Facts: in 2010, Mother sought assistance in caring for Child after Mother lost her job. She signed a power of attorney and authorization of temporary guardianship stating Child would reside with another couple for approximately six months. During that period, the couple filed a petition alleging Child was dependent and neglected and seeking temporary custody of Child.
The juvenile court found Child dependent and neglected and granted custody to the couple.
Mother appealed to the circuit court, which found no clear and convincing evidence of dependency and neglect and ordered the juvenile court to reunify Child with Mother.
The couple appealed, but the Court of Appeals affirmed the circuit court.
Despite that procedural history, Child was never reunified with Mother because, in part, the trial court deferred to a psychologist who wanted to reunify Mother and Child over a period of two years. While this reunification process was occurring, the couple filed a petition in juvenile court to terminate Mother’s parental rights.
The juvenile court found grounds of abandonment for failure to provide financial support and determined it was in Child’s best interest to terminate Mother’s parental rights. When the termination petition was filed, mother had not made a child support payment in four months and three days.
On Appeal: The Court of Appeals reversed the trial court.
In Tennessee, proceedings to terminate a parent’s parental rights are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things.
First, they must prove the existence of at least one of the statutory grounds for termination, which are listed in Tennessee Code § 36-1-113(g). Several grounds for termination are listed in subsection (g), but the existence of any one of the grounds enumerated in the statute will support a decision to terminate parental rights.
Second, the petitioner must prove that terminating parental rights is in the child’s best interest, considering, among other things, the factors listed in Tennessee Code § 36-1-113(i).
The person seeking to terminate parental rights must prove all the elements of the case by clear and convincing evidence.
The grounds for termination at issue is abandonment by willful failure to make reasonable payments toward the support of the child during the four-month period immediately preceding the filing of the petition to terminate parental rights.
Willful failure to support or to make reasonable payments toward support means the willful failure to provide more than token payments toward the support of the child. Token support payments are not sufficient to preclude a finding of willful failure to support. Token support is support that under the circumstances of the individual case, is insignificant given the parent’s means. In termination proceedings, the term “token support” is a term of art. A finding that support was insignificant in light of the parent’s means must be based on evidence regarding both the parent’s actual financial support of his or her child and the parent’s means. In the context of token support, the word “means” connotes both income and available resources for the payment of debt. The definition of token support itself requires consideration of the circumstances of the individual case. The question of intent or willfulness depends on the totality of the circumstances.
Here, the proof showed the couple with custody told Mother not to pay them monetary child support because they wanted her to use those funds to pay for her supervised visits with Child and “to get her life back on track.” The Court commented:
During the pivotal four-month period, Mother did just that, directing her limited financial resources toward regaining custody of [Child]. She paid for the cost of supervised visits. She paid someone to transport her to and from visit and to and from court hearings. She paid for a drug and alcohol assessment recommended by DCS. She paid for parenting classes. She attempted to obtain reliable transportation and establish a stable home. She was in the midst of a four-day trial on the dependency and neglect petition and paying attorney’s fees incurred in that litigation. Mother used all of these funds in an attempt to comply with the responsibilities established by DCS and by the courts so that she could be you reunited with [Child]. Mother was aware that the [couple] were financially stable and that [Child’s] needs were being met. The [couple] had previously informed her that they could provide for [Child] without monetary support from mother. We also note that Mother had never been advised of the criteria and procedures for terminating her parental rights or the definition of abandonment….
The evidence in this case falls short of meeting [the] standard [for clear and convincing evidence]. The evidence presented by the [couple] simply does not produce a firm belief or conviction, in our minds, that Mother, during the four-month period, had the capacity to support [Child], made no attempt to do so, and had no justifiable excuse for not doing so. We hold that the evidence in this case does not support a finding that Mother intentionally abandoned [Child], and we therefore reverse the trial court’s finding that this ground for termination was proven by Clear and convincing evidence.
Accordingly, the termination of Mother’s parental rights was reversed and the matter remanded to the trial court to reunify Mother and Child without delay.
K.O.’s Comment: Reading this opinion will create flashbacks for any attorney who has witnessed a case languish in juvenile court far longer than it should have because a magistrate or judge implicitly (or sometimes explicitly) confers judicial authority on a third party not affiliated with the judicial system, such as a counselor or therapist. The Court of Appeals was certainly frustrated with the trial court’s delays in this case, commenting that “this case has been delayed far too long already.” They also characterized the juvenile court as being “extremely hesitant to reunify Mother and [Child],” noting that “[t]his record provides no basis for such hesitation, other than the general concern that exists in all reunification’s following a lengthy separation.” Lawyers who regularly practice in juvenile court should consider reading this opinion (but only after a few glasses of wine).
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.