Facts: Child was born to unmarried, teenage parents. Paternity, child support, and a visitation schedule were established. Father fell behind on child support from time-to-time and would have to catch up. After Father’s parents moved to another state an eight-hour drive away, Father’s visitation became more sporadic. Father was convicted of and put on probation for two felonies: selling marijuana and theft.

In April 2007, Father was visiting Child. After Child went to bed, Father left Child in the care of Father’s parents (Child’s paternal grandparents), went out, drove drunk, crashed his car, and seriously injured two people. Father was charged and convicted of vehicular assault and violation of probation, all of which resulted in a prison sentence of eight years.

Meanwhile, Mother’s life stabilized. Mother married Stepfather, who formed a strong bond to Child. The proof showed Stepfather has been a fixture in Child’s life for many years, coached Child’s baseball team, and was Child’s cub scout leader. Child calls Stepfather “Dad,” although he knows who his biological Father is and is aware that he is in prison.

The evidence as a whole showed that after [Child] was born, Mother stepped into the role and responsibilities of parenthood and that Father was always far less involved. After Stepfather came into the picture, he also took a more prominent role than did Father in parenting [Child], especially as Father’s legal problems escalated. Nonetheless, . . . Father remained interested in and involved in his son’s life and, although his performance was sporadic at times, he visited with his son and paid support until he was sent to prison.

In 2009, Mother and Stepfather filed a petition to terminate Father’s parental rights and for Stepfather to adopt Child. The alleged grounds for termination alleged were that Father “has willfully abandoned the minor child, that he has failed and refused to pay child support, visit, or in any way be a part of the life of this child . . . .”

The trial court ruled there was clear and convincing evidence that Father had abandoned Child under two of the statutory definitions of abandonment: Tennessee Code Ann. § 36-1-102(1)(A)(iii) for willfully failing to make payments towards the support of the mother during the four months immediately preceding the birth of the child; and Tennessee Code Ann. § 36-1-102(1)(A)(iv) for engaging in conduct prior to incarceration that showed a wanton disregard for the welfare of Child. The trial court then ruled there was clear and convincing evidence it was in the Child’s best interest that Father’s parental rights be terminated after analyzing the factors set out in Tennessee Code Ann. § 36-1-113(h)(2)(C)(i). Father appealed.

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

Grounds for Termination of Parental Rights: Father’s conduct prior to Child’s birth. Father admits he failed to make payments of support to Mother when she was pregnant with Child. However, such a failure does not constitute a valid ground to terminate a parent’s rights unless it is found to be “willful,” which willfulness is an essential element in any determination of abandonment. Failure to support a child is “willful” when a person is aware of his or her duty of support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing support.

Tennessee Code Ann. § 36-1-102(1)(H) states that “[e]very parent who is eighteen (18) years of age or older is presumed to have knowledge of a parent’s legal obligation to support such parent’s child or children.” This statutory presumption did not apply to Father, who was fifteen years old when Mother became pregnant with Child. Still, the Court states “there was no evidence that Father knew he was the father, was aware of his duty to provide support, or had the ability to provide any degree of support.”

The Court concluded:

[After Child’s birth,] Father petitioned the court to recognize his paternity, and he began paying child support, which continued, with some lapses, until he began serving his sentence. This course of events precludes a finding that Father abandoned his child by failing to pay support in the four months prior to his birth. Any objection to Father obtaining parental rights based on his failure to support Mother during her pregnancy should have been raised during the paternity proceeding. Because Father was granted the parental rights that accompany paternity after, and perhaps in spite of, his failure to support Mother prior to the child’s birth, that failure cannot be used nine years later to deprive Father of those same rights.

Grounds for Termination of Parental Rights: Father’s “wanton disregard” for Child’s welfare. Tennessee Code Ann. § 36-1-102(1)(A)(iv) has two definitions of abandonment that only apply when “[a] parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child.” The first is if the parent has failed to pay child support in the four months immediately prior to his or her incarceration, which did not apply in this case because Father paid child support during the applicable four month period. The second definition is if “the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.” While a parent’s decision to engage in conduct that carries the risk of incarceration is indicative of a parent’s fitness to care for the child, incarceration alone is not a ground for termination of parental rights.

Rather, the parent’s incarceration serves as a triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a substantial risk to the welfare of the child.

The Court reasoned:

While we in no way condone the conduct which led to Father’s incarceration, we are mindful of the higher standard of proof that is required before a party may be deprived of the constitutional right to be a parent to his or her child. We are also aware that despite the regrettable lapses in his behavior, Father has shown a great deal of care and concern for his son, and he has made a genuine effort to establish a meaningful relationship with him. After thoroughly examining the record, we have concluded that the facts found in that record do not clearly and convincingly prove that Father has shown wanton disregard for his child’s welfare. We accordingly reverse the trial court.

Because the Court concluded grounds do not exist to terminate Father’s parental rights, it did not conduct a “best interest” analysis.

In re Dylan M.J. (Tennessee Court of Appeals, Middle Section, March 17, 2011).

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