse.
However, the law did not authorize termination of parental rights based solely on a judicial finding of dependency, neglect, or abuse. Following a judicial finding of dependency, neglect, or abuse, a court could declare a child to be an "abandoned child" and terminate the parent's parental rights only if it found that the parent subsequently "made no effort to provide a suitable home" for the child, displayed "a lack of concern as to the child's welfare," and "failed to achieve a degree of personal rehabilitation as would indicate that, at some future date, [he or she] would provide a suitable home for the child." Tenn. Code Ann. § 36-102(5) (Supp. 1976).
Thus, children removed from their parents' custody because they were dependent, neglected, or abused were often caught in a legal whipsaw. They could not be returned to their parents, because their parents had not improved to the point of being able
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