Facts: Mother and Child lived with the child’s Paternal Aunt.

Paternal Aunt obtained emergency custody of Child because Mother often abandoned Child, was in and out of jail, and could not care for Child.

While Mother was in jail, Paternal Aunt obtained an order of protection against Mother.

When Mother got out of jail, she petitioned to regain custody. The trial court denied her request, found her to be indigent, and appointed counsel for her.

Mother testified she repeatedly tried to contact her court-appointed attorney to encourage him to act on her petition for custody. An email she sent her lawyer complaining about the chronic lack of responsiveness was entered into evidence.

The only document Mother’s first court-appointed attorney filed was his motion to withdraw, which was granted.

A new lawyer was appointed to represent Mother. There’s no evidence her second lawyer filed anything either.

Paternal Aunt petitioned to terminate Mother’s parental rights.

Mother moved for visitation in the parental rights termination matter complaining that Paternal Aunt “will not allow her visitation.”

The trial court found grounds of failure to visit and failure to support. It further found clear and convincing evidence that terminating Mother’s parental rights was in Child’s best interest.

Mother appealed.

On Appeal: The Court of Appeals reversed the ground of failure to visit but affirmed everything else.

Mother did not visit Child during the four-month period preceding the filing of the termination action. Thus, Mother had to prove by a preponderance of the evidence that her failure to visit was not willful.

Mother argued that her failure to visit was not willful for two reasons. First, Paternal Aunt’s antagonism toward her caused her to believe her attempts to visit would be thwarted. Second, Mother was actively seeking to regain custody and visitation from the court.

A parent who tries to visit his or her child but is thwarted by the acts of others and circumstances beyond the parent’s control has not willfully abandoned the child.

A parent’s failure to visit may be excused by the acts of another only if those acts prevent the parent from visiting the child or constitute a significant restraint or interference with the parent’s efforts to visit the child.

Where a parent was actively litigating a custody and support petition when the termination petition was filed, the parent’s pursuit of a judicial remedy contradicts finding that the parent willfully did not visit or support during the four months preceding filing the petition.

While the mere filing of a petition is not conclusive, it is a relevant factor courts must consider when determining willfulness.

The Court found Mother proved by a preponderance of the evidence that her failure to visit was not willful:

[W]hen Mother [learned of Paternal Aunt’s] initial action and the trial court’s removal of Mother’s custody in favor of [Paternal Aunt], she did what citizens are encouraged and expected to do—she petitioned the juvenile court and tried to get custody back through the legal system.

*     *     *     *     *

Mother documented her unsuccessful attempts to contact her first court-appointed attorney and get him to act on her case. . . . Under the particular circumstances here, Mother’s actions in trying to utilize the legal system to regain custody or visitation cannot fairly be described as “half-hearted” or “abandoned.” It appears that despite her relatively limited education and financial resources, she tried as best she could to pursue legal relief.

*     *     *     *     *

It is clear that the existence of a protective or no-contact order against the parent, in and of itself, may not prevent a finding of willful failure to visit, depending on the circumstances. However, the order of protection, granted by the juvenile court at a time when Mother was incarcerated, is relevant to our assessment of the reasonableness of Mother’s belief that, as she testified, she thought [Paternal Aunt] would have her arrested if she contacted [Paternal Aunt] about visitation. For [Paternal Aunt’s] part, she testified that she was opposed to any visitation by Mother, and “it’s fair to say she didn’t want [Mother] to have contact with her child.”

The Court reversed the trial court’s judgment finding that willful failure to visit was proven by clear and convincing evidence.

Unfortunately for Mother, the Court affirmed the ground of willful failure to support and the finding that termination of Mother’s parental rights is in Child’s best interest.

In re John A. (Tennessee Court of Appeals, Eastern Section, January 4, 2021).

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