Facts: Mother and Father lost custody of Child after their drug abuse led to Child being declared dependent and neglected. Child was placed in the custody of Foster Parents. Mother and Father were directed to remedy the issues that led to the removal of Child from their custody. Meanwhile, Mother and Father moved to South Carolina to be closer to their family. Their visitation with Child dropped off. Foster Parents filed a Petition to Terminate the Parental Rights of Mother and Father.

After a trial, the trial court found clear and convincing evidence to establish four grounds for termination: (1) persistent conditions; (2) abandonment by willful failure to support; (3) abandonment by willful failure to visit; and (4) abandonment by failure to provide a suitable home. Mother and Father appealed.

On Appeal: The Court of Appeals reversed the trial court on three grounds for termination but affirmed on one (failure to visit).

Persistent Conditions. Tennessee Code Annotated § 36-1-113(g)(3)(A)-(C) provides grounds to terminate parental rights when (1) the child has been removed from the parents’ custody for more than six months, (2) the conditions that led to the child’s removal still persist, thereby preventing the child’s safe return to the parents’ custody, (3) it is unlikely that the conditions will be remedied in the near future, (4) and continuing the parent/child relationship greatly diminishes the child’s chance to have a safe permanent home.

The Court observed that Foster Parents did not put on any proof that Mother and Father still had drug abuse problems. Both Mother and Father testified they did not, and both submitted certificates showing the successful completion of substance abuse treatment programs. Foster Parents argued the burden of proof was on Mother and Father to show the conditions that led to Child’s removal no longer existed, a burden shifting argument the Court noted was “clearly wrong.”

The trial court’s comment that the parents had not shown that they were “cured” and the comment on the parents’ methadone usage raises some concern. Drug addiction is not a condition that is “cured”; parents address it by managing it, that is, by following an established treatment program and refraining from the use of the drugs. Methadone is a recognized addiction therapy, and both Mother and Father testified that their use of methadone was therapeutic, pursuant to prescription, and part of their ongoing effort to manage their addiction. The Foster Parents submitted no expert testimony or other evidence to the contrary. . . .

In short, from our review of the record, the Foster Parents did not carry their burden of proving this ground for termination, and the Juvenile Court’s finding on this ground must be reversed.

Abandonment by Willful Failure to Support. Tennessee Code Annotated § 36-1-102(1)(A)(i) provides grounds for termination of parental rights if a parent “willfully” to provide monetary support or more than token payments toward the support of the child for the four month period preceding the filing of the termination petition. The failure to support is “willful” when a parent is aware of his or her duty to support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.

In this case, the trial court’s order at the time Child was removed from Mother and Father stated that “the issue of child support is reserved for later hearing(s) until such time that the child support enforcement office may be present and pursue child support if they so desire.” That order remained in effect up to the time Foster Parents filed their Petition to Terminate Parental Rights.

As noted above, to establish grounds for termination on the basis of failure to support, the evidence must establish clearly and convincingly that the failure to support was willful. The [trial court] order in effect during the pivotal time period may have obfuscated the parties’ legal obligation to pay support, and muddies the evidence on the willfulness of their admitted failure to pay. Thus, we must conclude that the [trial court’s] finding that the failure to support was willful is not supported by clear and convincing evidence in the record.

Abandonment by Willful Failure to Visit. The same statute cited above regarding abandonment for willful failure to provide support provides grounds for termination when a parent willful fails to visit the child during the four months preceding the filing of the termination petition.

Mother argued her failure to visit was not willful because her failure was the result of “financial difficulties and the long travel distance from South Carolina to Tennessee and because she had gotten sick on one occasion she was supposed to have a visit.” Father argued his failure to visit was not willful because he had three contacts with Child via telephone during that time.

The Court rejected these arguments and affirmed the trial court, stating:

We can only conclude that neither parent appropriately prioritized the need to visit their son in Tennessee. Such visitation is not a rote statutory requirement; it is necessary to maintain the thread of the parent-child relationship and pave the way for the return of the child to the parents’ custody. We have noted that an absence of contact between parent and child for an extended period of time can lead to, in effect, the “death” of the relationship. This is particularly true for a child as young as [Child], only two years old during the four-month time period in question.

Failure to Provide a Suitable Home. Tennessee Code Annotated § 36-1-102(1)(A)(ii) provides grounds for termination of parental rights when, for a four month period after the removal of custody, the parent has made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. The statute also imposes an obligation on the Department of Children’s Services to make “reasonable efforts” to assist the parent in establishing a suitable home.

After reviewing the record, the Court concluded:

We note that abandonment by failure to provide a suitable home is not limited to the parents’ physical home; a home may be rendered unsafe and unsuitable by the conduct of its occupants. In this case, the [trial court] found that after [Child] was removed from his parents’ home and after the permanency plan was staffed, Mother and Father did not execute the steps required of them in the plan. In particular, the [trial court] found that, while in Tennessee, Mother and Father continually put off obtaining an [alcohol and drug] assessment and had “positive drug screens and admitted continued drug use throughout 2008.” However, the proof also shows that, after they moved to South Carolina, Mother and Father gained some control over their addiction and curtailed their use of illegal substances. Courts should consider past misconduct, but should also consider parents’ more recent behavior and circumstances. Therefore, we must conclude that the record does not contain clear and convincing evidence on this ground.

The Court briefly addressed best interest and had no difficulty affirming the trial court’s finding that the termination was in Child’s best interest.

In re Joshua S. (Tennessee Court of Appeals, Western Section, June 16, 2011).

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