Facts: Mother and Father lost custody of Child, who eventually ended up in the custody of an unrelated couple who wished to adopt Child (“Adoptive Parents”).

Adoptive Parents petitioned to terminate the parental rights of Father in Mother and to adopt Child. As grounds for the termination of parental rights, Adoptive Parents alleged that Mother and Father willfully failed to visit or support Child during the “four consecutive months immediately preceding the filing of this petition.”

After a hearing, the trial court found by clear and convincing evidence that Mother and Father neither visited nor provided financial support to Child “during the four months preceding the filing of the adoption.”

Only Mother appealed.

On Appeal: The Court vacated the trial court’s ruling.

In Tennessee, proceedings to terminate a parent’s parental rights are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination, which are listed in Tennessee Code Annotated § 36-1-113(g). Several grounds for termination are listed in subsection (g), but the existence of any one of the grounds enumerated in the statute will support a decision to terminate parental rights. Second, the petitioner must prove that terminating parental rights is in the child’s best interest, considering, among other things, the factors listed in Tennessee Code Annotated § 36-1-113(I). Because no civil action carries graver consequences than a petition to sever family ties forever, both of the elements for termination must be proven by clear and convincing evidence.

The ground for termination most frequently relied upon is “abandonment.” Abandonment can be established by showing that a parent either willfully failed to visit or willfully failed to provide child support. Failure to visit or support a child is ‘willful’ when 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.

If a parent is incarcerated when a termination action is commenced or if a parent is incarcerated during the four-month period preceding such commencement, the court, in considering abandonment, must look to the parent’s visitation and support during the four-month period preceding incarceration rather than to the four-month period preceding the petition. Consideration of the pre-incarceration period recognizes that an incarcerated parent has limited opportunities to visit or to earn money with which to pay support, making it difficult to show that such failures were willful.

After reviewing the record, the Court concluded:

The trial court made no factual findings regarding incarceration and it is not apparent from the record why the trial court considered the four-month period preceding the filing of the Petition notwithstanding Mother’s alleged incarceration during that period. Additionally, because the trial court focused upon the four-month period preceding the filing of the Petition, it made no findings as to whether Mother willfully failed to support or willfully failed to visit the child during the four-month period preceding incarceration. These omissions necessitate a remand for findings. On remand, the trial court should first determine whether Mother was incarcerated during the four-month period preceding the filing of the Petition. If so, it should then ascertain the first four-month period of non-incarceration preceding the filing of the Petition, and it should prepare findings regarding whether Mother willfully failed to visit and/or support the child during this period.

Accordingly, the trial court’s judgment was vacated and the matter remanded for further findings.

In re Karma S.C. (Tennessee Court of Appeals, Eastern Section, March 5, 2014).

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