Facts: Mother and Father are the never-married parents of Child.

From Child’s birth until Mother moved in with the man who later became Stepfather, Father regularly visited Child and paid about $1000 toward Child’s support.

Two years after Child’s birth, Mother married Stepfather.

When Mother started restricting Father’s access to Child, Father petitioned to establish parentage, visitation, and child support.

Ten months after their marriage, Mother and Stepfather petitioned to terminate Father’s parental rights and for Stepfather to adopt Child.

At a hearing on Father’s petition to establish parentage, the trial court ordered Father to submit to a drug test before any visitation could be set. Father waited five months to do this. This five-month period included the entire statutory four-month period preceding the filing of the petition to terminate Father’s parental rights.

Mother admitted Father had asked for visitation with Child but she denied it. Father said he filed his petition to establish paternity, visitation, and child support because he was tired of Mother telling him when he could and couldn’t see Child. He continued to send text messages to Mother asking for visitation with Child until two or three weeks before the termination petition was filed.

The trial court terminated Father’s parental rights on grounds of abandonment by failure to visit and failure to pay support. The adoption petition was granted, and Child’s surname was changed to that of Stepfather.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

Parental rights can be terminated on grounds of abandonment. This can occur when a parent fails to visit or fails to provide financial support for their child during the four consecutive months immediately preceding the lawsuit to terminate their parental rights. The parent’s abandonment during the four-month period may not be rectified by resuming visitation or support after the termination petition is filed.

A parent may raise an affirmative defense that the failure to visit or support was not willful. The parent has the burden of proving the absence of willfulness by a preponderance of the evidence.

A parent’s failure to visit is willful when it is the product of free will rather than coercion. If a parent tries to visit a child but is thwarted by the acts of others, the failure to visit is not willful. When analyzing willfulness, courts consider whether a parent who was allegedly denied visitation redirected their efforts to the courts to obtain visitation.

The majority of the Court found Father showed his failure to visit or pay support was not willful:

From the record, Father had access to Child until Mother and Stepfather’s relationship began in or around May 2021. At that point, Mother largely precluded Father from seeing Child. When this occurred, Father did not delay seeking the help of the courts; he filed his petition to establish paternity (wherein he also sought visitation and the setting of child support) on May 26, 2021 (the same month Mother and Stepfather’s relationship began). As evidenced by the foregoing testimony, while Father’s petition was pending, Mother would not allow meaningful visits. Under the circumstances, it was error for the trial court to terminate Father’s parental rights on the ground of abandonment by willful failure to visit. We reverse that holding.

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From the record, this Court has no doubt that Father very much wants to be in Child’s life. Although, as he concedes, Father should have been more proactive in pursuing his petition, he never abandoned it. Father sought permission from Mother to be in Child’s life, but Mother largely refused. Father sought a court order to pay a set amount of support and even inquired at the child support office to establish this obligation, but, to date, the court has not heard the question of support. From our review, the evidence does not clearly and convincingly establish that Father abandoned Child, although he has not consistently visited or supported him. In short, Father met his burden to show that any failure to visit or support was not willful.

The Court reversed the termination of Father’s parental rights and the adoption by Stepfather.

Dissent: Judge Stafford dissented, writing:

Here, there is no dispute that Father had little or no visitation with Child in the relevant four-month period.

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[A]fter Father filed his parentage action in May 2021, on May 16, 2022, the trial court ordered Father to submit to a 10-panel drug test before any visitation could be set. Father did not submit to the test until October 2022. Thus, during the entirety of the relevant four-month period, he was subject to an order that conditioned his ability to visit on his submission to a drug test. Father failed to comply with this order until after the termination petition was filed.

[I]n analogous situations, we have repeatedly held that when a parent refuses to cooperate with conditions or requirements in order for visitation to be permitted, the parent has acted willfully in failing to visit. [Judge Stafford cites multiple cases.]

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No evidence presented in this case leads me to conclude that these well-settled legal principles should not apply equally to Father. Indeed, Father’s actions here clearly align with those cases in which willfulness has been found. Although Father filed his petition to establish parentage in May 2021, the record does not reflect that much action was taken on the petition until one year later in May 2022, when the trial court ordered Father to submit to drug testing. Critically, Father did not comply with the drug-testing order for the next four to five months, and only did so after the filing of the termination petition. Father had no reasonable excuse for this delay, as he admitted at trial that he was afraid to take the test because it could have been positive.

In refusing to submit to the drug test without reasonable cause, Father voluntarily chose to abandon his request for visitation. Thus, even if Father did request visitation from Mother during this timeframe, his inability to visit was the product of his own choice not to comply with the drug-testing order. So then, I would conclude that ample evidence was presented that Father willfully abandoned Child by failing to visit during the relevant time period.

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The Majority Opinion essentially sidesteps the trial court’s finding that Father’s payment of support was token by instead concluding that his action and filing a petition to set support and calling the Child Support Office to inquire about support was sufficient to establish that he did not abandon his effort to pay child support.

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Here, there does not appear to be any reasonable dispute that Father failed to pay more than token support during the relevant four-month period or at any time following the parents’ separation. Father’s decision to file a petition to set child support is simply not sufficient justification for his failure to pay support. Importantly, Father’s petition to establish support apparently languished for a year before the trial court entered the order directing Father to obtain a drug test and submit the results to the court before visitation would be ordered. And again, Father thereafter failed to comply with that order for a period of nearly five months, solely because he was afraid that he would fail the drug test. Thus, Father essentially abandoned his petition to obtain visitation and set support during the relevant time period.

K.O.’s Comment: While Judge Stafford makes a compelling argument bolstered by caselaw, I don’t fault the Majority for focusing on the specific facts of this case in its decision to find that Father proved his inaction was not willful under the circumstances. While these facts may share similarities with other cases, no two cases are the same. Under the specific facts of this case, I would have joined the Majority.

Source: In re Bentley E. (Tennessee Court of Appeals, Western Section, July 25, 2024).

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