Facts: After Mother was jailed for theft, Grandparents learned that her children were not receiving proper care. They sought and received temporary custody in an order that limited Mother and Father’s contact with the children to telephone calls and written correspondence. The order also said:

Upon completion of the drug [rehabilitation] program, proof of negative drug screens, proof of stable living arrangements[,] and stable employment, the Mother and Father shall be allowed supervised visitation with the children to be supervised by [Grandparents] at times/places mutually agreed.

Upon proof of continuous, consistent visitation by the parents, the parents may file for expanded visitation.

Mother completed the court-ordered drug rehabilitation program. Because she desired additional assistance, she then enrolled in two other rehabilitation programs.

Meanwhile, Grandparents allowed friends from their church to help look after the children.

When Grandfather’s health declined, Grandparents asked Prospective Parents if they would be interested in helping with the children to a greater extent. Within a few months, Prospective Parents were keeping the children six to seven days a week. Neither Grandparents nor Prospective Parents informed Mother or Father of the children’s new living arrangement.

Roughly six months later, Prospective Parents and Grandparents jointly filed a petition for termination of parental rights and adoption. After a trial two months later, Mother and Father’s parental rights were terminated on grounds of abandonment by failure to visit and support.

Mother appealed.

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

A parent has a fundamental right, based on both the federal and state constitutions, to the care, custody, and control of his or her child. While this right is fundamental, it is not absolute. The State may interfere with the parent’s rights in certain circumstances.

To terminate parental rights, a Tennessee court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child’s best interest. Clear and convincing evidence enables the fact-finder to form a belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings. Evidence satisfying the clear and convincing standard establishes that the truth of the facts asserted is highly probable.

Once a ground for termination is established by clear and convincing evidence, the trial court conducts a best-interest analysis. The existence of a ground for termination does not inexorably lead to the conclusion that termination of the parent’s rights is in the best interest of the child.

Here, Prospective Parents alleged the ground of abandonment, which means the parents willfully failed to visit or provide financial support for the children during the four-month period immediately preceding the lawsuit to terminate the parental rights.

The mere failure to visit or support a child is not clear and convincing proof of abandonment; rather, the failure must be willful. The party seeking to terminate parental rights must prove willfulness. To carry this burden, a party must show that the parent knew of his or her duty to visit or support, could do so, did not try to do so, and had no justifiable excuse for not doing so.

First, the Court found that Mother’s failure to visit the children was not willful:

In finding that Mother’s failure to visit the children was willful, the trial court failed to consider the threshold question of whether Mother had a duty to visit the children during the relevant four-month period. . . . The [trial court] order granted [] temporary custody to Grandparents and allowed Mother only “telephone access to the children” as well as the ability to “send letters/cards, etc.” Importantly, the order expressly conditioned any future supervised visitation “[u]pon completion of the drug program, proof of negative drug screens, proof of stable living arrangements and stable employment . . . .”

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[T]he evidence preponderates in favor of a finding that Mother had not obtained stable employment or stable living arrangements during the relevant four-month period. Consequently, Mother was not entitled to supervised visitation under the [trial] court order, and therefore could not have had a “duty” to visit the children at that point in time.

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The [trial] court order effectively prohibited Mother from visiting the children. We conclude that evidence in the record does not provide clear and convincing proof that Mother’s failure to visit the children was willful.

The Court reached the same conclusion regarding failure to support:

[M]other had just completed drug rehabilitation and was attempting to care for her newborn baby. She was unemployed for approximately two of the relevant four-month and she lives with several different members of her husband’s family. . . . Although Mother is certainly responsible for the disadvantageous circumstances in which she found herself, [Prospective Parents] still bear the burden of proving that Mother had a capacity to provide support and that Mother consciously chose not to do so.

Prospective Parents simply did not carry that burden. No pay stubs from this time period were produced, and in the absence of additional evidence we decline to assume that Mother’s intermittent employment at IHOP provided substantial funds to support a family of four. We doubt that Mother’s modest access to food stamps provided the additional income necessary to support herself and her three children. This is certainly not the type of evidence that “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence,” as required by the clear and convincing evidence standard.

The trial court’s order terminating Mother’s parental rights was reversed.

In re T.W. (Tennessee Court of Appeals, Eastern Section, April 17, 2018).