Facts: Child was born out of wedlock. Eighteen months later, Father was sentenced to six years imprisonment for various crimes. A few months later, Child was removed from Mother’s care and declared dependent and neglected because of Mother’s drug abuse. Child was placed with Mother’s relatives. One year later, Child’s paternal grandparents petitioned for custody of Child. Mother’s relatives then filed a petition to terminate the parental rights of Mother and Father and adopt Child. The paternal grandparents then petitioned to intervene in the termination proceeding and also sought to adopt Child. After allowing the intervention, the trial court terminated the parental rights of Mother and Father and determined that it was in Child’s best interest to be adopted by Mother’s relatives. Only Father appealed.

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

Parents have a fundamental right to the care, custody, and control of their children. This right is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions. Termination of a person’s rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and severing forever all legal rights and obligations of the parent. Few consequences of judicial action are so grave as the severance of natural family ties.

While parental rights are superior to the claims of other persons and the government, they are not absolute and may be terminated upon appropriate statutory grounds.

A parent’s rights may be terminated only upon (1) a finding by the court by clear and convincing evidence that the statutory grounds for termination of parental rights have been established; and (2) that termination of the parent’s rights is in the best interest of the child. The existence of at least one statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights.

Persistence of Conditions. The first ground relied upon by the trial court was persistence of conditions. Tennessee law provides that a court may terminate parental rights when:

(A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) still persist;

(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) in the near future; and

(C) The continuation of the parent and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home.

The Court easily dispatched the trial court’s analysis, writing:

[T]he pertinent question in a termination proceeding based upon the statutory ground of persistence of conditions is whether Father has continued to neglect the Child. Father has not had an opportunity to properly care for the Child or continue in his alleged neglect of the Child because he has been incarcerated since before the time of removal. Additionally, the mere fact that he is incarcerated cannot serve as “other conditions that in all reasonable probability would cause the [C]hild to be subjected to further abuse or neglect” when he received a sentence of six years. Accordingly, we conclude that the trial court erred in relying on [persistence of conditions] as a statutory ground for termination. We reverse the trial court’s finding that termination of Father’s parental rights was appropriate based upon the alleged persistence of conditions that led to removal.

Abandonment. When a parent is incarcerated, “abandonment” occurs when

[a] parent is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s incarceration, or the parent has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.

The trial court made the bald conclusion that Father abandoned Child. The Court found, however, that

the trial court failed to make any specific findings of fact regarding Father’s failure to pay support or visit. The court did not clarify that it was considering the four months immediately preceding Father’s incarceration when concluding that Father had abandoned the Child. Likewise, the court did not find that Father’s failure to support or visit the Child was willful. Instead, the court merely listed the statutory ground in its addendum to the final order. [F]ailure to support a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide the support, and has no justifiable excuse for not providing the support. The court did not discuss any of the willfulness factors [when] terminating Father’s parental rights. . . .

Because of the gravity of their consequences, proceedings to terminate parental rights require individualized decision making. A mere recital of the statutory grounds for termination is insufficient in cases of this nature. . . . Accordingly, we must remand the case with directions to prepare the required findings of fact and conclusions of law.

The case was remanded to the trial court for specific findings regarding whether Father “abandoned” Child as that term is defined above.

In re Emilie A. M. (Tennessee Court of Appeals, Eastern Section, September 17, 2012).

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