Tenn. Code Ann. § 36-1-113

A court-ordered suspension of visitation does not defeat abandonment under subsection (g)(1) when the parent does not pursue the available steps for restoring visitation.

In Re Lucas S. · filed 2025-07-29(g)(1)

We agree with the trial court’s finding that the evidence clearly and convincingly showed that Father abandoned the Child by willfully failing to visit as set forth in Tennessee Code Annotated section 36-1-113(g)(1).

One virtual visit during the relevant four-month period may establish abandonment by failure to visit when the parent offers no explanation for the remaining absence.

IN RE ZAIMEON M. · filed 2025-12-30(g)(1)

There is no dispute that Mother only visited the Child once in the four months immediately preceding the filing of the termination petition. Mother offered no explanation as to her failure to visit. With these considerations in mind, we affirm the trial court’s determination on this ground of termination.

Failure to visit is not willful under Section 36-1-113(g)(1) when a facially valid court order effectively prohibited the parent from visiting.

In Re: T.W. · filed 2018-04-17(g)(1)

Tenn. Code Ann. § 36-1-113(g)(1) provides that parental rights may be terminated on the ground of abandonment. ... The Alabama court order effectively prohibited mother from visiting the children. We conclude that evidence in the record does not provide clear and convincing proof that mother’s failure to visit the children was willful.

Subsection (g)(1)'s incorporated failure-to-visit ground requires clear and convincing proof that the parent's nonvisitation was willful.

In Re Emma S. · filed 2018-04-30(g)(1)

This ground of abandonment by failure to visit was not clearly and convincingly established by Petitioners, and we reverse the judgment of the trial court in that regard.

Willful failure to visit under subsection (g)(1) is not proven when the child's custodian significantly restrains or interferes with the parent's visitation efforts.

In re: Justin P. · filed 2018-05-17(g)(1)

Appellees were clearly aware that Mother had been awarded reasonable, unsupervised visitation rights with the Children, and their unilateral decision to stop visitation, or only to allow Mother access to the Children when Father was present, has created “a significant restraint or interference with [Mother’s] attempts to visit the [C]hild[ren].” In re M.L.P., 281 S.W.3d at 393. Accordingly, we conclude that the evidence does not clearly and convincingly establish that Mother has abandoned these Children by willful failure to visit.

Subsection (g)(1)'s incarcerated-parent abandonment ground was established by clear and convincing evidence of willful failure to visit during the four months before incarceration.

In Re: Kylea K. · filed 2018-06-21(g)(1)

We conclude that the evidence clearly and convincingly shows that Father willfully failed to visit Kylea during the relevant four-month period prior to his incarceration. Therefore, grounds for termination existed based on abandonment by willful failure to visit.

Failure to visit was not willful when the parent lacked transportation for a four-hour trip, DCS did not offer transportation help, and the parent maintained daily telephone contact.

IN RE KEILYN O. · filed 2018-06-28(g)(1)

Based on this record, we conclude that the evidence was less than clear and convincing that Mother abandoned her children by willful failure to visit during the four months preceding the filing of the petition. So we vacate the juvenile court’s finding that DCS met its burden of proving this ground for termination.

A custodial party does not significantly restrain visitation by leaving alternative communication available when the parent instead quibbles over arrangements and fails to visit during the statutory period.

In Re: Apex R. · filed 2018-06-29(g)(1)

In spite of that, Petitioners left alternative means of communication open to Father, of which he did not avail himself. Father chose instead to quibble over arrangements to meet with Petitioners to visit the Child. In the four month period prior to the filing of the petition to terminate parental rights, Father could have and should have visited with the Child and yet did not. We find, as did the Trial Court, that the ground of willful failure to visit was proven against Father by clear and convincing evidence.

A handful of short, unannounced visits over thirty-two months, with no meaningful relationship formed, are token visitation supporting abandonment.

In Re D.N. · filed 2018-07-03(g)(1)

By his own testimony, Appellant would “pop up” for a visit whenever he felt like doing so. Appellees did not deny him these visits, but we cannot conclude that these visits established any meaningful relationship between Appellant and T.N. Accordingly, we conclude that the record clearly and convincingly establishes that Appellant’s visits were no more than token in that they were “of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-102(1)(C). Therefore, we affirm the trial court’s termination of Appellant’s parental rights on the ground of abandonment by willful failure to visit.

Suspension of visitation does not prevent a willful-failure-to-visit finding when the order provides a clear path to resume visitation and the parent refuses to meet its conditions.

In Re McKenzi W. · filed 2018-08-09(g)(1)

The court provided Mother a clearly defined pathway to obtain visitation with McKenzi. She was required to obtain a psychological evaluation from “a licensed clinical psychologist” that was “non-self-reporting.” Although she was able to identify several licensed clinical psychologists on her own, Mother simply refused to trust a system that did not allow her to self-report. And, again due to mistrust, she would not accept DCS’s assistance in setting up a complying evaluation. We conclude that her failure to visit was willful based on this behavior.

Ten telephone calls and one in-person visit during the four-month period, considered with barriers to in-person visitation, constituted more than token visitation.

In Re Jaylan W. · filed 2018-09-18(g)(1)

Given our standard of review, the evidence does not clearly and convincingly lead us to conclude that Father willfully failed to visit Jaylan; accordingly, we reverse this ground of termination of Father’s rights.

A parent willfully fails to visit under subsection (g)(1) when the parent knows how to remedy the behavior that caused visitation to be suspended but takes no action to obtain reinstatement.

In Re Alexis S. · filed 2018-11-30(g)(1)

We determine that Mother’s awareness of the steps necessary to reinstate her visitation rights and her inaction with respect to those steps constituted a willful decision to discontinue her visitation with the Children.

A failure to visit is willful under subsection (g)(1) when the parent completes intake and makes scheduling calls but neither seeks to enforce the visitation order nor shows that another person restrained visitation.

In Re: Mikko B. · filed 2018-12-21(g)(1)

From our review of the record, we discern no actions on the part of Mother that amount to a restraint of or interference with Father’s efforts to exercise visitation with Mikko. To the contrary, Father took no action to exercise his visitation after completing the paperwork required by Parent Place and making calls to determine when the visitation would take place; as noted by the trial court, Father did not attempt to engage counsel or otherwise seek to enforce the Juvenile Court order giving him visitation or alternative means to exercise visitation.

Failure to visit is willful when the parent knew of the duty and opportunity to visit, could contact the custodians, made no attempt, and lacked a justifiable excuse.

In Re Jeffery D. · filed 2019-01-24(g)(1)

The preponderance of the evidence supports the trial court’s findings of fact, and these findings of fact constitute clear and convincing evidence to support the termination of Father’s parental rights on the ground of abandonment by failure to visit.

A parent does not abandon a child by willfully failing to visit during a period when a court order prevents visitation.

In Re: Ethan M. · filed 2019-01-29(g)(1)

However, the record reflects that visitation was suspended pursuant to a court order on August 17, 2016, precluding any visitation during the majority of the pertinent time period. Accordingly, we reverse the trial court on its ruling that Mother abandoned the Child by failing to visit.

A custodian’s purposeful interference that prevents visitation precludes clear and convincing proof of willful failure to visit under subsection (g)(1).

In Re Mattie L. · filed 2021-02-05(g)(1)

We find the evidence preponderates against the trial court’s findings of fact that Father willfully failed to visit with Mattie. Evidence of Mother’s efforts to interfere with Father’s relationship and deny visitation precludes a “firm belief or conviction” that Father had the ability to visit, made no attempt to visit, and had no justifiable excuse for not visiting. See In re Keri C., 384 S.W.3d at 744. Thus, Mother and Stepfather failed to meet their burden of proving willful failure to visit by clear and convincing evidence.

A custodial parent who significantly interferes with visitation cannot obtain termination for failure to visit merely because the noncustodial parent could have sought a formal visitation order.

In Re Hayden F. · filed 2021-03-24(g)(1)

Mother admittedly knew that she “had the right to insist upon formal visitation via court order, [but] Tennessee law makes clear that a parent cannot significantly interfere with the noncustodial parent’s visitation and still rely on the ground of failure to visit to terminate parental rights.”

A parent proves that failure to visit was not willful when the custodian stopped visits, admitted further requests would have been denied, and the parent sought judicial relief during the statutory period.

In Re Hope G. · filed 2022-09-23(g)(1)

We hold that in this case, Mother’s pause of Father’s visits and her admission that she would not have allowed Father to visit if he had requested to do, in addition to Father’s filing a motion for contempt and petition for parenting plan during the relevant four-month period, demonstrate that Father met his burden of proof of establishing by a preponderance of evidence that his failure to visit was not willful.

A visitation-suspension order does not excuse abandonment when the parent takes no steps to regain visitation rights.

In Re Yancy N. · filed 2022-12-29(g)(1)

Although a court order from October 2017 prohibited Father from visiting, at no time after that order did Father take any steps to regain his visitation rights.

When deciding whether failure to visit was willful under subsection (g)(1), the court may consider interference occurring before the statutory four-month period.

In Re Chance B. · filed 2024-02-26(g)(1)

In light of the circumstances and arguments advanced in this case, we conclude that the trial court’s decision to limit its interference inquiry to the four-month period outlined in the termination statute for the abandonment grounds was in error.

A parent proves lack of willfulness when the custodian blocks meaningful visitation and support while the parent actively pursues a judicial visitation and support order.

In Re Bentley E. · filed 2024-07-25(g)(1)

Father sought a court order to pay a set amount of support and even inquired at the child support office to establish this obligation, but, to date, the court has not heard the question of support. From our review, the evidence does not clearly and convincingly establish that Father abandoned this Child, although he has not consistently visited or supported him. In short, Father met his burden to show that any failure to visit or support was not willful.

Another person's conduct excuses a parent's failure to visit only when it actually prevents visitation or significantly restrains or interferes with the parent's attempt to visit.

IN RE BENTLEY W. · filed 2025-10-21(g)(1)

A parent’s failure to visit may be excused by the acts of another only if those acts actually prevent the parent from visiting the child or constitute a significant restraint or interference with the parent’s attempt to visit the child.

A pro se answer sufficiently pleads lack of willfulness when its substance alleges that the parent would not willingly remain separated and had been misinformed about contact rights.

IN RE LINCOLN S. · filed 2025-12-15(g)(1)

Although Mother’s answer does not cite the relevant statute, her answer sufficiently raises lack of willfulness as an affirmative defense. See Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (explaining that while this Court cannot create or argue defenses on a pro se party’s behalf, we review their filings for substance rather than form).

Conditioning agreed visitation on proof of sobriety is not significant restraint or interference when the parent can seek court-ordered visitation.

In Re Brady R. · filed 2026-04-07(g)(1)

Stepfather and Mother did not prevent Father from visiting the child; they only conditioned further agreed visitation on proof of sobriety. It was not a significant restraint or interference on Father’s efforts to develop a relationship with the child. He had the option of pursuing court ordered visitation if he found the condition unreasonable under the circumstances.

An unpleaded lack-of-willfulness defense may be tried by implied consent when both sides present testimony about the parent's efforts to arrange visitation without objection.

IN RE JADEN H. · filed 2026-06-10(g)(1)

Similarly, here, Father was questioned by counsel and allowed to testify at length during the trial concerning his attempts to contact Parent Place, Volunteer Visitation (another visitation provider), Grandparents, and Mother regarding visits with the Child. ... As such, we determine that the issue of willfulness was tried by implied consent.

Chronic drug abuse and criminal conduct, together with failure to support the child, lack of a home, and only sporadic contact, support termination for abandonment under subsection (g)(1).

State of Tennessee, Department of Children's Services v. James Bostick Osborne, In the matter of Sherry Monet Hendren · filed 1999-08-02(g)(1)

We are of the opinion that the evidence in the record does not preponderate against the Trial Court’s findings of fact. Mr. Osborne admitted to chronic drug abuse and criminal conduct and admitted that he had no home to provide for his daughter. During his daughter’s life, Mr. Osborne never provided support for her, and his relationship with her was sporadic at best.

Willful failure to support is shown when a parent worked during the foster-care period, knew support was expected, paid nothing, and offered no valid explanation.

Department of Children's Services v. D. & G.M. · filed 2000-11-28(g)(1)

The uncontraverted evidence is that no support was paid by either parent at any time, and that the failure to pay was willful. The mother admitted that she had worked at least some of the time during the two years her children were in foster care, and was aware that she was supposed to send support. She gave no valid reason why she had not paid support, and when asked, she said, “I don’t know, but I have given them things though.” The Trial Court’s finding of abandonment on this issue is supported by clear and convincing evidence.

Abandonment based on nonsupport does not require a support order; reasonable payment depends on ability to pay, and paying nothing despite an ability to pay is willful and intentional.

State v. Daniels · filed 2002-01-16(g)(1)

The statute relative to abandonment does not require court ordered support, but rather willful failure to make reasonable payments toward the support of children. Reasonable payments, of course, depend upon the ability of the parent to pay support. However, the record shows, by Ms. Daniels’ own assertion, that she had the ability to make some payments toward the support of the children in the four months preceding the filing of the petition for termination and did not do so. Such failure was both willful and intentional without resort to the constitutionally flawed 1995 amendment to the statute condemned in Swanson.

A parent's failure to pay support is willful when the parent remained employed, knew where the children were and where to send support, and offered only variable earnings as an explanation for paying nothing.

Mccrone v. Richardson · filed 2003-03-31(g)(1)

Under these circumstances, it is established by undisputed evidence that Father’s failure to pay child support for James and Kristina was willful. See Bryant, 2000 WL 1483217, at *5 (determining that a father, who was able but did not contribute to the support of his children, had abandoned his children under the statute). Therefore, under section 36-1-102(1)(A), Father “abandoned” James and Kristina, and grounds for termination of his parental rights have been established pursuant to section 36-1-113(g)(1).

A failure to pay support is not willful abandonment when permanency plans led the parent to believe support was required only if ordered by a court.

In Re: J.J.C., D.M.C., S.J.B. v. Calabretta · filed 2003-11-19(g)(1)

Given the fact that the permanency plans would have led Father to believe that support payments were required only if a court ordered such payments, Father’s failure to pay cannot be considered to have been willful. Therefore, the trial court’s termination of Father’s parental rights on the ground of abandonment must be reversed.

A failure to pay support is not willful abandonment when permanency plans led the parent to believe support was required only if ordered by a court.

In Re JJC · filed 2004-01-23(g)(1)

Given the fact that the permanency plans would have led Father to believe that support payments were required only if a court ordered such payments, Father’s failure to pay cannot be considered to have been willful. Therefore, the trial court’s termination of Father’s parental rights on the ground of abandonment must be reversed.

A failure to pay support is not willful abandonment when permanency plans led the parent to believe support was required only if ordered by a court.

State, Department of Children's Services v. Calabretta · filed 2004-01-23(g)(1)

Given the fact that the permanency plans would have led Father to believe that support payments were required only if a court ordered such payments, Father’s failure to pay cannot be considered to have been willful. Therefore, the trial court’s termination of Father’s parental rights on the ground of abandonment must be reversed.

A parent's duty to support a child does not depend on a support order, and claimed ignorance of that duty due to illiteracy or mental deficiency does not preclude a finding of willful abandonment.

Dept of Children's Svrcs. v. R. G. T. · filed 2003-05-30(g)(1)

“the support of one’s children should not be conditioned upon whether one has been placed under a court order to do so.”

For a termination proceeding unaccompanied by an adoption request, willful nonsupport need not show a settled purpose to forgo all parental duties or a conscious disregard of parental obligations.

Dept of Children's Services v. RB · filed 2003-05-12(g)(1)

This standard is inapplicable to this case, inasmuch as only in cases accompanied by an adoption petition or involving adoption proceedings must one prove a “settled purpose to forego all parental duties” and/or “conscious disregard or indifference to the parental obligations.”

A parent who is financially unable to support a child does not willfully fail to support under subsection (g)(1), but years of nonsupport without claiming inability may establish willfulness.

In Re: C.D.C., Jr. · filed 2004-06-07(g)(1)

We recognize that a parent who fails to support a child because he is financially unable to do so is not willfully failing to support the child. O’Daniel v. Messler, 905 S.W.2d 182 (Tenn. Ct. App. 1995). But the Respondent makes no claim that he was unable to support his son. He simply failed to do so, for years.

Prenatal cocaine use can exhibit wanton disregard supporting abandonment when the mother knows its effects from having previously delivered another cocaine-exposed child.

In Re CTS · filed 2004-08-16(g)(1), (g)(6)

It is clear that Mother ingested crack cocaine during her pregnancy and immediately before the birth of C.T.S., knowing the effects it would have on her child. Mother’s knowledge of these effects, moreover, was more than theoretical as she previously had given birth to a child who also was born addicted to cocaine. Such conduct clearly exhibits a wanton disregard for the welfare of the child.

Even when willful nonsupport is unproven, subsection (g)(1)'s abandonment ground may be established by DCS’s reasonable efforts to help create a suitable home and the parent’s lack of reasonable effort and concern.

In the Matter of S.L.R. Children Under 18 Years of Age · filed 2004-12-28(g)(1)

These findings also clearly and convincingly establishes that DCS made reasonable efforts for a period of four consecutive months following removal in assisting Father in creating a suitable home for the children. ... These facts clearly and convincingly demonstrate that Father has not made reasonable efforts to provide a suitable home, and he has demonstrated a lack of concern for his children making it unlikely that he will be able to provide a suitable home in the future. Accordingly, we affirm the trial court’s finding that Father abandoned his children, as that term is defined in section 36-1-102(1)(A)(ii) of the Tennessee Code.

Willful nonsupport under subsection (g)(1) is established when the parent understood the support obligation, had the capacity to pay, and nevertheless provided no support during the statutory period.

In The Matter of: M.J.J. · filed 2005-04-14(g)(1)

After a careful review of the record, we conclude that the evidence in the record clearly and convincingly establishes that Mother willfully failed to contribute to M.J.J.’s support. Although Mr. McCrary testified that Mother sometimes brought “some diapers and clothes” to visits “in the beginning,” it is undisputed that Mother provided no means of support for the child, whether monetary or otherwise, after August, 2003. Therefore, it is clear that Mother provided no support during the relevant time period. Furthermore, it is clear that Mother understood her obligation and had the capacity to pay support, but failed to do so. On June 18, 2003, DCS provided Mother a document entitled “Criteria & Procedures for Termination of Parental Rights,” which, by her signature, she acknowledged her duty to provide support. Accordingly, we believe that the evidence clearly establishes Mother’s abandonment by failure to provide support.

Failure to support is willful only when the parent knows the duty, has the capacity to pay, makes no attempt, and lacks a justifiable excuse; financial inability defeats willfulness.

Gary John White, Jr. v. Farley · filed 2005-10-14(g)(1)

Failure to support a child is “willful” when a person 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.

A parent willfully fails to support under subsection (g)(1) when she knows the obligation, is capable of employment and works during the statutory period, but pays nothing.

State of Tennessee, Department of Children's Services v. A.C. · filed 2006-11-02(g)(1)

The first issue is whether there was clear and convincing evidence that Mother had abandoned the children by willfully failing to support them for the four month period immediately preceding the filing of the petition. During the relevant four month period, Mother certainly was capable of being employed and in fact was so employed for several weeks, until she was incarcerated due to her own actions. Mother never paid any child support during the relevant four month period, although she was able to purchase and use illegal drugs. We conclude that the Juvenile Court correctly determined that, pursuant to Tenn. Code Ann. § 36-1-113(g)(1), there was clear and convincing evidence that Mother had abandoned the children by willfully failing to support them for the four month period immediately preceding the filing of the petition.

Using drugs while pregnant and breastfeeding, coupled with maintaining a methamphetamine laboratory in the home, constitutes wanton disregard supporting abandonment under subsection (g)(1).

In Re SLA · filed 2006-12-19(g)(1)

This evidence, coupled with the additional circumstances, clearly demonstrate a wanton disregard of the child. Therefore, the mother’s record contains clear and convincing evidence to support the trial court’s termination of the mother’s parental rights on the ground of abandonment pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv).

Failure to pay child support is not willful abandonment when the parent offered support and the custodian refused it.

Baker v. Smith · filed 2008-05-07(g)(1)

The failure to pay child support is not willful where support has been offered and refused.

Willful failure to support is established when a parent works and receives government assistance yet provides no financial support and identifies no justifiable excuse.

In the Matter of: JQW (D.O.B. 03/05/00) and LKW (D.O.B. 01/12/05) · filed 2008-07-23(g)(1)

Although Mother asserts she brought gifts for the children and sent JQW a kindergarten graduation card, Mother points to no evidence that suggests any attempt to support these children financially, despite the fact that she was working and receiving government assistance. We affirm termination based on abandonment for failure to support.

Failure to support is not willful when the parent cannot pay, while a parent's earlier refusal to support may prove an intent not to pay during the statutory period.

In Re: D.C.A. · filed 2009-03-30(g)(1)

Thus, a party who was unable to make payments to support his child has not abandoned the child under the statutory definition. ... As the trial court observed, Father’s failure to pay child support prior to the statutory four month period does not establish a ground for termination, but it is probative of Father’s intentions in regard to his parental obligations. ... We therefore agree with the trial court that the ground of abandonment has been proved by clear and convincing evidence.

A partial support payment is not token under subsection (g)(1) when, considering the parent’s circumstances, it is not insignificant—even if it is less than the full ordered amount.

In RE: T.D.M.C. and D.M.A. · filed 2009-10-12(g)(1)

During the four months preceding the filing of the petition, Father paid $580.04 in child support. His total obligation during that seventeen-week period was $1020. Father disputes the trial court’s finding that this amounted to mere token payment. The court noted that Father was able- bodied and not incarcerated in the four months before the filing of the petition on July 28, 2008. In fact, Father was employed by Fastenol from April 16 to July 15, 2008, during which time his wages were garnished to satisfy his child support obligation. We disagree with the trial court’s characterization of this amount as mere “token support.” Given Father’s circumstances, we find that this payment was not insignificant.

Participation in organized criminal drug trafficking that leads to incarceration constitutes wanton disregard supporting abandonment under subsection (g)(1).

State of Tennessee Department of Children's Services v. V.L.S.C. and M.M.S. · filed 2009-11-13(g)(1)

Likewise, the finding that Father engaged in wanton conduct which evidenced a disregard for the welfare of E.M.S. is clearly sustained by the record. As noted by the trial court, Father engaged in organized criminal activity with Mother and various other family members, including a multi-state drug distribution operation, which led to his arrest.

Willful failure to support is established when a parent has the means to support the child but makes no effort to do so.

In the Matter of: Madison K. · filed 2010-09-27(g)(1)

It appears that Mr. K. had the means to support this child. However, despite having the ability to support, the record reveals that Mr. K. made no effort to do so. From the totality of the circumstances, we conclude that there is clear and convincing evidence in the record that, despite having the means to support this child, Mr. K. willfully abandoned her by failing to do so.

A parent willfully fails to support when, despite financial and employment difficulties, she repeatedly obtains work or other money but chooses to spend available cash on a car rather than her children.

In Re Betty P. · filed 2010-09-28(g)(1)

The fact remains that while her Children remained in foster care, and during a time when Mother was fully aware that she was at risk of losing them if she did not help support them, Mother made the choice, over and over again, to take cash in hand and apply all of it toward a car and none of it toward the Children. The evidence preponderates overwhelmingly in support of the trial court’s finding that Mother abandoned the Children by her willful failure to support them.

Limited income does not preclude willful nonsupport when parents have at least some ability to contribute but make no attempt to provide financial support.

In Re: Damon G. and Rosa G. · filed 2011-03-10(g)(1)

However, the record supports the trial court’s conclusion that neither Mother nor Father paid any amount in support of these children even when they had at least some ability to do so. ... As noted, Mother and Father have had very limited income. However, since the children were removed from their care, they have made no attempt to provide for their financial support.

A parent who knows of and can meet the duty to support may willfully abandon a child by paying nothing even when no court order specifies a support amount.

In the Matter of Jason C.H. · filed 2011-03-16(g)(1)

Father testified that he had consistently worked as a roofer for the past eighteen years when he was not in jail and, although Father was not under a court order to pay support, Father admitted at trial that he was aware of his obligation to support his child, however, he did not pay support because he was not under a court-ordered specified amount. ... Moreover, under Tennessee law,“the obligation of support exists even in the absence of a court order to do so.”

Prenatal nonsupport cannot establish abandonment nine years later when the father subsequently obtained paternity rights and paid support; any objection based on prenatal nonsupport belonged in the paternity proceeding.

In the Matter of: Dylan M. J. · filed 2011-03-17(g)(1)

This course of events precludes a finding that Father abandoned his child by failing to pay support in the four months prior to his birth. Any objection to Father obtaining parental rights based on his failure to support Mother during her pregnancy should have been raised during the paternity proceeding. Because Father was granted the parental rights that accompany paternity after, and perhaps in spite of, his failure to support Mother prior to the child’s birth, that failure cannot be used nine years later to deprive Father of those same rights.

Willful nonsupport under subsection (g)(1) is established when the parent knows the duty, demonstrates an ability to work, makes no effort to support, and lacks a justifiable excuse.

In Re: Emily L. · filed 2011-06-30(g)(1)

The proof establishes that the father knew he should support the children, and he had the capacity to work and support the children as demonstrated by his 14-month welder job that he left, but he made no attempt to support the children and had no justifiable excuse for not doing so. We affirm the Judgment of the Trial Court finding by clear and convincing evidence the father's failure to support as a ground for termination as well.

Failure to pay support is not willful abandonment when the parent attempts to contribute but cannot obtain employment sufficient to cover support along with necessary housing and utilities.

In Re: Dylan H. · filed 2011-12-16(g)(1)

The testimony presented reflects that Mother attempted to provide support but was simply unable to find suitable employment in order to sufficiently contribute to her child support obligation, in addition to her necessary expenses related to housing and utilities. Accordingly, we conclude that her failure to pay child support was not willful and that the trial court erroneously applied the ground of abandonment in support of its decision to terminate Mother’s parental rights.

A parent's support obligation exists without a specific support order, so absence of an order does not by itself defeat willfulness.

In Re Adryan L. B. and Brenden A. B. · filed 2012-10-24(g)(1)

The fact that a parent may not be under an order to pay support, however, is not dispositive of the question of whether the failure is willful, as the obligation to pay support exists in the absence of a specific order.

Willful nonsupport may be inferred where a parent with a work history provides practically nothing and the trial court discredits unsupported claims of inability to work.

In Re: Hope A.P. · filed 2012-12-03(g)(1)

According to her own testimony, Mother has a work history, albeit rather sporadic, at places such as Backyard Burger, Walmart, Ingles, and ACT. Mother, however, did not work during the relevant period and contributed practically nothing for the Child.

Drug addiction and knowledge that relatives are caring for the children may explain nonsupport but do not excuse a parent's failure to make any support attempt.

In Re: Drako J. M. & Skyler B. M. · filed 2012-12-18(g)(1)

If we look for the reason why Mother did not attempt to support her children, we might conclude that she knew that they were being taken care of by Father’s parents, and that her abuse of inhalants and other drugs rendered her incapable of understanding that she also needed to take responsibility for their care. But reasons are not the same as excuses. In sum, we affirm the trial court’s finding that Mother abandoned her children by wilfully failing to support them.

Participation in drug rehabilitation does not eliminate a parent’s duty to support the child, and a capable parent’s complete nonpayment may be willful under subsection (g)(1).

In Re: Krissa E.M.L. · filed 2013-02-28(g)(1)

Mother’s contention that she was focused on her rehab, which was indeed a necessary and important endeavor, nevertheless fails to absolve her of her duty to pay child support. From our review of the record before us, we find that the Juvenile Court’s findings made under the clear and convincing standard as relevant to the issue of willful failure to support are supported by a preponderance of the evidence. The Juvenile Court did not err in finding and holding that clear and convincing evidence existed that grounds were proven to terminate Mother’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) for willful failure to support.

Payments totaling twenty dollars during the four-month period are token support under subsection (g)(1) when the parent earned a salary and offered no justifiable excuse.

In the Matter of Cheyenne E. H. and Robert L. H. · filed 2013-03-07(g)(1)

The evidence also shows that she paid a total of $20 in support in the four months prior to the filing of the petition and $20 between the filing of the petition and the hearing date; she offered no justifiable excuse. The evidence clearly and convincingly suppports the termination of her parental rights in accordance with Tenn. Code Ann. § 36-1-113(g)(1).

Token support is measured against both income and available resources, and substantial partial payment is not token without clear evidence of the parent’s financial means.

In Re: The Adoption of Angela E. · filed 2013-03-13(g)(1)

Token support payments are not sufficient to preclude a finding of a willful failure to support. Token support is support that “under the circumstances of the individual case, is insignificant given the parent’s means.” Tenn. Code Ann. § 36-1-102(1)(B). In the context of token support, the word “means” connotes both income and available resources for the payment of debt. In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *11 n.24 (Tenn. Ct. App. June 3, 2003); see also Black’s Law Dictionary 1070 (9th ed. 2009). Mother and Stepfather contend that Father had the ability to pay his child support obligation in full and that his payment of $3500 of the $10,336 owed 4 between March 2005 and July 2005 was insufficient given his means. The evidence concerning Father’s income and expenses is limited at best, however, and we conclude that Mother and Stepfather failed to prove that Father’s payment history between March 5, 2005, and July 5, 2005, reflected mere “token support.”

Willful failure to support is established when the parent knew of the support obligation, had the ability to pay, and lacked a justifiable excuse for providing nothing during the relevant four-month period.

In Re: Joshua P · filed 2013-07-15(g)(1)

Given the evidence at trial, there was clear and convincing proof that Mother willfully failed to support the Children during the four months prior to her incarceration – that she was made aware of her support obligation, that she had the ability to pay, and that she gave no justifiable excuse for failing to provide for the Children.

A parent's duty to support exists regardless of whether a prior court order requires support, so the absence of such an order does not excuse a willful failure to pay.

In Re: Shandajha A.G. · filed 2013-07-17(g)(1)

The law in this state is clear that a parent has a duty to support a child, regardless of whether there is a prior court order requiring such.

Support totaling $697.76 during the relevant period is not token when it is not insignificant in light of the parent's means.

IN RE: Adoption of Alexander M. S. F. · filed 2013-08-27(g)(1)

Specifically, we find that his payments were not insignificant given his means and did not amount to mere token support. ... Accordingly, we reverse the trial court’s order of termination.

Willful failure to provide support establishes abandonment when proven clearly and convincingly.

In Re: Aspyn S. J. · filed 2013-08-27(g)(1)

We find clear and convincing evidence to support the trial court’s determination that Mother abandoned her child by willfully failing to provide support and that termination of Mother’s parental rights is in the best interest of the child.

Abandonment supports termination when clearly and convincingly established together with the child’s best interests.

In Re: Justin T. H. · filed 2013-09-24(g)(1)

Following a bench trial, the trial court found that clear and convincing evidence existed to support the termination of Father’s parental rights on the statutory ground of abandonment and that termination of his rights was in the Child’s best interest. Father appeals. We affirm the decision of the trial court.

A parent's repeated criminal behavior, substance abuse, and failure to support may establish pre-incarceration wanton disregard for the child.

In Re: Jeremiah I. R. · filed 2013-09-30(g)(1)

All of these factors are present in the instant case. Accordingly, we conclude that the trial court properly terminated Father’s rights based on his conduct evidencing a wanton disregard for the Child’s welfare.

A parent who had the means to support a child but paid nothing during the relevant four-month period may be found to have willfully failed to support the child.

In Re JOCILYN M.P. · filed 2014-01-24(g)(1)

The evidence in the record on appeal as discussed more fully above does not preponderate against these findings made by the Trial Court by clear and convincing evidence. We find no error in the Trial Court’s determination that grounds to terminate Father’s parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36- 1-102(1)(A)(iv) for abandonment by willful failure to support had been proven by clear and convincing evidence.

A parent’s obligation to support a child exists without a support order, although failure to support is not abandonment when caused by circumstances outside the parent’s control.

In Re: S.J.W. · filed 2014-01-28(g)(1)

“The fact that the parent was not under an order to pay support is not dispositive of the question of whether the failure is willful; the obligation to pay support exists in the absence of a specific order.” In re Mark A.L., No. M2013-00737-COA-R3-PT, 2013 WL 5536801 at *4 (Tenn. Ct. App. M.S., filed Oct. 4, 2013)(citing Tenn. Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 523-24 (Tenn. Ct. App. 2004)). We recognize “a parent cannot be said to have abandoned a child when his failure to support is due to circumstances outside his control.”

A petitioning party does not prove willful failure to support merely by showing nonpayment when there is no evidence that the parent had the ability to pay during the relevant period.

In Re: Riannah M.F. · filed 2014-02-28(g)(1)

There is no clear and convincing evidence of willful failure to support in this record.

Willful failure to support was established despite irregular employment where the father admitted knowing his duty, had worked during the relevant period, made only token payments, and offered no reason for failing to pay while working.

In Re: Glenn J. · filed 2014-04-30(g)(1)

The record supports a finding that Father had the capacity to provide support during the relevant time periods and does not support his contention that his failure was not willful within the meaning of the pertinent statutes.

Nonpayment is not willful absent proof of capacity to pay and lack of a justifiable excuse; unemployment and pregnancy, without contrary proof of ability, did not clearly and convincingly establish abandonment.

In Re Ella M. I. · filed 2014-05-01(g)(1)

In short, the paternal grandparents did not put on any proof to establish that, during the four months prior to the filing of the petition, Mother had the capacity to pay and lacked a justifiable excuse for not paying.

Willful failure to support establishes abandonment when clear and convincing evidence supports the finding and termination serves the child's best interest.

In Re: Alexander J. G. · filed 2014-05-06(g)(1)

In this termination of parental rights case, Mother appeals the trial court’s determination that she abandoned her son by failing to support him and that termination was in the child’s best interest. Finding clear and convincing evidence in support of the trial court’s determinations, we affirm the trial court.

Able-bodied status alone does not prove willful nonsupport; DCS must present clear and convincing evidence of the parent's income, expenses, capacity, and support obligation during the relevant period.

In The Matter of: Terry S.C., Trevin S.C., Trustin S.C. · filed 2014-07-31(g)(1)

The Department failed to present any evidence regarding Mother’s income, her expenses, or her support obligation. As this Court has previously found, “[i]t was not enough for [the Department] to simply prove that Mother was not disabled during the relevant timeframe.” ... Accordingly, we reverse the trial court’s finding that grounds for termination existed based upon abandonment by failure to support.

Choosing to remain for eighteen months in work that produces no income may make nonsupport willful when the parent is capable of obtaining paid employment.

In Re: Jackson G. · filed 2014-08-04(g)(1)

The trial court found it unreasonable for Father to voluntarily remain at a job with no income for 18 months while having the ability to obtain a job with an income during the relevant time period. The record contains evidence that clearly and convincingly supports this finding. Accordingly, we affirm the trial court’s finding that Father willfully failed to support the children financially during the relevant period.

A parent’s failure to support is willful when he makes only one payment despite having varied job skills and holding several jobs during the relevant period.

In Re Michael A.C., Jr. · filed 2014-11-17(g)(1)

Father has only made a one-time payment of $271 in support. His failure to support the Child was willful, as he has a variety of job skills, and held several jobs during 2012. In fact, Father admitted that he “can pick up construction work pretty much whenever” he needs to do so.

A parent's lack of a child-support order does not relieve the duty to support or by itself negate willfulness under subsection (g)(1)'s incorporated abandonment ground.

In Re: Josie A. · filed 2014-12-12(g)(1)

Father’s explanation that he was “never put on child support” does not relieve him of his responsibility to pay support; neither does it establish that his failure to pay support was not willful.

An involuntary tax-refund intercept is not a voluntary support payment for purposes of subsection (g)(1)'s incorporated abandonment ground.

In Re Bryce F. · filed 2014-12-30(g)(1)

Mother’s own testimony established that the only child support payment made during the statutorily relevant period was the IRS intercept on February 21, 2014. Mother herself made no voluntary child support payments whatsoever during that four month period. The evidence in the record on appeal does not preponderate against the Juvenile Court’s finding by clear and convincing evidence that grounds were proven to terminate Mother’s parental rights to the Child for willful failure to support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1- 102(1)(A)(i).

Abandonment by willful failure to support is established when the parent intentionally provides no support during the statutory period despite knowing the duty and having funds available.

In Re Malaysia C. · filed 2015-02-10(g)(1)

From the totality of the circumstances, we conclude that clear and convincing evidence in the record supports the trial court’s conclusion that Mother abandoned this child by willful failure to support.

Failure to support is willful when an able parent makes no reasonable payment while employed and offers neither details of efforts to obtain other work nor a justifiable excuse.

In re Jayden B.T. · filed 2015-06-23(g)(1)

Upon our careful and thorough review of the record, we conclude that the evidence does not preponderate against the trial court‟s finding that Father failed to make any reasonable payments toward support of the Child even when he was employed in March 2013. Furthermore, Father failed to offer any details that would support a finding that he sought other employment prior to his incarceration and failed to offer any justifiable excuse for his failure to provide at least some measure of financial support.

Willful failure to support under subsection (g)(1)'s incorporated abandonment ground requires evidence of the parent's means and expenses sufficient to avoid speculation about the parent's capacity to pay more.

In re L.J., Jr. · filed 2015-08-31(g)(1)

Regardless, it is unclear from the evidence whether or not the payments were insignificant given Mother‟s means because there is insufficient evidence related to her expenses. If DCS expects a trial court to make a finding by clear and convincing evidence of a willful failure to support, it must put on evidence that clearly and convincingly shows “willfulness.” A trial court cannot be left to speculate about this important element of failure to support. The trial court‟s finding, said to be made by clear and convincing evidence, that Mother abandoned the Child through a willful failure to make payments is not supported by a preponderance of the evidence.

A failure to visit or support is not willful under subsection (g)(1)'s incorporated abandonment ground when the child's custodian successfully interferes with the parent's ability to perform the duty.

In re Kiara S. · filed 2015-10-29(g)(1)

In essence, the evidence shows that Mother took successful steps that interfered with Father‟s ability to pay child support. As such, the evidence does not support a finding that Father‟s failure to pay child support was willful. We find no error in the Trial Court‟s finding that Mother and Step-father failed to prove by clear and convincing evidence that Father abandoned the Child by willful failure to pay child support.

A parent’s ability to pay support must be considered for willfulness, but a court order is unnecessary and evidence of income and expenses may show capacity during the pre-incarceration period.

In re Trenton W. · filed 2016-05-31(g)(1)

First, although there was no court ordered support obligation in this case, the absence of a court order does not excuse a parent‟s obligation to support their minor child. ... Second, we agree with Mother that “[t]he financial ability, or capacity, of a parent to pay support must be considered in determining willfulness.” ... However, Grandparents presented evidence of Mother‟s income during the applicable four month period through Mother‟s interrogatory responses and W-2s, and the guardian ad litem questioned Mother regarding her expenses.

Nonpayment alone does not clearly and convincingly establish abandonment by failure to support when the evidence does not clearly show employment or willful nonpayment during the statutory period.

In re Milli L. · filed 2016-06-07(g)(1)

Particularly, there was no clear testimony as to when and where Mother was employed during the period of December 2013 through April 2014. Abandonment by failure to support as a ground for termination as alleged in the petition was not shown by clear and convincing evidence.

Willful-failure-to-support abandonment under subsection (g)(1) may be established when a parent earns money during the statutory period but spends it on cigarettes and illegal drugs instead of supporting the child.

In Re E.S.L. · filed 2016-08-29(g)(1)

Furthermore, Father testified at trial that, during the relevant four-month time period, he was making $200 a week doing odd jobs and “scrapping.” He also admitted to buying cigarettes and illegal drugs during that period. When taking all of these factors into account, we hold, as a matter of law, that the evidence clearly and convincingly demonstrates that Father willfully failed to support the Child.

A parent’s disability income can demonstrate capacity to pay at least some support and support abandonment by willful nonpayment.

In re Dustin T. · filed 2016-11-17(g)(1)

Accordingly, we hold DCS established by clear and convincing evidence that Mother abandoned the children by willfully failing to pay support during the four- month period immediately preceding the filing of the termination petition.

Willful-failure-to-support abandonment under subsection (g)(1) is not established when the parent attempts to provide support and the child's custodian rebuffs those efforts.

In Re: Neylan H. · filed 2016-12-29(g)(1)

As the evidence in the record on appeal does not preponderate against the Trial Court‟s finding that Father did not willfully fail to provide support, Mother and Stepfather failed to prove by clear and convincing evidence grounds to terminate Father‟s parental rights to the Child.

Willful-failure-to-support abandonment under subsection (g)(1) requires at least some evidence of the parent's income or available resources during the four months before incarceration.

In re Kayla B. · filed 2017-02-01(g)(1)

We conclude that the evidence was less than clear and convincing that Mother and Father willfully failed to support their children. Without at least some testimony concerning the parents’ income during the four months preceding their incarcerations, there was no basis to find that the parents’ failure to pay child support was willful.

Actively litigating visitation does not excuse failure to support when the parent makes no effort to establish support.

In Re Sydney B. · filed 2017-05-12(g)(1)

Consequently, like in In re Makenzie, we also conclude that Father’s participation in judicial proceedings to establish visitation with the child does not excuse his failure to pay support.

A petitioner cannot prove willful failure to support without evidence of the parent’s ability to pay during the statutory period, including evidence permitting assessment of expenses.

In Re Leroy H. · filed 2018-08-03(g)(1)

Without evidence establishing that Father had the ability to pay child support during the relevant time period, we conclude that Foster Parents failed to prove this ground of abandonment by clear and convincing evidence. Therefore, we reverse the trial court’s termination on this ground.

A parent’s support obligation exists without a court order, and employment plus a complete failure to contribute may establish willful failure to support.

In Re: Taylor C. · filed 2018-08-21(g)(1)

Accordingly, the fact that Mother was not under court order to provide support does not, ipso facto, relieve her of that obligation. It is undisputed that Mother made no financial contribution to the support of the child. Furthermore, Monica H. testified that Mother never provided any gifts or necessaries for the child during the relevant time period. From the undisputed facts, we conclude that there is clear and convincing evidence to support the trial court’s termination of Mother’s parental rights on the ground of abandonment by willful failure to support.

A parent’s knowledge of the duty to pay support may be shown by a support order, permanency plans, signed termination criteria, and the statutory presumption that adult parents know their support obligation.

In Re Kaycee M. · filed 2018-10-03(g)(1)

Accordingly, we conclude that there was clear and convincing evidence to establish that Father abandoned the Child by willfully failing to remit support during the relevant time period.

A parent’s admission of nonpayment, together with evidence that she worked during part of the statutory period and was otherwise able to work, supports abandonment by willful failure to support.

In Re Larry P. · filed 2018-10-15(g)(1)

She further stated that she worked during part of the relevant time period and that, when she was not working, it was not because she was disabled or unable to work. Furthermore, Mother admitted that she failed to pay child support during the four months prior to the filing of the termination petition. The evidence does not preponderate against the trial court’s findings of fact, and we conclude that those facts constitute clear and convincing evidence to support the ground of abandonment by willful failure to support by Mother in this case.

Voluntary unemployment may constitute willful failure to support when the parent was capable of working but chose not to seek employment and spent available money on drugs instead of support.

In Re Francis R. · filed 2018-10-25(g)(1)

From the totality of the circumstances, we conclude that there is clear and convincing evidence to support the juvenile court’s termination of Mother’s parental rights on the ground of abandonment by willful failure to support.

Voluntarily quitting work to avoid paying child support may establish abandonment by willful failure to support.

In Re Laura F. · filed 2019-04-29(g)(1)

Based on this record, we conclude that the evidence was clear and convincing that Mother abandoned her child by willful failure to support during the four months preceding the filing of the counter-petition. Willful unemployment can equate to a willful failure to support.

Documented purchases for a child averaging about one quarter of a low-income parent’s net income are not token support merely because the parent made no cash payment to the guardians.

In Re Anna G. · filed 2019-05-01(g)(1)

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.

Abandonment for failure to support is not proven when a parent attempts to provide support through an intermediary and the custodians refuse that intermediary’s offers of money for the child.

In Re Brenlee F. · filed 2019-08-30(g)(1)

Here, the record reflects that Mother attempted to provide support through Grandmother during her periods of employment. Mother explained that she did not have Petitioners’ telephone number and believed that her payments were delivered by Grandmother. While Petitioners deny Mother’s claim, they admitted that they refused offers of money for the benefit of the Child from Grandmother. Accordingly, we conclude that the record did not contain clear and convincing evidence to establish that Mother abandoned the Child by failing to remit child support.

Payments are not token support under subsection (g)(1) when they are not insignificant relative to the parent’s means.

In Re Josiah T. · filed 2019-10-02(g)(1)

Based on this evidence, we cannot say that Mother’s payments toward Josiah’s support during the relevant period were insignificant given her means.

In assessing willful failure to support under subsection (g)(1), necessary voluntary inpatient addiction treatment may take priority over employment and demonstrate the parent’s limited means.

In Re Kolton C. · filed 2019-11-26(g)(1)

Because Mother’s rehabilitation was voluntary, we concede that she had some choice in the program she attended. However, Mother should not be punished for seeking help with her drug addiction. Although Mother chose a program that required her to pay, the evidence shows that, as of the date of the hearing on the petition to termination her parental rights, Mother had not paid the full balance owed to the program. This fact tends to indicate that Mother had very limited financial means during the relevant time period. There can be no doubt that the necessity of treatment for her drug addiction was more imperative than gainful employment during the relevant time period.

A parent may make child-support payments with cash obtained from a relative because voluntariness, not the source of the funds, controls.

In Re C.L. · filed 2020-01-21(g)(1)

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.

A custodial parent does not thwart support by returning a misdirected payment with instructions to pay through the court-ordered child-support office.

In Re James D. · filed 2020-02-07(g)(1)

Further, Mother did not outright “refuse” the $8,000 payment; rather, she caused the cashier’s check to be returned to Father with instructions that, if the payment was intended to be child support, it needed to be paid through the Central Child Support Office in order to be properly credited as child support. Father, however, admitted that he made no effort to do so, his only excuse being that it “didn’t seem like a logical thing for me to do.”

A no-contact order may provide a justifiable excuse for nonpayment when it significantly restrains the parent’s efforts to support the child.

IN RE Austin J. · filed 2020-03-13(g)(1)

Having reviewed the restraining order agreed to by the parties and considered its scope, the order did represent a significant restraint of or interference with Father’s efforts to support Austin. The restraining order “enjoined and restrained” Father “and his agents . . . from any and all contact with [Mother] . . . either directly or indirectly.” We can understand the desire of Father, as a convicted felon on supervised release, to avoid any possibility of violating the court’s order and to act with caution.

A three-week hospitalization during the relevant four-month period does not negate abandonment by failure to support when it does not explain the parent’s nonpayment during the rest of the period.

In Re Kayleigh B. · filed 2020-03-27(g)(1)

Even if Father had been hospitalized for three weeks in February 2018, this does not explain why Father had not provided any support for the Children prior to his hospitalization during the beginning and the remainder of the four-month period. The evidence presented does not preponderate against the Juvenile Court’s factual findings concerning Father’s abandonment of the Children by failing to support them.

A parent does not prove lack of willfulness by assuming support is being deducted from paychecks while failing to verify payment or report job changes.

In Re Neveah A. · filed 2020-04-16(g)(1)

The record reflects that it was Mother’s own inactions that caused the Child to be unsupported by her. What she characterizes as a lack of willfulness we recognize as apathy to an important parental responsibility. We find that Mother has failed to establish by a preponderance of the evidence that her failure to pay support for the Child within the four months preceding the filing of the termination petition was not willful.

For abandonment by failure to support under subsection (g)(1), lack of willfulness is an affirmative defense that the parent must prove.

In Re Daniel B. Jr. · filed 2020-07-10(g)(1)

Mother complains that the juvenile court did not find her failure to support was “willful” and that the “evidence at trial was insufficient to show that [she] had the ability to pay child support during the relevant four-month period.” But, as DCS notes, lack of willfulness is an affirmative defense to the ground of abandonment by failure to support. Tenn. Code Ann. § 36-1-102(1)(I). The burden fell on Mother to prove her failure to support was not willful. Id.

A parent who provides no support and fails to prove by a preponderance of the evidence that the failure was not willful may be found to have abandoned the child.

In Re Arianna B. · filed 2020-11-09(g)(1)

The evidence does not preponderate against any of the Trial Court’s findings relative to this issue of Mother’s failure to support. Mother failed to prove by a preponderance of the evidence that her failure to support was not willful. We find, as did the Trial Court, that the ground of failure to support was proven against Mother by clear and convincing evidence.

Interference with a parent’s visitation does not excuse failure to support under subsection (g)(1), because visitation and support are separate parental duties.

In Re: Owen C. · filed 2020-12-14(g)(1)

Parents, again, point to the no-contact language of the ex parte order as evidence that their failure to support Owen was not willful. This argument is unavailing for the reasons set forth in the previous section. Moreover, “[t]he parental duty of visitation is separate and distinct from the parental duty of support[; t]hus, attempts by others to frustrate or impede a parent’s visitation do not provide justification for the parent’s failure to support the child financially.” In re Audrey 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005) (citation omitted).

The parental duty of support remains enforceable without a child-support order and is not excused by denial of visitation.

In Re Braylee B. · filed 2021-05-18(g)(1)

However, the absence of a court order requiring a parent to pay child support does not negate that parent’s obligation to pay support. ... Although Father argues that he was denied visitation prior to his incarceration, we note that denying a parent visitation with his or her child does not excuse a parent from his or her duty to support that child.

An incarcerated parent willfully fails to support when able to work, employed full-time throughout the pre-incarceration period, and offering no reasonable excuse for paying nothing.

In Re James H., III · filed 2021-06-29(g)(1)

Although Father was able to work and was employed full time on a riverboat during the entire four months prior to his incarceration, the records show that Father paid no child support during that time. Father provided the court with no reasonable excuse for his failure to support the Child. The evidence does not preponderate against any of the Trial Court’s findings relevant to this ground. Upon a review of the record, we find and hold that Petitioners had proven by clear and convincing evidence that Father abandoned the Child by willfully failing to support him.

Limited means are not a defense to failure to support under subsection (g)(1) when the parent made no payment during the relevant four-month period.

In Re Matthew K. · filed 2021-08-13(g)(1)

Mother neither posited at trial nor in her brief on appeal that she was incapable of providing support. Furthermore, Tennessee Code Annotated § 36-1-102(D) provides: “That the parent had only the means or ability to make small payments is not a defense to failure to support if no payments were made during the relevant four-month period.” The trial court did not err in terminating Mother’s parental rights based upon this statutory ground as well.

Government-intercepted tax refunds or stimulus payments are not voluntary child-support payments for purposes of abandonment by failure to support.

In Re Ima D. · filed 2021-11-22(g)(1)

We note, however, that such intercepted payments are typically not considered when determining whether a parent has failed to support his children.

A parent waives lack of willfulness as a defense to failure-to-support abandonment by neither pleading it nor showing it was tried by consent.

In Re Jaidon S. · filed 2022-04-05(g)(1)

She also filed no pleading raising the affirmative defense of lack of willfulness and does not argue that this issue was tried by consent. ... As such, the trial court did not err in finding clear and convincing evidence to support this ground for termination.

Support paid only after a termination petition is filed cannot cure abandonment by failure to support during the relevant four-month period.

In Re Arianna B. · filed 2022-05-11(g)(1)

However, Father’s attempts to provide support after Appellees filed the petition to terminate his parental rights is ineffective to remedy the fact that he clearly failed to make any support payments during the relevant four-month time period. Tenn. Code Ann. § 36-1-102(1)(F) (“Abandonment may not be repented of by resuming . . . support subsequent to the filing of any petition seeking to terminate parental . . . rights . . . .”).

A parent waives lack of willfulness as a defense to abandonment by neither pleading the affirmative defense nor raising it at trial.

In Re: Airies S. · filed 2023-11-03(g)(1)

Here, however, Mother did not raise this affirmative defense in an answer to the petition. Furthermore, Mother did not raise absence of willfulness as a defense at trial. Therefore, Mother waived that affirmative defense.

An intercepted income-tax refund is not a voluntary child-support payment and does not defeat abandonment by failure to support under subsection (g)(1).

In Re Macee M. · filed 2024-02-20(g)(1)

Based on the foregoing authority, the trial court correctly concluded that the tax intercept would not be considered in determining whether Mother failed to support her child during the relevant period.

Although lack of willfulness is the parent's affirmative defense, the petitioner retains the burden to prove that any support furnished was merely token in light of the parent's means.

In Re Ember H. · filed 2024-02-28(g)(1)

However, the burden to prove that support is token remains on the petitioner even under the statute as amended.

Abandonment by failure to support does not apply when the parent had custody and provided full-time care during most of the statutory period.

In Re Rori H. · filed 2024-04-16(g)(1)

The abandonment statute simply does not apply in a case such as this one, where a parent has full custody of and devotes full-time care to their child during most of the salient four-month period.

A parent waives lack of willfulness as a defense to failure-to-support abandonment by failing to answer the petition and plead the affirmative defense.

In Re Keira F. · filed 2024-07-26(g)(1)

As Mother filed no answer to the petition to terminate, she failed to plead lack of willfulness as an affirmative defense pursuant to Tenn. R. Civ. 8.03. See TENN. R. CIV. P. 12.08 (specifying that, in general, defenses not raised by motion or answer are waived); see also In re Ashlynn H., No. M2020-00469-COA-R3-PT, 2021 WL 2181655, at *4 (Tenn. Ct. App. May 28, 2021) (finding a father who failed to plead the absence of willfulness in his response to the petition to terminate parental rights waived it as a defense to the ground of abandonment by failure to support).

A parent who had the ability to pay but provided no support during the statutory period abandons the child under subsection (g)(1) unless lack of willfulness is proven.

In Re Lilah G. · filed 2024-08-15(g)(1)

Taking all of these facts into consideration, we determine that Father has failed to meet his burden to show that his lack of financial support for the Child was not willful. Therefore, we affirm the trial court’s determination that clear and convincing evidence established that Father had abandoned the Child by failure to provide financial support for the Child during the Determinative Period pursuant to Tennessee Code Annotated §§ 36-1-113(g) and 36-1-102.

A parent may willfully fail to support by directing available financial resources to illegal drugs instead of the child.

In Re Heavenly M. · filed 2025-02-14(g)(1)

Thus, she used her financial resources to support her drug habit but not to support Heavenly. Accordingly, we affirm the trial court’s holding that the ground of abandonment for failure to support was proven by clear and convincing evidence.

Travel expenses incurred to visit children are reimbursement of the parent’s own expenses and do not constitute in-kind support for the children.

In Re Aniya B. · filed 2025-02-18(g)(1)

Such gifts do not include reimbursement of a parent’s expenses even when those expenses are incurred in visiting a child. For this reason, we determine that Mother’s gas expenses incurred when she traveled to visit the Children do not amount to in-kind gifts to the Children.

A parent waives lack of willfulness as a defense to failure-to-support abandonment by failing to raise it in an answer or motion.

In Re Layton S. · filed 2025-04-11(g)(1)

Moreover, Mother did not plead the defense of lack of willfulness in her answer or via motion. See Tenn. Code Ann. § 36-1-102(1)(I) (“The absence of willfulness is an affirmative defense pursuant to Rule 8.03 of the Tennessee Rules of Civil Procedure.”). As such, she waived the absence of willfulness as a defense to the ground of abandonment by failure to support.

A parent who voluntarily stops working and provides no support fails to establish lack of willfulness under subsection (g)(1).

IN RE LACIE F. · filed 2025-08-18(g)(1)

She had voluntarily decided to quit work and school to “take a break from everything” so that she could “sit down and re-address where [she] was in life.” ... We, too, conclude that the evidence is clear and convincing that Mother abandoned the child by failure to support.

A parent may prove that nonsupport was not willful by reasonably relying on an existing court order that expressly reserved all child-support issues for later determination.

IN RE NATHANIEL D. · filed 2025-09-19(g)(1)

It was not unreasonable for Father to rely upon the court’s order. In view of the specific circumstances of this case, we find that Father has met his burden of proving by a preponderance of the evidence that his failure to pay child support ... was not willful.

A parent must support a child and is presumed to know that obligation even without a court order.

In Re Thomas B. · filed 2025-12-11(g)(1)

It is well settled in Tennessee that a parent maintains an obligation to provide child support and is taxed with knowledge of that obligation even in the absence of a court order.

A prior order reserving the calculation of child support does not excuse a parent's statutory duty to provide more than token support.

In Re Evalina H. · filed 2026-04-06(g)(1)

Thus, the fact that a prior court order reserved the calculation of child support does not excuse a parent from their statutory duty to provide more than token support for a child.

A parent who waives the affirmative defense of lack of willfulness may be found to have abandoned a child when the parent undisputedly provided no support during the statutory period.

In Re Braxton M. · filed 2026-04-09(g)(1)

Here, Father waived the issue of willfulness. Because it is undisputed that Father failed to provide any support for Braxton during the four months preceding the filing of the termination petition, we conclude that this ground for termination was proven by clear ... and convincing evidence.

Pleading lack of willfulness only as a defense to failure to visit does not preserve that affirmative defense against a distinct failure-to-support ground.

In Re Kylee T. · filed 2026-05-06(g)(1)

In her notice of affirmative defense, Mother raised lack of willfulness solely as to the statutory ground of failure to visit the Child. Therefore, we discern no error in the trial court’s finding that Mother had waived the affirmative defense of lack of willfulness as to the ground of failure to support the Child.

Failure to support is not established without clear and convincing proof that the parent had capacity to pay during the relevant period.

In Re James v. · filed 2017-05-31(g)(1)

Having reviewed the evidence presented and the trial court’s findings, we conclude that the record contains insufficient evidence to demonstrate, clearly and convincingly, that Mother had the capacity to pay child support during the relevant period and willfully failed to do so.

A parent may willfully fail to support under subsection (g)(1) by declining available employment despite an affirmative duty to support the children.

In The Matter of Ian B. · filed 2017-09-13(g)(1)

Despite his degree and his mental and physical recuperation, Father admitted that he declined employment opportunities because he wanted to wait for his girlfriend, Kelly, to open a business where he planned to work. The problem with his deferred plan of employment is that he was under an affirmative duty to financially support the Children yet he elected to avoid employment that would have enabled him to do so during the period of time relevant to this issue.

Occasional food and gifts may constitute only token support under subsection (g)(1)'s incorporated abandonment standard when parents remit no support despite employment.

In Re Brennen T. · filed 2017-10-12(g)(1)

While the record reflects that food and gifts were provided on occasion, we hold that these items were token in nature given the circumstances presented here. With these considerations in mind, we conclude that there was clear and convincing evidence to establish that the Parents’ abandoned the Child by willfully failing to remit child support during the relevant time period.

Willful failure to support requires consideration of the parent’s financial ability to pay during the statutory period.

In Re Nashay B. · filed 2018-01-10(g)(1)

Under this ground for termination, the financial ability, or capacity, of a parent to pay child support must be considered in determining willfulness.

A parent willfully fails to support when he has the means to pay during the statutory period and no justifiable excuse.

In Re Catherine J. · filed 2018-01-30(g)(1)

Father failed to financially support the Child during the four months prior to his incarceration. Father had the means to support the Child and had no justifiable excuse for not providing support. Therefore, we determine that Father’s failure to support the Child was willful.

Abandonment by willful failure to support cannot be established under Section 36-1-113(g)(1) without proof that the parent had the ability to pay support.

In Re Victoria H. · filed 2018-02-27(g)(1)

From the record, we conclude that DCS failed to show that Appellant had the ability to pay support so as to establish that his failure to do so was willful. Accordingly, we reverse the trial court’s termination of Father’s parental rights on the ground of abandonment by willful failure to support.

Abandonment by willful failure to support is not established without sufficient evidence that the parent had the ability to pay during the relevant period.

In Re Charles T. · filed 2018-08-28(g)(1)

Although the record reveals support for the determination of the trial court that Father knew of his duty to support the Child and the consequences of his failure to do so, we find the evidence insufficient to establish Father’s ability to remit support during the relevant time period. We accordingly reverse on this ground.

A petitioner cannot establish abandonment by willful failure to support without evidence of the parent’s ability to pay during the relevant period.

In Re Ella P. · filed 2018-08-30(g)(1)

Further, the Petitioners failed to establish Father’s ability to remit support during the relevant time period. No evidence was presented concerning his ability to remit support, with the exception of Father’s testimony that he was not financially stable prior to his incarceration.

Using a modest paycheck to pay rent at an intensive outpatient rehabilitation facility does not, without more evidence of income, expenses, or ability to work longer hours, clearly and convincingly establish willful failure to support.

In Re: L.U.S. · filed 2018-10-19(g)(1)

We hold that the foregoing facts do not clearly and convincingly demonstrate that mother’s failure to support was willful. Mother cannot be blamed for using her $400 monthly paycheck to pay rent at an IOP rehabilitation facility.