In his amicus brief, Dr. Yue wrote:
"The “visit” in the above must be qualified by a minimum frequency requirement to make the rule operational. In Tennessee Statute, it’s one visit every four months minimum.
Since the Court is making a mechanistic imposition of the statute and is using the statutory period of 4 months as the numerical measure in defining abandonment, the number four (4) becomes an artificial and arbitrary “magic number” that the State of
Legislative Branch of the State established a “magic number” 4 in
Based on Amicus’ argument presented in this brief, when a private individual asks a state court to terminate someone’s parental rights for willful failure to visit pursuant to the willful abandonment statute of the state (for the instant case, Title 36 of the Tennessee Code), she must prove each and every one of the following factors by clear and convincing evidence:
The parent did not visit the child for a consecutive period defined by the willful abandonment statute, and during the entire period,
(1) the parent was aware of the state's statutory definition of willful abandonment and the consequence of willful abandonment, and
(2) the parent had the capacity to visit the child, and
(3) the parent made no attempt to visit the child, and
(4) the parent had no justifiable excuses not to visit the child.
Factor (1) above is different from the notice requirement defined in Tenn. Code Ann. §37-2, the petitioner is not required to post notice. But, the petitioner must prove to the Judicial Branch of the State that during the entire statutory period (four months) of alleged willful abandonment the parent knew the definition of willful abandonment per Tenn. Code Ann. § 36-1-102 and the parent knew her parental rights could be terminated due to willful abandonment.
Once the above proposed standard in proving willful abandonment is adopted, Title 36 and Title 37 of the Tennessee Code will be in perfect harmony and in compliance of the Fourteenth Amendment of United States Constitution.