In Tennessee, a parent has a fundamental right to the care and custody of his or her own child. However, these rights are not absolute. However, T.C.A. 36-1-113(g) sets out those circumstances in which the State’s interest in the welfare of a child justifies interference with a parent’s constitutional rights. A petition for termination of parental rights by guardians or interest parties must must prove the existence of at least one of the statutory grounds for termination listed in statute. Such a petition may only be filed by prospective adoptive parents, extended family members caring for a related child, any licensed child-placing agency having custody of the child, the child’s guardian ad litem, or the department of children services. These are the only parties that a court would identify as having legal standing before the court. The following applies in the instance of an involuntary termination of parental rights. There is a separate process for voluntary termination arising out of a parent’s agreement and consent.
Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interests of the child.
This heightened burden of proof serves “to minimize the possibility of erroneous decisions that result in an unwarranted termination of or interference with these rights.” “It produces a firm belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be established.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
The statutory factors necessary for an order of the court to terminate parental rights are enumerated at T.C.A. 36-1-113(g)(1). Some of these factors include but are not limited to the following summary:
1. Willful failure to visit or support the child during the preceding four months of filing the petition for termination of parental rights. Otherwise known as willful abandonment.
2. Substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan.
3. The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months.
4. The parent or guardian has been found to have committed severe child abuse as defined in § 37-1-102.
5. The parent or guardian has been sentenced to more than two (2) years’ imprisonment for conduct against the child who is the subject of the petition, or for conduct against any sibling or half-sibling of the child or any other child residing temporarily or permanently in the home of such parent or guardian.
6. The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.
7. The parent has been convicted of or found civilly liable for the intentional and wrongful death of the child’s other parent or legal guardian.
If the court finds any of the statutory factors applies to the facts before it, then it must consider the following statutory factors as to whether termination is in the best interest of the child:
(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 or controlled substances 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.
The statute further clarifies the legal and binding effect of an order terminating parental rights as follows:
An order terminating parental rights shall have the effect of severing forever all legal rights and obligations of the parent or guardian of the child against whom the order of termination is entered and of the child who is the subject of the petition to that parent or guardian. The parent or guardian shall have no further right to notice of proceedings for the adoption of that child by other persons and shall have no right to object to the child’s adoption or thereafter to have any relationship, legal or otherwise, with the child.
Take note of following language affecting responsibility for child support which is the one of the most common incentives and motivations some parents or guardians agree to a termination:
It shall terminate the responsibilities of that parent or guardian under this section for future child support or other future financial responsibilities even if the child is not ultimately adopted; provided, that the entry of an order terminating the parental rights shall not eliminate the responsibility of such parent or guardian for past child support arrearages or other financial obligations incurred for the care of such child prior to the entry of the order terminating parental rights.
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