Facts: Child was born to Mother. When Child was three months old, Mother asked married Third Parties to help care for Child, which they did 1-2 days a week, gradually increasing to three days and two nights each week. When Mother was facing the possibility of incarceration resulting from a probation violation, Mother asked Third Parties to assume temporary custody of Child. It turned out Mother was released after only three weeks of incarceration. Nonetheless, Mother allowed Third Parties to retain custody of Child and Mother visited Child whenever she wanted. After one-and-a-half years, Third Parties petitioned to terminate Mother’s rights and adopt Child. The trial court terminated Mother’s parental rights on the grounds of abandonment and persistence of conditions. Mother appealed.

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

Abandonment. Tennessee Code Annotated § 36-1-102(1)(A)(i) describes several scenarios in which a parent may be considered to have abandoned a child, including the following scenario that applied in this case:

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.

Failure to support a child is ‘willful’ when a person is aware of his or her duty of support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing support. A parent who fails to support a child because he or she is financially unable to do so is not willingly failing to support the child.

In light of the foregoing, the Court reasons as follows:

Mother’s testimony showed that she was working at a video store during the period between April 26, 2008 and August 26, 2008 (the date the petition to terminate was filed), and that she was earning the minimum hourly wage. While she was only working there five hours per week at the time of trial, there was no testimony as to how many hours per week she was working during the relevant period for a finding of abandonment under the statute. Regardless, most of her income had to go to the needs of her large family, including the support of her remaining three children.

Further, Mother testified that she asked [Third Parties] many times if they needed anything such as clothes or diapers, but that [Third Party] always refused, saying that she and her husband had agreed to take care of [Child], and that they had it all covered. [Third Party] confirmed that she and her husband never asked Mother for support or expected her to provide any. While occasional offers of token support do not constitute support, based on all the evidence in the record, we conclude that there was not clear and convincing evidence that Mother’s failure to pay child support for [Child]was willful within the meaning of Tennessee Code Ann. § 36-1-102(1)(A).

Persistence of Conditions. The ground for termination of parental rights sometimes referred to as “persistence of conditions” is defined by Tennessee Code Annotated § 36-1-113(g)(3) as follows:

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 and:

(A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) or guardian(s), still persist;

(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and

(C) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home.

The Court provides the following analysis:

There is no doubt that Mother has made some very poor choices in her life. . . . If Mother were still violating her probation by engaging in risky behavior, then the probability of future incarceration would make it difficult to conclude that the adverse conditions that led her to give up custody of her child could be remedied at an early date. However, Mother’s uncontroverted testimony shows that she has made great strides towards straightening out her life. She no longer uses illegal drugs. She is working at a part-time job and a full-time job. She apparently understands the risks that her conduct posed for herself and her children, and she has sought and obtained counseling to help her with her problems.

Further, the very act of relinquishing custody of her child to responsible adults when she realized that she might not be around to care for her and that her mother was not in a position to help, shows that Mother was mindful of her parental responsibilities, despite her unwise conduct in other areas. So long as Mother is able to avoid the negative behavior she has previously shown, she should not be penalized for seeking to protect her child from the consequences of that behavior. As this court has observed,

It frequently occurs that childless relatives welcome the opportunity of sheltering and supporting an attractive child, and consider the expense a privilege, rather than a burden. Such relatives are a boon to unfortunate and abandoned mothers, and their generosity is not expected to hide the trap of abandonment and ultimate loss of parent-child relationship. If there is any such expectation, the mother is entitled to be put on notice of the peril of accepting such generosity. . . .

[W]e do not believe that there is clear and convincing evidence that the conditions that led to the child’s removal still persist, that other conditions preventing the child’s return to Mother have arisen, or that those conditions cannot be remedied at an early date.

The Court notes that reversal of the trial court does not affect physical custody of Child; therefore, Third Parties retain temporary custody of Child until the trial court orders otherwise.

In re Jaleia M.R. (Tennessee Court of Appeals, Middle Section, March 29, 2011).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.