Facts: At the time of divorce, Mother was designated the primary residential parent for Children. In a post-divorce modification proceeding brought about by concerns about Mother’s substance abuse, Father was awarded primary custody of Children. Mother received visitation rights subject to a number of restrictions, including that she abstain from the use of illegal drugs or alcohol.

A few years later, Father and Stepmother filed a petition to terminate Mother’s parental rights to Children and for adoption of Children by Stepmother. The petition alleged numerous grounds for termination, including failure to visit and failure to support.

In the four months preceding the petition to terminate Mother’s parental rights, the proof showed Mother attempted to give some gifts to Children. At another time, she made a $25 payment for Children’s support. After being found in contempt with a child support arrearage of $2169, Mother made a $500 payment on November 17 to purge herself of contempt. Notably, this payment was made on the same day the petition to terminate parental rights was filed.

Mother argued her $500 payment constituted non-token support within the relevant four-month window. The trial court disagreed. Mother’s parental rights were terminated.

Mother appealed.

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

It is well established that parents have a fundamental right to the care, custody, and control of their children. However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.

Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence.

Tennessee Code Annotated § 36-1-113(g)(1) establishes abandonment as a ground for termination of parental rights. The statute defines abandonment, in relevant part, as the willful failure to visit or support the child “for a period of four (4) consecutive months immediately preceding the filing of a . . . pleading to terminate the parental rights” of the parent.

The issue presented on appeal is whether the day of the filing of the petition to terminate parental rights counts in the fourth consecutive month window and whether a substantial child support payment made that day would cure the failure to support.

After reviewing the record, the Court reasoned as follows:

Consider a scenario where a petition to terminate parental rights which includes the ground of willful failure to support is filed at 8:56 a.m. and a large child support payment is made by the respondent-parent minutes later. Would we need to determine the exact timing to the minute and second of the respective filings? We do not believe our General Assembly contemplated or intended such a race when it enacted Tenn. Code Ann. § 36-1-102 (1)(A)(i). A day is a unit of time more amenable to effective adjudication. In our view, a more reasonable construction is that the applicable four month window for determining whether child support has been paid in the context of the ground of willful failure to support includes the four months preceding the day the petition to terminate parental rights is filed but excludes the day the petition is filed. In other words, the last day of the four month period is the day before the petition is filed. We, therefore, hold that Mother’s $500 payment was made outside the applicable time period.

Even if we err in our interpretation of Tenn. Code Ann. § 36-1-102 (1)(A)(i) and the applicable four month window, the facts of this case establish that Mother failed to support the Children. Mother’s $500 purge payment came at the last minute not to help support the Children but rather to stave off her incarceration. This was not so much genuine child support as it was a bid for self-preservation.

Accordingly, the Court of Appeals affirmed the trial court’s finding that Mother’s failure to support the children was willful. The termination of Mother’s parental rights was affirmed.

In re Jacob C.H. (Tennessee Court of Appeals, Eastern Section, February 20, 2014).

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