Posted by: koherston | December 19, 2011

No Grounds for Termination of Parental Rights in Tennessee: In re Alex B.T.

Facts: Mother is the parent of Child, whose biological father is unknown. When Mother was incarcerated for domestic violence, Mother’s sister and brother-in-law obtained temporary custody of Child and became Child’s Legal Guardians. Mother retained “reasonable and liberal visitation” rights. For a few years, Mother had no visitation with Child. Legal Guardians filed a petition to terminate the parental rights of Mother and the unknown biological father. Legal Guardians further petitioned to adopt Child. After a hearing, the trial court found that Legal Guardians had failed to prove that Mother “willfully” failed to visit or support Child. The trial court found that Legal Guardians had interfered with Mother’s right to visit Child and had “rebuffed” Mother’s efforts to provide financial support for Child. Thus, the trial court held that Legal Guardians failed to establish grounds to terminate Mother’s parental rights. Legal Guardians appealed.

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

Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Thus, the state may interfere with parental rights only if there is a compelling state interest.  A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child’s best interest.

Because of the fundamental nature of the parent’s rights and the grave consequences of the termination of those rights, Tennessee law requires a higher standard of proof in termination cases. Consequently, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Such evidence produces a firm belief or conviction regarding the truth of the facts sought to be established.

Only one ground for termination of parental rights was at issue in this case—abandonment. Tennessee 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 . . . .

Willful failure to visit means “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” Willful failure to support means “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.”

Legal Guardians argued that Mother’s failure to visit was willful. They contended that Mother did not attempt to visit Child the entire time Child was in their custody, much less in the four months preceding the filing of the petition. Mother argued that Legal Guardians’ conduct interfered with her attempts to visit and excused her failure to do so.

The Tennessee Supreme Court has previously ruled:

We have held that when a parent attempts to visit his child but is “thwarted by the acts of others,” the failure to visit is not willful. Thus, a parent’s failure to visit is willful when it is “the product of free will, rather than coercion. . . .” A parent’s failure to visit may be excused by the acts of another only if those acts actually prevent the parent from visiting the child or constitute a significant restraint or interference with the parent’s attempts to visit the child.

Here, the Court of Appeals explained that it must give significant deference to the trial court’s findings:

The willfulness of particular conduct depends upon the actor’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations . . . . Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct.

The trial court based its ruling on Mother’s and Grandmother’s credibility. Credibility issues are best left to the trier-of-fact, and we will not overturn those finding absent clear and convincing evidence to the contrary. Nothing in the record significantly detracts from Mother’s or Grandmother’s credibility or lends greater weight to the testimony of the [Legal Guardians]; accordingly, we will not disturb the court’s credibility findings.

The Court commented on some of the evidence:

We are concerned, as was the trial court, by the [Legal Guardians’] failure to place Mother’s name on any school/daycare documents and their corresponding refusal to allow Mother to visit the child at school and daycare. . . .

Other evidence, however, shows that the [Legal Guardians] did nothing to facilitate a relationship between Mother and the child. In fact, [Legal Guardian] testified that it was Mother’s job to seek court action against the [Legal Guardians] to enforce the court ordered visitation, even though she was fully aware of Mother’s visitation rights. This Court has previously held that an adoption agency’s position that the biological parent “litigate if he [or she] desired to develop a relationship with [the] child” was a substantial restraint on the parent’s efforts to maintain a relationship with the child and the interference excused the biological parent’s failure to visit.

Regarding Mother’s failure to provide financial support, the Court said:

From our review of the record, there is no evidence that Mother was employed and thus had the capacity to pay support during the four months preceding the filing of the petition. A parent who fails to support a child because he or she is financially unable to do so is not willfully failing to support the child. . . . The burden was on the [Legal Guardians] to prove that Mother’s failure to support was willful; by failing to present any evidence on her employment in the four months preceding the filing of the petition, they clearly have not met that burden.

Accordingly, the trial court’s decision was affirmed.

K.O.’s Comment: This opinion could be helpful in cases where a parent’s name is excluded from school records, which happens more often than you’d think. Here, both courts found that particularly disturbing.

In re Alex B.T. (Tennessee Court of Appeals, Western Section, November 15, 2011).

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


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