Facts: Child was born in June 2020 to unmarried Mother and Father, both of whom struggled with substance abuse.
In the fall of 2020, Mother, Father, and Child moved in with Mother’s great-grandmother and great-aunt in South Carolina. Father testified that he was Child’s primary caregiver.
In February 2021, an argument occurred where Father pushed the great-grandmother. The police were called, and Father left the property and went to Florida. Maternal Grandparents came to South Carolina at Mother’s request and took Child to their home in Chattanooga.
In late February 2021, Father petitioned to establish paternity and receive emergency custody.
In early March 2021, Maternal Grandparents petitioned to terminate Father’s parental rights.
While this case was pending, Mother passed away after a drug overdose.
The trial occurred almost two years later.
Father messaged Maternal Grandparents each day while Child was in their custody to ask how Child was doing. In June 2021, Father moved to Chattanooga to be closer to Child. One month later, Father’s communications ended after Maternal Grandparents told him they were blocking his number and he would need to accept the fact that he was no longer in Child’s life.
The proof showed Father battled issues with depression, admittedly used marijuana and Xanax occasionally, found himself in the company of other drug users, and was out on bond for charges of domestic aggravated assault and driving under the influence. Father conceded he was not presently able to take custody of Child or financially support Child.
It was undisputed that Father did not pay child support in the four months preceding the filing of the petition. The trial court concluded this failure amounted to abandonment. However, the trial court found Maternal Grandparents did not prove that terminating Father’s parental rights was in Child’s best interest. Thus, their petition was denied.
Maternal Grandparents appealed.
On Appeal: The Court of Appeals reversed the trial court’s finding of grounds to terminate Father’s parental rights.
Abandonment can occur when parents or guardians have failed to visit, support, or make reasonable payments toward the child’s support for four consecutive months right before filing a petition to terminate parental rights. Lack of willfulness can serve as an affirmative defense, however, the parent shall bear the burden of proof to show the lack of willfulness by a preponderance of the evidence.
The Court found the proof militated against the trial court’s finding of failure to support:
The petition [to terminate parental rights] was filed on March 3, 2021, and it is undisputed that Father did not pay support during the four preceding months. It is also undisputed, however, that for the majority of this time period, [Child] lived with Father, Mother, Mother’s great-grandmother, and Mother’s great aunt in South Carolina. The proof also adduced that during this time period, Mother’s great-grandmother and great aunt did not allow either Mother or Father to work outside of the home for fear of the COVID-19 pandemic. Father testified that during this time period, he served as [Child’s] primary caregiver…. In its final order, the trial court found that Father “provided necessary care for Child, including, but not limited to, changing diapers, feeding Child, and entertaining Child.”
In light of the foregoing, the trial court erred in finding that Father abandoned [Child] by failure to support. Father had custody of [Child] during most of the relevant four-month period prior to the Petition being filed, and Father and [Child] lived together. Father was [Child’s] primary caretaker. The abandonment statute simply does not apply in a case such as this one, where a parent has full custody of and devotes full-time care to their child during most of the salient four-month period.
The Court reversed the trial court’s finding that Maternal Grandparents proved abandonment by clear and convincing evidence. Without grounds, the Court did not need to discuss whether the proof weighed against the trial court’s finding that termination was not in Child’s best interest. The case was remanded to determine who should receive custody of Child. Tennessee law requires that Father be given custody unless clear and convincing evidence shows he cannot provide proper care for Child.
Source: In re Rori H. (Tennessee Court of Appeals, Eastern Section, April 16, 2024).
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