Facts: After the Department of Children’s Services proved that Children were dependent and neglected in the care of Mother and Father, the trial court granted temporary custody of Children to the maternal grandparents. Both parents were ordered to pay child support. The grandparents eventually filed a petition to terminate the parental rights of Mother and Father. Mother testified to a rather spotty and short-lived employment history. The trial court found Mother “was making steady money cleaning houses” but only paid $10 in child support. The court rejected Mother’s assertion that a portion of the money was used to purchase Christmas presents for the Children. The court found that Mother had her Graduate Equivalency Diploma and was healthy and capable of working. After a four-day trial, the trial court dismissed the petition as to Father but found that Mother had abandoned the Children by willfully failing to support them, i.e., failing to pay child support in the four months preceding the Petition. Mother appealed.

On Appeal: The Court reversed the trial court.

Parental rights may be terminated only upon a finding by the court by clear and convincing evidence that the grounds for termination of parental rights have been established, and that termination of the parent’s rights is in the best interests of the child. Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable. This evidence also eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established.

In this case, the statutory grounds relief upon by the trial court was the Tennessee Code Annotated § 36-1-102(1), which provides grounds to terminate one’s parental rights if, during the four months immediately preceding the filing of the petition, the parent has willfully failed to support or willfully failed to make reasonable payments toward the support of the child. A parent’s willful failure to support the child or make reasonable payments toward support of the child “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.” Additionally, “[a]bandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of the child.”

The Court of Appeals has consistently held that the term “willfulness,” as it applies to a party’s failure to support a child, must contain the element of intent. The element of intent utilized in termination proceedings does not require the same standard of culpability as is required by the penal code. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. A person acts ‘willfully’ if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. Additionally, failure to support a child is ‘willful’ when a person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide the support, and has no justifiable excuse for not providing the support.

After reviewing the record, the Court concluded:

In the context of the present case, the four-month period was from October 2, 2009, to February 2, 2010. For two of the four months, Mother had sporadic employment cleaning houses. She received minimal income from that employment and contributed approximately $10 out of her earnings. Mother also contributed $50 in January or February. Mother testified that most of her earnings were used to pay for moving expenses and that she was actively seeking employment during the relevant time period. We acknowledge that Mother is capable of working and should support her children. However, we do not believe that the evidence presented rose to the level of clear and convincing evidence that Mother willfully failed to support the Children during the relevant time period. The testimony presented reflects that Mother attempted to provide support but was simply unable to find suitable employment in order to sufficiently contribute to her child support obligation, in addition to her necessary expenses related to housing and utilities. Accordingly, we conclude that her failure to pay child support was not willful and that the trial court erroneously applied the ground of abandonment in support of its decision to terminate Mother’s parental rights.

The Court emphasized that its decision does not affect the question of custody, which issue remains reserved to the trial court and is unaffected by this ruling.

In re Dylan H. (Tennessee Court of Appeals, Eastern Section, December 16, 2011).

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