Facts: Child resided with both parents until Mother was incarcerated for a probation violation. A year later, Father’s cousin and her husband agreed to care for Child while Father sought treatment for a drug addiction.

One year later, Father’s cousin and her husband petitioned to have Child declared dependent and neglected, which petition was granted. They received full legal custody of Child.

One year after that, Father’s cousin and her husband petitioned to terminate the parental rights of Mother and Father and to adopt Child.

The following month, Mother was released from jail. The proof showed that Mother contacted the petitioners multiple times to arrange visitation with Child. Mother’s lack of access to transportation and her difficulty in leaving Georgia because of her supervised probation made it virtually impossible. Months later, Mother resumed using drugs and returned to jail.

Father never responded to the petition. Because Mother was incarcerated in Georgia at the time of trial, her deposition was introduced into evidence.

The trial court terminated Mother’s and Father’s parental rights on the grounds of abandonment by willful failure to visit. The trial court found the proof on other grounds to be insufficient. After finding termination to be in Child’s best interest, Mother’s and Father’s parental rights were terminated.

Mother appealed.

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

One of the grounds justifying the termination of parental rights exists when clear and convincing evidence shows that the parent willfully failed to visit the child during all or part of the four months immediately preceding filing the petition.

Clear and convincing evidence enables the judge to form a firm belief or conviction regarding the truth of the facts and eliminates any serious or substantial doubt about the correctness of the factual findings.

Failure to visit a child is “willful” when a person knows of his or her duty to visit, can do so, does not try to do so, and has no justifiable excuse for not doing so. Failure to visit 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 of or interference with the parent’s efforts to support or develop a relationship with the child.

Mother argued the evidence was not clear and convincing that her failure to visit Child was willful. Instead, she says the records show she did everything she could to visit Child until she realized the petitioners would never allow it to happen.

After reviewing the evidence, the Court was not left with the “firm conviction” that Mother’s failure to visit was willful:

[Mother’s] testimony shows that she was clearly concerned about her daughter and desired to visit with her but, for various reasons, was unable to do so. Upon leaving jail Mother’s first call was to request permission to visit [Child]. The trial court made a finding that Petitioners “would not bring Child to Georgia, and [Mother] would not be permitted to take Child out of the home for overnight visitation”; as noted earlier, Petitioners advised Mother that she could not stay overnight with them. There is no evidence that Mother was unwilling to meet the conditions in order to visit [Child]; rather, the evidence is unrebutted that she was unable to do so. . . . Taken in context and in its entirety, the evidence preponderates against the trial court’s finding of willfulness.

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

In re Emma S. (Tennessee Court of Appeals, Middle Section, April 30, 2018).