Posted by: K.O. Herston | April 12, 2012

“Token Support” As Grounds For Termination of Parental Rights in Tennessee: In re Angela T.

Facts: Mother and Father, both physicians, were divorced, and Father was ordered to pay child support of $2500 per month. Father was later found in contempt for failing to pay child support and, for unrelated reasons, Father’s visitation with the children was suspended. Father could have requested to have that suspension lifted but never did. Mother remarried and petitioned to terminate Father’s parental rights and have the children adopted by Stepfather. Father voluntarily surrendered his parental rights before reversing course and challenging the termination of his parental rights all the way to the Tennessee Supreme Court, which reversed the trial court on technical grounds. When the case was tried on remand, the trial court found

the evidence does not demonstrate and the Court cannot find, by clear and convincing evidence and under the current state of the law in Tennessee, that the Father willfully abandoned the children by failing to visit, especially in light of the court order suspending Father’s visitation.

Mother’s petition was dismissed. Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

To terminate parental rights in Tennessee, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child’s best interest. Clear and convincing evidence has been defined as evidence that eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn from the evidence.

The statutory grounds at issue in this case was “abandonment,” which is defined by Tennessee Code Annotated § 36-1-102(1)(A)(i) as follows:

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[.]

A parent’s conduct must have been willful in the sense that it consisted of intentional or voluntary acts, or failures to act, rather than accidental or inadvertent acts.

Failure to Visit. It was undisputed that the children had not had a relationship of any kind with Father for nine years. Nonetheless, the trial court found Father had not willfully failed to visit “in light of the court order suspending Father’s visitation.” The Court of Appeals disagreed, stating:

Although Father did file a petition to reinstate visitation approximately one year after the order was entered, the record does not reflect that he actively pursued such relief, as evidenced by his attorney’s motion to withdraw on the basis that Father had failed to appear at a hearing, failed to return his telephone calls, and moved from his last known address. Most importantly, Father took absolutely no action to pursue visitation with the children during the relevant four month period preceding the filing of the termination petition. By that time, Father had had no contact with the children in nearly three years. . . .

We find that Father’s intentional or voluntary acts, or failures to act, in this case, clearly and convincingly demonstrate that he abandoned the children by willfully failing to visit them for a period of four consecutive months preceding the filing of either petition for termination. As such, Mother and Stepfather demonstrated at least one ground for terminating Father’s parental rights.

Failure to Support. Father argued that his payment of $3500 of the $10,000 in child support owed for the relevant four month period demonstrated he had not failed to support the children. Mother argued it was “token support.” In a 2-1 decision, the Court of Appeals agreed with Mother.

Willful failure to support or to make reasonable payments toward support means the willful failure to provide more than token payments toward the support of the child. Token support means that the support, under the circumstances of the individual case, is insignificant given the parent’s means. In termination of parental rights proceedings, the term “token support” is a term of art. A finding that support was “insignificant” in light of the parent’s means must be based upon evidence regarding both the parent’s actual financial support of his or her child and the parent’s means.

On this point, the evidence was not favorable to Father. Father sold a home for $500,000 and used approximately $300,000 to $350,000 of that money to begin building a new house, which Father himself described as “humongous,” with just one of its four fireplaces costing $40,000. During the relevant time period, Father was employed in California and receiving an annual salary of at least $120,000. He also owned property in Tennessee that was worth, by his own estimation, at least $300,000 to $400,000, with no mortgages or liens on the property.

Our research has not revealed another termination case classifying payments comparable in size to those made by Father as “token support.” Indeed, in most termination cases, the payments made by Father would be “significant” because parents in termination cases often have little to no income. Nevertheless, “[t]he definition of token support itself requires consideration of the circumstances of the individual case.” Considering Father’s substantial salary and the value of his unencumbered property, the child support payments he made for his three children during the relevant four-month period can only be described as insignificant given his means.

Having reviewed the entire record in this case, we find that the evidence clearly and convincingly establishes that Father abandoned his children by willfully failing to make reasonable payments toward their support. As such, grounds exist for the termination of Father’s parental rights.

Judge Kirby filed a brief separate opinion concurring with the majority on failure to visit but dissenting from the opinion on failure to support. Judge Kirby instead opted to defer to the trial court’s finding that Father “had no willful intent to abandon.”

K.O.’s Comment: Just when it appears my silent prayers and candlelight vigils calling for shorter opinions from Judge Kirby are starting to pay off (her separate opinion consisted of two paragraphs!), this is one instance where, although I hate to say it, she needed to say more. Was paying 1/3 of the child support obligation not “insignificant” in light of Father’s means? Or was it just not “insignificant” by the “clear and convincing” standard? Judge Kirby doesn’t say. I almost always find her reasoning in family law opinions to be persuasive so it’s a little disappointing not to know her exact reasoning in this dissent.

Update (4/23/12): The Tennessee Supreme Court granted Father’s request for permission to appeal. Stay tuned.

In re Angela T. (Tennessee Court of Appeals, Western Section, Feb. 23, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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