Facts: Mother tested positive for cocaine when Child was born prematurely so the Department of Children’s Services removed Child from Mother and eventually placed Child with relatives. Mother would see Child briefly at occasional family gatherings. When Mother announced her intent to seek custody of Child, the relatives petitioned to terminate Mother’s parental rights and adopt Child. The trial court terminated Mother’s parental rights on the grounds of abandonment for failure to engage in more than “token visitation” and failing to provide financial support for Child in the four month period preceding the filing of the petition.  Specifically, the trial court ruled as follows:

I’m forced to conclude that what contact there was here was just token contact. It was minimal, was insubstantial. It was of such short duration, and you’ve got a child that was born September 2005. She’s two years old in September 2007 and . . . [Mother] spent three or four hours with her over a period of four months and then only on special family occasions where the whole family gets together for Thanksgiving, Christmas, for the child’s birthday. That just is not. . . that’s just perfunctory visitation. A parent who really wanted substantial contact with his or her child would have made the effort to visit more than that, especially when there is a court order down that at least provided for the fact of visitation, although with some lack of specificity as to what the visitation would be.

Mother appealed.

The Court of Appeals affirmed.

Mother failed to provide any financial support for Child so that’s an easy one. I’m more interested in Mother’s “token visitation,” which the Court acknowledged was a “close question.”

Tenn. Code Ann. § 36-1-102(1)(A)(i) defines “abandonment” as follows:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child . . . .

Tenn. Code Ann. § 36-1-102(1)(E) defines “willfully failed to visit” as “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation . . . .”

Finally, Tenn. Code Ann. § 36-1-102(1)(C) defines “token visitation” to mean “that the visitation, under the circumstances of the individual case, 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 . . . .”

The Court ruled:

There is little caselaw in Tennessee to give us guidance on token visitation. We apply the statutory definition of “token visitation” in light of the larger framework of the termination statutes. Thus, while the parent’s subjective intent and interest in the child is relevant, the termination statutes generally require that such interest manifest in the form of objectively reasonable action geared toward establishing a healthy parental relationship.

In this case, as noted above, prior to the critical four-month time period, Mother did not have a significant bond or relationship with two-year-old Keri. Against this backdrop, once-a-month half-hour contacts with such a young child at large family gatherings cannot be viewed as a reasonable attempt to forge a meaningful relationship with the child. Indeed, while the child’s lack of interest in Mother’s overtures at these gatherings must surely have been disappointing to Mother, it could not have been surprising. Under the circumstances, it was nearly inevitable.

The Court of Appeals concluded there was clear and convincing evidence to support the trial court’s finding that Mother engaged in “token visitation” during the four-month period that preceded the filing of the petition.

In re Keri C. (Tennessee Court of Appeals, Nov. 22, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.