Facts: When Child was 11 months old, the Department of Children’s Services (“DCS”) investigated a report of drug abuse by Mother and domestic violence in the home. When the investigation revealed the truth of the report, DCS advised Mother that Child would be removed from the home. Mother was advised that Child would go into State protective custody if she could not find a suitable person to care for Child.
Foster Mother, a single, 20-year-old neighbor with whom Mother was acquainted, happened to be nearby at the time. Mother asked her to take immediate custody of Child pending the DCS investigation, and she agreed. DCS accepted the verbal agreement between Mother and Foster Mother, so Foster Mother was permitted to take temporary custody of Child. Using DCS parlance, Child was “safety-placed” with Foster Mother.
DCS developed a Family Services Plan for Mother, setting out requirements she would need to complete in order to regain custody of Child. Throughout this time, Mother continued to visit with Child for an approximate two-hour visit once per week.
Many months later, DCS filed a dependency and neglect petition. After a final hearing, the Juvenile Court found Child was dependent and neglected due to drug use in the home and the domestic violence between Mother and Stepfather.
Shortly thereafter, DCS closed its case file on Child without notifying Mother. Child continued to live with Foster Mother and Foster Father (by now Foster Mother had married). As before, Mother continued to visit Child once each week. Mother continued to sometimes bring items to the visits, such as milk, diapers, toys, and other things.
Over a year later, Foster Parents filed a petition seeking to terminate the parental rights of both biological parents and to adopt Child. While several grounds for termination were alleged, I am going to focus on (1) substantial noncompliance (a.k.a. persistence of conditions), and (2) failure to support.
Father’s parental rights were terminated by default judgment.
After a trial, the trial court found that Foster Parents had established by clear and convincing evidence two grounds for termination of Mother’s parental rights: (1) that Mother had substantially failed to comply with the “plan of care” for the reunification of Child (referring to the Family Services Plan developed by DCS), and (2) that Mother had abandoned Child by failure to support him for a period of four consecutive months preceding the filing of the termination petition. The trial court also found by clear and convincing evidence that termination of Mother’s parental rights was in Child’s best interest.
On Appeal: The Court of Appeals reversed the trial court.
Termination proceedings are governed by statute in Tennessee. A party with standing to seek the termination of the parental rights of a biological parent must first prove at least one of the statutory grounds for termination. Secondly, the party seeking termination must prove that termination of the parental rights of the biological parent is in the child’s best interest. Because of the profound consequences of a decision to terminate parental rights, courts must apply a higher standard of proof. Therefore, the elements required for termination of parental rights must be proven by clear and convincing evidence.
Substantial Noncompliance. Under Tennessee Code Annotated § 36-1-113(g)(2), a biological parent’s rights may be terminated if “[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan….” Tennessee Code Annotated § 37-2-403 sets out the specific requirements for a permanency plan:
(2)(A) The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal specified in subdivision (a)(1). The statement shall include the definitions of “abandonment” and “abandonment of an infant” contained in § 36-1-102 and the criteria and procedures for termination of parental rights. Each party shall sign the statement and be given a copy of it. The court must review the proposed plan, make any necessary modifications and ratify or approve the plan within sixty (60) days of the foster care placement.
Thus, a “permanency plan” must include the agency’s responsibilities as well as the parent’s responsibilities. It must also include the criteria and procedures for termination of parental rights. The statute requires that a court ratify or approve the plan within 60 days of foster placement.
Section 37-2-403 also provides that substantial noncompliance with the permanency plan is a ground for termination of the parental rights of the biological parent:
(C) Substantial noncompliance by the parent with the statement of responsibilities provides grounds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, and notwithstanding the failure of the parent to sign or to agree to such statement if the court finds the parent was informed of its contents, and that the requirements of the statement are reasonable and are related to remedying the conditions that necessitate foster care placement.
Termination of parental rights based on noncompliance under Tennessee Code Annotated § 36-1-113(g)(2) “requires more proof than that a parent has not complied with every jot and tittle of the permanency plan.” To prove the ground set forth in § 36-1-113(g)(2), the party seeking termination must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the parent’s custody in the first place. Second, the party seeking termination must show that the parent’s noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met.
After reviewing the detailed record (and repeating the specifics at length, much to the chagrin of your hardworking blogger), the Court concluded:
We must conclude that the Foster Parents have made no showing as to why the ground of substantial noncompliance should be applied at all under the facts of this case. As can be seen from the language quoted above, the statutes on substantial noncompliance have significant built-in protections for the rights of the biological parent. These protections come into play only when DCS has taken the child into State protective custody. Here, DCS repeatedly warned Mother that [Child] could be taken into State protective custody, apparently to obtain her cooperation with their directives, such as ordering her to find a temporary custodian for [Child] and having her agree to a Juvenile Court dependency and neglect order. [Child], however, was in fact never placed in State protective custody; he was instead “safety-placed” with Foster Mother. The record does not contain any definition of safety-placement or outline DCS’s authority and responsibility under such circumstances….
Despite having refrained from taking [Child] into State protective custody, DCS clearly exercised authority over both Mother and Foster Mother; it imposed requirements on Mother via the  Family Services Plan, restricted her visitation with the child, and required Foster Mother to supervise Mother’s visitation. DCS, however, appears to have assumed none of the responsibility that would normally accompany the exercise of such authority. [The DCS caseworker] openly disavowed any real responsibility, and said that her job consisted merely of “monitoring” the Family Services Plan….
All of this shows that the circumstances of this case are not appropriate for application of the ground of substantial noncompliance with the permanency plan…. [T]he record does not show, that this Service Plan was a “permanency plan” of the type that is required when a child is taken into DCS custody. As noted above, this is because [Child] was never actually taken into State protective custody…. [T]he Family Services Plan recited any responsibilities for DCS at all, other than to follow up to determine the level of Mother’s compliance with her duties. It is undisputed that the Family Services Plan did not inform Mother of the criteria and procedures for the termination of parental rights. The Family Services Plan was never approved by a court, as is required under § 37-2-403(a)(2). Therefore, the Family Services Plan cannot be considered the type of “permanency plan” or “plan of care” that can serve as the basis for terminating the parental rights of a biological parent under § 37-2-403.
Moreover, when the State seeks termination of the parental rights of a biological parent on the grounds of substantial noncompliance, the party seeking termination must show that DCS complied with its statutory duty to make reasonable efforts to facilitate the safe return of the child to the child’s home. The statutory duty to make reasonable efforts includes an obligation to exercise “reasonable care and diligence . . . to provide services related to meeting the needs of the child and the family.” DCS never assumed the responsibility to make reasonable efforts in this case, and its efforts in any event would fall far short of the standard.
For all of these reasons, the Court reversed the termination of Mother’s parental rights based on the ground of substantial noncompliance.
Failure to Support. Under Tennessee statutes, the parental rights of a biological parent can be terminated based on “abandonment” as that term is defined in Section 36-1-102. The pertinent part of Section 36-1-102 defines “abandonment” as follows:
(i) 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 further defines the phrase “willfully failed to support” or “willfully failed to make reasonable payments toward such child’s support” as “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.” Because a biological parent has a constitutional right to the care and custody of his or her child, the parent’s failure to pay support for a child in the custody of another does not constitute a valid ground to terminate that parent’s rights unless the failure to do so is found to be “willful.” Failure to support a child is deemed “willful” if a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.
Mother was never under a court order to make support payments, but the obligation to pay support exists even in the absence of a court order to do so. On the element of willfulness, though, Tennessee courts must consider all of the surrounding circumstances. Thus, Mother’s knowledge of a duty or expectation that she provide support is a factor in determining willfulness.
The Court reasoned as follows:
Mother’s routine method of providing support was to give [Child] in-kind gifts, not monetary support. All evidence indicates that Foster Parents acquiesced in this manner of support, and they never asked Mother to pay them money instead. Indeed, both Foster Mother and Mother testified that, when Mother asked Foster Mother to tell her something specific that she should bring for [Child], Foster Mother always responded that the child did not need anything, but that Mother could bring things if she wanted to….
Foster Parents acknowledge that Mother had limited or no employment during the pivotal four-month period. They argue that her underemployment was voluntary, but they submitted no evidence to this effect, and the trial court made no such finding.
Under all of these circumstances, we cannot find that the evidence in the record establishes clearly and convincingly that Mother’s failure to make monetary support payments during the four months preceding the filing of Foster Parents’ termination constitutes “willful” abandonment of [Child].
The Court reversed the trial court’s termination of Mother’s parental rights on the ground of abandonment for willful failure to provide support.
Because the Court concluded there are no grounds for terminating Mother’s parental rights, it did not address whether terminating Mother’s parental rights would be in the best interest of the child.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.