In Re Anna G. ( 2019 )

05/01/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 3, 2019 Session
IN RE ANNA G.
Appeal from the Chancery Court for Overton County
No. 17-CV-52 Ronald Thurman, Chancellor
No. M2018-01456-COA-R3-PT
A mother’s parental rights were terminated based on the ground of abandonment by
willful failure to support pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-
102(1)(A)(i). The mother appealed, and we reverse the trial court’s judgment. Although
the mother did not provide cash to the child’s guardians, she spent a portion of her
disposable income that was not insignificant on the child during the relevant four-month
period, thereby precluding the petitioners from proving abandonment by clear and
convincing evidence.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Chancery Court Reversed
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,
JR., P.J., M.S., and W. NEAL MCBRAYER, J., joined.
Laurie A. Seber, Cookeville, Tennessee, for the appellant, Jaime W.G.
Mark E. Tribble, Cookeville, Tennessee, for the appellees, Michael G. and Barbara G.
Andrea McLerran Ayers, Livingston, Tennessee, Guardian Ad Litem.
OPINION
I. FACTUAL AND PROCEDURAL BACKGROUND
In this parental termination case, the paternal grandfather and his wife
(“Petitioners”) are seeking to terminate the parental rights of Anna G.’s mother, Jaime G.
(“Mother”).1 Mother and Michael G. (“Father”) were teenagers when Anna was born in
1
Petitioners sought to terminate both the mother’s and father’s parental rights to Anna. The trial court
terminated both parents’ rights, but the father did not appeal the termination of his rights. Because
Mother is the sole appellant, we will not address the trial court’s termination of the father’s rights.
July 2007. In November 2008, the Department of Children’s Services (“DCS” or “the
Department”) filed a motion in the Juvenile Court for Putnam County to have Anna
adjudicated dependent and neglected. The Department placed Anna with Petitioners
when she was about eighteen months old. An adjudicatory and dispositional hearing took
place in September 2009 during which Anna was determined to be dependent and
neglected, and she remained in Petitioners’ custody. The Department moved to close
Anna’s case in June 2010, stating that its involvement with the parents ceased in
December 2009 and that the parents had not taken the steps necessary to have Anna
returned to their care. The juvenile court filed an order on October 13, 2010, closing the
case and ordering that Anna’s custody would remain with Petitioners.
On August 8, 2017, Mother sought to reopen the juvenile court case by filing a
petition seeking increased visitation with Anna, unsupervised contact, and a restoration of
custody. The following day, on August 9, 2017, Petitioners filed a petition seeking to
terminate Mother’s and Father’s parental rights.2 Petitioners asserted just one ground for
termination: abandonment by willful failure to support pursuant to Tenn. Code Ann. §§
36-1-113(g)(1) and 36-1-102(1)(A)(i).
This case was tried over a period of three days at the end of May and beginning of
June 2018. The trial court entered a decree terminating Mother’s and Father’s parental
rights on July 11, 2018. It held that the Petitioners proved by clear and convincing
evidence that “the parents have abandoned Anna [G.] pursuant to Tenn. Code Ann. § 36-
1-113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i)” because they willfully failed to
contribute to Anna’s support or make reasonable payments towards her support for more
than four (4) consecutive months prior to the filing of the termination petition. The court
then determined that Petitioners established by clear and convincing evidence that
terminating Mother’s and Father’s rights was in Anna’s best interest. Mother appeals the
termination of her rights, arguing that the trial court erred in ruling that the evidence
clearly and convincingly showed that (1) she abandoned Anna by failing to pay child
support pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i) and that (2) terminating her
parental rights was in Anna’s best interest.
II. STANDARD OF REVIEW
The Tennessee Supreme Court has described the appellate review of parental
termination cases as follows:
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). Under Rule 13(d), appellate courts review factual findings de novo
2
Mr. G., one of the petitioners, testified that he filed the termination petition in response to Mother’s and
Father’s separate efforts to regain custody of Anna.
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on the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In light of the heightened burden of
proof in termination proceedings, however, the reviewing court must make
its own determination as to whether the facts, either as found by the trial
court or as supported by a preponderance of the evidence, amount to clear
and convincing evidence of the elements necessary to terminate parental
rights. The trial court’s ruling that the evidence sufficiently supports
termination of parental rights is a conclusion of law, which appellate courts
review de novo with no presumption of correctness. Additionally, all other
questions of law in parental termination appeals, as in other appeals, are
reviewed de novo with no presumption of correctness.
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also
In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent’s rights is one of the most serious decisions courts
make. As the United States Supreme Court has said, “[f]ew consequences of judicial
action are so grave as the severance of natural family ties.” Santosky v. Kramer, 455 U.S.
745, 787 (1982). “Terminating parental rights has the legal effect of reducing the parent
to the role of a complete stranger,” In re W.B., IV, Nos. M2004-00999-COA-R3-PT,
M2004-01572-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005),
and of “severing forever all legal rights and obligations of the parent or guardian,” Tenn.
Code Ann. § 36-1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions,
to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn.
1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right “is among
the oldest of the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions.” In re Carrington H., 483 S.W.3d
at 521 (citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right
is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights
in certain circumstances. Id. at 522-23; In re Angela E., 303 S.W.3d at 250-51. Our
legislature has listed the grounds upon which termination proceedings may be brought.
See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela
E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a
parent’s rights may be terminated only where a statutory basis exists, Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998).
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To terminate parental rights, a court must find by clear and convincing evidence
the existence of at least one of the statutory grounds for termination and that termination
is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455
S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
‘“Clear and convincing evidence enables the fact-finder to form a firm belief or
conviction regarding the truth of the facts, and eliminates any serious or substantial doubt
about the correctness of these factual findings.”’ In re Carrington H., 483 S.W.3d at 522
(quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)).
“Evidence satisfying the clear and convincing evidence standard establishes that the truth
of the facts asserted is highly probable.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct.
App. 2005). As a reviewing court, we “must ‘distinguish between the specific facts
found by the trial court and the combined weight of those facts.”’ In re Keri C., 384
S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156
(Tenn. Ct. App. 2007)). Then, we must determine “whether the combined weight of the
facts . . . clearly and convincingly establishes all of the elements required to terminate” a
parent’s rights. Id. (citing In re Tiffany B., 228 S.W.3d at 156, and In re S.M., 149
S.W.3d 632, 640 (Tenn. Ct. App. 2004)). “When it comes to live, in-court witnesses,
appellate courts should afford trial courts considerable deference when reviewing issues
that hinge on the witnesses’ credibility because trial courts are ‘uniquely positioned to
observe the demeanor and conduct of witnesses.’” Kelly v. Kelly, 445 S.W.3d 685, 692
(Tenn. 2014) (quoting State v. Binette, 33 S.W.3d 215, 217 (Tenn. 2000)).
Once a ground for termination is established by clear and convincing evidence, the
trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303
S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005), and White
v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). “The best interests analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
III. ANALYSIS
The only ground for termination that Petitioners asserted against Mother was
abandonment by failure to pay support. See Tenn. Code Ann. §§ 36-1-113(g)(1) and
Tenn. Code Ann. 36-1-102(1)(A)(i). Section 36-1-102(1)(A)(i) defines abandonment, in
part, as a parent’s willful failure to support or make reasonable payments towards the
support of a child for a period of four consecutive months immediately preceding the
filing of a termination petition.3 A parent’s “support” or “reasonable payments toward
3
The statute defining “abandonment” was amended effective July 1, 2018; as amended, Tenn. Code Ann.
§ 36-1-102(1)(A) no longer includes the term “willful” in its definition of “abandonment.” Instead, Tenn.
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such child’s support” must be “more than token payments toward the support of the
child.” Tenn. Code Ann. § 36-1-102(1)(D). “Token support” is defined as “support,
under the circumstances of the individual case, [that] is insignificant given the parent’s
means.” Tenn. Code Ann. § 36-1-102(1)(B). The word “means” in this context refers to
a parent’s income as well as his or her resources for the payment of debts. In re Adoption
of Angela E., 402 S.W.3d 636, 641 (Tenn. 2013) (citing In re Z.J.S., No. M2002-02235-
COA-R3-JV, 2003 WL 21266854, at *11 n.24 (Tenn. Ct. App. June 3, 2003)).
“Willful conduct consists of acts or failures to act that are intentional or voluntary
rather than accidental or inadvertent.” In re Audrey S., 182 S.W.3d at 863. A parent’s
failure to support is “willful” if he or she ‘“is aware of his or her duty to support, has the
capacity to provide the support, makes no attempt to provide support, and has no
justifiable excuse for not providing the support.”’ Dep’t of Children’s Servs. v.
Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir,
No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25,
2003)).
The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer
into a person’s mind to assess intentions or motivations. Accordingly,
triers-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct.
In re Audrey S., 182 S.W.3d at 864 (citations omitted). If a parent’s failure to support is
out of his or her control, that parent’s failure will not be deemed “willful.” In re
Adoption of Angela E., 402 S.W.3d at 640. Whether a parent has failed to support a child
is a question of fact, but whether a parent’s failure to support a child was willful is a
question of law. Id.; see also In re Alysia S., 460 S.W.3d 536, 566 (Tenn. Ct. App.
2014).
As the parties filing the termination petition, Petitioners had the burden of proving
by clear and convincing evidence that Mother abandoned Anna by willfully failing to
support or to make reasonable payments towards her support during the relevant four-
month period. In re Bernard T., 319 S.W.3d at 596; see Tenn. Code Ann. § 36-1-
102(1)(A)(i). Petitioners filed the petition to terminate Mother’s and Father’s parental
rights on August 9, 2017. Thus, the relevant four-month period in this case runs from
Pub. Ch. 875, § 2, codified at Tenn. Code Ann. § 36-1-102(1)(I), makes the absence of willfulness an
affirmative defense to abandonment for failure to visit or support. To establish this defense, the parent (or
guardian) must prove by a preponderance of the evidence that the failure to visit or support was not
willful. Because this change is substantive rather than procedural or remedial, however, the amended
statute does not apply retroactively to this case. See In re D.A.H., 142 S.W.3d 267, 273 (Tenn. 2004).
Instead, this case is governed by the law in effect when the termination petition was filed in August 2017.
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April 9 through August 8, 2017. See In re Jacob C.H., No. E2013-00587-COA-R3-PT,
2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (explaining that statutory four-
month period covers four months preceding day termination petition was filed and does
not include day petition was filed). Petitioners were required to prove that Mother “had
the capacity to pay support but made no attempt to do so and did not possess a justifiable
excuse.” In re Adoption of Angela E., 402 S.W.3d at 641.
At the time of trial, Anna had been living with Petitioners for about nine and a half
years. Mother testified that she offered Petitioners cash at different times over the years
to help out with Anna’s expenses, “but they were not receptive of it.” Mother testified as
follows:
Q. Did [the Petitioners] ever ask you for child support?
A. No, they did not.
Q. And did you try to give them child support?
A. I have.
Q. Okay. And was that over the course of Anna’s time with them or a
certain year or - -
A. It was over the course of it. I have offered on multiple occasions, it was
within a certain time frame. It was just while they had her, obviously. But
it wasn’t pinpointed to a specific year or anything. I don’t remember the
exact dates or conversations that were had.
At another point during the trial, Mother was asked when, specifically, she offered
Petitioners cash, and she responded:
It’s been various times throughout - - more - - not very recently because,
you know, I got told no so many times that I just feel like I had stopped
trying to give them cash and just went with other options.
Mother explained that the “other options” she referred to included school supplies, which
she purchased for Anna before the start of school, and clothes. Focusing on the four-
month relevant time period, Mother testified that she purchased a charm bracelet and
charms as a fourth grade graduation gift in May 2017, which cost “somewhere around
$100.” Mother testified further as follows:
A. I have bought her clothes and a backpack and some like nail polish and
other little things for her birthday, clothes that she could wear to school and
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a new backpack that she had been asking for forever, so . . .
Q. And do you remember the cost of the backpack?
A. It was like $200 for the backpack and the matching wallet.
....
Q. Okay. Anything else that you bought during that time period?
A. I got her school supplies. I got her a baby car seat and stroller for her
baby dolls. We did a mommy and me date night in June and –
Q. You did a what? I’m sorry.
A. A mommy and me date night in June of that year where I got the tickets
and T-shirts and we got raffle tickets while we were there and some balloon
animals, cotton candy-type things. And I made us grass skirts because it
was a Hawaiian theme . . . .
Q. Do you know how much that cost?
A. Altogether, I know it was well over $100 because the shirts themselves
were like $36 . . . .
Mother also testified that she spent about $80 on school supplies in July. Mother
provided copies of her receipts for the graduation gift, school supplies, backpack and
wallet, toys, and the June date night, all of which totaled $539.71.
Mother further testified that she planned Anna’s birthday party at Mellow
Mushroom and Dave & Buster’s, which cost “about $55,” not including the cake Mother
made, which cost “at least $30.” When asked whether she had ever given Anna cash,
Mother answered that she gave Anna some gift cards from Kohl’s, Claire’s, iTunes, and
Payless as part of her birthday present. She testified that the total cost of the gift cards
was “somewhere around $100 to $120.” Mother explained that the purpose of some of
the gift cards was for Anna to get herself clothes to wear to school. Mother estimated
that she spent a total of “about $800” on Anna during the relevant four-month period.
Petitioners do not dispute this figure.
Mother testified that her net income was about $350 per week during the four-
month period at issue. She earned between $7.50 and $8 per hour from April through
part of July 2017, working for an automobile parts retail store. Mother worked for an
insurance agency from sometime in June until the beginning of August 2017. The
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evidence showed Mother earned approximately the same hourly wage working for the
insurance company. Mother also had about $300 in a savings account.
Mother testified that she was living with her grandfather during the relevant four-
month period and that she was not responsible for paying any rent. She helped clean the
house and spent between $25 and $50 monthly on cleaning supplies and approximately
$250 for food each month. Mother had a car, and she spent $600 each month to cover the
car payments and insurance during the relevant period. She testified that gas for the car
cost her between $80 and $100 each month.
When she was asked about other expenses she had, Mother replied that she had
outstanding medical bills and student loans and that she was trying to work out payment
plans for those expenses. She also testified that she paid her attorney $1,500 as a retainer
and filing fee in July or August 2017 when she decided to file the petition in juvenile
court to increase her visitation with Anna, have unsupervised visits, and possibly restore
Anna’s custody to her.
Michael G., one of the petitioners, testified that he never told Mother or Father
that he did not want child support, and he denied that either of them ever offered him
“any monetary cash support for their child.” Barbara G., the other petitioner, also
testified that she had received no offers of monetary support from either Mother or
Father. Petitioners did not dispute Mother’s testimony regarding the items and support
she provided Anna or the money Mother spent for Anna’s birthday or for the “mommy
and me date night” during the four-month period at issue.
Mother and Father were married when Anna was younger, but they were not
married at the time of trial. In contrast to Mother’s low earnings, Father’s annual income
for 2017 was $91,720. The trial court seemed to consider Mother’s and Father’s income
together in reaching the conclusion that their support of Anna during the relevant four-
month period was “token.” The court wrote the following in its final decree:
j. Both parents did provide evidence of providing some support during
the time period. It mainly consisted around gifts at holidays and for the
child’s birthday. The child’s birthday was during the four-month time
frame in question. The parents did provide a birthday party and some
clothing, but the Court finds said support was “token” under the Statute.
k. The parents have not provided support to the caregivers for lights,
gas, water, food, clothing during the vast majority of the child’s life, nor
during the four month period in question.
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1. Both parents testified that they had offered to pay support, but
neither parent testified that they offered any support to the Petitioners in the
four-month period prior to filing this Petition.
....
n. In weighing the issue of the parents’ offer to pay support against the
Petitioners’ denial, the Court finds the testimony of Michael [G.]’s more
credible in that he was having to work two jobs to make ends meet to pay
for not only his other children, but the child in question in this case.
In arguing that Mother abandoned Anna by willfully failing to pay support,
Petitioners focus largely on the early years when Anna was living with them, asserting
that Mother failed to provide diapers or formula for Anna. For purposes of proving the
ground of abandonment by willfully failing to provide child support, however, the
relevant time period is limited to the four months preceding the date when the termination
petition was filed. Petitioners contend that Mr. G. was required to work two jobs to
support Anna and his other children. Mr. G. testified that he has not worked a second job
since 2012 or 2013, and Petitioners’ counsel conceded at oral argument that Mr. G. was
not working two jobs during the relevant four-month time period. Thus, evidence of Mr.
G.’s working two jobs is irrelevant for purposes of proving the ground of abandonment.
Likewise, the court’s finding that the parents failed to contribute to Petitioners’ costs for
“lights, gas, water, food, clothing during the vast majority of the child’s life” is irrelevant
for purposes of establishing the ground of abandonment because only the four months
before the termination petition was filed are at issue.
There is no dispute that Mother did not give Petitioners cash to help support Anna
during the relevant four-month period or offer to give them cash during this period. The
parties dispute whether Mother offered Petitioners cash when Anna was younger, and the
trial court credited Petitioners’ testimony over Mother’s on this issue. We defer to the
trial court’s credibility determination with regard to this issue and conclude that Mother
is unable to show her efforts to give Petitioners cash were thwarted by their refusal to
accept her offers. See Kelly, 445 S.W.3d at 692 (stating appellate courts afford trial
courts deference when reviewing issues hinging on witnesses’ credibility); In re Colton
R., No. E2016-00807-COA-R3-PT, 2017 WL 499439, at *12 (Tenn. Ct. App. Feb. 7,
2017) (“It is well-settled in Tennessee that a parent who attempts to visit and maintain a
relationship with the child, but is ‘thwarted by the acts of others and circumstances
beyond his control,’ cannot be found to have willfully abandoned the child.”) (quoting In
re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007)).
Petitioners rely on three cases to support their argument that Mother provided only
token support to Anna. In the case In re Gabriel B., No. W2017-02514-COA-R3-PT,
2018 WL 3532078 (Tenn. Ct. App. July 23, 2018), the father testified that he had access
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to $16,000 monthly and that he provided toys and snacks to his child during the relevant
four-month time period. In re Gabriel B., 2018 WL 3532078, at *5. The father testified
that he spent one to two hundred dollars on gifts and snacks for his child each time he
saw him. Id. The case does not indicate that the father provided receipts for any of the
alleged purchases, and the Department’s records of the father’s supervised visits did not
support the father’s testimony that he brought gifts and snacks to each visit. Id. We
affirmed the trial court’s conclusion that the few gifts the father provided his child
constituted merely “token support” in light of the father’s reported level of income. Id. at
*7.
The second case the Petitioners rely on is In re Brantley B., No. M2016-02547-
COA-R3-PT, 2017 WL 4877456 (Tenn. Ct. App. Oct. 30, 2017). In that case, the mother
paid no child support during the relevant period but argued that the trial court “erred in
failing to consider her testimony that she provided toys, books, a backpack, candy, and
clothes, as well as gifts on various holidays” to counter any finding of willfulness. In re
Brantley B., 2017 WL 4877456, at *4. The evidence revealed that money the mother
earned that could have gone towards support of her child “was used to support her
addiction.” Id. The opinion does not indicate that the mother provided receipts
establishing the amounts she actually spent on the child, so it could not be determined
whether the amount the mother spent on the child was meaningful under the
circumstances. We affirmed the trial court’s holding that the mother’s support was no
more than token support under the statute. Id.
The final case the Petitioners rely upon is In re Keilyn O., No. M2017-02386-
COA-R3-PT, 2018 WL 3208151 (Tenn. Ct. App. June 28, 2018). In that case, the mother
had a monthly income of $800 and monthly expenses of approximately $150. In re
Keilyn O., 2018 WL 3208151, at *7. The mother in that case did not pay any formal
child support, but there was evidence that she bought her children school supplies, shoes,
backpacks, groceries, and soap. Id. at *2. The trial court found that the mother
purchased “an unspecified amount of groceries and school supplies” for her children,
which it classified as “token.” Id. at *7. We found that the evidence did not
preponderate against this finding. Id. As was the case in In re Gabriel B. and In re
Brantley B., the opinion does not reflect that the mother introduced evidence of the
amount of money she spent on the groceries and school supplies in the relevant four-
month period, with the result that the trial court could not determine whether the mother’s
contribution to the children’s support was meaningful under the circumstances.
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 Anna over the relevant four-month
period, which averages out to about $200 per month.4 Petitioners point to no case law
4
Mother introduced a child support worksheet as an exhibit at trial showing that her monthly child support
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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, yet they contend Mother’s rights
should be terminated because she did not spend more on Anna during the relevant period.
We find this case is similar to In re Alysia S., 460 S.W.3d 536 (Tenn. Ct. App.
2014). In that case, the mother had not made a monetary child support payment in the
four months preceding the filing of the termination petition. In re Alysia S., 460 S.W.3d
at 565. The mother was not a high wage earner and had other financial obligations she
was required to meet during the relevant time period, similar to Mother. Id. at 567-68.
The mother testified that she sent her child “three to four outfits, shoes, socks, underwear,
and vitamins” during the relevant time period, id. at 568, and the record showed that she
brought gifts and snacks to a supervised visit during this same period, id. at 570. The
trial court recognized that the mother did not make child support payments because she
used her income to pay bills and because the foster parents had told her previously not to
pay them child support. Id. at 568-69. Like Mother, who had legal bills to pay in an
effort to increase her time with Anna, the mother in In re Alysia S. had legal bills to pay
in an effort to defend a dependency and neglect petition. Id. at 571. The trial court
terminated the mother’s parental rights, and we reversed that decision on appeal, writing:
The evidence in this case falls short of meeting [the clear and convincing]
standard. The evidence presented by [the petitioners] simply does not
produce a firm belief or conviction, in our minds, that Mother, during the
four month period, had the capacity to support Alysia, 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 Alysia, and we therefore reverse the trial court’s finding that
this ground for termination was proven by clear and convincing evidence.
Id. at 572.
Unlike the cases upon which Petitioners rely, Mother presented evidence of her
wages and expenses during the relevant four-month period, and she presented proof of
the purchases she made in support of Anna. No evidence was introduced that Mother
used any of her wages on illegal drugs, as was the case in In re Brantley B., 2017 WL
4877456, at *4, or that she lived an extravagant lifestyle.5 Petitioners filed their
termination petition one day after Mother filed a petition to obtain unsupervised time, and
possibly custody, of Anna, and they admitted that they filed their petition in an effort to
obligation according to the child support guidelines would have been $236 during the relevant time
period.
5
The record shows that the only entertainment expense Mother had during the relevant time period was a
$14 monthly subscription to Netflix.
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prevent losing custody of Anna. Mother clearly wants to be a part of Anna’s life, and we
find that the money Mother has spent in support of Anna during the relevant four-month
period, which averages out to about one-quarter of her net income, does not qualify as
“token” under the statute. See In re Z.J.S., 2003 WL 21266854, at *11 (“A parent’s
financial support of his or her child will not be deemed to be ‘token’ unless it is
‘insignificant’ in light of the parent’s ‘means.’”) (quoting Tenn. Code Ann. § 36-1-
102(1)(B)).
We conclude that the Petitioners have failed to show by clear and convincing
evidence that Mother abandoned Anna within the meaning of Tenn. Code Ann. §§ 36-1-
113(g)(1) and 36-1-102(1)(A)(i) and reverse the trial court’s judgment terminating
Mother’s parental rights to Anna.6 The parties should bear in mind that this opinion is
limited to reversing the trial court’s decision terminating Mother’s rights to Anna and
does not alter or affect the juvenile court’s October 13, 2010 decision placing Anna into
Petitioner’s custody.
IV. CONCLUSION
The judgment of the trial court is reversed, and this matter is remanded with costs
of appeal assessed against the appellees, Michael G. and Barbara G., for which execution
may issue if necessary.
________________________________
ANDY D. BENNETT, JUDGE
6
Because we conclude that Petitioners failed to prove that Mother abandoned Anna, the best interests
analysis does not come into play.
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