Facts: Father and Mother are the never-married parents of Child.

The opinion contains this sentence, which I will leave here without comment: “[A]t the time the child was conceived, Mother was 17 years of age, Father was 40 years of age, and their intimate encounter included another one of Father’s girlfriends.”

A month after Child was born, Mother informed Father.

Six months later, Mother surrendered her parental rights, and guardianship of Child was placed with Adoption Agency, which gave physical custody to Prospective Adoptive Parents.

Shortly after that, Adoption Agency petitioned to terminate Father’s parental rights on various grounds. I’ll call this the First Petition.

Father responded by moving for custody or visitation and complained that Adoption Agency would not allow him to see Child. The trial court ordered that Father have nine hours of supervised visitation each week.

About a year after Adoption Agency filed its petition, Prospective Adoptive Parents filed a second petition to terminate Father’s parental rights and adopt Child. I’ll call this the Second Petition. Again, a long list of grounds for termination was alleged.

The trial court found clear and convincing evidence proving all grounds and that termination was in Child’s best interest.

The only issues of interest for this post involve two grounds applicable specifically to a putative father: failure to provide financial support and failure to visit.

Father’s income consisted of disability benefits and intermittent odd jobs. He also had “five to nine” other children to support. So, he’s broke.

As to financial support, Father paid $27 in child support and brought gifts of clothing, toys, and food to Child during his visitation during the four months preceding the filing of the Second Petition, although he paid over $600 in support before that four-month period. The trial court found this to be token support and, therefore, sufficient grounds to terminate Father’s parental rights.

Regarding visitation, the trial court found most of Father’s visits with Child occurred outside the relevant four-month time period for both petitions. The visits that occurred during the relevant four-month time period were deemed token visitation.

Based on these two grounds (and many others), the trial court terminated Father’s parental rights.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Generally, a putative father is someone identified by the biological mother as the child’s father or someone who claims to be the child’s father but for whom paternity has not been established.

Thus, Father was a “putative father” when both the First Petition and Second Petition were filed.

Failure to provide child support. One ground to terminate a putative father’s parental rights arises when the person failed to make reasonable child support payments “without good cause or excuse.”

The Court reversed the trial court’s finding that Father’s nominal support during the four months preceding the filing of the Second Petition was token support given “the totality of the evidence presented regarding Father’s income.”

The Court then addressed this question, which is a question of first impression in Tennessee: Can a putative father “repent” of his failure to financially support the child before the termination petition is filed by additional support paid after the petition is filed?

The Court answers this question in the affirmative:

[Tennessee law] provides that “[a]bandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental [] rights or seeking the adoption of a child[.]” [T]his provision precludes consideration for the abandonment support ground of a parent’s resumed or increased efforts to support a child after the determinative period four months preceding the filing of the termination petition. The language of the statutory grounds applicable to putative fathers [states] that a putative father’s parental rights may be terminated who, “without good cause or excuse,” fails “to make reasonable and consistent payments for the support of the child in accordance with the child support guidelines,” does not include a specified time period.

We also find instructive application of the statutory interpretive maximum of expressio unius est exclusio alterius, which holds that the expression of one thing implies the exclusion of others. Here, the legislature has clearly provided a time period to be considered and excluded the possibility of repentance in the abandonment definition concerning support while providing neither a time period nor the exclusion of repentance in the support grounds applicable to putative fathers….

[W]e hold that [Tennessee law] does not include a prohibition on a putative father’s ability to repent of his failure to reasonably and consistently support his child after the filing of the termination petition.

The Court reversed this ground.

Failure to visit. Another ground to terminate the putative father’s parental rights arises when the person failed to seek reasonable visitation with the child, failed to visit (if visitation was allowed), or engaged in only token visitation.

The Court addressed a similar question: Can a putative father “repent” of his failure to visit before the termination petition was filed by visiting with the child after the petition is filed?

For the same reasons quoted above, the Court held that Tennessee law does not include a prohibition on a putative father’s ability to repent of his failure to seek visitation or exercise more than token visitation after the termination petition was filed.

The Court reversed this ground, too.

Unfortunately for Father, the Court affirmed all the other grounds found by the trial court and its finding that termination is in Child’s best interest. Although these two grounds were reversed, the termination of Father’s parental rights was affirmed.

K.O.’s Comment: All termination of parental rights opinions are interminably long, but this 60-pager is excessive even by termination standards.

Reading a 60-page single-spaced termination opinion forces me to question my life choices and all the decisions that led me to that moment.

Why didn’t I go to medical school? What did I do to deserve this? Am I a self-loathing masochist? Is reading this insufferably long opinion the best use of my limited time on earth? Should I delete this blog in its entirety, renounce my law license, and get a job as a scuba-diving instructor in the Caribbean?

One must believe that appellate judges write opinions with the intention that people will actually read them. If that is the judges’ expectation, they must—MUST—reduce the length of these opinions.

In re Kierani C. (Tennessee Court of Appeals, Western Section, September 3, 2021).

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