Facts: Father and Mother divorced in 2017 and followed an equal parenting schedule for the Children. The schedule was interrupted after Father’s arrest in a domestic dispute, but the parents later returned to equal parenting time.

In February 2024, serious criminal charges were filed against Stepmother involving Stepmother’s older child. Father signed an immediate protection agreement placing the Children with Mother on a limited basis. Mother then filed a petition for emergency custody, and the trial court awarded Mother temporary custody on February 12, 2024, without providing Father visitation.

On April 9, the trial court granted Mother’s emergency petition and limited Father’s contact to four four-hour supervised visits each week at Blended Recovery “pending further hearing.” The trial court also directed Mother to unblock Father’s telephone number so Father could contact the Children. The written order establishing supervised visitation was entered on May 2, 2024.

Father refused to visit the Children at Blended Recovery. He repeatedly asked Mother for visitation outside that facility, but Mother refused and directed Father to the court order. Father maintained regular telephone contact with the Children after Mother unblocked his number.

The relevant four-month abandonment period ran from March 9 through July 8, 2024. During that time, Father did not exercise supervised visitation at Blended Recovery, a facility that provides supervised visitation. He blamed work obligations and caregiving responsibilities, although his employer testified Father could have taken leave, and Father and Stepmother traveled to Florida during the same period. Father also said he was “working on” a motion to modify visitation, and a July 9 hearing was scheduled to review the visitation order.

On July 9, before the custody rehearing began, Mother and Stepfather filed a petition to terminate Father’s parental rights and for adoption by Stepfather. The petition alleged only one statutory ground, abandonment by failure to visit. The filing of the termination petition suspended the custody proceeding.

The trial court terminated Father’s parental rights, finding that Father willfully failed to visit the Children and lacked credibility regarding alcohol and drug abuse and domestic violence in his home. The trial court also found termination was in the Children’s best interest.

Father appealed.

On Appeal: The Court of Appeals reversed, holding that clear and convincing evidence did not support the sole statutory ground of abandonment by willful failure to visit.

Parental rights may be terminated only when at least one statutory ground is proven by clear and convincing evidence and termination is in the child’s best interest. “Failure to visit” means failing, for four consecutive months, to visit or engage in more than token visitation. “Token visitation” is visitation that, under the circumstances, is merely perfunctory or so infrequent or brief as to establish only minimal or insubstantial contact. A parent may raise lack of willfulness as an affirmative defense, and the parent bears the burden to prove by a preponderance of the evidence that the failure to visit was not willful.

A parent who attempts to visit but is thwarted by the acts of others or by circumstances beyond the parent’s control has not willfully abandoned the child. That excuse applies, however, only when the acts of another actually prevent visitation or significantly restrain or interfere with the parent’s attempts to visit.

Here, the four-month period ran from March 9 through July 8, 2024. Father’s access to the Children was restricted on February 12, but his legal right to supervised visitation was not restored until the written order establishing visitation was entered on May 2. Tennessee courts speak through their written orders, not oral announcements. Thus, Father’s legal visitation rights were not restored until about two months into the four-month period. The Court explained:

The record in this action confirms that Father enjoyed an equal co-parenting schedule with the Children prior to February 2024. Likewise, the parties agreed that Father visited the Children multiple times between the filing of the immediate protection agreement and Mother’s filing of the emergency custody petition, which resulted in enmity between the parties. Father’s access to the Children was then restricted by the court’s signing of the emergency custody petition on February 12, 2024. Father’s legal visitation rights were not restored until the court’s filing of the order establishing such rights on May 2, 2024. While Father was given structured, supervised access to the Children, such access was not legally provided until approximately two months into the relevant time period. Father was also at the courthouse awaiting a re-hearing on the court’s order regarding visitation when the termination petition was filed. Under these circumstances, we hold that the evidence presented failed to establish by clear and convincing evidence Father’s abandonment of the Children by a willful failure to visit. We reverse this ground of termination.

Because the Court reversed the sole statutory ground filed by the trial court, it pretermitted the best-interest analysis.

K.O.’s Comment: Father had several bad facts. He refused to visit at the supervised-visitation facility, gave explanations the trial court did not credit, and faced serious concerns about domestic violence and conditions in his home. Those facts might matter greatly in a custody case. But termination of parental rights requires clear and convincing proof of a statutory ground.

The timing carried the day. The abandonment period started before Father had an entered order granting supervised visitation. The order giving him legal access to the Children was entered about two months into the four-month period. Then Mother and Stepfather filed the termination petition before the scheduled rehearing on visitation could occur, which suspended the custody proceeding.

Mother and Stepfather had proof that Father did not use the supervised-visitation option. But the Court wanted more before calling that failure willful abandonment, particularly when Father’s legal access was delayed, he maintained telephone contact, and he was at the courthouse awaiting the hearing on visitation when the termination petition was filed.

Source: In re Beau M. (Tennessee Court of Appeals, Eastern Section, July 1, 2026).

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