Facts: Mother and Father divorced after Child’s birth. Their Michigan divorce decree was later registered in Nashville, Tennessee.
The Tennessee trial court temporarily suspended Father’s parenting time after finding that Father had a serious alcohol problem, had engaged in witness tampering and perjury, and posed a danger to Child. The order allowed Father to seek reinstatement by completing an alcohol-and-drug assessment and filing a motion.
A psychologist diagnosed Father with an unspecified personality disorder with narcissistic and antisocial features and provisional alcohol-use disorder. The psychologist recommended abstinence from alcohol, sobriety monitoring, psychotherapy, substance-abuse treatment, and supervised visitation.
The trial court awarded Father supervised parenting time. The court also required Father to use Soberlink before and during his parenting time.
Father’s supervised visits were unsuccessful. Mother presented proof that Father failed an alcohol test before one visit, threatened two parenting-time supervisors, and sent threatening and harassing communications to Mother’s attorney.
The trial court found that Father’s mental-health issues and behavior presented a danger to Child and suspended all contact pending further orders.
Mother later married Stepfather. Mother and Stepfather petitioned to terminate Father’s parental rights and allow Stepfather to adopt Child. They alleged abandonment by failure to visit, abandonment by failure to support, and failure to manifest an ability and willingness to assume custody or financial responsibility.
Child was subject to the Indian Child Welfare Act (“ICWA”). The Choctaw Nation confirmed that ICWA applied but declined to intervene while reserving the right to do so later.
The litigation continued for nearly three years. Discovery disputes arose, several attorneys withdrew, and Father failed to appear for his deposition or produce the discovery he intended to use at trial.
The trial court entered a default judgment as a discovery sanction and struck Father’s pleadings. Father was allowed to cross-examine witnesses at trial, but he could not present evidence supporting his claims or defenses. Mother and Stepfather still had to prove the statutory grounds for termination and Child’s best interest.
At trial, Mother and Stepfather showed that Child was thriving in their home and had strong relationships with Stepfather and a younger sibling. Child had not had meaningful contact with Father for several years.
A qualified ICWA expert testified that Father’s child-rearing practices were unsafe and unacceptable in the tribal community. She opined beyond a reasonable doubt that Father’s continued custody would likely cause Child serious emotional and physical damage.
The trial court terminated Father’s parental rights on all three grounds. It also found that active efforts had been made to prevent the breakup of the Indian family, that Father’s continued custody would likely cause serious emotional or physical damage to Child, and that termination was in Child’s best interest.
Father appealed.
On Appeal: The Court of Appeals affirmed the termination of Father’s parental rights. The Court reversed only the trial court’s finding on abandonment by failure to visit, while affirming the remaining grounds, the findings under the Indian Child Welfare Act, the best-interest determination, and the judgment of termination.
Burden of Proof. The main issue involved the burden of proof in Tennessee termination proceedings governed by ICWA.
Tennessee law requires clear and convincing evidence of at least one statutory ground for termination and clear and convincing evidence that termination is in the child’s best interest.
ICWA adds federal protections. Under 25 U.S.C. § 1912(d), the petitioner must prove that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts were unsuccessful.
Under 25 U.S.C. § 1912(f), parental rights cannot be terminated without proof beyond a reasonable doubt, including qualified expert testimony, that the parent’s continued custody will likely cause the child serious emotional or physical damage.
Father argued that the beyond-a-reasonable-doubt standard should also apply to Tennessee’s statutory grounds for termination.
In what appears to be an issue of first impression in Tennessee, the Court of Appeals rejected Father’s argument, explaining:
Under the statute, proof beyond a reasonable doubt specifically applies to the finding that continuing custody is likely to result in serious emotional or physical damage to the child in termination cases. For foster placement, the same fact must be proven by clear and convincing evidence. The ICWA is intended to establish “minimum Federal standards for the removal of Indian children from their families.” It further requires courts to apply the higher “standard of protection” when state and federal law differ.
The Court adopted the approach followed by most states and held that different standards apply to the state and federal requirements:
We join the majority of states in concluding that a dual standard of proof is appropriate. The federal statute specifies a heightened standard of proof for the requirement “that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C. § 1912(f). This element must be proven beyond a reasonable doubt in proceedings in Tennessee under the ICWA. However, the state grounds of termination are subject to proof under the clear and convincing standard of evidence found in Tennessee Code Annotated section 36-1-113(c).
Thus, Tennessee statutory grounds and best interest must be proven by clear and convincing evidence. ICWA’s serious-damage requirement must be proven beyond a reasonable doubt and supported by qualified expert testimony.
Abandonment for failure to visit. A parent whose visitation is restricted may willfully fail to visit when the parent has a clear means of restoring visitation but does not pursue it.
Father’s initial suspension order provided such a pathway. It allowed him to seek reinstatement by completing an alcohol-and-drug assessment and filing a motion. Father satisfied those requirements.
A later order awarded supervised parenting time and advised Father to propose a treatment plan if he wanted expanded parenting time.
But the final suspension order, entered shortly before the beginning of the statutory abandonment period, merely suspended Father’s contact pending further orders. It did not identify what Father had to do to restore contact:
There was, simply put, no “pathway” that was provided for renewing visitation between [Child] and Father. It is not clear what Father could have done to enable him to visit [Child]. Significantly, this order was also entered not long before the beginning of the statutory time period for assessment of non-visitation.
Because the order provided no clear method for restoring visitation, Father proved that his failure to visit was not willful. The Court of Appeals reversed that ground while affirming the other two grounds, and affirmed that termination was in Child’s best interest.
K.O.’s Comment: The most useful Tennessee lesson here may be the one ground that failed.
When a court suspends a parent’s visitation, the order should say exactly what the parent must do to restore contact. Tennessee courts have found willful failure to visit when a parent ignores an identified path back, such as filing a petition, completing treatment, submitting to drug screens, or arranging appropriate supervision.
When the order provides no clear reinstatement procedure, the parent may be unable to visit through no willful choice of their own.
“Suspended pending further orders” may sound sufficient when the order is entered. It can become a significant problem when abandonment by failure to visit is later alleged.
Petitioners should want a roadmap because it eliminates uncertainty about what the parent failed to do. Respondents should look closely at the operative visitation order because the absence of a roadmap may defeat willfulness.
The ICWA holding supplies a second roadmap. Tennessee statutory grounds, active efforts, best interest, and ICWA’s serious-damage requirement are separate elements with different proof requirements. Lawyers should organize the evidence accordingly instead of treating ICWA as a single additional finding.
Source: In re Knox G. (Tennessee Court of Appeals, Middle Section, July 30, 2026).
If you find this helpful, please share it using the buttons below.