Termination of Parental Rights Due to Abandonment

Note:  Before you contact me about terminating the rights of the other parent, please read this newer blog post that will answer many of your questions.  Why you may not be able to terminate the other parent’s rights.

In Tennessee, a person’s parental rights can be terminated if the parent fails to visit or support the children.  These cases are very serious and the following case is a pretty good example of how a court handles this issue.

Background

Mother and sonMother and Father had a Child on August 4th, 1998.  At the time the child was born they weren’t married, but they later married and got divorced in 2001.  As part of the divorce, a parenting plan and child support was put in place.

Over the next few years, Father was in and out of jail for varying lengths of time.  Mother married Stepfather in 2006.  Child wanted to spend less and less time with Father and in 2008, Father’s visitation with the child stopped entirely.  Father stopped paying the child support at about the same time.

In April of 2010, Mother and Stepfather filed a petition to terminate Father’s parental rights and to allow Stepfather to adopt the child.  The petition claimed that Father had abandoned Child by failing to pay child support and failing to visit the child.  Father disagreed and stated that he was unable to visit with the child because Mother would not schedule visitation and she would not give him her current address.

Testimony of the parties

Father had been incarcerated more than once during Child’s life, but he testified that he had not been in jail from December 2009 to March, 2010, which was the four-month period immediately prior to the filing of the petition.  However, he violated his probation and was imprisoned again from March 2010 to February 2012. During the time he was not in jail, he testified that he only had minimal employment and lived in a mobile home that belonged to his grandfather. He claimed he had various ailments, but also testified that he was capable of manual labor and could weld and paint.

He didn’t have any proof of his income or expenses, but he admitted that he owned numerous entertainment items (including paintball guns, a 4-wheeler, and a crossbow), that he had purchased Christmas presents and pets for Child, and he owned several vehicles and cellular phones. While he claimed that he couldn’t pay child support because Mother wouldn’t tell him where she lived, he conceded that he knew where she worked, where her mother lived, and was able to call Mother and Child on their cell phones.

The Child, who was 14 years old at the time of the trial, testified that he wanted Stepfather to adopt him.  He further testified that he would hide from Mother in order to prevent her from forcing him to visit Father, and she continued to encourage him to visit with Father even after she gave up using force.  He claimed that he was already using Stepfather’s last name on his schoolwork and with his sports teams.

Mother testified that she hadn’t received any child support since spring of 2006, but she admitted that she had never asked a court to enforce the child support. She also said that during one of Father’s last visits with the child, she received a phone call from Father where he was “talking disjointedly about random things” and was slurring his speech.  She eventually stopped forcing Child to visit him.

After hearing all of the evidence, the court found that Father had been aware of his duty to pay child support, had the ability to work, had been able to support himself in the past, and had not given any justifiable excuse for his failure to pay.  The court rejected the claim that Father had abandoned the child due to his lack of visitation, but held that Father had abandoned the child due to his failure to provide support.

The court further found that it was in the child’s best interest to to terminate Father’s parental rights and allow Stepfather to adopt the child.  The father appealed.

Discussion

1361205_brotherhood_at_sunset__1The right to the care, custody, and control of one’s children is one of the most precious and oldest liberties identified in the federal and state constitutions.

Terminating these rights is a very serious matter, and the law requires a high standard of proof before these natural family ties can be permanently severed.  The law requires that a court find by clear and convincing evidence that the grounds for termination of parental rights exists, and that the termination is in the best interests of the child.

“Clear and convincing evidence” means that “the truth of the facts asserted is highly probable” and that there is no “serious or substantial doubt about the correctness of the conclusions drawn from the evidence”.

Tennessee law defines “abandonment” as:

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) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(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.

“willfully failed to support” means “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child”. Before analyzing the facts of this particular case, the Court quoted previous cases that stated:

‘Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. … [A] person acts ‘willfully’ 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.’ Additionally, ‘[f]ailure to support a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide the support, and has no justifiable excuse for not providing the support.’

The court further observed that:

In this case, Father admitted that he did not submit any support even though his expenses were minimal. The record reflects that he was not required to submit rent for his residence or business and that his father provided groceries in return for manual labor on the farm. His assertion that he was unable to submit support because of his employment situation was simply unavailing when he admittedly left stable employment and when he chose to provide more than the basic necessities for himself rather than support the Child. He admitted that he recouped some income during the relevant time period and that he was somehow able to obtain cigarettes, cellular telephones, multiple cars, methamphetamine, and other illegal drugs for himself. Additionally, he could have searched for employment elsewhere or used his various skills to garner additional income to fulfill his support obligation.

We reject Father’s assertion that he was unable to remit support because Mother refused to provide an address. He knew how to contact Mother and could have visited her place of employment or her mother’s residence to remit support. With these considerations in mind, we conclude that Father was aware of his support obligation, had the capacity to remit support, made no attempt to remit support, and provided no justifiable excuse for his failure to remit support.

The court affirmed the trial court’s decision and upheld the termination of Father’s parental rights. Want to read it for yourself?  The case is In Re Justin T. H.

Contact me

If you are involved in a case where your rights might be terminated, or you believe the other parent’s rights should be cut off, contact me to find out how I might be able to help you with your situation.