Token Child Support Examined in Livingston, Tennessee Termination of Parental Rights: In re Anna G.

FactsMother and Father were teenagers when Child was born. One and a half years later, the Department of Children’s Services had Child declared dependent and neglected, and Child was placed in the custody of Paternal Grandparents.

When Child was 10 years old, Mother petitioned for increased visitation, unsupervised contact, and for custody of Child.

The following day, Paternal Grandparents petitioned to terminate Mother’s and Father’s parental rights. The only ground for termination alleged was abandonment by the willful failure to provide financial support.

Tennessee token supportDuring the relevant four-month period, the proof showed that Mother purchased for Child a fourth-grade graduation gift, school supplies, backpack, wallet, toys, and tickets to an event they attended, which totaled $539.71. Mother had receipts for each purchase.

Mother also testified to spending money on Child’s birthday party, including a gift.

Mother’s net income was about $350 per week. She also had outstanding medical bills and student loans.

After a three-day trial, the trial court terminated Mother’s and Father’s parental rights.

Only Mother appealed.

On AppealThe Court of Appeals reversed the trial court.

Abandonment is defined, in part, as a parent’s willful failure to support or make reasonable payments toward the support of the child for four consecutive months immediately preceding the filing of a termination petition.

A parent’s “support” or “reasonable payments” toward the support of the child must be more than token payments. Token support is defined as support that is insignificant given the parent’s income as well as his or her resources for the payment of debts.

If a parent’s failure to support is out of his or her control, that parent’s failure is not willful.

Paternal Grandparents had to prove by clear and convincing evidence that Mother abandoned Child by willfully failing to make reasonable payments toward Child’s support, meaning she could pay support but did not try to do so and did not possess a justifiable excuse.

The Court found that Mother paid more than token support:

In the present case, the trial court found Mother had between $150 and $300 per month in disposable income that she could use to pay child support. The evidence showed that Mother spent approximately $800 on [Child] over the relevant four-month period, which averages out to be about $200 per month. [Paternal Grandparents] point to no caselaw that states a parent is required to spend every disposable dollar on his or her child to avoid having his or her parental rights terminated, and yet they contend Mother’s rights should be terminated because she did not spend more on [Child] during the relevant period.

* * * * *

[Paternal Grandparents] filed their termination petition one day after Mother filed a petition to obtain unsupervised time, and possibly custody, of [Child], and they admitted that they filed their petition in an effort to prevent losing custody of [Child]. Mother clearly wants to be a part of [Child’s] life, and we find the money that Mother has spent in support of [Child] during the relevant four-month period, which averages out to be about one-quarter of her net income, does not qualify as “token” under the statute.

The trial court’s judgment terminating Mother’s parental rights was reversed.

K.O.’s Comment: Tennessee Code Annotated § 36-1-102(1)(A) no longer includes “willful” in its definition of “abandonment.” It was amended effective July 1, 2018, to make the absence of willfulness an affirmative defense to abandonment for failure to visit or support. To establish this defense, the parent must prove by a preponderance of the evidence that failing to visit or support was not willful.

Because the amendment is substantive rather than procedural, the amended statute did not apply retroactively to this case.

In re Anna G. (Tennessee Court of Appeals, Middle Section, May 1, 2019).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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