In re: Adoption of Angela E. – Termination of Parental Rights Based on Abandonment

Mother and Father divorced in 2001, and they had three children together. In August 2002, the trial court suspended Father’s visitation with the children because evidence indicated the children might suffer irreparable harm while in the Father’s care. Therefore, the Court found it was in the children’s best interest to suspend his parenting time. Father filed to reinstate his visitation in July 2003, stating he did not know about the prior court hearing and, thus, failed to appear.

Father moved to California for work in the Fall of 2004. That next year, on July 5, 2005, the Mother filed to terminate Father’s parental rights. At the same time, the children’s stepfather filed to adopt the children.

The Mother alleged that Father had abandoned the children by willfully failing to visit and willfully failing to pay support to the children. However, the trial court noted that the Father had made payment for the support of the children in the four months prior to the Mother’s petition being filed, and these payments were not “token payments”. The trial court also rejected the Mother’s argument that the Father had willfully failed to visit the children because his visitation had been suspended by court order.

Therefore, the Mother’s petition to terminate was denied. Mother and Stepfather appealed. A majority of the Court of Appeals held that the court order suspending Father’s visitation rights did not preclude a finding that Father willfully failed to visit his children.

To terminate someone’s parental rights, a court must find clear and convincing evidence that at least one statutory ground for termination exists AND that termination is in the children’s best interest. Abandonment is one ground for termination of parental rights. Abandonment is defined as “the willful failure to visit, to support, or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights.” See Tenn. Code Ann. §36-1-102(1)(A)(i)(2010). To prove abandonment, the petitioner must prove that the other parent had the ability to visit or pay support, made no attempt to do so, and had no justifiable excuse for not doing so.

Failure to Support

Willful failure to support means willingly failing to provide monetary support or make more than token payments toward support of children for a period of four months. A parent cannot be said to have abandoned his or her children for failure to support when that failure is due to circumstances outside his or her control.Token support is support that, under the circumstances, is insignificant given the parent’s financial means. “Means” would take into consideration both income and available resources for the payment of debt.

A parent cannot remedy abandonment by making financial payments after a petition to terminate has been filed.

The petition in this case was filed July 5, 2005, so the relevant period is from March 5, 2005 until the date of filing. Between March and July 2005, the Father paid approximately $3,500.00 of the $10,336.00 owed. Mother argued that this was insignificant in light of Father’s means. The Tennessee Supreme Court found that Mother failed to prove this was mere “token support”.

Father was unemployed from 2002 – 2004, when he lost his Tennessee license to practice medicine. In 2004, he moved to California with a starting salary of $120,000. By 2005, Father was earning $150,000 annually. Once he obtained work in California, Father resumed making support payments. From January – July 2005, the Father paid a total of $7,000 in child support.

Failure to Visit

Father did not dispute that he failed to visit with his children during the four months preceding the petition for termination being filed. As of July 2005, the Father had not visited with the children for almost 3 years. He had taken no steps to have his parenting time reinstated, even though the earlier court order stated that he could petition the court for a hearing to reinstate visitation. He did file a petition to reinstate the visitation in 2003, but then he took no further action on that case. This is not a case in which a parent was actively trying to maintain parenting time with the children.

The Tennessee Supreme Court found that the Father willfully failed to visit his children. He had no excuse for failing to push the issue of reinstating his parenting time.

Therefore, the Mother and Stepfather established by clear and convincing evidence that Father abandoned the children by willfully failing to visit with the children for more than four months immediately preceding the petition to terminate.


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