What constitutes abandonment in the termination of parental rights?

Termination of parental rights requires proof of one statutory ground for termination and a finding that the termination is in the best interest of the child. One of the more common grounds for termination of parental rights is abandonment. There are various types of abandonment, but I want to focus on general abandonment for failure to visit or support.

Tennessee Code Annotated Section 36-1-102(1)(A) defines abandonment as i) for a period of four consecutive months immediately preceding the filing of a proceeding, pleading , petition or any amended petition 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 failed to visit or have failed to support or have failed to make reasonable payments toward the support of the child.

After the revision to the statute referenced above in 2018, it is now a defense to abandonment for failure to visit or failure to support that a parent or guardian’s failure to visit or pay support was not willful.

In the recent case of In Re: Archer R., the mother filed a termination action against father and cited abandonment as the ground for the termination. The father argued that his failure to visit and pay support was not willful. The Court agreed with the father that he had not abandoned his child by failing to visit him because the failure was not willful.

The Court noted that this “is a case in which the custodial parent has interfered with and thwarted the non-custodial parent’s ability to visit with the child and develop a relationship.” The mother had refused all attempts by the father to see the child and refused to send any pictures of the child to father. The father also argued that his failure to pay child support was not willful.

The Court did not agree with father’s argument that he did not know mother’s mailing address or have anywhere to send the payments to. Nevertheless, father’s parental rights remained intact as the Court found that it was not in the child’s best interest for his rights to be terminated. In Re: Archer R. (Tenn. Ct. App., Middle Section, February 19, 2020).