February 20, 2020
In re Noah B.B., No. E2014-01676-COA-R3PT, 2015 WL 1186018 (Tenn. Ct. App. Mar. 12, 2015)
Facts: The child was born in 2010 and his parents were married. A few months later, the parents got in a domestic dispute centered on Mother’s prescribed medications. The police were called, and Mother was criminally charged with domestic assault after hitting the Father in the head and resisting arrest. A few days later, Mother was also criminally charged with harassment. Father and Mother separated, and Mother moved to Georgia. A year later, Father filed an order of protection which prohibited Mother from coming about or contacting Father or Noah. A supplemental order was entered regarding visitation which allowed Mother to have supervised visitation. The agreed order provided that Mother’s visitation would begin when she “produce[d] documentation to the petitioner from her treating licensed physician stating that she is currently receiving treatment and is able to properly care for the minor child during her visitation.” Mother never produced such documentation, and therefore never had visitation with Noah from March to June 2011. However, during that time, Mother was charged with six additional counts of harassment, stalking, and violating the order of protection. Mother and Father were divorced in August and the parties agreed to a parenting plan that provided several “phases” of supervised visitation with Noah. However, Mother never contacted anyone to arrange the visitation. Father remarried in 2012 and filed a petition to terminate rights. Mother answered and denied that she abandoned the child because Father “activities” prevented her from seeing Noah. The trial court terminated her rights.
Holding: The Court affirmed the order terminating Mother’s parental rights based on willful failure to visit.
Reasoning: The Tennessee Supreme Court has recognized that “when a parent attempts to visit the child but is ‘thwarted by the acts of another,’ the failure is not willful. However, The Court reasoned that a parent’s failure to visit may be excused by the acts of another only if those acts actually prevent the parent from visiting the child. Thus, although the order of protection prevented the Mother from contacting Father directly, she was able to contact Father through Noah’s grandfather or mother. Moreover, at any point, Mother could have filed a court petition seeking visitation, but she failed to do so even when twenty-one months passed since she had seen her son. Thus, the Court concluded that there was clear and convincing evidence that Mother had the capacity to visit Noah, she made no attempt to do so, and she had no justifiable excuse for not doing so.
In re Adoption of Angela E. 402 S.W.3d 636 (Tenn. 2013)
Facts: Prior to the parties’ divorce in 2001, father and mother had three children together. Since the divorce, father and mother have contentiously litigated their rights and obligations relative to the children, including a prior appeal in which father succeeded in overturning a voluntary termination of his parental rights. At the hearing on remand, the proof showed that Father exercised his parenting time with the children after the divorce. However, mother complained that Father left the children unsupervised, resulting in the children being unfed, poorly clothed, and prone to injury. At a court heading regarding Father’s financial obligations to Mother, the court also suspended Father’s visitation with the children, providing in part, that the “children might suffer irreparable harm when they are in the custody and control of the father.” Father was allowed to file a petition with the Court to have a hearing on the matter at the father’s earliest convenience; however, he did not file a petition to reinstate visitation until a year later. Father then moved to California and had not visited with his children for three years.
Holding: The Supreme Court held that the evidence was sufficient to establish Father had abandoned child based on willful failure to visit.
Reasoning: A parent cannot be said to have abandoned a child when his failure to visit or support is due to circumstances outside his control. However, evidence supported finding that Father willfully abandoned his children based on willful failure to visit because father had not visited the children for almost three years; and even though father’s visitation had been suspended, father filed a motion to reinstate his visitation and then took no action to advance the petition. Further, the Court noted that the Father had not reasonable excuse for failing to pursue the petition to reinstate visitation during the two years. The Court highlighted that this “is not a case in which a parent was actively trying to main visitation.”
In re Kiara C., No. E2013-02066-COA-R3PT, 2014 WL 2993845 (Tenn. Ct. App. June 30, 2014)
Facts: Mother and Father separated in August 2003, in Perkin Illinois. Prior to the filing of divorce, an Order of Protection was issued against Father by an Illinois Court. However, the Court granted the Father supervised visitation with the child. The mother remarried a few years later and then relocated in Seymour TN in July 2011. In 2012, Mother and Stepfather filed a petition with Blount County to terminate Father’s parental rights and allow Stepfather to adopt the child. Father answered the petition, but then failed to appear at the deposition and at trial. Father contended that his failure to visit was not willful because there existed at the time of the divorce an order of protection prohibiting Father from contacting Mother and the child.
Holding: The Court affirmed the trial court’s decision that Father had abandoned the Child and therefore terminated his parental rights.
Reasoning: The Court found that the order of protection expired in 2004 and did not actually prevent Father from visiting the child after its expiration and during the four-month period preceding the filing of the petition. Father argued that he did not know when the order of protection expired, however the Court highlighted that Father could have accessed the court record to discover the expiration date. Thus, the Court concluded that his failure to do so was “voluntary and his argument is unavailing.” Moreover, the Court did not find any evidence that Mother and Stepfather attempted to restrict or eliminate Father’s visitation following the expiration of the order of protection.
In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005)
Facts: Two fathers filed petitions to terminate parental rights after the mother to both children was sentenced to prison. Prior to the arrest, the mother was never in either child’s life. One father filed an order of protection against the mother after heavy drug use. When the mother was arrested, the fathers did not want the young children to visit the mother in prison and juvenile court stated that the only way to prevent the mother from seeing the children was to file the petition.
Holding: The juvenile court erred in finding that the mother abandoned the children because she was incarcerated during the entire four months preceding the filing.
Reasoning: Conduct is “willful” if it is the product of free will rather than coercion. Thus, a person acts “willful” if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. Failure to visit or support is not excused by another’s person’s conduct unless the conduct actually prevents the person with the obligation from performing his or her duty. Thus, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct.
In re Anna B. et al., No. M201600694COAR3PT, 2017 WL 436510 (Tenn. Ct. App. Feb. 1, 2017)
Facts: A father appeals termination of his parental rights, to two minor children. The father and mother were divorced. After discovering that Father had sexually abused the mother’s oldest daughter, Mother filed a petition for an order of protection and Father was not allowed to visit the children. A few months later, Father and Mother entered into an agreement which allowed Father supervised visitation with the Children for four hours per month. Criminal charges were brought against the Father for the sexual abuse against the one child and as part of his plea agreement, Father agreed that he would “have no contact with the victim or the victim’s family.” The Father was sentenced to one year in jail and upon release, he was allowed only supervised visitation with his children. Three years later, Mother filed petition for termination of his rights. The trial court terminated Father’s rights on the
Holding: The Court upheld the trial court’s decision that Father’s failure to pursue visitation was willful and thus upheld the termination of parental rights.
Reasoning: The Court considered Father’s attempts to seek visitation during the court proceedings, however the Court weighed it against the fact that Father made no effort to request or establish visitation with his children since the parties’ divorce. The Court relied on Section 36-1-102(1)(F) which “Clearly states that abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental … rights.”