Facts: Mother and Father were married to one another when Child was born in Tennessee. Father moved to Massachusetts before Child was born and, other than one month when Mother lived with Father in Massachusetts, Mother has resided in Tennessee with Child throughout Child’s life. Mother and Father divorced when Child was about two years old, and Mother subsequently married Stepfather, who is her current husband.

Mother and Father’s divorce decree gave Father only supervised visitation with Child. Therefore, Father’s opportunities to visit with Child were dictated by Mother’s schedule. It was undisputed that Father had lived in Massachusetts throughout Child’s life and had come to Tennessee to visit Child an average of once a year, or about 12 times in all.

When Child was 13 years old, Mother joined Stepfather in filing a petition to terminate Father’s parental rights to Child so Stepfather could adopt Child. The petition cited abandonment and failure to support as grounds for termination.

Father visited Child in Tennessee approximately one month before Mother and Stepfather filed a petition. Father spent a few hours with Child on Saturday and a few hours with Child on Sunday. Mother and Stepfather contended that Father exercised only “token visitation” with Child during this visit.

Father presented proof that Mother had made it difficult for him to communicate and visit with Child. Mother presented proof that Father rarely communicated with Child. Child testified that he does not feel comfortable with Father and wants to be adopted by Stepfather.

The trial court concluded that “[Father] has done nothing to show that he is a father” and stated “the Court is of the opinion that it would be in [the child’s] best interest to be adopted in this case.” Nevertheless, the trial court denied the petition to terminate Father’s parental rights because “[b]y case law, the father exercised the parenting time he was allowed under the Court Order within four months of the filing of the petition.” Mother appealed.

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

Stepfather cannot adopt the child unless he can succeed in terminating Father’s parental rights to the child. Stepfather must prove two elements by clear and convincing evidence before a court will terminate Father’s parental rights to the child. First, Stepfather must prove one of the statutory grounds for termination set forth in Tennessee Code Annotated § 36-1-113(g). Second, Stepfather must show that termination of Father’s rights is in the best interest of the child. The heightened standard of proof prevents unwarranted termination of a biological parent’s parental rights.

“Abandonment” is one of the statutory grounds for terminating parental rights and is defined by Tennessee Code Annotated § 36-1-102(1)(A)(i), in pertinent part, 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[.]

The statute clarifies that “[f]or purposes of this subdivision (1), ‘willfully failed to visit’ means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is defined as “visitation [that], 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.” A parent’s failure to visit must be willful, and when a parent’s efforts to visit his or her child are thwarted by others, the failure to visit is not willful. Whether a parent’s visitation is “token” requires a fact-intensive inquiry to be determined on a case-by-case basis.

After reviewing the record, the trial court concluded:

The evidence in this case shows that Father lives over one thousand miles away from the child and has a factory job that pays him by the hour. Living so far away on a limited income makes it difficult for Father to visit as often as he may like. Father has made efforts over the years to spend more time and have a more meaningful relationship with the child. Father has bought the child a cell phone, he has offered to bring the child up to Massachusetts, and he has offered to buy the child a laptop. The child was unable to keep track of the phone, and Mother refused to allow the child to go to Massachusetts. Mother also refused Father’s offer to buy the child a laptop.

We affirm the trial court’s finding that Stepfather had not established, by clear and convincing evidence, that Father had willfully failed to visit in the four months preceding the filing of the petition.

The child will soon be fifteen years old, and in little more than three years he will be able to decide for himself the type of relationship he has with Father. In the meantime, Father should not be prevented from being involved in the child’s life. The child’s relationship with Stepfather will presumably remain the same regardless of the fact that Stepfather is unable to adopt him.

Accordingly, the trial court’s decision to maintain Father’s parental rights was affirmed.

In re Adoption of Male Child Z.J.D. (Tennessee Court of Appeals, Middle Section, March 7, 2013).

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