                                                             FILED
                                                              March 23, 2000
                 IN THE COURT OF APPEALS OF TENNESSEE
                                                            Cecil Crowson, Jr.
                                AT NASHVILLE               Appellate Court Clerk

ROGER D ALE MA RTIN, and wife,
                            )
VICKIE CHRISTINA DOWDEN     )
MARTIN,                     ) DAVID SON C IRCUIT
                            ) No. 98A-199
    Petitioners-Appellants, )
                            )
vs.                         ) APP EAL NO.
                            ) M1999-00210-COA-R3-CV
CAROL ANNETTE BILLY MARTIN, )
                            )
    Respondent-Appellee.    )


                  APPEAL FROM THE FOURTH CIRCUIT COURT
                          FOR DAVIDSON COUNTY
                         AT NASHVILLE, TENNESSEE

                      THE HON. MURIEL ROBINSON, JUDGE


For Petition ers/Appe llants:            For Respondent/Appellee:

PAUL A. RUTHERFORD,                      pro se.
RUT HER FOR D, DE MA RCO ,
WH ITE & KUR TZ,
Nashville, Tennessee.


       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED




                                         HERSCHEL P. FRANKS, JUDGE
                                         OPINION

              The Trial Judge dismissed appellants’ Petition for Termination and
Adoption against Carol Annette Billy Martin (“Respondent”). The petitioners are the
father and stepmother of the three minor children, and respondent is the biological
mother of these children.

               The children’s father and mother were divorced on February 23, 1996,
and entered into a Marital Dissolution Agreement which gave the mother the custody
of the three children. Th e father w as award ed visitation a nd was o rdered to pa y child
support. Subsequently, the parties entered an Agreed Order that vested custody of the
children to the fa ther, bu t the mo ther wa s not ord ered to p ay any child suppo rt.
Visitation was allowed at all reasonable times and places agreed upon by the parties.

              The father insists that the Petition to Terminate the mother’s parental
rights should have been granted.

              In a non-jury case, our review is de novo accompanied by a presumption
of correctness of the Trial Court’s finding, unless the evidence preponderates
otherw ise. T.R .A.P. R ule 13( d).

               Parents ha ve a fund amental righ t to the care, cu stody and co ntrol of their
children . Stanley v. Illino is, 405 U.S. 645, 92 S.Ct. 1206 (1972). However, that right
is not absolute, and parental rights may be terminated if there is clear and convincing
evidence justifying such termination under the applicable statute. Tenn. Code Ann.
§36-1 -113(c )(1). Also see Santosky v. Kramer, 455 U.S . 745, 102 S .Ct. 1388 (1 982);
Tennessee Department of Human Services v. Riley, 689 S.W.2d 164 (Tenn. Ct. App.
1984) .

              Upon trial, the Trial Cou rt determined that there had b een no voluntary
payments m ade towa rd the supp ort of the ch ildren by the m other, but the Court cou ld
not find willful abandonment under the statutory definition, since the parties had
agreed that the m other w as not to pay child suppo rt.

                The Tenne ssee Supreme C ourt recently struck down the statutory
definition o f “willfully failed to support” and “w illfully failed to ma ke reason able
paymen ts towa rd such child’s s uppor t” as bein g unco nstitution al. In Re Swanson, 2
S.W.3d 180 (Tenn. 1999). The Court reasoned that the definitions created an

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irrebuttable presumption that the failure to provide monetary support for the four
months preceding the petition constitutes abandonment, irrespective of whether the
failure was intentional. The Court held that only the portion of the statute containing
those definitions was invalidated, and “[u]ntil otherwise amended by our legislature,
the definition that was in effect under prior law shall be applied.” Id. at 189.

               As the Court in Swanson noted under the prior statute, the definition of
“abandoned child” contained an element of intent both in failures to visit and failures
to supp ort. Id. at n.15. The Supreme Court had articulated the standards for
determining abandonment in adoption cases as follows:

               Abandonment imports any conduct on the part of the parent which
               evinces a se ttled purpos e to forego all parental du ties and relinq uish all
               parenta l claims to the child . . . .

In re Adoption of Bowling, 631 S .W.2d 386,38 9 (Ten n. 1982 ). Also see In re
Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d 54 6, 547 (Tenn. 199 5). In
order to establish abandonment, the Court requires the evidence to establish a
“consciou s disregard o r indifferen ce” for pa rental obligatio ns, and m ust demo nstrate
there has been
              an actual desertion, accompanied with an intent to entirely sever so far
              as is possible to do so, the p arental relation ship and th row off all
              obligations growing out of the same.

Fancher v. Mann, 432 S.W.2d 63 , 65 (Tenn. Ct. Ap p. 1968).

               In this case, the mother has paid no child support to the father for the
care of the children since the time the father becam e the primary custodian. How ever,
as the Trial Court noted, pursuant to the agreed Order granting the father custody, the
mother was not required to pay any support. We affirm the Trial Court’s finding that
petitioner faile d to provid e clear and convincin g evidenc e that the mo ther intention ally
failed to suppo rt the chi ldren.

                The petitioners also alleged ab andonmen t, based on the mother’s
“willful failin g to visit” for a period of f our conse cutive mo nths, to visit or en gage in
more than token visitation. T.C.A. §36-1-102(1)(E). Token visitation is visitation,
that under th e circumsta nces, cons titutes nothing more than perfuncto ry visitation or is
of suc h a natu re as to m erely estab lish min imal or in substan tial conta ct with th e child.

                                               3
T.C.A. §36-1-1 02(1)(C).

                The record reveals periodic visitation, letters and telephone
conversations between the mother and the children. Also, the mother had been living
in Oklahoma, and the Trial Court properly took this fact into consideration when
finding that failure to visit was not willful. We affirm the Trial Court’s judgment that
petitioners fa iled to show by clear and c onvincing evidence that the mo ther’s failure to
visit was willful. We affirm the Trial Court’s dismissal of the Petition for
abandonment of the children.

               The mother was not represented at trial and did not appear at the
hearing. During the proceeding the Trial Court ordered the mother to pay $50.00 per
week in child s uppor t for the care an d main tenanc e of the three ch ildren to the fath er.
The orde r existing at the time of the tria l provided th at the moth er would not pay child
support at the time, due to her economic situation. In this action, the father did not
apply for support and, more importantly, there was no evidence showing a substantial
and mate rial change in circumsta nces, i.e., there w as no evid ence off ered at trial as to
the mo ther’s ab ility to pay. See T.C.A. §36-5-101.

             The issue of child support was not properly before the Court, and the
Trial Judge was in error in setting child support. That order is reversed.

              The Petition is in all things dismissed and the cause remanded, with cost
of the appeal assessed to the appellants.


                                             __________________________
                                             Herschel P. Franks, J.

CONCUR:




____________________________
Charles D. Susano, Jr., J.

____________________________
D. Michael Swiney, J.

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