Facts: Mother and Father are the divorced parents of two children. Because of Father’s substance abuse issues, the parenting plan limited him to supervised parenting time at the Exchange Club.

Six and a half years later, Mother married Stepfather. Four days later, they filed a petition to terminate Father’s parental rights and for a stepparent adoption on the grounds of Father’s failure to visit or support the children.

By the time the petition was filed, Father had not seen the children in three years or paid child support in six years. His child-support arrearage exceeded $70,000.

Over a year before the petition was filed, Father asked Mother how he could resume paying child support. She reminded him that the details on how to pay child support were found in the court-ordered parenting plan. Father also emailed Mother several times requesting to begin resuming visitation. Mother responded, “There is nothing to work out with me regarding child support or visitation. These have already been set up through the court agreements and you would need to go through the appropriate channels.”

Eleven months before the petition was filed, Father gave an $8000 cashier’s check to his mother, who then forwarded the check to Mother’s mother. Mother never cashed the check, sending it back to Father with instructions that it needed to be paid through the Central Child Support Office per the court-ordered parenting plan.

Finding that Father “felt thwarted by Mother rebuffing Father’s attempts . . . to work with him outside of the court system,” the trial court found that Father’s failure to visit or pay support was not willful because Mother significantly interfered with Father’s efforts to support and develop a relationship with the children. Mother’s petition was dismissed.

Mother and Stepfather appealed.

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

The willful failure to visit or pay support for one’s child during the four months preceding filing the petition can constitute grounds to terminate one’s parental rights in Tennessee.

Here, Father did not visit or pay child support during the four months preceding filing Mother’s petition. But that does not end the inquiry.

Failing to visit or pay support must be willful in the sense it consists of intentional or voluntary acts, or failures to act, rather than accidental or inadvertent acts. A parent cannot be said to have abandoned a child when the parent’s failure to visit or support is due to circumstances outside the parent’s control.

Failing to pay the child support is “willful” when a person knows his or her duty to support, can pay support, does not try to pay support, and has no justifiable excuse for not paying support.

Failure to visit or pay support 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 visit the child.

The Court found Father failed to prove that Mother prevented him from visiting or paying support:

Father never made any effort to pay child support through the Central Child Support Office, despite the governing order and parenting plan requiring him to do so and despite his ability to do so, as indicated by his annual income for the years 2017 and 2018. While Father did attempt to make an $8000 payment in December 2017, Mother’s refusal to accept the payment because it was not in compliance with either the parenting plan or the trial court’s order does not constitute a restraint or interference on Father’s efforts, thus excusing him from his child-support obligations. . . . Further, Mother did not outright “refuse” the $8000 payment; rather, she caused the cashier’s check to be returned to Father with instructions that, if the payment was intended to be child support, it needed to be paid through the Central Child Support Office in order to be properly credited as child support. Father, however, admitted that he made no effort to do so, his only excuse being that it “didn’t seem like a logical thing for me to do.” Accordingly, there were no circumstances outside his control that prevented Father from providing financial support to the children.

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Mother’s insistence that Father coordinate his visitation through the appropriate channels does not constitute a significant restraint or interference with Father’s attempts to visit, especially considering that Father himself stated in the [August 2017] email that “[w]e can go through my parents . . . or we can go through the courts.” Father understood—and admitted—that he could visit with the children if he coordinated with the Exchange Club. Therefore, neither Mother nor circumstances outside his control prevented Father from visiting with the children.

The Court reversed the trial court’s finding that Father’s failure to support and failure to visit was not willful. Because the trial court did not conduct the best-interest analysis, the case was remanded for trial on that issue.

In re James D. (Tennessee Court of Appeals, Western Section, February 7, 2020).