Facts: Shyenne and Johanna (“the Children”) were born in 2015 and 2017, respectively, to Mother and Father. The Tennessee Department of Children’s Services (“DCS”) removed the Children from Mother’s custody in 2019 because of Mother’s issues. The Children were placed with a paternal relative (“Petitioner”), and they have lived with Petitioner since May 2020. DCS supervised Father’s visitation with the Children until January 2021, when Petitioner took over supervising the visits.

In early 2021, the relationship between Father and Petitioner deteriorated. In February 2021, Petitioner insisted that Father’s future visits be supervised by a third-party agency. Father paid a fee and applied for third-party supervised visitation through Parent Place, but no further visits were scheduled.

Petitioner filed a petition on March 8, 2021, to terminate Father’s parental rights and adopt the Children. The petition alleged three grounds: (1) abandonment by willful failure to provide child support, (2) abandonment by willful failure to visit, and (3) persistence of conditions that led to the Children’s removal.

Father, through his court-appointed attorney, filed an answer denying Petitioner’s allegations. He asserted an affirmative defense that his failures to support and visit were not willful because they resulted from circumstances beyond his control.

The trial was delayed by the COVID-19 pandemic and changes in Father’s appointed counsel, but it eventually occurred in December 2024.

At trial, Petitioner testified that Father never paid child support directly to her for the Children, though she admitted he bought them some shoes and clothing. She also stated that Father had visited only occasionally with other family members in recent years, but she gave no specific testimony regarding Father’s visits (or lack thereof) during the critical four months preceding the filing of the petition. Petitioner acknowledged that DCS had supervised and arranged regular visitations through January 2021. Petitioner further admitted that in February 2021, she stopped Father’s visits until he could arrange third-party supervision.

Father and his mother (“Grandmother”) also testified. Father stated that he visited the Children twice a month in 2020 during DCS-supervised visitation, and that he continued to visit under Petitioner’s supervision after the Children were placed with Petitioner. He produced photographs and videos documenting visits in November and December 2020, including a Thanksgiving gathering and a New Year’s Eve birthday party. Father testified that in February 2021, Petitioner required him to use a third party for visits and that he promptly submitted the application and fee, but Petitioner never allowed any more visits before filing the termination petition.

Regarding child support, Father testified—and Grandmother corroborated—that the State had been deducting child support from his paychecks through December 2020. Father also stated he provided additional support by sending Petitioner money through CashApp and by buying clothes, toys, and food for the Children during visits. Petitioner conceded that Father’s child support had been withheld from his pay through the end of 2020 but claimed that Father never paid her directly after that period.

The trial court found clear and convincing evidence of all three alleged grounds for termination. The trial court concluded that Father abandoned the Children by willfully failing to support them and to visit them in the four months before the petition was filed. The trial court also found that the conditions leading to the Children’s removal persisted and that termination of Father’s parental rights was in the Children’s best interest.

Father appealed the termination of his parental rights to the Tennessee Court of Appeals.

On Appeal: The Court of Appeals reversed the termination of Father’s parental rights.

In Tennessee, termination of parental rights requires proof of at least one statutory ground for termination and proof that termination is in the child’s best interest, all by clear and convincing evidence. A single proven ground is sufficient to uphold a termination order.

Under Tennessee law, abandonment includes a parent’s failure to support or failure to visit their child for the four consecutive months preceding the filing of the termination petition. “Failure to support” means not paying monetary support or paying only token support during that period, and “failure to visit” means failing to visit or only having token visitation during that time. Tennessee requires that parents provide more than “token” support or visitation, defined as support or visits that are merely perfunctory or minimal under the circumstances of the case.

A parent’s failure to support or visit is not considered “willful” if it is due to circumstances outside the parent’s control. Tennessee law allows parents to raise lack of willfulness as an affirmative defense to abandonment, but the parent bears the burden of proving by a preponderance of the evidence that the failure to support or visit was not willful.

Another ground for termination was the “persistence of conditions” that led to the Children’s removal. This ground allows termination when a child has been removed from a parent’s home by court order for at least six months and all three of the following are shown by clear and convincing evidence:

• the conditions that led to removal persist (or other conditions exist that could likely cause further abuse or neglect), preventing the child’s safe return to the parent;
• there is little likelihood that those conditions will be remedied soon; and
• continuing the parent-child relationship greatly diminishes the child’s chances of early integration into a safe, stable, permanent home. If the petitioner fails to prove any one of these three elements, or if the required removal order is not properly in evidence, this ground for termination cannot stand.

Applying these standards, the Court of Appeals determined that none of the grounds for termination were proven by clear and convincing evidence, and it reversed the trial court’s ruling on each ground:

While Petitioner was certainly free to pursue third-party supervision for visitation, a party “cannot significantly interfere with the noncustodial parent’s visitation and still rely on the ground of failure to visit to terminate parental rights.” Under these circumstances, we hold that the evidence presented failed to establish by clear and convincing evidence Father’s willful failure to visit. We reverse this ground of termination.

*     *     *     *     *

The record before this court does not contain the order of removal. We have no doubt that the order exists; however, we cannot “assume the existence of facts which are not in the record.” … Accordingly, we reverse this ground of termination.

The Court of Appeals also noted that Petitioner presented no evidence of Father’s income during the relevant time. Ultimately, the Court held that the proof was insufficient on each ground. For this reason, the Court did not address whether terminating Father’s rights was in the Children’s best interests.

The judgment terminating Father’s parental rights was reversed, and the case was sent back to the trial court for any necessary further proceedings.

K.O.’s Comment: This case underscores how critical it is for petitioners to meet their burden of proof in termination of parental rights cases. Tennessee courts require petitioners to present clear evidence for each element of every alleged ground for termination. For example, to prove willful failure to support, they must show not only that no support was paid during the relevant period but also that the parent had the ability to pay and chose not to. Similarly, a petitioner cannot cut off a parent’s visitation and then use the lack of visits as evidence of willful abandonment. In termination cases, if a guardian or custodian thwarts the parent’s efforts to see the child, that undermines any claim of willful abandonment based on the lack of visits.

For attorneys, this case shows why you must always put your evidence into the record, especially in a termination case. Here, the Petitioner didn’t introduce basic evidentiary documents, including the juvenile court’s removal order, and that omission proved fatal to her case. The Court of Appeals will not assume or infer facts that aren’t in the record, even if everyone knows a removal occurred. Failing to introduce a critical court order can sink the “persistence of conditions” ground. Likewise, relying solely on oral testimony without documents (pay records, visitation logs, etc.) left the appellate court with too many doubts. Trial lawyers should treat termination cases with extreme care: gather all necessary evidence, anticipate defenses like lack of willfulness, and remember that the burden of proof, i.e., clear and convincing evidence, is intentionally high. Without meticulous proof, a termination order is likely to be reversed on appeal, as it was in this case.

Source: In re Shyenne G. (Tennessee Court of Appeals, Eastern Section, February 12, 2026).

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