Facts: Petitioners sought to terminate the parental rights of Mother and Father to Child.

The trial court terminated Mother’s parental rights, which ruling Mother did not appeal.

The trial court found that grounds existed to terminate Father’s parental rights, namely that “there has been a willful failure to support by [Father]” and that Father “failed to visit for more than the statutory period of time.” After finding that termination was in Child’s best interest, the trial court terminated Father’s parental rights to Child.

Father appealed.

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

Termination of parental rights must be based upon a finding by the court that: (1) the grounds for termination of parental rights have been established by clear and convincing evidence; and (2) termination of the parent’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence.

The pertinent ground for termination in this case was “abandonment,” which occurs, in relevant part, when a parent “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 or guardian’s incarceration….”

Failure to support. The trial court found that “there has been a willful failure to support by [Father].” After reviewing the record, the Court found this finding to be inadequate, writing:

The Trial Court failed to make any findings, however, with regard to the period of time during which the failure to support occurred….

The Trial Court did not find by clear and convincing evidence that Father’s willful failure to support occurred during the statutorily required period of four months preceding Father’s incarceration. As there was no such finding by the Trial Court even on remand that clear and convincing evidence was proven to support the termination of Father’s parental rights to the Child for willful failure to support during the statutorily required period of four months preceding Father’s incarceration, we are constrained to reverse the termination of Father’s parental rights on this ground.

Failure to visit. The trial court found that “[Father] failed to visit for more than the statutory period of time.” While the Court found this finding “arguably may minimally meet the requirement addressing the four month statutorily required period,” the Court found the evidence wanting. The Court concluded:

The evidence in the record on appeal shows that Father was incarcerated on September 4, 2008. Thus, the relevant time period would run from May 4, 2008 through September 4, 2008. Father testified that he resided with Mother and the Child until July or August of 2008. Father’s mother also testified that Father resided with Mother in July of 2008. If Father was residing with the Child during the relevant four month period, it simply defies logic to find that Father willfully failed to visit the Child during this period….

Given the record now before us, we cannot say that clear and convincing evidence was proven that Father willfully failed to visit the Child during the four months preceding his incarceration, and clear and convincing evidence must be shown in order to support a termination of parental rights. As such, we are constrained to hold that grounds to terminate Father’s parental rights to the Child . . . for willful failure to visit were not proven by clear and convincing evidence.

Accordingly, the trial court’s judgment was reversed, and Father’s parental rights to Child were restored.

K.O.’s Comment: This is the same case that was previously reversed and remanded to the trial court for findings of fact, albeit with a slightly different spelling of the child’s name (the Court says it incorrectly spelled the child’s name in the earlier appeal). Click here to read the blog post on the case’s first appeal.

In re Eimile A.M. (Tennessee Court of Appeals, Eastern Section, December 26, 2013).

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