Posted by: K.O. Herston | April 22, 2013

Tennessee Supreme Court Upholds Grounds for Termination of Parental Rights: In re Adoption of Angela E.

Facts: The factual and procedural background can be found at my previous post on the Court of Appeals’ opinion. In a divided opinion, a majority of the Court of Appeals reversed the trial court on the issue of grounds for terminating Father’s parental rights, holding that Mother established Father willfully failed to visit the children. The majority opinion further held that the evidence clearly and convincingly established that Father abandoned the children by willfully failing to make reasonable payments toward their support.

Knoxville child support lawyers

Token support?

Judge Kirby (the current holder of the prestigious and highly coveted “World’s Most Awesome Judge” designation!) agreed with the majority’s conclusion that Father abandoned his children by willfully failing to visit them. Judge Kirby disagreed, however, that abandonment by failure to support was shown by clear and convincing evidence in light of Father’s payment history during the relevant four-month period prior to the filing of the termination petition. The Court of Appeals remanded the case to the trial court to determine whether the termination was in the best interests of the children.

The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Tennessee Supreme Court affirmed in part and reversed in part the judgment of the Court of Appeals.

Abandonment is one of the grounds for termination of parental rights. Abandonment is defined as the willful failure to visit, to support, or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights. To prove the ground of abandonment, a petitioner must establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so. Whether a parent failed to visit or support a child is a question of fact. Whether a parent’s failure to visit or support constitutes willful abandonment, however, is a question of law.

Willful failure to support or to make reasonable payments toward support means “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” A parent cannot be said to have abandoned a child when his failure to visit or support is due to circumstances outside his control. A parent may not attempt to rectify abandonment by resuming payments of support subsequent to the filing of “any petition” seeking to terminate parental rights or seeking to adopt a child.

A party seeking termination of parental rights must prove by clear and convincing evidence that the opposing party had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse. Token support payments are not sufficient to preclude a finding of a willful failure to support. Token support is support that “under the circumstances of the individual case, is insignificant given the parent’s means.” In the context of token support, the word “means” connotes both income and available resources for the payment of debt.

For the four-month period immediately preceding the filing of the petition to terminate parental rights, Father paid $3500 in child support to Mother. Mother and Stepfather argued that Father had the ability to pay his child support obligation in full and that his payments were insufficient given his means. No evidence was introduced concerning Father’s monthly expenses, however.

On the issue of token support, the Tennessee Supreme Court agreed with Judge Kirby’s dissent and reversed the Court of Appeals, reasoning as follows:

The evidence concerning Father’s income and expenses is limited at best, however, and we conclude that Mother and Stepfather failed to prove that Father’s payment history between March 5, 2005, and July 5, 2005, reflected mere “token support….”

The trial court concluded that Father’s payment of $3500 during the four months immediately preceding the filing of the petition for termination precluded a finding of abandonment. The evidence does not preponderate against the trial court’s factual findings on which this determination is based. Our review of the record supports the conclusion that Mother and Stepfather failed to prove by clear and convincing evidence that Father’s payment history constituted abandonment by willful failure to support.

Regarding Father’s failure to visit, he did not dispute that he failed to visit the children during the relevant four-month period. Father argued instead that his actions were not willful because his visitation with the children had been suspended by court order.

The Tennessee Supreme Court agreed with the Court of Appeals and rejected Father’s argument, writing:

As the Court of Appeals observed, this is not a case in which a parent was actively trying to maintain visitation….

We agree with the Court of Appeals that the prior order suspending Father’s visitation rights did not preclude a finding that Father willfully failed to visit the children. A preponderance of the evidence supports the conclusion that Father willfully failed to visit his children between July 2003 and July 2005. Although Father filed a petition to reinstate his visitation rights, he took no action to advance the petition. Father had no reasonable excuse for failing to pursue the petition to reinstate visitation during those two years. We therefore conclude that the record contains clear and convincing evidence supporting termination of Father’s parental rights on the ground of abandonment based on willful failure to visit.

Thus, the judgment of the Court of Appeals was affirmed in part and reversed in part. Mother and Stepfather established grounds for termination based on Father’s willful failure to visit the children. Because the trial court did not reach the issue of whether termination of Father’s parental rights is in the best interests of the children, the case was remanded to the trial court for consideration of that issue.

K.O.’s Comment: I had hoped the Court would use this opportunity to provide some direction about what constitutes “token support” in termination of parental rights cases. Unfortunately, this opinion does not give us much in the way of guidance for future cases. I think the blame lies with the lack of evidence at the trial court level regarding Father’s income and expenses.

Also, before someone comments, no, I did not make a typo on the style of this case! Footnote 2 of the opinion says: “The first letter of the children’s last name is ‘E’ and not ‘T’ as reflected in the notice of appeal and the opinion of the Court of Appeals.” So if you’re going to be nitpicky about it, blame the Court of Appeals.

In re Adoption of Angela E. (Tennessee Supreme Court, March 13, 2013).

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


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