No Grounds to Terminate Parental Rights Where Visitation Prevented in Clarksville, Tennessee: In re Archer R.

March 11, 2020 K.O. Herston 0 Comments

Facts: Child was born to Mother and Father, who were unmarried.

Five months later, Father moved to Illinois. While in Illinois, Father saw Child via FaceTime.

About seven months later, Mother stopped responding to Father’s text messages, and she stopped answering his phone calls.

Father tried to visit Child, but Mother refused to arrange a time for him to do so, and she refused his requests for photos of Child.

Father also offered money for Child’s support, but Mother told him she didn’t want it because of his debt and the child support he owed for another child. Father paid half of Child’s medical bills for a few months and occasionally gave Mother diapers and other child-related items.

Around the same time, Mother married Stepfather and asked Father to surrender his parental rights so Stepfather could adopt Child. Seven months after Father refused, Mother and Stepfather petitioned to terminate Father’s parental rights and have Stepfather adopt Child.

In the three months following filing their petition, Mother and Stepfather could not serve Father with the petition.

Tennessee court

Meanwhile, unaware of Mother’s petition, Father petitioned to establish paternity and a parenting plan. The following month, Father learned of Mother and Stepfather’s petition.

Under Tennessee law, a petition to terminate parental rights takes precedence over all other litigation, so Mother’s petition proceeded to trial instead of Father’s.

The trial court found grounds of willful failure to support but did not find grounds of willful failure to visit, noting, “There is enough evidence demonstrating that Mother hampered Father’s ability to visit the minor child and ability to maintain a relationship with the minor child.” The trial court also concluded it is not in Child’s best interest to terminate Father’s parental rights.

Mother and Stepfather appealed.

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

The willful failure to visit or provide financial support for a child during the four months preceding filing a petition to terminate parental rights constitutes grounds for termination. Here, Father had to prove his failure to visit or support was not willful.

The Court agreed that Father’s carried his burden of proof:

This is not a case in which a parent has abandoned his child by failing to visit within the meaning of [Tennessee’s termination-of-parental-rights laws]. Rather, this is a case in which the custodial parent has interfered with and thwarted the noncustodial parent’s ability to visit with the child and develop a relationship. When a parent attempts to visit his child but is thwarted by the acts of others, the failure to visit is not willful. We conclude that Father has proved by a preponderance of the evidence that his failure to visit [Child] within the relevant four-month period was not willful. Accordingly, we affirm the trial court’s determination that Mother and Stepfather failed to establish by clear and convincing evidence that Father abandoned [Child] by failing to visit him in the four months preceding their filing of the petition to terminate Father’s rights.

Father did not fare so well regarding his failure to pay support:

Attempts by others to frustrate or impede a parent’s visitation do not provide justification for the parent’s failure to support the child financially. The legislature presumes a parent who is at least 18 years old is aware of his or her obligation to support his or her child, regardless of whether a court has entered an order requiring child support to be paid.

As the trial court found, Father is not relieved of the obligation to contribute towards [Child’s] support because he did not know Mother’s mailing address or because she refused to arrange a time for Father to see [Child]. He could have submitted child support payments to the Juvenile Court if he did not know where else to mail support payments.

After affirming that grounds for failure to visit were not proven, but grounds for failure to support were proven, the Court affirmed the trial court’s finding that terminating Father’s parental rights is not in Child’s best interest.

In re Archer R. (Tennessee Court of Appeals, Middle Section, February 19, 2020).

No Grounds to Terminate Parental Rights Where Visitation Prevented in Clarksville, Tennessee: In re Archer R. was last modified: March 6th, 2020 by K.O. Herston

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