Facts: Mother and Father divorced under a Permanent Parenting Plan that granted each equal parenting time and imposed no child support obligation on either. They co-parented without issue until three years later, when Mother developed an alcohol dependency, lost her job in East Tennessee, and relocated to Nashville for work.

Although they never modified their Parenting Plan in court, the parents informally agreed that Mother would exercise parenting time on alternate weekends with Maternal Grandmother’s help.

Mother entered several inpatient rehab programs to address her alcoholism. Her worsening alcohol abuse derailed plans to return to East Tennessee.

Father finally moved to formally limit Mother’s parenting time. The parties reached a mediated agreement that the trial court approved. Around that time, Mother moved back to East Tennessee, but her struggles with alcoholism persisted despite continued treatment.

Later, Father filed an emergency motion to suspend Mother’s parenting time, which was heard ex parte (Mother was in rehab and did not attend, and her attorney apparently lacked notice and did not appear). After the hearing, Father’s counsel prepared a proposed order that would prohibit any contact between Mother and the Children until Mother maintained six months of sobriety, stable housing, and employment. It would also require Mother to pay child support.

Crucially, the trial court never signed or entered this proposed order.

Nevertheless, both parties and their attorneys proceeded as if this no-contact order were in effect. Mother, never seeing the unsigned order, believed she was legally prohibited from contacting the Children and needed to focus on recovery to regain visitation. She was also unaware of any requirement to pay child support, since no new support order had been entered and the original Parenting Plan required no support.

Four months into the no-contact period, Father and Stepmother petitioned to terminate Mother’s parental rights to their two Children so Stepmother could adopt. They alleged that Mother had abandoned the Children by willfully failing to visit and pay child support during the four months preceding the petition. They also alleged that Mother failed to demonstrate an ability and willingness to assume custody or financial responsibility for the Children.

Mother, now without an attorney, filed a pro se response explaining she had been told she was under a no-contact order “indefinitely or until court action” and that she had never been provided with any order to pay support. She noted that during this period she nevertheless bought clothes for the Children (delivered by Grandmother) and sent them Valentine’s Day and birthday gifts and cards.

The case languished for over a year. By the time the motions were heard, Mother had made significant progress. She successfully completed her last inpatient rehab and had maintained sobriety. Mother secured stable employment, earned a steady income, and remarried, purchasing a spacious home in East Tennessee with room for the Children.

The trial court found that Mother “appears to be doing well and is fighting the demons that she had.” The court reinstated Mother’s video-call visitation and ordered her to begin paying child support.

The termination petition remained pending, and the final hearing took place in June 2024. Mother reiterated that she genuinely believed she was forbidden from contacting the Children during the critical four-month period. Stepmother confirmed that she understood a no-contact order was in place and had communicated that to Mother. Father acknowledged that he had reviewed the draft no-contact order and that, under the original Parenting Plan, Mother had not been required to pay support. Mother testified that she never saw the draft order that purported to impose a support obligation, and she recounted the gifts and cards she provided for the Children while believing she could not see or speak to them.

The trial court denied the termination petition. The trial court found that an “enormous amount of confusion” resulted from the never-entered order, leading everyone to believe Mother was under a no-contact mandate. The trial court concluded that, under those circumstances, Mother’s failure to visit was not willful and, in any event, the operative parenting order did not require her to pay support during that time. Thus, Father and Stepmother failed to prove by clear and convincing evidence that Mother abandoned the Children by failing to visit or support. The trial court also found that they failed to prove that Mother lacked the ability and willingness to assume custody or that termination of her rights was in the Children’s best interests, especially given Mother’s dramatic turnaround.

Father and Stepmother appealed.

On Appeal: The Court of Appeals affirmed the trial court’s denial of the termination petition.

Under Tennessee law, a parent’s rights can be terminated only if at least one statutory ground for termination is proven by clear and convincing evidence and the termination is in the child’s best interests. Abandonment requires a parent’s failure to visit or support for four months. A parent may defend against this by showing their failure wasn’t willful—meaning they knew their duty, could act, but didn’t without a valid excuse.

Another ground for termination at issue was a parent’s failure to demonstrate an ability and willingness to assume custody or financial responsibility for the child, coupled with proof that placing the child in that parent’s custody would pose a risk of substantial harm to the child.

Both grounds must be proven by clear and convincing evidence.

The Court of Appeals agreed with the trial court that no statutory ground for termination was proven by clear and convincing evidence:

A no-contact order … does not preclude a finding of willfulness.… In this case, however, Mother justifiably believed that a six-month sobriety period was required in order to regain visitation, and [Father and Stepmother] filed the termination petition before that six months could lapse.

Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Therefore, a parent’s failure to visit or support their child is willful when the parent is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so. Against this backdrop, Mother proved by a preponderance of the evidence that her failure to visit was not willful.

Likewise, the trial court determined that Mother did not abandon the Children through failure to support. We agree. First, we note that there was no order requiring Mother to pay support during the relevant period, because the trial court never signed the proposed no-contact order…. [T]he parties’ plan, which was the operative court order during the relevant period, provides that Mother owed no child support. 

Further, the record bears out the trial court’s finding that Mother provided items to the Children during the relevant period. Mother testified that she sent gifts and cards for the Children’s birthdays and major holidays. She did this while under the impression she could not speak to them…. [W]e agree with the trial court that [Father and Stepmother] did not carry their burden regarding this ground.

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[T]he proof before us establishes that, throughout the Children’s lives, Mother has manifested a willingness and ability to assume custody and financial responsibility for the Children. She remained actively involved in custody litigation and worked toward her sobriety to regain her visitation. The trial court also noted that by the time of the final hearing, Mother had a stable job with steady income, as well as a safe and suitable home for the Children. Even when she believed she was under a no-contact order restricting access to the Children, she sent them gifts and cards on holidays and birthdays, as did the Children’s maternal grandmother. Mother’s actions in this case are distinguishable from parents who fail to manifest an ability and willingness to parent their children.

Because no ground for termination was established, the Court of Appeals did not need to analyze the Children’s best interests. The denial of the termination petition was affirmed, allowing Mother to retain her parental rights.

K.O.’s comment: This case underscores the importance of ensuring that court orders are properly entered and communicated. Here, everyone assumed a no-contact order was in effect, even though the judge had not signed one. Father and Stepmother essentially handed Mother a defense, showing that her lack of contact wasn’t willful. One must wonder whether this entire termination effort might have been avoided had the parties obtained a clear ruling on Mother’s visitation and support years earlier, rather than operating in a procedural fog.

Source: In re Lincoln S. (Tennessee Court of Appeals, Eastern Section, December 15, 2025).

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