Facts: Mother and Father are the unmarried parents of Child. Two years after Child’s birth, they separated.

After their separation, Mother allowed Father to visit Child at the home of Child’s paternal grandmother until such time as Mother grew concerned for Child’s safety because of a lack of stability in the paternal grandmother’s home.

For two years thereafter, Father had no visitation with Child.

In July 2012, Father filed a petition for visitation. The following month, Mother (who has since remarried) and Stepfather petitioned to terminate Father’s parental rights on the grounds of abandonment by willful failure to visit. The petition asked that Stepfather be permitted to adopt Child.

It was undisputed that Father had no visitation with Child in the four months preceding the filing of the petition to terminate Father’s parental rights. Father argued the failure to visit was not willful because Father filed a petition for visitation he was actively pursuing at the time the termination petition was filed.

The trial court found Father’s visitation petition showed his intent to establish a relationship with Child. The trial court further found that Mother frustrated Father’s efforts to visit Child. For these reasons, the trial court concluded that Mother and Stepfather failed to establish by clear and convincing evidence grounds for termination of Father’s parental rights.

Mother and Stepfather appealed.

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

The issue is whether Father’s visitation petition was sufficient to show he did not abandon Child by willfully failing to visit.

Tennessee Code § 36-1-102(1)(E) provides that grounds for terminating a parent’s parental rights includes abandonment by the willful failure to visit or engage in more than token visitation with the child for a period of four consecutive months immediately preceding the filing of the petition to terminate parental rights.

The Tennessee Supreme Court has ruled that even when a parent has not visited a child in the relevant four-month period, that fact alone is insufficient to support a finding of willful failure to visit where visitation had been thwarted by the other party and the parent is actively pursuing legal proceedings to regain custody or visitation with the child.

In subsequent cases, the Court of Appeals refined this principle by holding there was a willful failure to visit when the parent had filed pending litigation but was not actively pursuing it. The Court of Appeals held in other cases that there was a willful failure to visit even when the other parent had pending litigation seeking visitation when there was no evidence the custodial parent spurned the other parent’s efforts to visit the child.

Additional cases further clarified that willful failure to visit can be found when the other parent has pending litigation seeking visitation when the child’s custodial parent discouraged the other parent from visiting the child and was, to some extent, responsible for the other parent’s failure to visit during the relevant four-month period.

After discussing these previous rulings in detail, the Court reasoned:

First, there is no evidence in this case that Father was thwarted in any effort to visit the child by Mother. Here, Father admitted that other than one ill-advised drive-by to Mother’s home, he made no attempts to see the child after Mother stopped taking the child to paternal grandparents’ home…. Indeed, the record shows that even those few visits that Father did have with the child after the parties’ separation were completely facilitated by Mother, who drove the child to Father. Simply put, nothing in the record indicates that prior to the filing of his visitation petition did Father ever take any affirmative action to visit with child. Thus, there can be no finding that Mother thwarted Father’s non-existent efforts….

Instead, Father placed all the onus to schedule and facilitate visitation on Mother and even Stepfather. Repeatedly at trial, Father’s counsel emphasized that Mother made no effort to seek out Father to have visitation with the child…. While Mother is not entitled to thwart an effort by Father to have a relationship with the child, it was certainly not her burden to ensure that Father exercised visitation with the child.

[T]here was no valid excuse for Father’s considerable delay in seeking visitation with the child…. Father simply made no effort to maintain any relationship with the child until the filing of his visitation petition, over two years since his last visit with the child.

Although Father testified that his finances prevented him filing a visitation petition earlier, nothing in the record indicates that he was prevented from simply asking for visitation from Mother. Father admitted that he knew the address of Mother’s home; indeed, he drove by Mother’s neighborhood hoping to see Mother and the child in early 2011, far before the termination petition was filed. Moreover, nothing in the record indicates that Mother denied Father any requested visitation; instead, Father simply never requested it…. [U]ntil he filed his visitation petition, Father’s actions evinced his intent not to establish a relationship with the child. Under these circumstances, we must conclude that Father’s visitation petition was merely a token effort at establishing visitation…. Thus, the trial court erred in finding that [Mother and Stepfather] failed to prove that Father willfully failed to visit with the child….

Accordingly, the trial court was reversed and the case remanded back to the trial court for the second part of the termination of parental rights analysis, i.e., whether termination is in Child’s best interest.

In re Brookelyn W. (Tennessee Court of Appeals, Western Section, March 24, 2015).

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