Facts: Mother and Father have five children. The Department of Children’s Services (“DCS”) was involved with them for many years, mainly regarding Father’s disciplinary methods, such as waterboarding a child (WTF?), making a child do naked sit-ups or push-ups as punishment, locking a child under the kitchen sink, etc.

DCS obtained emergency custody and a no-contact order preventing Father from contact with the children. Also, Father was criminally charged with aggravated child abuse. Father pleaded guilty to a lesser included offense—attempted aggravated child abuse, was sentenced to 12 years incarceration, and was released on supervised probation in June, less than a year later.

Although a no-contact order between Father and the children remained in place, Father attended a meeting with DCS and was told he would need to complete a parenting assessment, parenting classes, and therapy before supervised visitation could begin. Father had completed a parenting class in August, and he completed an anger management class in October.

In October, Father filed a motion seeking visitation. The trial court denied his motion based “on the record as a whole.”

DCS petitioned to terminate the parents’ parental rights on many grounds, including abandonment by failure to visit. After a trial, the trial court found that all grounds had been proven and that termination was in the children’s best interest.

The trial court found that the no-contact order and his incarceration impeded Father’s visitation with the children. Although Father was released from prison in June, the trial court faulted him for not seeking visitation until October. The trial court also noted its awareness of Father’s conviction for attempted aggravated child abuse, which gave the trial court “further pause as it related to Father’s ability to have visitation.”

Both parents appealed, but this post only addresses Father’s appeal of the ground of abandonment by failure to visit.

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

Father argued that the no-contact order caused his failure to visit the children and, therefore, his failure to visit was not willful.

Abandonment by failure to visit occurs when a parent fails to visit or engage in more than token visitation four-month period before the termination petition is filed.

A parent may assert the absence of willfulness, which must be proved by a preponderance of the evidence, as an affirmative defense to the ground of abandonment by failure to visit.

When a court order limits a parent’s contact with the child, the parent may abandon the child by not visiting the child if the parent is able to demonstrate a change in situation or behavior but fails to do so.

The Court found that Father proved, by a preponderance of the evidence, that his failure to visit the children was not willful:

Father was undisputedly prohibited from having contact with the children during the relevant four-month period. Nonetheless, Father attended a [meeting in September] and inquired about supervised visitation. DCS records reflect that Father was told he needed to complete a parenting assessment and parenting classes and attend therapy before his visitation could be reinstated. Father completed parenting classes and an anger management course. Father then filed a motion for visitation [in October], which provides that Father would accept whatever visitation the court deemed appropriate. This motion was denied, and the order denying the motion does not explain what was required of Father to regain visitation. The order provides simply that the request for visitation was denied based on the “record as a whole.” It is unclear from the trial court’s order what was specifically required of Father to regain visitation. The foregoing militates against a finding that Father had the ability to demonstrate a change in situation or behavior that would warrant reinstating visitation but failed to do so. Rather, during the relevant four-month period, Father quickly began completing the tasks required by DCS.

Perhaps more importantly, the trial court stated in its final order that by the time it ruled on Father’s motion for visitation, “the Court was already aware of Father’s conviction for attempted aggravated child abuse [] which gave the Court further pause as it related to Father’s ability to have visitation.” As best we can discern from the record before us, the trial court never intended to allow Father visitation with the children due to Father’s conviction for attempted aggravated child abuse, regardless of Father’s attempts at reunification. While under the circumstances we take no issue with that ruling, by the same token Father cannot be said to have willfully failed to visit the children.

We agree that Father proved by a preponderance of the evidence that his failure to visit the children was not willful.

The termination of Father’s parental rights on the ground of abandonment by failure to visit was reversed. All the other grounds for termination and the findings that termination was in the children’s best interest were affirmed as to both Mother and Father. Thus, the termination of Father’s and Mother’s parental rights was affirmed.

K.O.’s Comment: The law was amended in 2018 to remove the petitioner’s burden of proving willfulness by clear and convincing evidence and shift the burden to the parent to prove the lack of willfulness by a preponderance of the evidence.

Because of the interminable length of termination opinions, I usually only review those portions where the trial court is reversed. So, with that caveat, this is the first opinion I recall seeing since the law was amended where a parent successfully reversed the trial court’s finding as to grounds by convincing the Court of Appeals they proved the affirmative defense of lack of willfulness.

In re C.N. (Tennessee Court of Appeals, Middle Section, January 10, 2022).

If you found this helpful, please share it using the buttons below.