Facts: Mother and Father are the unmarried parents of two children. After their relationship ended, Father was awarded visitation with the children every other Saturday. Father’s child support obligation was set at $120 per week.

Father visited the children every other Saturday for several months, but his visits became less regular as time wore on. One year after being awarded visitation, Father’s visitation ended altogether. A few months later, Mother married Stepfather. Shortly thereafter, Mother and Stepfather filed a petition to terminate Father’s parental rights and for Stepfather to adopt the children.

The trial court terminated Father’s parental rights on the grounds of abandonment. Specifically, the trial court found that Father had willfully failed to visit the children and had only paid token child support.

Father appealed.

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

Under Tennessee Code Annotated § 36-1-113(g)(1), termination of parental rights may be based upon a parent’s abandonment of a child if it is proven that:

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 Visit. In the statutes governing the termination of parental rights, “willfulness” does not require the same standard of culpability as is required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is “willful” if it is the product of free will rather than coercion. Thus, 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. Moreover, the willfulness of particular conduct depends upon the actor’s intent. Failure to visit is not excused by the conduct of another person unless the conduct actually prevents the person with the obligation from performing his or her duty or constitutes a significant restraint of or interference with the parent’s efforts to support or develop a relationship with the child.

The evidence showed that Father did not visit the children at all during the four months that preceded the filing of the petition to terminate his parental rights. Father argued that his failure to visit the children was not willful because he did not have Mother’s new contact information, did not know where she lived, and was unable to get in touch with her to establish visitation.

After reviewing the evidence, the Court concluded that it did not clearly and convincingly establish that Father abandoned the children by willfully failing to visit, writing:

Father testified that he went to the agreed upon meeting location on at least two occasions in February and that Mother did not arrive with the children. The evidence shows that Mother did nothing to encourage or facilitate visitation between the children and Father, and it is undisputed that Father could not contact the young children directly. Father did not have Mother’s new contact information once her cell phone was deactivated…. Father further testified that he was dissuaded from aggressively seeking contact with Mother because she had previously attempted to take out an order of protection against him.

Accordingly, the Court held that Stepfather failed to provide proof that eliminated any serious or substantial doubt about whether Father abandoned the children by a willful failure to visit.

Token child support. A parent’s failure to provide child support is willful if that person is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. Token support payments are not sufficient to preclude a finding of a willful failure to support. Token child support is defined in Tennessee Code Annotated § 36-1-102(1)(B) as support that “under the circumstances of the individual case, is insignificant given the parent’s means.”

It was undisputed that during the four-month period preceding the filing of the petition, Father actually paid about 30% of the child support he was ordered to pay. When asked why his support payments were discontinued for a portion of the four-month period, Father stated, “I do not know. When I was working at Warner, it should have been pulled out of my paycheck.”

After reviewing the record, the Court reasoned:

Our Supreme Court’s recent opinion in In re Adoption of Angela E. provides some guidance for this scenario. The father in In re Adoption of Angela E. paid $3500 of the $10,336 he owed in child support during the relevant time period. The amount was roughly 34% of what he owed. The Court considered the “limited” evidence concerning his earnings and expenses and concluded that his payment of $3500 during the four months immediately preceding the filing of the petition was more than mere “token support” and precluded a finding of abandonment. Likewise, the Father in this case paid approximately one-third of what he owed in child support during the relevant time period. We have considered the evidence related to his earnings and expenses and find the evidence does not clearly and convincingly establish that father’s payment history during the relevant time period constituted abandonment by willful failure to support. Specifically, we find that his payments were not insignificant given his means and did not amount to mere token support.

Therefore, the trial court’s order terminating Father’s parental rights was reversed.

K.O.’s Comment: Note that the father in In re Adoption of Angela E. was found to have considerable means, e.g., he spent $40,000 on four fireplaces in the self-described “humongous” house he was building at the same time he was only paying 34% of his child support obligation. The father here was a truck driver earning $600 to $700 per week. Despite these differences, we now have two cases where paying roughly one-third of the child support obligation was determined to be more than token support.

In re Adoption of Alexander M.S.F. (Tennessee Court of Appeals, Middle Section, August 27, 2013).

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

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