Facts: Mother and Father lived in California with their children. Father died.

Paternal Grandmother visited the children in California and became concerned with their poor living conditions.

Paternal Grandmother relocated to California, petitioned the California court, and was granted guardianship over the children. The California court allowed Paternal Grandmother the discretion to allow visitation between Mother and the children “given the best interest of the children.”

Later, Paternal Grandmother sought and received permission from the California court to return to Tennessee with the children, and she did.

Mother did not visit her children after they had moved to Tennessee, but she and Paternal Grandmother arranged for weekly telephone calls with the children. The calls usually only lasted about three minutes. Paternal Grandmother eventually instructed Mother to stop calling because she felt the calls were upsetting the children.

Later, Paternal Grandmother petitioned to terminate Mother’s parental rights and adopt the children. Paternal Grandmother alleged grounds of “abandonment” for failure to visit or pay child support.

Mother admitted she had not paid child support in the four months prior to the filing of the petition but stated she was unable to do so because of her financial situation. She also had not seen or spoken to the children during that four-month period but claimed that was because of Paternal Grandmother’s insistence that she have no contact with her children.

The trial court found grounds of abandonment and terminated Mother’s parental rights.

Mother appealed.

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

A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. While this right is fundamental, it is not absolute.

To terminate parental rights, two things must be proved by clear and convincing evidence: (1) the existence of at least one of the statutory grounds for termination, and (2) that termination is in the best interest of the child. This heightened burden of proof is one of the safeguards required by the fundamental rights involved, and its purpose is to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights.

Under Tennessee Code § 36-1-102(1)(A)(i), abandonment can be established by either showing that Mother willfully failed to support her children or willfully failed to visit them in the four months preceding the filing of the petition. The plain language of the statute makes clear that a parent’s failure to pay support or visit does not lead to termination of parental rights unless the failure is willful.

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 had no justifiable excuse for not doing so. Failure to visit or support is not excused by another person’s conduct unless the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint or interference with the parent’s efforts to support or develop a relationship with the child.

The willfulness of particular conduct depends upon the person’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct.

If failure to support or visit is due to circumstances outside of a parent’s control, then he or she cannot be said to have willfully abandoned the child.

Regarding the failure to pay support, the financial ability, or capacity, of a parent to pay support must be considered in determining willfulness. If the failure to pay child support is due to financial inability, then a parent has not willfully failed to support the child. In making a willfulness determination, the court must review a parent’s means, which includes both her income and available resources for purposes of support.

After reviewing the record, the Court concluded:

While it is undisputed that Mother failed to provide her children with any support during the relevant time period, there was scant evidence introduced regarding her ability to do so during the applicable four month period.

Regarding the failure to visit, where a parent attempts to visit her child but is obstructed by the acts of another, her failure to visit is not “willful” within the meaning of the statute. A parent’s attempts at visitation are obstructed where another person’s conduct creates a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child. As such, the failure to visit is only willful if it is a product of free will, rather than coercion.

On this issue, the Court reasoned:

[W]e find sparse evidence relating to Mother’s capacity to visit. In this situation, capacity is affected by the great physical distance between Mother and her children. As noted above, Grandmother presented insufficient evidence concerning Mother’s income during the relevant time period, so we cannot determine whether Mother had the financial ability to visit during the four month period preceding the filing of the petition….

[G]iven the heavy burden necessary to interfere with a fundamental constitutional right, the proof offered here was insufficient to show that Mother’s failure to visit her children was willful. We, therefore, find Grandmother failed to clearly and convincing prove the existence of at least one of the statutory grounds for termination.

Accordingly, the termination of Mother’s parental rights was reversed.

In re Mackenzie N. (Tennessee Court of Appeals, Middle Section, November 26, 2014).

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