                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs August 2, 2016

                              IN RE DUSTIN T., ET AL.

                  Appeal from the Circuit Court for Bradley County
                    No. V-15-476       J. Michael Sharp, Judge
                      ___________________________________

            No. E2016-00527-COA-R3-PT-FILED-NOVEMBER 17, 2016
                     ___________________________________


J. STEVEN STAFFORD, P.J.,W.S., dissenting in part.

       I concur in the majority Opinion with regard to the trial court’s findings on the
grounds of substantial noncompliance with the permanency plans, persistent conditions,
and abandonment by wanton disregard. I also agree that termination of Mother’s and
Father’s parental rights is in the children’s best interests. Because I cannot agree that the
State has met its burden to show clear and convincing evidence of Mother’s abandonment
by willful failure to support the children, however, I must file this partial dissent.

       Here, there can be no dispute that Mother failed to make any payments for the
support of the children in the relevant four-month period. She argues, however, that the
State failed to establish by clear and convincing evidence that that she had the ability to
pay support during this time. “A party seeking termination of parental rights must prove
by clear and convincing evidence that the opposing party had the capacity to pay support
but made no attempt to do so and did not possess a justifiable excuse.” In re Adoption of
Angela E., 402 S.W.3d at 641. “Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable . . . and
eliminates any serious or substantial doubt about the correctness of the conclusions drawn
from the evidence.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        The majority Opinion concludes that the clear and convincing evidence standard
has been met in this case because: (1) Mother testified that she was generally employed
during the relevant period; (2) the record does not establish that Mother was paying rent
or other expenses during the relevant period; and (3) Mother did not affirmatively testify
that she was unable to pay support during the relevant period. Respectfully, the
majority’s reliance on the evidence that Mother did not provide during trial effectively
shifts the burden to Mother to show that she could not pay support during the relevant
time period. As previously discussed, however, the burden to show a parent has the
ability to pay support lies with the party seeking termination of parental rights, not the
parent against whom the termination petition is filed. In re Audrey S., 182 S.W.3d at
861. The burden therefore never shifted to Mother to show that she could not pay
support. Rather, the burden remained at all times on the State to show that she could.

       My review of the record reveals scant evidence on behalf of the State regarding
Mother’s ability to pay. For example, the State put on no proof regarding Mother’s
income or expenses during the relevant time period. Our Supreme Court recently opined
on the significance of evidence concerning a parent’s income and expenses when the
ground of abandonment by willful failure to support is alleged. See In re Adoption of
Angela E., 402 S.W.3d 636, 641 (Tenn. 2013); see also In re Destiny H., No. W2015-
00649-COA-R3-PT, 2016 WL 722143, at *9 (Tenn. Ct. App. Feb. 24, 2016) (concluding
that clear and convincing evidence was not shown to bolster the argument that mother
had the capacity to provide support when petitioners “did not submit . . . evidence
regarding [m]other’s employment, income, other non-monetary assets, or expenses
during the four-month period”); In re Noah B.B., No. E2014-01676-COA-R3-PT, 2015
WL 1186018, at *9 (Tenn. Ct. App. Mar. 12, 2015) (concluding that clear and convincing
evidence was not shown when petitioners did not “submit sufficient evidence of
[m]other’s employment status . . ., the number of hours she worked, the duration of her
employment, her rate of pay, or whether [m]other had assets other than regular income
that might contribute to the support of the child,” and no evidence was presented as to
“[m]other’s financial means, expenses, or obligations”). Mother cannot be faulted for the
lack of proof on this issue, as it was not her burden to present evidence as to her ability to
pay support. Instead, in the absence of some evidence regarding Mother’s income and her
expenses during the relevant time period, I simply cannot conclude that the State met its
burden to show that Mother had the ability to pay support during the four-month period.

       Indeed, the evidence in the record actually tends to suggest otherwise. First, the
majority Opinion notes that Mother testified that she had multiple financial obligations,
including criminal fines. In fact, Mother testified that she was unable to pay these fees
because her other expenses did not allow her to comply with the orders of the criminal
court and she was incarcerated as a result. In addition, Mother testified that she was
evicted from her home because she could not meet her financial obligations. This
evidence demonstrates that despite Mother’s employment, she was not able to meet all of
her financial obligations. Without some evidence presented by the State showing
Mother’s actual income or expenses to refute these statements, I must depart from my
learned colleagues as to this ground. I would therefore hold that the State failed to meet
its burden to show that Mother had the ability to pay support in the relevant four-month
period. In all other respects, I join in the majority Opinion.


                                                  _________________________________
                                                  J.STEVEN STAFFORD, JUDGE
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