Facts: Child was born to unmarried Mother and Father. When she discovered she was pregnant, Mother had just started college, and Father was still in high school. Mother left college and moved home. Mother and Father lived with Mother’s parents until Child was born. When Child was four months old, Mother and Father broke up, and Father moved out. Around the same time, Father’s parents began paying Mother $300 monthly in child support.

When Child was six months old, Mother met and began dating Stepfather, who has been heavily involved in Child’s life ever since.

After Father graduated from high school, he went to college in Indiana so he could play football.

One year later, Mother told Father he needed to take a more active role in Child’s life, to which Father first replied, “Let’s get drunk and rally.” He later added, “I understand we have a child, but I need to find my happiness.”

The following month, Mother petitioned to change Child’s last name. Father disagreed with the name change and petitioned to establish paternity, a parenting plan, and child support. Once Father’s petition was filed, he stopped initiating phone calls with Child or paying child support.

A few months later, Father said he was returning to Indiana and wanted to see Child before he left. Mother arranged a Christmas dinner for the next night. Child did not recognize Father at this dinner and called him “Uncle Matt,” Child’s great-uncle.

Three months after the Christmas dinner, Mother and Stepfather married. One month later, Mother responded to Father’s petition, and Mother and Stepfather petitioned to terminate Father’s parental rights and for Stepfather to adopt Child.

The trial court found Father did very little to co-parent and that Father’s family was far more involved in Child’s life than Father ever was. However, the trial court found it was “blatantly unfair” to use the four months preceding the filing of Mother’s petition, finding that Mother “orchestrated” the four-month period to establish grounds of abandonment by failure to visit and support.

The trial court found that no grounds were proven but had grounds been proven, then termination of Father’s parental rights would have been in Child’s best interest. Mother’s petition was dismissed.

Mother and Stepfather appealed.

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

One ground to terminate parental rights in Tennessee is abandonment by the willful failure to visit during the four-month period preceding the filing of the petition. The parent can raise the lack of willfulness as an affirmative defense to this ground.

Aside from the Christmas dinner, Father had no contact with Child during the relevant four-month period. The dinner was token visitation that was “perfunctory” and of “such short duration as to merely establish minimal or insubstantial contact with the child.”

The trial court specifically found that Mother was to blame for Father’s lack of contact because she “orchestrated the creation of the four-month statutory period.”

Failure to visit is not willful if another person’s conduct prevents the parent from visiting or amounts to a significant restraint of or interference with the parent’s efforts to develop a relationship with the child. Thwarting a parent’s access to a child may include

• telling a man he is not the child’s biological father,
• blocking access to the child,
• keeping the child’s whereabouts unknown,
• vigorously resisting the parent’s efforts to support the child, or
• vigorously resisting the parent’s efforts to visit the child.

The Court made quick work of the trial court’s reasoning:

First, Father never raised lack of willfulness as an affirmative defense in any pleading in the trial court. This Court has often held that this omission results in waiver of lack of willfulness as an affirmative defense. Second, nothing in the record supports Father’s claim that Mother somehow impeded Father’s access to Child, inasmuch as Father concedes he did not pursue contact with Child. On the single occasion that Father sought visitation, Mother took Child to the Christmas dinner with Father’s family the very next day and was cordial.

It was not Mother’s role to pursue Father and initiate visitation after receiving no contact from him…. There is no legal authority providing that Father could not have contact with Child while his petition for legitimation and a parenting plan was pending. Nor has Father cited in his brief any authority providing that Mother’s delay in responding to the petition is related to Father’s separate responsibility to visit Child. Stated simply, Mother’s decision to respond to Father’s lack of contact with a petition for termination does not mean that Mother somehow orchestrated the lack of contact to begin with. Father failed to show, by a preponderance of the evidence, that his failure to visit Child during the relevant four-month period was not willful.

The Court concluded that Mother and Stepfather proved the ground of abandonment by failure to visit by clear and convincing evidence, and the trial court’s ruling was reversed. The same analysis was used to reverse the trial court’s ruling as to the ground of abandonment by failure to pay child support. It was undisputed that Father had the ability to pay child support and did not do so.

The last ground for termination was Father’s failure to manifest an ability and willingness to assume legal and physical custody of Child. After proving this, the petitioner must prove that placing the child in the other parent’s custody poses a risk of substantial harm to the child’s physical or psychological welfare.

The Court was similarly critical of the trial court’s analysis on this ground:

Although the trial court relied on the perceived “orchestration” of the four-month period in ruling on this ground, [the statute for this ground] does not mention any particular four-month period. The analysis of a parent’s failure to manifest an ability and willingness to assume custody or financial responsibility focuses on the parent’s actions throughout the life of the child.

The proof in this case establishes that throughout Child’s life thus far, Father has shown little interest in parenting. Mother and Stepfather have done the lion’s share of day-to-day caregiving for Child. Father has never fixed Child a meal or taken her to a doctor’s appointment. The last time Father helped put Child to bed was when Child was only a few months old, and there is no evidence that Father has ever requested overnight visitation with Child. Aside from a few text messages, there is little proof that Father inquires about Child on any regular basis. As best we can discern from the record, … Father saw Child only a few times per year when he came to town…. Considering the totality of Father’s actions and his long-term behavior, the proof is clear and convincing that Father has failed to manifest a willingness to assume legal and physical custody of Child. The first prong [of the statute] is therefore satisfied.

Sadly, Father’s disinterest is not lost on Child. It is undisputed that the last time Child’s saw Father, [at the Christmas dinner], she referred to him as a different family member.

This Court has previously held that when a parent is essentially a stranger to a child, and the child is thriving and bonded in [their] current household, forcing the child to begin visitation with the estranged parent is likely to cause psychological harm to the child.

The Court found the trial court erred in ruling this ground was not proven by clear and convincing evidence.

The Court reviewed and agreed with the trial court’s best-interest analysis:

We agree with the trial court’s best-interest findings and its conclusion that termination is in Child’s best interests. Father has done virtually nothing to foster a relationship with Child and at trial seemed disinterested in doing so in the future. As discussed at length above, this has profoundly affected Child. By all accounts, she regards Stepfather as her father figure and has a close and loving relationship with him. Child is bonded to her half-sister and Mother’s family and, in contrast, has a distant relationship with Father’s family. Father concedes that the relationship is distant and that he could have done more. Based on all of the proof adduced at trial, we conclude that Child’s best interests are served by terminating Father’s parental rights, such that Child can become fully integrated into Mother and Stepfather’s stable and loving home.

The Court reversed the trial court’s dismissal of Mother and Stepfather’s petition and terminated Father’s parental rights.

K.O.’s Comment: Most parental-termination cases reversed on appeal involve the Court of Appeals disagreeing with the trial court’s findings in favor of grounds for termination. This opinion presents the rare case where the Court disagreed with the trial court’s findings against grounds for termination.

Source: In re Isabella G. (Tennessee Court of Appeals, Middle Section, January 31, 2023).

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