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 a total of $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.

On appeal, a 2-1 majority of the Court of Appeals reversed the grounds of failure to visit and failure to pay support. The majority concluded:

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.

Judge Stafford dissented on both issues. Here’s a summary of his reasoning as to the willful failure to pay child support:

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.

Mother and Stepfather sought review by the Tennessee Supreme Court.

On Appeal: The Supreme Court affirmed in part and reversed in part.

To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child’s best interest.

The grounds at issue here are failure to visit and support the child during the four months before the termination petition was filed. A parent may raise an affirmative defense that failing to visit or support was not token if the failure was not willful. Father asserted this defense. So, Father was required to prove the absence of willfulness by a preponderance of the evidence.

First, the Supreme Court affirmed the majority’s decision to reverse the ground of failure to visit because (1) Mother was preventing Father from seeing Child, and (2) Father was pursuing a legal remedy to obtain parenting time.

As for the grounds of failure to support, the Supreme Court agreed with Judge Stafford’s dissent and reversed the Court of Appeals:

Token support is defined as support that is “insignificant given the parent’s means.” By Father’s own estimation, he gave Mother $60 to $80 at a time, totaling $1000 when she was allowing him to see the child. This estimate was the total for the time from Father and Mother’s separation in December 2019 until the petition to terminate was filed in September 2022. However, there was no evidence that he saw the child during the four months leading up to the filing of the petition and no evidence that he was providing support by any other means.

Our statutes provide that “[e]very parent who is 18 years of age or older is presumed to have knowledge of a parent’s legal obligation to support such parent’s child or children.” Father admitted that he knew he had not paid enough to support the child. Although Father had filed a petition to establish visitation and child support, his obligation did not stop during the interim. Therefore, Father has not proven that his failure to pay support was not willful.

As a result, the Court of Appeals majority erred in reversing this ground.

Because the trial court’s “findings” regarding the best-interest factors were merely conclusory statements, the Supreme Court could not analyze whether termination is in Child’s best interest. The case was remanded to the trial court for proper findings regarding the best-interest factors.

Source: In re Bentley E. (Tennessee Supreme Court, December 11, 2024).

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