Facts: Father and Mother gave temporary custody of their two children to the maternal grandparents (“Grandparents”).

A few weeks later, Grandparents petitioned the juvenile court for emergency custody because the children lacked proper food, medical care, housing, and were exposed to methamphetamine while in the parents’ care. Mother and Father were homeless, unemployed, and unable to care for the children while they panhandled for money to buy drugs.

The juvenile court awarded temporary custody to Grandparents and issued a restraining order prohibiting the parents from coming around the children.

Father was arrested and remained in jail.

Mother visited with the children for only one hour in six months’ time. She requested to see the children regularly, but Grandparents denied her requests.

Six months later, Grandparents petitioned to terminate parental rights alleging that both parents had abandoned the children—Mother by failing to visit or provide financial support, and Father by wanton disregard.

Even after the petition was filed, Mother requested visitation through her attorney, but Grandparents only allowed her one telephone call.

Grandparents also complained that Mother only paid two support payments of $100 each during the four months preceding the termination petition. Mother explained that she was unemployed and, when she got a job, she did not receive her first paycheck for three weeks. She used her initial earnings to hire an attorney and lease an apartment.

The trial court found sufficient proof of grounds and that termination was in the children’s best interest. Both parents had their parental rights terminated.

Mother and Father appealed.

On Appeal: The Court of Appeals reversed the termination of Mother’s parental rights.

One of the statutory grounds for termination of parental rights is abandonment. This is defined in several ways.

One ground for abandonment is willfully failing to visit the child during the four months preceding the termination petition.

Another is willfully failing to provide financial support for the child during those four months.

Failure to visit. The trial court implicitly found that Mother’s one visit with the children was token.

Token visits are so infrequent or short as to establish minimal or insubstantial contact with the child as to merely establish minimal or insubstantial contact with the child. Whether a visit is token is a fact-intensive inquiry. Tennessee courts look at the frequency, duration, and quality of the visits that occurred. They also consider evidence of the parent’s conduct and the relationship between the child and the parent up to that point.

A parent who tries to visit the child but is thwarted by the acts of others or circumstances beyond her control does not “willfully” fail to visit.

The Court found Mother proved her failure to visit was not willful:

The juvenile court’s restraining order precluded Mother from “coming about” the children or Grandparents “pending further orders of the court.” The order [] was never modified or rescinded. Mother risked court sanctions if she intentionally violated the order. So she reached out to Grandparents, who repeatedly denied her visit requests. And she actively pursued her legal remedies. Grandparents thwarted her juvenile court efforts as well by filing their initial termination petition.

Grandparents complain that Mother could have done more. We are not sure what that might have been, but Mother did enough to establish that her failure to visit was not willful.

Failure to support. The trial court found Mother’s two $100 support payments were token.

Support is token if it is insignificant given the parent’s income and available resources for the payment of debt.

The Court found Mother’s support was not token:

According to her affidavit of income and expenses, Mother earned $800 biweekly. And most of that income was used to pay her monthly expenses, such as rent, utilities, transportation, and food. On cross-examination, Grandparents established some discrepancies in Mother’s expense calculations. Still, Mother had only limited resources during the relevant time period. She was homeless and destitute [months before the petition was filed]. And her affidavit did not include some of the additional costs she incurred during that time period, such as the security deposit, utility hookups, and other fees outlined in her lease. Nor did it include the various items she needed to buy to establish her own household.

Again Grandparents complain that Mother could have done more. But Mother’s payments during the relevant period were not insignificant given her limited means. We conclude that the evidence is less than clear and convincing that Mother abandoned her children by failure to support.

The trial court’s termination of Mother’s parental rights was reversed. The termination of Father’s parental rights on grounds of abandonment by wanton disregard, however, was affirmed.

K.O.’s Comment: The termination of one parent’s rights while keeping the other parent’s parental rights is uncommon. The opinion provides this information about Father:

Since Father was released from jail, he had secured employment, housing, and transportation. And as a condition of his probation, he attended Narcotics Anonymous meetings and submitted to regular drug screens. Father had made a significant adjustment. …

Like the trial court, we are not convinced that Father had made a lasting change. Given his history, seven months was too short a time period to determine whether this change will last.

Grandparents cannot adopt the children because Mother keeps her parental rights. But now the children are deprived of the financial support they could receive from Father had his rights not been terminated.

Is that in the children’s best interest?

In re Evella S. (Tennessee Court of Appeals, Middle Section, June 24, 2021).

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