Facts: Grandparents petitioned to terminate the parental rights of Mother and Father so they could adopt Child.

Mother voluntarily relinquished her parental rights. Father went to trial.

The trial court found Father abandoned Child by the willful failure to visit and the willful failure to support. The trial court also found termination to be in Child’s best interest.

Father’s parental rights were terminated.

Father appealed.

On Appeal: The Court of Appeals affirmed in part and reversed in part.

The trial court’s findings as to grounds of abandonment by the willful failure to visit and termination being in Child’s best interest were affirmed.

The issue of interest to me is grounds of abandonment by the willful failure to support. The trial court’s reliance on that ground for termination was reversed.

Father admitted he had not paid child support for many years, but insisted it was not willful because he could not maintain a steady job because of his diabetes and other health conditions.

When the lawsuit was filed, Father testified he was living with his father in a trailer that had a hanging sheet for a door. By the time of trial, Father was living in a house with his father, although he slept in his aunt’s house at night because he suffers from diabetic seizures. He testified that his father pays for his $45 a month cell phone bill, and although he barely has enough money to pay his medical bills when he works, he admitted he has several recent tattoos that were paid for by family members. He also testified he was in the process of applying for disability benefits.

The trial court found Father was “able-bodied and capable of working and supporting” Child, and added this comment: “Instead of paying support, he paid to tattoo his body rather than provide food” for Child.

In order to prove that failure to pay child support was willful, petitioners must prove the parent is aware of his or her duty to provide support, has the capacity to provide support, makes no attempt to provide support, and has no justifiable excuse for not providing the support. A parent who fails to support a child because he or she is financially unable to do so is not willfully failing to support the child.

After reviewing the record, the Court reasoned:

Father admits not paying child support during the relevant time period; however, he insists his failure to provide support was not willful because he was unable to pay child support due to his health. He testified that he suffers from juvenile diabetes, seizures, neuropathy in his legs, and lack of sensitivity to hot or cold, which went uncontested. He also stated that these conditions prevented him from maintaining a job, and, when he did work, he barely made enough to pay his medical bills.

Grandparents . . . challenge his claim that he could not pay support by noting he had enough money to have a cell phone, internet service, and numerous tattoos. Father, however, rebutted this testimony by stating that his father pays for his cell phone bill and that friends and other family members paid for his tattoos….

Based upon our review of the record, we find the evidence does not clearly and convincingly establish that Father’s failure to support the child was willful.

Accordingly, the trial’s reliance on abandonment by the willful failure to support as grounds for the termination of Father’s parental rights was reversed.

In re Andrew O. (Tennessee Court of Appeals, Middle Section, October 28, 2014).

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