Posted by: Nathan Lykins on Jan 1, 2021

Journal Issue Date: Jan-Feb 2021

Journal Name: Vol. 57 No. 1

In July 2016, the Tennessee General Assembly laid the foundation for a disagreement about the meaning of a common conjunction by adding a new statutory ground for terminating parental rights. After reviewing this statute and the same set of interpretive guidelines, two panels of the Tennessee Court of Appeals reached opposing conclusions. One panel concluded that “and” means “and” while another effectively concluded that “and” means “or.”1 This article describes the disagreement and argues that the second interpretation is consistent with the principles of formal logic and, more importantly, the drafters’ intent. Indeed, as of this writing, the Tennessee Supreme Court has resolved this split in favor of the second interpretation. 

Termination of Parental Rights

In Tennessee, a petitioner seeking to terminate an individual’s parental rights must prove at least one statutory ground for termination before establishing that such termination is in the child’s best interest.2 In 2016, the General Assembly added the following statutory ground at Tenn. Code Ann. § 36-1-113(g)(14): “[a] 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.”3

Tenn. Code Ann. § 36-1-113(g)(14) requires proof of two elements.4 First, it requires proof that the parent has failed to manifest “an ability and willingness” to personally assume custody of or responsibility for the child.5 Second, it requires proof that placing the child in the parent’s custody would pose a risk of substantial harm to the child.6

Ayden S. and Amynn K.

Although they did not disagree about the meaning of the second element, different panels of the Tennessee Court of Appeals reached opposing conclusions about the meaning of the first. In In re Ayden S., the Court of Appeals concluded that the first element requires proof that a parent or guardian has failed to manifest both ability and willingness.7 In In re Amynn K., a different panel concluded that the first element requires proof that a parent or guardian has failed to manifest either ability or willingness.8 Notably, both panels relied on the same sources: the text of the statute and the interpretive canons in Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner.

The Ayden Court focused on the petitioner’s obligation to prove that a parent has failed to manifest an ability and willingness to assume responsibility, which it considered to be a conjunctive “negative proof.”9 According to Reading Law, negative proofs can be either conjunctive (“To be eligible, you must prove that you have not A, B, and C”) or disjunctive (“To be eligible, you must prove that you have not A, B, or C”).10 To satisfy a conjunctive negative proof, a party must prove that all of the elements have not been met.11 Thus, the Ayden Court held that a petitioner is required to prove both inability and unwillingness in order to satisfy the first element of Tenn. Code Ann. § 36-1-113(g)(14).12

The Ayden Court acknowledged that, consistent with Tennessee Supreme Court precedent, the word “and” can be “construed in the disjunctive [i.e. as “or”] where such a construction is necessary to further the intent of the legislature.”13 However, the Ayden Court rejected that approach because statutory phrases that use “and” are usually interpreted as conjunctive, and Tennessee courts presume that the General Assembly purposefully chooses statutory language.14 In effect, the Ayden Court held that a petitioner who must prove two things cannot do so by proving only one of them. 

While the Ayden Court focused solely on the petitioner’s burden of proof under Tenn. Code Ann. § 36-1-113(g)(14), the Amynn Court focused on both the obligation of the petitioner and the obligation of a child’s parent or guardian.15 Specifically, the Amynn Court noted that this statute requires a petitioner to prove a “parent or guardian’s failure to do something.”16 Analyzing the grammar of the statute, the Amynn Court stated that the infinitive phrase “to manifest” functioned as the object of the verb phrase “has failed,” all of which describe “what the parent must have done in order to avoid having failed.”17 That is, the parent must manifest “an ability and willingness” in order to avoid failing the condition described in the statute.

Referring to Reading Law, the Amynn Court concluded that manifesting ability and willingness is a conjunctive “basic requirement” (e.g., “You must do A, B, and C.”) and noted that all listed elements must be met in order to satisfy a basic requirement.18 Because the parent or guardian referenced in Tenn. Code Ann. § 36-1-113(g)(14) must meet all elements of a basic requirement, a petitioner who must prove that a parent or guardian has failed to satisfy a basic requirement can do so by showing that the parent or guardian has failed to complete any one of these elements. 

The Amynn Court supported its reasoning by noting that the Tennessee Supreme Court followed a similar approach for the same phrase in another subsection of Tenn. Code Ann. § 36-1-113. Under that subsection, the parental rights of a putative father may be terminated when “[t]he person has failed to manifest an ability and willingness to assume legal and physical custody of the child.”19 Notably, the Tennessee Supreme Court has held that this ground was proven when a parent “manifested a commendable willingness to assume legal custody” of the children but the evidence demonstrated that he did not “presently have the ability to assume legal and physical custody of any of [them].”20

Therefore, according to the Amynn Court, if the petitioner proves that the parent has not manifested an ability to assume responsibility for the child, then the petitioner has also proven that the parent “has failed to manifest … an ability and willingness.”21 Ultimately, the Amynn Court’s holding is that parents who must do two things cannot fulfill their obligation if they only do one thing.

The Court of Appeals itself has described the reasoning in Amynn as “a complicated use of statutory construction and grammar rules to essentially conclude that the General Assembly’s us of ‘and’ in the phrase ‘an ability and willingness’ actually means ‘or.’”22 However, both the Ayden and Amynn interpretations are reasonable enough to be accepted by different panels of the Court of Appeals.23 In April 2020, the Court of Appeals asked the Tennessee Supreme Court to resolve this issue, in part because of the number of cases involving Tenn. Code Ann. § 36-1-113(g)(14).24 Two judges on that panel described the situation as a “clear and irreconcilable split.” 25

The Tennessee Supreme Court evidently agreed with this assessment and recently resolved the split by adopting the Amynn Court’s interpretation.26 As discussed below, the Amynn Court’s approach is consistent with formal logic and the drafters’ intent, and the Supreme Court was correct to adopt it.

Formal Logic 

Although the reasoning in Amynn is complicated, the result is consistent with a principle of formal logic called “DeMorgan’s Theorem.” This theorem allows negative conjunctive statements — those using “and” — to be expressed as disjunctive statements —- those using “or.”27 The theorem states that the negative of a conjunctive phrase (i.e., “not A and B”) is the same as the disjunction of the negated terms (i.e., “not A or not B”).28 Similarly, the negative of a disjunctive phrase (i.e., “not A or B”) is the same as the conjunction of the negated terms (i.e., “not A and not B”).29 

DeMorgan’s Theorem is cumbersome, but a simple example may help explain its application. A disjunctive sentence like “John is at school or at home” asserts that at least one of the conditions is true, and therefore the entire sentence remains true if John is present at either location.30 In order for the sentence to be negated, John must be absent from both locations. Thus, “John is not at home or at school” is the same as “John is not at home and is not at school.”31 

In contrast, a conjunctive sentence like “John has cleaned his room and brushed his teeth” is an assertion that both conditions in the sentence are true, so negating it only requires proof that one condition is untrue.
If John has not brushed his teeth, then he has not “cleaned his room and brushed his teeth.” 

Applying DeMorgan’s Theorem to Tenn. Code Ann. § 36-1-113(g)(14) indicates that the Amynn Court’s interpretation is consistent with formal logic. The phrase “has failed to manifest ... an ability and willingness” may be roughly replaced with “has not manifested an ability and willingness” and summarized with the shorthand “not A and W,” where “A” is “ability” and “W” is “willingness.”

It is possible to argue that the phrase “has failed to manifest . . . an ability and willingness” should be replaced with “has failed to manifest . . . an ability and has failed to manifest a willingness” and summarized as “not A and not W.” However, that approach adds more to the text of the statute than the General Assembly provided. Additionally, both the Amynn Court and the Ayden Court treated the words “failed to manifest . . . an ability and willingness” as a single, unified phrase.32 Consequently, the shorthand “not A and W” is consistent with both panels’ initial approaches.

According to DeMorgan’s Theorem, “not A and W” is equivalent to “not A or not W,” and therefore, in order to prove “not A and W,” a petitioner must only prove that either A or W is untrue. That is, if a parent only manifests one of the relevant traits in the statute — an ability or willingness — then he or she has not manifested both of them. Consequently, a petitioner who proves that a parent has not manifested ability has also proven that the parent has not manifested “ability and willingness.”

Legislative Intent and the Role of the Court

Interpreting Tenn. Code Ann. § 36-1-113(g)(14) according to the tenets of formal logic has a certain appeal, but the decision to apply DeMorgan’s Theorem must be analyzed in light of the court’s role in the process of statutory interpretation. As part of that process, a court’s task is not to strictly adhere to principles of formal logic but to “determine legislative intent and to effectuate legislative purpose” using primarily the text of the statute and giving words their “natural and ordinary meaning” in light of the context and the statute’s general purpose.33 

When the text is clear and unambiguous, courts can determine the legislature’s intent based solely on the text.34 However, when a statute is ambiguous, courts may move beyond the text and consider sources like public policy, historical facts relevant to the enactment of the statute, the background and purpose of the statute, and the entire statutory scheme.35 In Tennessee, a statute is ambiguous when it is “susceptible to two reasonable interpretations.”36 The fact that different courts or judges have reached different interpretations of the same statute is evidence that the statute is ambiguous.37

Under these principles, there are two objections to the application of DeMorgan’s Theorem. First, it is possible to argue that the Amynn Court’s approach and DeMorgan’s Theorem do not actually yield a reasonable interpretation of the statute. According to this argument, it is not reasonable to use DeMorgan’s Theorem or the Amynn Court’s approach because they make Tenn. Code Ann. § 36-1-113(g)(14) a redundant version of other grounds for the termination of parental rights. Indeed, in a separate opinion, one judge on the Court of Appeals stated that “[i]nterpreting ‘and’ as ‘or,’ … makes Tenn. Code Ann. § 36-1-113(g)(14) a weaker version of other grounds.”38  

Second, it may be argued that DeMorgan’s Theorem does little to help a court determine the General Assembly’s intent or effectuate its purpose because its members were probably not considering this theorem when they voted to pass the legislation containing Tenn. Code Ann. § 361-113(g)(14). Tennessee courts assume that the legislature is aware of Tennessee law and common business practices, but they do not usually assume that the legislature is considering abstract concepts like formal logic when it drafts or votes on legislation.39

The first argument is compelling, but it seems equally applicable under the Ayden Court’s approach. That is, even when a petitioner is required to prove failure to manifest both ability and willingness, Tenn. Code Ann. § 36-1-113(g)(14) is a weaker version of other grounds because many of the other grounds are alternative standards for determining whether a parent has the ability and willingness to be responsible for a child. For example, other grounds for terminating parental rights include abandonment and substantial noncompliance with the parenting plan established to permanently reunify parents and their children.40 When the evidence demonstrates that a petitioner has proven these other grounds, it likely also demonstrates that the parent did not manifest an ability and willingness to be responsible for a child. 

Accordingly, DeMorgan’s Theorem does not result in a version of Tenn. Code Ann. § 361113(g)(14) that is any weaker or more redundant than the alternative interpretation. In fact, as discussed below in response to the second argument, legislative history suggests that the drafters of Tenn. Code Ann. § 36-1-113(g)(14) did not intend for it to be a strong ground for terminating parental rights.

Like the first argument, the second argument is persuasive. Formal logic is not frequently considered when speaking or writing, and courts may be reluctant to use it as an interpretive guide.41 However, although the legislature may not have been consciously considering principles of formal logic, DeMorgan’s Theorem fulfills the goals of the statute as explained in testimony before the House Civil Justice Committee and the Senate Judiciary Committee of the General Assembly. 

A Nashville adoption attorney who testified before the House Civil Justice Committee stated that Tenn. Code Ann. § 361113(g)(14) was intended to address “long term either inability or unwillingness to provide for a child.”42 She also stated that the grounds described in Tenn. Code Ann. § 361113(g)(14) were already contained in another section that applied only to a “putative father,” an individuals who is not a child’s legal parent but is (actually or allegedly) a child’s biological father. In contrast, the new section would apply to legal parents and guardians.43

Similarly, the testimony before the Senate Judiciary Committee was that the drafters intended to clarify Tennessee’s adoption statutes rather than substantially change them. According to the testimony, Tenn. Code Ann. § 36-1-113(g)(14) did “not add a new ground per se” but instead “broaden[ed] who can bring this action.”44 Consequently, it appears that the drafters of Tenn. Code Ann. § 361-113(g)(14) did not intend for it to be a substantial change to the statute and may not have intended it to be a strong ground for termination.

The Amynn Court’s approach and DeMorgan’s Theorem accomplish this intent. As the Amynn Court noted, another statutory ground for terminating parental uses the same language as Tenn. Code Ann. § 36-1-113(g)(14), and the Tennessee Supreme Court held that this other ground was proven when the evidence demonstrated that a parent had willingness but not the ability to assume legal and physical custody of his children.45 Significantly, as discussed in the testimony before the House Civil Justice Committee, the other ground can only be used to terminate the parental rights of a putative father.46 

In contrast, Tenn. Code Ann. § 36-1-113(g)(14) can be used to terminate the parental rights of legal parents and guardians. As a result, interpreting Tenn. Code Ann. § 36-1-113(g)(14) consistent with the Supreme Court’s interpretation of the ground limited to putative fathers accomplishes the goal stated in the testimony before the House Civil Justice Committee and Senate Judiciary Committee. It does not “add a new ground per se” but instead “broadens who can bring” an action to terminate parental rights using a factual basis for termination that was previously limited to putative fathers.47 

Conclusion

After reviewing the text of Tenn. Code Ann. § 36-1-113(g)(14) and using the same set of interpretive guidelines, two panels of the Tennessee Court of Appeals reached conflicting interpretations of this subsection. Although one interpretation has the practical effect of making the word “and” mean “or,” it is still a reasonable interpretation that is consistent with formal logic and the intent of the statute’s drafters. Consequently, the Tennessee Supreme Court correctly resolved this split by adopting the Amynn Court’s interpretation.48 


NATE LYKINS is is an associate at the Nashville office of Waller Landsen Dortch & Davis LLP. Before joining Waller, he was a law clerk for the Hon. Frank G. Clement Jr. of the Tennessee Court of Appeals. He received his law degree from Belmont University College of Law in 2014.


 

NOTES

1. In re Zaylee W., No. M2019-00342-COA-R3-PT, 2020 Tenn. App. LEXIS 145, at *13-14 (Tenn. Ct. App. Apr. 9, 2020)
2. Tenn. Code Ann. § 36-1-113(c); In re Gabrielle D., 531 S.W.3d 662, 681 (Tenn. 2017).
3. Tenn. Code Ann. § 36-1-113(g)(14) (emphasis added); 2016 Tenn. Pub. Acts, ch. 919, § 20. The 2016 version applies to a “legal parent or guardian”. The General Assembly removed the word “legal” in 2018. 2018 Tenn. Pub. Acts, ch 875, § 12
4. In re Maya R., No. E2017-01634-COA-R3-PT, 2018 Tenn. App. LEXIS 171, at *21 (Tenn. Ct. App. Apr. 4, 2018).
5. Id.
6. Id. (quoting Tenn. Code Ann. § 36-1-113(g)(14)).
7. In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 Tenn. App. LEXIS 306, at *18-20 (Tenn. Ct. App. May 31, 2018).
8. In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 Tenn. App. LEXIS 343, at *40 (Tenn. Ct. App. June 20, 2018).
9. In re Ayden S., 2018 Tenn. App. LEXIS 306, at *19.
10. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 120 (2012).
11. Id.
12. In re Ayden S., 2018 Tenn. App. LEXIS 306, at *20.
13. Id. at *19-20 (quoting Stewart v. State, 33 S.W.3d 785, 792 (Tenn. 2000)).
14. Id.
15. In re Amynn K., 2018 Tenn. App. LEXS 343, at *38-39.
16. Id. at *39.
17. Id.
18. Id. at *39-40.
19. Id. at *41-42 (quoting Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv)) (emphasis added).  
20. In re Bernard T., 319 S.W.3d 586, 604-05 (Tenn. 2010).
21. Tenn. Code Ann. § 36-1-113(g)(14) (emphasis added).
22. In re Allyson P., 2020 Tenn. App. LEXIS 279, at *30-32 (quoting In re Zaylee W., 2020 Tenn. App. LEXIS 145); see In re H.S., No. M2019-00808-COA-R3-PT, 2020 Tenn. App. LEXIS 116, at *40 (Tenn. Ct. App. March 20, 2020) (Bennett, J. concurring in part and dissenting in part23. In re Nevaeh B., No. E2019-01539-COA-R3-PT, 2020 Tenn. App. LEXIS 133, at *20-22 (Tenn. Ct. App. March 31, 2020).
24. See In re Isabella W., No. E2019-01346-COA-R3-PT, 2020 Tenn. App. LEXIS 200, at *36 (Tenn. Ct. App. Apr. 29, 2020).
25. Id. at *47 (Swiney, C.J. concurring and dissenting).
26. See In re: Neveah M., ___ S.W.3d ___, 2020 Tenn. LEXIS 591 (Tenn. 2020), available at https://www.tncourts.gov/sites/default/files/inreneveahm.opn__0.pdf.
27. DeMorgan’s Theorem is mentioned but not fully explained in Reading Law. See Reading Law, 119-21.
28. State v. Nelson, 842 N.W.2d 433, 440 (Minn. 2014) (interpreting Minn. Stat. § 609.375, which criminalized a person’s “omission and failure to provide care and support” to a child or spouse when legally obligated to do so).
29. Id.
30. See Lalit K. Loomba, “The Innocent Owner Defense to Real Property Forfeiture Under the Comprehensive Crime Control Act of 1984,” 58 Fordham L.Rev. 473, 481 n. 67 (1989) (quoting I. Copi, Symbolic Logic 27 (4th ed. 1973)).
31. Id. at 481 n. 68.
32. See In re Amynn K., 2018 Tenn. App. LEXIS 343, at *40; In re Ayden S., 2018 Tenn. App. LEXIS 306, at *19.
33. See Mills v. Fulmarque, Inc., 360 S.W.3d 362, 368 (Tenn. 2012).
34. See id.
35. Id.
36. Saturn Corp. v. Johnson, 197 S.W.3d 273, 276 (Tenn. Ct. App. 2006)
37. See In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020 Tenn. App. LEXIS 322, at *47-49 (Tenn. Ct. App. July 22, 2020).
38. In re H.S., 2020 Tenn. App. LEXIS 116, at *40 (Bennett, J. concurring in part and dissenting in part).
39. Purkey v. American Home Assur. Co., 173 S.W.3d 703, 709 (Tenn. 2005) (“[W]e assume that the Legislature is aware of the state of the law….”); SunTrust Bank, Nashville v. Johnson, 46 S.W.3d 216, 227  (Tenn. Ct. App. 2001) (“It is also reasonable to assume that the General Assembly is aware that automobile dealers customarily assign retail installment sales contracts to banks and other financial institutions.”).
40. Tenn. Code Ann. § 36-1-113(g)(1)-(2).
41. Compare Loomba, supra, at 481 n. 68 (“It should be noted that research thus far has not revealed any cases that have employed De Morgan’s theorem to resolve a question of statutory construction.”) with Nelson, 842 N.W.2d at 440-41 (Minn. 2014) (concluding that the government’s interpretation of a statute, which was an application of DeMorgan’s Theorem, was reasonable).
42. Testimony Before the House Civil Justice Committee re: HB1369 (March 29, 2016), http://tnga.granicus.comMediaPlayer.php?view_id=286&clip_id=12105 at 11:50 to 13:32 (emphasis added); see In re Braelyn S., No. 2020 Tenn. App. LEXIS 322, at *52-54 (discussing this testimony).
43. Testimony Before the House Civil Justice Committee re: HB1369 at 12:45 to 13:05.
44. Testimony Before the Senate Judiciary Committee re: SB1393 (March 29, 2016), http://tnga.granicus.com/MediaPlayer.php?view_id=278&clip_id=12103&meta_id=251566 at 3:03:40 to 3:04:47.
45. In re Amynn K., 2018 Tenn. App. LEXIS 343, at *41-42; In re Bernard T., 319 S.W.3d at 604. At the time the court issued this opinion, this ground for termination applied to any person who was “not the legal parent or guardian” of the child. See Tenn. Code Ann. § 36-1-113(g)(9) (2010). In 2016, this term was replaced with “putative father,” 2016 Tenn. Pub. Acts. Ch. 636, § 5.
46. See Tenn. Code Ann. § 36-1-102(44).
47. See Testimony Before the Senate Judiciary Committee re: SB1393 at 3:04:26 to 3:04:47; Testimony Before the House Civil Justice Committee re: HB1369 at 12:45 to 13:05.
48. The bulk of this article was written before the Supreme Court’s December 2020 decision resolving the disagreement between In re Amynn K. and In re Ayden S. The author wishes to thank the Editorial Board of the Tennessee Bar Journal for its assistance during the revision process.