Facts: Mother and Father had two children out of wedlock. Mother lives in Tennessee and Father lives in Warsaw, Indiana.

The children, living with Mother, were found to be dependent and neglected in Mother’s care. Custody was granted to the Department of Children’s Services (“DCS”).

Eventually, DCS filed a Petition for Termination of Parental Rights, alleging grounds of abandonment for failure to pay child support and failure to visit. Mother voluntarily surrendered her parental rights. Father went to trial.

Father lives approximately seven hours away from the children. He only visits them when he comes to court because he does not have money to travel. In one and one half years, Father only visited the children two times, both of which coincided with a court date. He did not have a driver’s license and claimed he could not afford the cost of traveling. Despite his failure to visit, he claimed he “visited” his children during supervised phone calls with the children for approximately 20 minutes every other week.

The trial court found Father willfully failed to visit his children. The trial court specifically found the phone calls to the children were token, and Father provided no justifiable excuse for failing to visit the children.

Father appealed.

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

The issue on appeal is whether Father’s telephone calls amounted to no more than token visitation.

Abandonment is defined as the willful failure to visit or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights. To prove the ground of abandonment, a petitioner must establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so.

For purposes of terminating a parent’s rights on the ground of abandonment for failing to visit, “token visitation” means visitation, under the circumstances of the individual case, which constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.

After reviewing the record, the Court of Appeals concluded:

The circumstances of this individual case are that Father resided in northern Indiana, which was a seven-hour one-way trip from Cookeville, Tennessee, and that he had no driver’s license. Moreover, there is no evidence in the record to suggest that Father had a vehicle or that another person was willing to drive him to Cookeville, Tennessee, for visitation, and DCS made no efforts to assist Father with any means of transportation to visit his children in Tennessee….

[T]he evidence in this record has not completely eliminated all “serious or substantial doubt” about the correctness of the conclusion that Father’s failure to visit with the children in person was willful.

It is undisputed that Father visited by phone with his children every other week during the relevant four-month period for approximately twenty minutes. Thus, considering the circumstances of this case, including Father’s modest financial means, lack of a driver’s license, the fact that it would be a seven-hour one-way trip to visit his children, and the lack of evidence that anyone was willing to provide transportation assistance or drive him to Cookeville for visitation, we are unable to conclude that twenty-minute phone calls with his children every other week during the relevant four-month period constitutes token visits…. Thus, even though Father did not visit with the children in person during the relevant four-month period, we find the evidence fails to establish by clear and convincing evidence that his telephone visits constituted mere token visitation. Accordingly, we respectfully disagree with the trial court’s finding that Father abandoned his children by failing to visit.

Accordingly, the trial court was reversed. Unfortunately for Father, however, the trial court also found abandonment by willful failure to pay child support and that finding was affirmed on appeal. Father’s parental rights were terminated on that basis.

K.O.’s Comment: I find it interesting the Court relied upon the fact that “DCS made no efforts to assist Father with any means of transportation to visit his children in Tennessee.” Whether DCS has an obligation to provide reasonable efforts to unify the family before it proves abandonment to the trial court is an open question currently pending before the Tennessee Supreme Court in the In re Kaliyah S. case. This suggests the Court here agrees with the majority opinion in In re Kaliyah S. We’ll soon know whether that’s correct.

In re Caira D. (Tennessee Court of Appeals, Middle Section, November 25, 2014).

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