Summary
The Tennessee Court of Appeals affirmed the denial of a petition to terminate a father's parental rights based on alleged abandonment through failure to conduct more than token visitation. The court held that the father's regular video calls constituted more than token visitation and alternatively that any deficiency was not willful because of the mother's interference. The court also remanded the matter concerning the parties' parenting arrangements.
Topics
Practice areas
Questions Presented
- Whether the trial court erred by performing a quantitative rather than qualitative analysis of token visitation.
- Whether the trial court erred in finding that any failure by Father to visit during the relevant four-month period was not willful.
- Whether the trial court erred in finding that Father’s visitation was not token visitation.
- Whether Father was entitled to appellate attorney’s fees on the ground that the appeal was frivolous.
Holdings
- Sixteen approximately thirty-minute video calls during the relevant four-month period constituted more than token visitation under the circumstances, because the calls were sufficiently frequent and meaningful to establish more than minimal or insubstantial contact, and Father exercised every court-authorized call except one prevented by Mother.
- Any failure by Father to engage in additional visitation during the relevant period was not willful because Mother’s conduct actually prevented or significantly interfered with his efforts to exercise visitation and develop a relationship with the children.
- Termination was properly denied because Appellants failed to establish the alleged ground of abandonment by failure to visit by clear and convincing evidence. Because no statutory ground was proven, the court did not reach whether termination was in the children’s best interests.
- Father was not entitled to appellate attorney’s fees because the appeal was not devoid of merit or lacking any reasonable chance of success.
Key quotations
“Whether a visit is token “under the circumstances of the individual case” is a particularly fact-intensive inquiry.” (at 13)
“Thus, the record shows that the video calls were of both sufficient quantity and quality to be considered more than merely “perfunctory visitation” and to establish more than “minimal or insubstantial contact” with the children.” (at 14)
“Mother then made choices that actually prevented him from exercising additional visits and significantly interfered with his efforts to develop a closer connection with the children.” (at 15)
Factual background
Father and Mother had two daughters and divorced in Colorado in 2018, with Mother designated primary residential parent. Father later moved to Germany and, under a November 2020 Colorado parenting plan, exercised weekly video calls while in-person visitation was limited by distance, finances, and the COVID-19 pandemic. During the relevant four-month period, Father exercised sixteen video calls, while Mother prevented or limited some visitation and did not permit court-ordered in-person visitation in early 2022. The trial court found that the video visitation was more than token and that any failure to engage in additional visitation was not willful.
Procedural history
The Colorado court entered parenting orders awarding Father weekly video visitation and permitting relocation of the children to Tennessee. Appellants filed a Tennessee petition to register the Colorado decree, terminate Father’s parental rights, authorize step-parent adoption, or alternatively permit relocation to Australia or modify the parenting plan. After a seven-day trial, the chancery court found no ground for termination by clear and convincing evidence and denied termination and adoption. The court later denied relocation to Australia and entered a modified parenting plan. The Tennessee Court of Appeals affirmed the denial of termination and adoption and remanded for further proceedings.
Remand instructions
The judgment is affirmed and the matter is remanded to the trial court for further proceedings consistent with the opinion. Costs are taxed to Appellants.