Facts: The Tennessee Department of Children’s Services (“DCS”) petitioned for custody of Child because of Mother’s drug use and Child’s secondhand exposure to illegal drugs. Child was found dependent and neglected in Mother’s care.

While Mother’s appeal of the dependency and neglect action was pending, DCS petitioned to terminate Mother’s parental rights on various grounds, including abandonment by failure to visit.

The proof showed that DCS refused no visitation requested by Mother before the termination petition was filed.

Mother admitted using methamphetamines on-and-off following Child’s removal from her custody. Mother admitted she voluntarily chose not to have contact with Child when she was using drugs. As a result, Mother had some in-person visits with Child the year before the petition was filed, but her last in-person visit was six months before the petition was filed. Mother testified, however, that she used Facebook to video chat with Child at least three times per month during this period. No testimony was offered as to the duration or contents of these calls.

The trial court found several grounds for termination, and that termination was in Child’s best interest. The only ground we’ll cover in this post is abandonment by failure to visit during the four months preceding the filing of the petition.

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

One ground for termination of parental rights is when a parent fails to visit their child, or only engages in token visitation, during the four months preceding the filing of the termination petition.

“Token visitation” means visitation, under the circumstances of the individual case, constituting nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child. This requires a fact-intensive inquiry.

Previous cases in Tennessee have questioned whether “telephonic” visitation with a child is a substitute for in-person visitation for this ground. These questions have been extended to video chats of the type Mother alleges occurred in this case.

The Court found DCS did not prove that Mother engaged only in token visitation:

Here, there is no dispute that Mother did not visit with the child in person during the relevant four-month period…. She claims, however, that she had spoken to the child via video chat at least three times per month during the relevant period. Yet the trial court found that even if this visitation occurred, it was token.

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We have held, however, the telephone calls may be sufficient under circumstances where the parent cannot feasibly exercise in-person visitation. Indeed, it appears that during the Covid-19 pandemic, videoconference visitation was the norm. But the trial court in this case found that Mother gave “no reason” for her failure to exercise in-person visitation during the relevant period as she was sober during this timeframe while pregnant with her second child. Respectfully, the record preponderates against this finding.

Specifically, Mother testified that she utilized video chats “because I was pregnant and about to have a baby and everything. But that’s when I was avoiding being in Morristown.” Thus, Mother clearly, though perhaps inartfully, testified that it was in fact her sobriety and pregnancy that kept her away from Morristown during this timeframe. And Mother’s fears were valid, as when she moved back to Morristown, she relapsed. As such, it appears that Mother was placed between two difficult positions. Either she could stay away from Morristown and remain sober or she could return to Morristown to see her older child but put her sobriety at risk. We cannot conclude that Mother provided no reason for her inability to have in-person visitation during this timeframe. The trial court, as a result of its contrary conclusion, failed to consider how Mother’s reasons fit within the context of existing caselaw.

Ultimately, the trial court ruled that the visitation was token because there was no testimony as to its duration or content. We note, however, that the burden to prove that support is token remains on DCS as the petitioner. Here, the trial court improperly shifted the burden to Mother to show that the visits were not perfunctory or of such short duration as to not maintain a relationship with the child. That burden, though, remained with DCS. Thus, in the absence of evidence showing that the calls were short or otherwise perfunctory, we must conclude that DCS failed to meet its burden to show that these calls merely constituted token contact. As such, this ground for termination is reversed.

Although this ground was reversed, other grounds were affirmed, as was the trial court’s finding that termination is in Child’s best interest. The termination of Mother’s parental rights was affirmed.

Source: In re Zakary O. (Tennessee Court of Appeals, Eastern Section, August 15, 2023).

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