Facts: Mother gave birth to Child and died two days later. Father lived in California and was not present for Child’s birth. Mother and Father were not married.

Because Father had not yet been declared Child’s legal father, the Tennessee Department of Children’s Services gave temporary custody of Child to Maternal Grandmother. Father was advised he needed to establish paternity in order to receive custody of Child. Father took a DNA test that same day.

At a hearing several months later, Maternal Grandmother was awarded custody at a hearing Father failed to attend. Father also failed to present the DNA test results showing he is the biological father of Child..

Several months later, Maternal Grandmother petitioned to to terminate Father’s parental rights and adopt Child. Father counter-petitioned to establish paternity and obtain custody of Child.

Maternal Grandmother alleged Father abandoned Child by failing to visit or pay child support in the four months preceding the filing of her petition to terminate Father’s parental rights.

Father argued his failure to visit was not willful given his limited financial means and the fact that he lives in California. He claimed he tried to set up visits but had difficulty contacting Grandmother and obtaining her consent for him to visit. When he was able to contact her, she would either tell him it was not a good idea for him to visit or to wait until the next court date. During Maternal Grandmother’s testimony, she agreed it would be unreasonable for someone who is trying to visit his child to fly 3000 miles and stay in a hotel without a definite visit scheduled.

Father also argued his failure to pay child support was not willful given his limited financial means and the fact that he has to support four other children.

The trial court did not accept Father’s reasons for not paying child support and not visiting more often. The trial court found Father had the financial means to support Child during the four months preceding the filing of the petition to terminate his parental rights and that he willfully chose not to do so. The trial court also found Father did not seek reasonable visitation with Child during the four months preceding the filing of the petition. Father’s parental rights were terminated.

Father appealed.

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

A parent has a fundamental right to the care, custody, and control of his or her child. The state may only interfere with parental rights if there is a compelling state interest. An order terminating parental rights has the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.

Terminating a parent’s fundamental parental rights results in severe consequences; therefore, termination cases require a higher standard of proof. To terminate parental rights, the court must find by clear and convincing evidence that at least one statutory ground for termination exists and that termination is in the child’s best interest. Clear and convincing evidence establishes that the truth of the facts asserted is highly probable, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

The ground for termination at issue in this case was “abandonment,” which here meant that Maternal Grandmother must prove by clear and convincing evidence that Father willfully failed to visit Child or pay child support during the four months immediately preceding the filing of her petition to terminate his parental rights.

Willful failure to visit. Willful failure to visit is defined as “the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is 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. For a parent’s failure to visit to be considered willful, the parent must have intended not to visit the child.

A parent who has tried to visit his or her child but has been thwarted by the acts of others and circumstances beyond his or her control has not willfully failed to visit. A parent’s failure to visit may be excused by a third party’s conduct if the conduct actually prevents the person with the obligation from performing his or her duty, or amounts to a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child.

Tennessee courts have determined the following circumstances amount to a significant restraint or interference with a parent’s efforts to develop a relationship with a child: (1) telling a man he is not the child’s biological father, (2) blocking access to the child, (3) keeping the child’s whereabouts unknown, (4) vigorously resisting the parent’s efforts to support the child, or (5) vigorously resisting a parent’s efforts to visit the child.

After reviewing the record, the Court of Appeals reasoned:

Both Father and Grandmother testified that Father called a number of times to speak to Child and set up visits. However, Grandmother often did not have a working phone, which made it difficult for Father to reach her, and Grandmother often told Father it was not a good idea for him to visit. Grandmother admitted that it would be unreasonable for Father to travel from California to Tennessee without speaking to Grandmother first and knowing that he would be able to visit Child. Grandmother’s hesitancy to arrange visits with Father, coupled with Father’s limited finances, the distance he had to travel, and his responsibilities as the father of four other children living in California made it extremely difficult for Father to visit Child.

In addition, both Grandmother and Father testified that Father was genuinely happy to have Child, and Father’s other children testified that Father loves them, takes care of them, and that they love him as well. This evidence, in addition to the hurdles that Father had to overcome to visit Child convinces us that the evidence is not strong enough to establish clearly and convincingly that Father willfully failed to visit Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to visit Child.

Willful failure to pay child support. Just like a parent’s failure to visit, failure to support a child financially can be grounds for terminating parental rights if the failure was willful. Simply proving that a parent did not support his or her children is not sufficient. Willful failure to support is “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.” Token payments, or “token support,” are payments that, under the circumstances of the individual case, are insignificant given the parent’s means.

A parent’s failure to support is willful when he or she is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. A parent who does not support his or her child because he or she is financially unable to do so is not liable for willfully failing to support his or her child.

On this issue, the Court of Appeals concluded:

[N]o evidence has been introduced to establish Father’s actual income, expenses, or financial ability to support Child….

Father is completely disabled and unable to work, he lives in his mother’s guest house, and he is behind on child support payments for his four other children. Without any evidence of Father’s actual ability to support Child, we do not believe that there is enough evidence to establish clearly and convincingly that Father willfully failed to support Child. Therefore, we reverse the trial court’s finding of willful abandonment for failure to support Child.

Accordingly, the termination of Father’s parental rights was reversed. The case was remanded for the trial court to grant custody to Father pursuant to Tennessee Code § 36-1-117(4), which requires the trial court to grant custody to the legal parent in an adoption proceeding if no grounds for termination exist, unless the court determines by clear and convincing evidence that a legal parent is unable to provide the child with proper custodial care.

In re Lyric J. (Tennessee Court of Appeals, Middle Section, December 16, 2014).

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