The proof showed Mother was a heroin addict. She earned money through prostitution to support her drug habit.
During the four months preceding Mother’s incarceration, the trial court found Mother earned income from prostitution and used that income to purchase heroin.
Based on these findings, the trial court found Mother willfully failed to support Child during the relevant four-month period. It also found that termination of Mother’s parental rights was in Child’s best interest. Mother’s parental rights were terminated.
On Appeal: The Court of Appeals reversed the trial court.
Mother argued that although there was evidence she was earning income by engaging in prostitution, there was no evidence regarding how much she was earning, or whether this would’ve been sufficient income to allow her to provide support for Child.
Grounds for termination of parental rights by “abandonment” may be shown when a parent has willfully failed to make reasonable payments toward the support of the child during the relevant four-month period.
The party seeking termination of parental rights must prove by clear and convincing evidence that the opposing party had the capacity to pay support but made no attempt to do so and did not have a justifiable excuse.
Tennessee courts have indicated that in addition to evidence of the parent’s income during the relevant time frame, the party seeking termination must also present evidence of the parent’s expenses during that time. Without that basic information, the court is unable to determine whether the parent had the capacity to provide support.
The Court found the proof of Mother’s income and expenses lacking:
Here, there was some evidence that Mother was employed as a prostitute at various times throughout the child’s life. In addition, Mother, without providing dates, testified as to other jobs she held over the years. No proof was introduced, however, as to Mother’s actual or approximate income during the relevant four-month period. Furthermore, the record contains no evidence of Mother’s expenses during the relevant time period from which this Court could conclude that Mother had the capacity to pay support. Under these circumstances, [Father and Stepmother] failed to present clear and convincing evidence that Mother failed to pay support despite her capacity to do so.
The trial court’s ruling as to willful failure to support was reversed. The trial court terminated Mother’s parental rights on other grounds, however, and the termination was affirmed by the Court.
K.O.’s Comment: The trial court found that during the relevant four-month period Mother “was prostituting in order to obtain money to satisfy her drug habit.” Must one show exactly how much Mother was earning and how much she was spending on heroin? This opinion suggests as much. I doubt Mother kept records. Compare this case with In re Courtney N., where the mother’s purchase of a cell phone was sufficient to show she “had money available to her, from whatever source, and decided not to pay child support without any justifiable excuse.”
Information provided by K.O. Herston: Knoxville, Tennessee Divorce and Family-Law Attorney.