Court Clarifies Four Month Time Period for Terminating Parental Rights in Tennessee Adoption – In re Jacob C.H.

Mother and Father divorced in 2004 and had two children. Mother was initially the Primary Residential Parent for the children. Father remarried in 2006, and in 2008 the parties’ parenting plan was modified to designate Father as the children’s Primary Residential Parent. Mother had visitation rights to the children, but restrictions were put into place, including that Mother had to refrain from use of illegal drugs or alcohol.

865435_68180673On November 17, 2010, Father and Stepmother filed a petition seeking to terminate the Mother’s parental rights and for the Stepmother to adopt the children. The petition alleged several grounds for termination of parental rights, including the Mother’s failure to visit the children and failure to support the children.

Mother admitted that she had not paid any child support for the 4 months prior to the Father’s petition being filed. Mother said that the Father and Stepmother would not accept her checks and generally made excuses for her failure to support and visit with her children. Contempt charges were ultimately brought against Mother for failure to pay support. The same day the Father and Stepmother filed to terminate the Mother’s rights, Mother made a $500 child support payment to purge herself of the contempt.

The trial court entered an order terminating Mother’s parental rights, holding there was clear and convincing evidence to terminate pursuant to Tenn. Code Ann. §36-1-113(g)(1) and Tenn. Code Ann. §36-1-102 for willful failure to visit and willful failure to support. The trial court further found that it was in the children’s best interest for the Mother’s parental rights to be terminated, and ordered that the children be adopted by Stepmother.

Mother appealed the termination of her parental rights.

To terminate a parent’s rights, the court must find by clear and convincing evidence at least 1 ground for termination and that  termination is in the child’s best interest.

It is well established in Tennessee that parents have “a fundamental right to the care, custody, and control of their children.” In re Drinnon, 776 S.W.2d 96. However, parental rights are not absolute and can be terminated when there is clear and convincing evidence justifying the termination. Santosky v. Kramer, 455 U.S. 745.

Before a parent’s rights can be terminated, it must be proven that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.

Tenn. Code Ann. §36-1-113(g)(1) establishes abandonment as a ground for termination of parental rights, and Tennessee law defines abandonment as follows:

(1)(A) For purposes of terminating the parental . . . rights of parent(s) . . . of a child to that child in order to make that child available for adoption, ‘abandonment’ means that:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) . . . of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) . . . either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;

Tenn. Code Ann. §36-1-102(1)(A)(i)(2010).

A person acts willfully (willfully failing to visit or support) if that person is aware of his or her duty to support, has a capacity to provide support, makes no attempt to provide support, and has no justifiable excuse for not supporting.

The Court of Appeals recognized that Mother tried to give the children some gifts, and at one point had made a $25 payment to support the children. Even if this “support” occurred within the 4 month time frame for abandonment, the Court of Appeals noted that this was mere token support.

However, the larger $500 payment made by Mother the same day the Father’s petition was more problematic. Mother made this payment to avoid incarceration.

The question before the Court was whether the day a petition to terminate is filed counts in the 4 consecutive month window for abandonment and whether a substantial child support payment that day would cure failure to support.

The Court of Appeals stated:

Consider a scenario where a petition to terminate parental rights which includes the ground of willful failure to support is filed at 8:56 a.m. and a large child support payment is made by the respondent-parent minutes later. Would we need to determine the exact timing to the minute and second of the respective filings? We do not believe our General Assembly contemplated or intended such a race when it enacted Tenn. Code Ann. §36-1-102(1)(A)(i).

In our view, a more reasonable construction is that the applicable four month window for determining whether child support has been paid in the context of the ground of willful failure to support includes the four months preceding the day the petition to terminate parental rights is filed but excludes the day the petition is filed.

Therefore, the Mother’s $500 payment was outside the applicable time period. The Court went further in stating that, even if the Mother’s $500 payment been within the 4 month time period, the payment came in at the last minute not to help support her children but to avoid incarceration. This was not “genuine child support” but was a bid for self-preservation.

As to whether the Mother’s failure to pay was “willful”, the Court noted that the Mother was somehow able to come up with $500, a relatively significant amount, when it came to looking after her own interests, but not when it came to providing for her children. Additionally, Mother managed to continue drug use.

The final issue considered by the Court of Appeals was whether the termination was in the children’s best interest. Tenn Code Ann. §36-1-113(i) provides that:

(i) In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:

(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to have on the child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol, controlled substances or controlled substance analogues as may render the parent or guardian consistently unable to care for the child in a safe and stable manner;

(8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental to the child or prevent the parent or guardian from effectively providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with the child support guidelines promulgated by the department pursuant to §36-5-101.

Tenn. Code Ann. §36-1-113(i).

In this case, almost all of the statutory factors weighed in favor of terminating Mother’s parental rights. Mother failed to support, visit, or parent these children, and there was no indication that Mother’s self-destructive behavior was nearing an end. Finally, the children were doing well in the Father and Stepmother’s care.

The termination of Mother’s parental rights was affirmed.

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