Facts: Mother and Father are the never-married parents of Child. Because of Father’s history of drug use, they agreed that Father would have visitation for five hours every other weekend supervised by his parents. Father regularly exercised his visitation with Child.

Years later, Mother married Stepfather. Two years after that, Father had a car accident and was significantly injured with brain trauma. Father’s behavior became erratic, and he was arrested for domestic violence for events that occurred while Child was present.

After this, Mother decided to “pause” Father’s visitation, believing him to be a “ticking time bomb” who was unstable and had anger management issues.

Father moved for contempt and petitioned for a parenting plan.

Two days before the hearing on Father’s pleadings, Mother and Stepfather petitioned to terminate Father’s parental rights on various grounds, including willful failure to visit during the four months preceding the filing of the termination petition.

It was undisputed that Father had no visitation during the relevant four-month period. However, Father claimed that Mother prevented him from visiting Child. He had consistent weekend visitation until Mother stopped visitation, calling it a “pause.”

The trial court terminated Father’s parental rights on the grounds of willful failure to visit, among others, and found termination to be in Child’s best interest.

Father appealed.

On Appeal: The Court of Appeals reversed the grounds of willful failure to visit.

One ground for termination of parental rights in Tennessee is a parent’s willful failure to visit the child during the four months preceding the filing of the termination petition. The burden of proof is on the petitioners to prove by clear and convincing evidence that the parent failed to engage in more than token visitation with the child during the four months before the termination petition was filed. If that burden is met, the burden shifts to the parent to prove by a preponderance of the evidence that their failure to visit was not willful.

A parent’s failure to visit the child is considered willful when the parent is aware of their duty to visit, has the capacity to visit, does not try to visit, and has no justifiable excuse for their failure to visit.

A parent who tries to visit a child cannot be said to have willfully abandoned the child if their attempts were thwarted by the acts of others and circumstances beyond their control.

Another individual’s action does not excuse a parent’s failure to visit unless the other person’s conduct actually prevents the parent from performing their obligation to visit with the child or amounts to a significant restraint of or interference with the parent’s efforts to develop a relationship with the child.

The Court found Mother’s actions significantly restrained or interfered with Father’s visitation, making his failure to visit not willful:

It is undisputed that Mother made a unilateral decision to stop Father’s visitation for an indeterminate period of time despite their previous agreement. Regardless of whether Father attempted to contact Mother after she instituted the pause in visitation, it is undisputed that Mother never informed Father that the pause had ended or that he was permitted to visit Child again. Mother even testified that she would not have allowed the visit if Father had requested visitation. We also note that Father filed his motion for contempt and petition for parenting plan prior to Mother filing her petition for termination and during the relevant four-month period.

We hold that in this case, Mother’s pause of Father’s visits and her admission that she would not have allowed Father to visit if he had requested to do so, in addition to Father’s filing a motion for contempt and petition for parenting plan during the relevant four-month period, demonstrate that Father met his burden of proof of establishing by a preponderance of the evidence that his failure to visit was not willful.

The Court reversed the trial court’s judgment finding grounds of willful failure to visit. However, other grounds found by the trial court were affirmed, as was the finding that termination is in Child’s best interest. Thus, Father’s parental rights were terminated, but not because of his willful failure to visit.

In re Hope G. (Tennessee Court of Appeals, Eastern Section, September 23, 2022).

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