No Willful Failure to Visit in Lynchburg, Tennessee Termination of Parental Rights Case: In re Justin P.

FactsWhen Mother and Father divorced, their parenting plan designated Father as the children’s primary residential parent and entitled Mother to 140 days of parenting time per year.

The parenting plan included a special provision that prohibited both parties from consuming alcohol or drugs during their parenting time. It also said, “If Mother begins drinking or becomes abusive during residential sharing, the children may call Father to pick them up.”

Tennessee parenting

After one of their visits with Mother, the children told Father that Mother consumed alcohol. Father unilaterally stopped her visitation. He later offered her supervised visitation in a public place, but this ended when members of Mother’s family made an obscene hand gesture to Father. When the petition was filed, Mother had not seen the children for eight months.

Father married Stepmother, and together they petitioned to terminate Mother’s parental rights on the ground of abandonment by willful failure to visit.

The trial court terminated Mother’s parental rights, stating:

She clearly had the ability to visit the children. She made a knowing choice not to visit. She was a free agent in this choice. Father did not go about limiting Mother’s residential time in the most legally expedient way, and he should have obtained a court order to limit her time. However, even the parenting plan gave him the right to curtail the visitation if the children perceive that Mother’s drinking was a problem. Basically, that is what he did.

The trial court also faulted Mother for not taking Father back to court to enforce her court-ordered parenting time.

Mother appealed.

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

Abandonment can be one ground for termination of parental rights when a parent willfully failed to visit the child during the four months preceding filing the petition.

Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is “willful” if it is the product of free will rather than coercion. A person acts “willfully” if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing.

A parent’s failure to visit is not excused by another person’s conduct unless the conduct actually prevents the parent from performing his or her duty to visit or amounts to a significant restraint of or interference with the parent’s efforts to develop a relationship with the child.

Conduct that amounts to a significant restraint or interference with the parent’s efforts to support or develop a relationship with a child includes

  • telling a man he is not the child’s biological father,
  • blocking access to the child,
  • keeping the child’s whereabouts unknown,
  • vigorously resisting the parents efforts to support the child, or
  • vigorously resisting a parent’s effort to visit the child.

The Court finds that Mother’s failure to visit the children was not willful:

Despite Father’s admission that he stopped Mother’s visitation without first seeking to modify the parenting plan through legal channels, the trial court appears to place the onus of litigation on Mother. This Court has previously held that an adoption agency’s position that the biological parent litigate if he or she desires to develop a relationship with the child was a substantial restraint on the parents efforts to maintain a relationship with the child and the interference excused the biological parents failure to visit. Accordingly, the fact that Mother did not seek visitation through court intervention should not weigh against her.

The trial court also faults Mother for not agreeing to Father’s unilateral decision to convert her court-granted, unsupervised visitation to supervised visitation . . . . There is nothing in the record to establish Father’s authority to make the determination for supervised visitation.

Elsewhere, the Court notes that the special provision in the parenting plan “does not give Father the right, without court approval, to unilaterally stop Mother’s visitation, nor does it give Father the authority to convert her unsupervised visitation to supervised visitation and then to use her failure to visit as a ground to terminate her parental rights.”

The Court concludes:

From the totality of the circumstances, we conclude that the evidence shows an effort on the part of [Father and Stepmother] to interfere with Mother’s right to see her children or to communicate with them. As a result, there is much animosity between Mother and [Father and Stepmother]. . . . By virtue of the parenting plan, [Father and Stepmother] were clearly aware that Mother had been awarded reasonable, unsupervised visitation rights with the children, and their unilateral decision to stop visitation, or only allow Mother access to the children when Father was present, has created a significant restraint or interference with Mother’s attempts to visit the children. Accordingly, we conclude that the evidence does not clearly and convincingly establish that Mother has abandoned these children by willful failure to visit.

The termination of Mother’s parental rights is reversed.

In re Justin P. (Tennessee Court of Appeals, Middle Section, May 17, 2018).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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