Facts: During a brief rendezvous during Mardi Gras, Mother and Father conceived Child. Mother, who lived in Ohio, wanted Child to be raised by Prospective Adoptive Parents, who lived in Tennessee, and gave custody of Child to them right after birth. Father wanted to raise Child himself.

Prospective Adoptive Parents petitioned to terminate Mother and Father’s parental rights and adopt Child in Ohio. The Ohio court terminated Father’s parental rights and granted the adoption, but the Ohio Supreme Court reversed the trial court’s decision.

Seven days later, with Mother now living in Florida, Prospective Adoptive Parents sued in Florida to terminate Father’s parental rights. The Florida court denied the petition to terminate Father’s parental rights, and this decision was affirmed on appeal.

Counsel for Prospective Adoptive Parents sent Father’s Florida counsel a letter indicating that the Prospective Adoptive Parents were no longer pursuing the adoption. The parties had a hearing to appoint a transition specialist to help transition Child from the only parents he’d ever known—Prospective Adoptive Parents—to Father.

Shortly thereafter, Prospective Adoptive Parents petitioned to terminate Father’s parental rights in Tennessee on grounds of abandonment by willful failure to pay support.

Father testified he stopped paying support because he believed Child would move in with him, and he used that money to buy a bed, bedding, dressers, another refrigerator, washing machine and dryer, etc. In his mind, the litigation was over. Adoption was off the table. He was preparing for Child’s arrival.

The trial court denied the petition to terminate Father’s parental rights because his failure to support was not willful.

Prospective Adoptive Parents appealed.

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

The interesting thing about this opinion is the discussion of willfulness and a disagreement over the proper standard of review.

Until 2018, Tennessee law required proof that the failure to support was willful to terminate parental rights. Whether a parent did not support a child was a question of fact, but whether the proven facts amounted to clear and convincing evidence of willfulness presented a question of law.

On July 1, 2018, the definition of “abandonment” changed. Since then, “lack of willfulness” is an affirmative defense that must be proven by a preponderance of the evidence. The trial court must be convinced that it was “more likely true than not true” that the failure to support was not willful. The burden of proving lack of willfulness lies with the parent.

The Majority describe the standard of review on appeal:

This Court has previously often described willfulness under the abandonment statute as a question of law. Additionally, the standard of review for willfulness has been described as de novo in a published decision and in cases decided after the law was altered in 2018. It is certainly clearly established that the larger question, whether there is clear and convincing evidence of abandonment by failure to support, is a question of law. Resolution of whether willfulness presents a question of law, fact, or a mixed question of fact and law is unnecessary to the determination of this appeal. Deference is unnecessary for this Court to reach the conclusion that the trial court properly determined that Father’s failure to pay child support did not constitute willful abandonment. Assuming for purposes of argument that willfulness presents a question of fact, as asserted by the concurrence, only serves to further bolster the conclusion that the trial court did not err.

In a concurring opinion, Judge McBrayer opined that the 2018 legislative changes alters the standard of review:

Findings made by a preponderance of the evidence [e.g., lack of willfulness] are accorded a presumption of correctness. The presumption is overcome only if the evidence preponderates against the finding that the failure to pay support was not willful. In other words, whether there was a lack of willfulness is a question of fact, not a question of law.

Here, the trial court found that Father’s failure to pay support for the four-month period preceding the filing of the petition to terminate was not willful. Given the presumption of correctness that must be accorded that finding, I would affirmed the dismissal of the petition to terminate Father’s parental rights.

While the Court was divided on the proper standard of review, they all agreed that the trial court was correct in dismissing the petition to terminate Father’s parental rights:

We agree that Father’s failure to pay was not willful under the circumstances presented here. Our conclusion is based on the interplay of five factors: the jurisdictional confusion caused by proceedings in Florida in which Florida courts have been exercising and had expressly retained jurisdiction, the transition process that was proceeding in Florida courts, the existence of pertinent variances between Florida and Tennessee law with regard to the termination of parental rights, the letter from the Prospective Adoptive Parents’ counsel indicating that they were not going to be proceeding with seeking to adopt and directing Father to deal with Mother’s Florida counsel, and Father’s significant expenditures related to preparing his home for assuming custody of his child after years of litigation.

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In the present case, Father had not missed a payment to the Prospective Adoptive Parents since he had begun paying child support in 2017. After the November letter in which the Prospective Adoptive Parents told Father they would not pursue custody of [Child] and in which they instructed him to communicate with Mother’s Florida counsel in the future, Father stopped paying. Father had no reason to think four months of nonpayment would be the basis for termination of his parental rights under Florida law. The misleading statements of the letter (which proved to be false or incorrect, as the Prospective Adoptive Parents, rather than seating custody, filed for termination in Tennessee four months later) also factor into the trial court’s conclusion that failure to pay was supported by a justifiable excuse.

The Court agreed that clear and convincing evidence does not support the ground of abandonment by failure to support. So, the trial court’s judgment was affirmed.

Source: In re Preston H. (Tennessee Court of Appeals, Middle Section, October 13, 2023).

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