Facts: During Mother and Father’s divorce, Mother’s aunt received temporary custody of their children because of Father’s neglect and alcohol abuse and Mother’s lack of housing.

Father was ordered to pay child support of $477 per month, and Mother was ordered to pay support of $110 per month.

Mother’s aunt petitioned to terminate their parental rights.

During the relevant four-month period, Mother paid child support for two of the four months using money her mother gave her.

The trial court failed to consider Mother’s support payments because “these payments were made by Mother’s mother and not Mother herself.” Even if they were attributed to Mother, they were found to be token support.

Father made no support payments during the relevant four-month period. This failure to pay was found to be willful because Father was employed and paid a $3000 cash bond after the four-month period to avoid incarceration for failure to pay child support. Father testified he borrowed the $3000 cash bond. Shortly thereafter, his tax refund was intercepted, which put him ahead on his support payments.

The trial court terminated Mother and Father’s parental rights on grounds of failure to support and other grounds.

Mother and Father appealed.

On Appeal: The Court of Appeals reversed the ground of failure to support. Other grounds—and the termination itself—were affirmed.

One ground for terminating parental rights is the parent’s willful failure to make reasonable payments toward the support of the child beyond token support.

Token support means that the support is insignificant given the parent’s means. A parent’s means includes both income and resources for the payment of debt.

Failure to support a child is willful when a person knows his or her duty to support, can do so, does not try to do so, and has no justifiable excuse for not doing so.

The Court found error in the trial court’s failure to credit Mother for the payments she made with money received from her mother:

The voluntary nature of a child support payment, rather than the source of the payment, is the most important consideration. We are unaware of any legal authority that prohibits a parent from paying child support with money obtained from a relative. On the contrary, the child support guidelines indicate that a parent is expected to use all available resources to pay child support. Accordingly, we hold that the trial court erred by ruling that Mother did not make the two child support payments.

The Court also disagreed that Mother’s two payments were token support:

Mother was unemployed and therefore had no income during the relevant four-month period. It appears that Mother’s only available resource for the payment of debt was cash assistance from [her mother], which Mother used to make two child support payments. The trial court found that Mother willfully failed to make additional child support payments because she was voluntarily unemployed. The evidence preponderates in favor of the court’s finding that Mother was voluntarily unemployed. Nevertheless, we think it is significant that Mother managed to pay half of the child support she owed during the relevant four-month period. Although it is a close call, we disagree with the court’s conclusion that Mother’s two child support payments were merely token support.

* * * * *

Even if we imputed additional income to Mother because of her voluntary unemployment, the lack of evidence regarding Mother’s monthly expenses would prevent us from forming a firm belief or conviction regarding Mother’s capacity to pay child support. Accordingly, we hold that the trial court erred by terminating Mother’s parental rights on the ground of abandonment by willful failure to support.

The Court also reversed this ground as to Father:

Petitioner failed to present sufficient evidence that Father had the capacity to support the children during the relevant four-month period. At trial, Father testified, without contradiction, that he only earns between $350 and $750 per month as a cab driver. . . . The only evidence of Father’s expenses is Father’s testimony that his rent is $500 per month and that he has to pay family members to supervise his visitation.

Given Father’s limited income and the paucity of evidence regarding Father’s monthly expenses, we hold that [the] petitioner failed to present clear and convincing evidence that Father had the capacity to pay $477 per month in child support during the relevant four-month period. The trial court erred in terminating Father’s parental rights on the ground of abandonment by willful failure to support.

Although the termination of parental rights was affirmed on other grounds, the trial court’s judgment as to failure to support was reversed.

K.O.’s Comment: (1) Regarding the ground of persistence of conditions, the Court comments in a footnote:

We also note that there are “other conditions” that raise serious questions as to whether returning the children to Father would subject them to further abuse or neglect. For example, although Father has worked as a cab driver throughout these proceedings, it is unclear whether Father has the financial capacity to independently support the children.

This comment suggests that the working poor may be at risk of having their parental rights terminated simply because they’re poor. Surely this is inartfully phrased and does not accurately reflect the Court’s views.

(2) Father testified that he drank six to eight beers each day at the direction of his doctor. His medical records revealed his doctor cautioned him against drinking alcohol. Despite the records, the Court noted this was “a false statement that Father continued to assert at trial.” Kudos to Father’s lawyer for not succumbing to the bottle during Father’s testimony.

In re C.L. (Tennessee Court of Appeals, Eastern Section, January 21, 2020).