Decision Terminating Parental Rights for Abandonment is Overturned: In re Adoption of Alexander M.S.F.


The Mother and Stepfather of two children in Hickman County, Tennessee filed to terminate the biological Father’s parental rights on the grounds of abandonment. The trial court ultimately decided to terminate the Father’s parental rights, finding that he had failed to visit the children and had paid only “token support” in the four months preceding the filing of the petition for termination. This decision was overturned by the Court of Appeals of Tennessee at Nashville.


When the children were born, the Mother and Father were unmarried, but they were in a relationship for approximately three years after the birth of the older child. They also lived together for one of these years.

In 2010, the Mother filed for an Order of Protection against the Father, but this request was denied. The Father was then granted visitation with the children every other Saturday, and he was ordered to pay child support at the rate of $120.00 per week. The Father visited every Saturday for several months, but his visitations became less consistent in late 2010. The Father ceased visitation with the children altogether in early 2011.

The Mother married Stepfather in May 2011, and on June 15, 2011, the Mother and Stepfather filed a Petition to Terminate the Father’s parental rights.

Legal Analysis

Parents have fundamental rights to the care, custody and control of their children, and the state may only interfere with parental rights when there is a compelling state interest. An Order terminating parental rights “shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian.” Tenn. Code Ann. §36-1-113(1)(1).

Before a parent’s rights can be terminated, the petitioner must prove the existence of one of the grounds on which termination can be based, as well as proving that termination is in the child’s best interest. These two things must be proven by clear and convincing evidence. This means that the truth of the facts asserted is highly probable, eliminating any serious or substantial doubt about the correctness of the conclusions drawn from the evidence.

Under Tenn. Code Ann. §36-1-113(g)(1), a termination of parental rights can be based on that parent’s abandonment of the child if the parent has willfully failed to visit or has willfully failed to support or willfully failed to make reasonable payments toward the support of the child for at least four consecutive months immediately preceding the filing of the petition to terminate.

Willful Failure to Visit

At the trial, the Father testified that his employment as a truck driver interfered with his ability to visit the children on Saturdays, and that the last time he’d seen them on a scheduled visit was around Christmas. This would have been more than four months before the filing of the petition.

The notion of willfulness is at the heart of the Tennessee statute on abandonment. Willful acts consist of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. One’s conduct is willful if the acts are the product of free will rather than coercion.

Father argued that his failure to visit was not willful, as he did not have the Mother’s new contact information, did not know where she lived and he was unable to get in touch with her to schedule his visits. Furthermore, Father alleged that his employment as a truck driver prevented him from being able to institute legal proceedings to attain additional visits with the children. The trial court shows that it based its decision, at least in part, on the Father’s failure to be proactive or aggressive in trying to find his children and asserting his rights.

The appellate court noted, however, that Father had gone to the designated meeting place at least twice in February, but the Mother did not show up with the children. The appellate court held that the mother and Stepfather did not provide enough proof of Father’s willful failure to visit, and the trial court erred in terminating the Father’s parental rights on that basis.

Willful Failure to Pay Support

A parent’s failure to pay child support is willful if the parent knows of his or her duty to support, has the ability to provide the support, makes no attempt to provide any support and has no justifiable excuse for not doing so. Furthermore, “token” support payments are not sufficient to preclude a finding of willful failure to support. Token support is support that, given the circumstances, is insignificant given the parent’s means. It was undisputed that the Father paid support for the children in the four months prior to the petition being filed. In fact, during the relevant time period, the Father paid $1,730.76 in child support. This includes $1,033.00 that was taken by tax intercept on March 18, 2011. The trial court found that these payments were “token” payments.

The appellate court recognized that the interception of a tax refund does not constitute a voluntary payment of support. It is irrelevant, therefore, to the consideration of willful failure to support. Therefore, the court considered whether the Father’s voluntary payments of $697.76 constituted token support. The trial court noted that the amount paid was only about 30% of what was supposed to be paid during that time. The trial court also recognized that, during this time, the Father’s bills were relatively low, and he had the ability to pay child support.

The appellate court, however, considered the ruling in In re Adoption of Angela E., No. W2011-01588-SC-R11-PT, 2013 WL960626 (Tenn. Mar. 13, 2013), in which a Father paid approximately thirty-four percent of the support he owed. The court found in that case that the payments were more than mere “token support”, and this precluded a finding of abandonment. The Father in this case paid approximately one-third of what he owed, and the evidence did not clearly and convincingly establish that Father’s payment history constituted abandonment. The appellate court specifically found that, “his payments were not insignificant given his means and did not amount to mere token support.”

In re Adoption of Alexander M.S.F.

Filed August 27, 2013

No. M2012-02706-COA-R3-PT

If you would like to discuss filing a petition for Termination of Parental Rights and Adoption, or if you are facing termination of your own parental rights, contact our office today to schedule your free consultation. We represent clients throughout Middle Tennessee in these types of cases, including the following cities: Nashville, Brentwood, Franklin, Ashland City, Fairview, Dickson, Columbia, Murfreesboro, Nolensville, Antioch, Spring Hill and Thompson’s Station.

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