                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   November 19, 2003 Session

                         IN RE J.J.C., D.M.C., AND S.J.B. A/K/A K.

 STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES
                           v.
                   JOHN CALABRETTA

                     An Appeal from the Juvenile Court for Shelby County
                          No. M2432     Harold W. Horne, Referee



                    No. W2002-01400-COA-R3-JV - Filed January 23, 2004


This is a termination of parental rights case. While the father was incarcerated for driving offenses,
the mother was arrested for possession of drug paraphernalia. As a result, the parties’ two young
children were placed in state custody. When the father was released from prison, he contacted the
state to enter into a plan of permanency. Subsequently, the state filed a petition to terminate the
parental rights of both the mother and the father, alleging that they had failed to comply with the
permanency plan, and that they abandoned the children by willfully failing to pay child support to
the state. Almost a year later, the trial court conducted a trial in the matter. After the trial, the trial
court entered an order terminating the parental rights of both the mother and the father. The father’s
parental rights were terminated based, in part, upon abandonment. Only the father has appealed from
the trial court’s decision. We reverse, finding that the evidence does not establish by clear and
convincing evidence that the father’s failure to make support payments was willful.

          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court is
                                 Reversed and Remanded

HOLLY M. KIRBY, J., delivered the opinion of the court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, John Calabretta.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s
Services.
                                                  OPINION

         Respondent/Appellant John Calabretta (“Father”) and Linda Ann Bowers (“Mother”) had
lived together as an unmarried couple for seventeen years at the time of trial. Father and Mother are
the natural parents of the two children involved in this appeal, D.M.C., born December 9, 1997, and
J.J.C., born November 23, 1995.1 Another child was also involved in the petition, S.J.B., born on
July 8, 1999, whose natural parents are Mother and J. Maxwell Karam (“Karam”).

        In March, 1998, Father was incarcerated for being an habitual motor vehicle offender. On
April 17, 1998, while Father was still incarcerated, Mother was arrested for possession of drug
paraphernalia. As a result, D.M.C. and J.J.C. were placed into protective custody by the Department
of Children’s Services (“DCS”). When Mother was arrested, there were no utilities in her home and
very little food. J.J.C. was suffering from an eye infection, and DCS later discovered that she had
tested positive for cocaine at birth.

       On May 20, 1998, D.M.C.. and J.J.C. were found to be dependent and neglected. Father was
released from prison in June1999. When S.J.B. was born on July 8, 1999, the baby tested positive
for cocaine. Consequently, on July 16, 1999, S.J.B. was placed into protective custody by DCS in
the same foster family as D.M.C. and J.J.C. On August 25, 1999, S.J.B. was also found to be
dependent and neglected.

        DCS developed permanency plans for the children, that is, plans of care setting forth what
Mother and Father would need to do to regain custody. These plans were presented on June 22,
1998, while Father was still incarcerated. According to the June1998 plans, Mother was required
to maintain contact with DCS, get therapy for her drug problem by attending an in-patient
detoxification program and weekly meetings for cocaine abusers, and get stable housing. Father’s
sole responsibility was to contact DCS and the juvenile court to make plans for the children’s future.
The plans also provided that Father and Mother were “[t]o pay child support if ordered by the
courts.” Mother signed those plans, but Father did not.

        On September 20, 1999, after S.J.B. was born and taken into protective custody, an updated
set of permanency plans was developed. The updated set of permanency plans included many of the
same requirements for Mother and added the requirement that she attend parenting classes. Though
both Mother and Father signed the updated permanency plans, the plans contained no responsibilities
for Father. On August 2, 2000, a third set of permanency plans was developed. These plans
included the same requirements for Mother, but also required Father to attend parenting classes and
“submit to periodic; [sic] random alcohol test[s] to prove sobriety.” Neither Mother nor Father
signed the August 2000 set of plans.




        1
            The coup le also has two other children who were not living with them and w ho we re placed with their
god parents. The parental rights as to tho se two children are not at issue in this app eal.

                                                       -2-
         On March 11, 2001, Father was imprisoned for another motor vehicle violation. The next
day, on March 12, 2001, DCS filed the petition below to terminate the parental rights of Father,
Mother, and Karam as to the three children, D.M.C., J.J.C., and S.J.B. With respect to Mother, the
petition asserted as grounds for termination the existence of persistent conditions preventing the
children from safely returning to Mother’s custody. See Tenn. Code Ann. § 36-1-113(g)(3)(A)
(Supp. 2003). As grounds for the termination of Father’s parental rights, the petition asserted that
Father had abandoned D.M.C. and J.J.C., based on Father’s failure to pay support or seek reasonable
visitation. See Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2003). The petition alleged that all three
respondents had failed to comply with the DCS permanency plans. Later, DCS amended its petition
to allege that all of the respondents had willfully abandoned the children by failing to pay support
or to visit, and alleging persistent conditions preventing the safe return of the children to their
custody. Karam did not respond to the petition, and on May 23, 2001, the trial court entered a
default judgment against him, ordering the termination of his parental rights as to S.J.B. Karam did
not appeal that order, and his parental rights are not at issue in this case.

        On February 11, 2002, the trial court conducted a trial on DCS’s petition to terminate the
parental rights of Father and Mother. The record on appeal contains two separate statements of the
evidence, both approved by the trial court, as well as a partial transcript of the evidence.2 At the trial,
evidence was submitted to show that the DCS case worker discussed with Father and Mother the
need for both parents to demonstrate sobriety, complete parenting classes, and obtain stable housing
before the children could be restored to their custody. The record does not include evidence that the
parties were told that they were obligated to pay child support, or that failure to pay child support
could result in the termination of their parental rights. The record indicated that Father and Mother
obtained stable housing by moving into a house that had been devised to Mother. However, the DCS
case worker testified that Mother never provided DCS with evidence that she had successfully
completed an alcohol or drug treatment program, completed parenting classes, or obtained
employment. The case worker later modified her assertion by acknowledging that Father and Mother
completed parenting classes in late 2001, after the petition for termination had been filed. The case
worker testified that Father attended eight of ten scheduled visits in 2000, and attended two of five
scheduled visits between January and October 2001. All of the visits were supervised by DCS. The
case worker said that neither Father nor Mother had paid any child support to DCS during the entire
time the children were in foster care. At most, Mother and Father occasionally brought small gifts
and snacks for the children during their visits. The case worker indicated that D.M.C., J.J.C., and
S.J.B. remained in the foster home in which they were originally placed in March 1998 and July
1999, respectively, and that the foster parents had expressed an interest in adopting the children.

       Father testified as well. He said that he had satisfied the requirements of the permanency
plans. He noted that, at one point, he was asked to submit to a drug test, and that he submitted to
the drug test but was never told the result of the test. He admitted that he had used drugs in the past,
remarking that he had not used marijuana “in quite a while,” but acknowledged that he had used


         2
           The lack of a full transcript of the trial court proceedings was apparently due to defective audio recording and
was no t attributab le to the fault of either party.

                                                           -3-
cocaine on one occasion a month prior to the trial. Father maintained that he did not have a drug
problem, but admitted to having used drugs while the children were in the house. Father explained
that he and Mother did not do drugs around the children, but waited to do so until the children were
asleep. He admitted that he did not “consider it appropriate, but it was better to do it there than try
to go out on the streets and do it and have somebody baby sit and go somewhere else to do it.”

        Father acknowledged that during the time the children were in DCS custody he did not make
any payments to DCS for their support. He noted, however, that from November 3, 1998, to January
4, 1999, while he was in prison, he sent Mother six checks totaling $939.50 earned from a work
release program for the support of Mother and the children. Father testified that, although he sent
no money to DCS, he bought the children gifts and food and other things while they were in foster
care. When he was not in jail, Father testified that he was self-employed, making anywhere from
$20 to $100 a day “scrapping.”3 He estimated that he made about $14,000 in 2001 from scrapping.
Father testified that DCS had never told him that he was required to make support payments to DCS
while the children were in DCS custody. The evidence at trial showed that the June 1998 parenting
plan, not signed by Father but signed by Mother, stated that child support was to be paid by the
parents “if ordered by the courts.” The September 1999 parenting plan, which was the only plan
signed by Father, addressed child support by inquiring:

         a. Is there a current order of child support through the child support division?
         Answer: No.

         b. If no, has the court ordered support as part of the custody order? Answer: No.

         c. If there was no court order and support was not part of the custody order did DCS
         petition for support? No answer.

The third plan, signed by neither Mother nor Father, indicated merely that there was no current order
of child support issued through DCS.

         At the conclusion of trial, the trial court issued an oral ruling terminating the parental rights
of both Father and Mother. On April 18, 2002, the trial court entered an order consistent with its oral
ruling, terminating Mother’s parental rights with respect to all three children at issue, and terminating
Father’s parental rights with respect to D.M.C. and J.J.C. The trial court concluded that DCS had
established, by clear and convincing evidence, that Father had abandoned the children under the
definition of that term in Tennessee Code Annotated § 36-1-102(1)(A). It found, as well, that both
Father and Mother had failed to comply substantially with the permanency plan. See Tenn. Code
Ann. § 36-1-113(g)(2) (Supp. 2003). The trial court also found that termination of Father’s and
Mother’s parental rights was in the best interest of the children. Thus, finding clear and convincing



         3
           According to Father, “scrapping” is collecting metal off the streets and from body shops and hauling it to a
scrap yard o r a recyc ling facility in exc hange for money.

                                                         -4-
evidence to support its decision, the trial court terminated the parental rights of both Father and
Mother under Tennessee Code Annotated § 36-1-113(c). Only Father has appealed from that order.

         On appeal, Father argues that the evidence was not sufficiently clear and convincing to show
that he abandoned the children by willfully failing to support them within the four months preceding
his incarceration. He concedes that he paid no money to DCS while the children were in foster care.
He claims, however, that his failure to make such payments was not willful. He points out that when
the children were taken into DCS custody, DCS never contacted him in prison to tell him that he was
expected to pay child support. He asserts that the $939.50 he sent Mother from jail was intended,
in part, for the children. Had he been informed that he was expected to pay support to DCS, Father
argues, he could have paid it out of his earnings. Father also challenges the trial court’s
determination that he failed to comply with the DCS permanency plans.

        On appeal, DCS does not challenge Father’s argument that he complied with the permanency
plans, conceding that there was not clear and convincing evidence to establish that he failed to do
so. DCS argues, however, that the evidence was sufficient to show that Father had abandoned the
children by failing to make anything more than token support payments in the four months preceding
his incarceration. See Tenn. Code Ann. § 36-1-102(1)(A), (B), and (D) (Supp. 2003). DCS points
out that Tennessee courts have found that the evidence establishes willful failure to support even
when there is no court order requiring the payment of support. Although the trial court did not
address the ground of persistent conditions as it related to Father, DCS argues, this court should
terminate Father’s parental rights based on the ground that persistent conditions exist to prevent the
safe return of the children to Father’s custody.

        Under Tennessee Code Annotated § 36-1-113(c), a parent’s rights may be terminated based
on the following:

         (1) A finding by the court by clear and convincing evidence that the grounds for
       termination or parental or guardianship rights have been established; and

         (2) That the termination of the parent’s or guardian’s rights is in the best interests
       of the child.

Tenn. Code Ann. § 36-1-113(c) (Supp. 2003). Because the decision to terminate parental rights
involves fundamental constitutional rights, both elements of section 36-1-113(c) must be proven by
clear and convincing evidence. See In re C.M.R., No. M2001-00638-COA-R3-JV, 2002 WL
192562 at *3 (Tenn. Ct. App. Feb. 7, 2002). The clear and convincing standard in termination cases
is more than a “preponderance of the evidence” but less stringent than a “beyond reasonable doubt”
standard. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). Clear and convincing
evidence “eliminates any serious or substantial doubt concerning the correctness of the conclusion
to be drawn from the evidence.” Id. Considering this heightened standard, we review the trial
court’s findings of fact de novo on the record, with a presumption that the trial court’s factual
findings are correct. Tenn. R. Civ. P. 13(d); see In re C.M.R., 2001 WL 192562, at *3; In re


                                                 -5-
Copeland (Graham v. Copeland), 43 S.W.3d 483, 485 (Tenn. Ct. App. 2000); Tennessee Dep’t of
Human Servs. v. Riley, 689 S.W.2d 164, 170 (Tenn. Ct. App. 1984). The trial court’s conclusions
of law are reviewed de novo, with no such presumption of correctness. Copeland, 43 S.W.3d at 485.

       The enumerated grounds for termination are found in section 36-1-113(g) of the Tennessee
Code Annotated. A decision to terminate parental rights may be based on any one of the grounds
enumerated in the statute. See In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000). The two
grounds for termination relevant to this appeal are (1) abandonment and (2) persistent conditions
preventing the likelihood of the children’s safe return to Father’s home.

        Tennessee Code Annotated § 36-1-113(g)(1) provides that the termination of parental rights
can be based on abandonment as the term is defined in section 36-1-102. As it applies to this case,
abandonment is a parent’s willful failure to pay more than token support in the four months
preceding the filing of the petition to terminate parental rights, or, if the parent is incarcerated when
the petition is filed, in the four months preceding incarceration.4 See Tenn. Code Ann. § 36-1-
102(1)(A), (B), (D) (Supp. 2003). The obligation to pay support exists even in the absence of a court
order to do so. See State v. Manier, No. 01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct.
App. Oct. 31, 1997) (“The statute does not require the parent to first be placed under a court order.”);
see also In re Gordon (Webb v. Wilson), 980 S.W.2d 372, 373-78 (Tenn. Ct. App. 1998).

         Father admits that he made no payments to DCS for the support of the children during the
entire time they were in DCS custody. Father argues, however, that, under the circumstances, his
failure to pay child support cannot be found to have been willful. He claims that he was not aware
of his obligation to pay child support. Though ignorance of this obligation may not be a sufficient
reason for failure to pay in some cases, Father argues that his case is unique because the permanency
plans implied that he was obligated to make support payments only if there was a court order
requiring him to do so. Thus, he asserts that he was led to believe that support payments were not
necessary to get his children placed back into his home. In response, DCS argues that, given the fact
that Father’s annual income is approximately $14,000 and that he has minimal living expenses, his
failure to pay support must be deemed willful, and Father cannot excuse his failure to pay based on
the lack of a court order to do so.

        In order to safeguard a parent’s fundamental right to the care and custody of his child,
parental rights may not be terminated based on abandonment for failure to support unless clear and
convincing evidence shows that the parent’s failure to make reasonable payments toward the support
of his child was willful. See In re Swanson, 2 S.W.3d 180, 184-85 (Tenn. 1999). Requiring a
showing that the failure to support the child was willful allows “for the type of individualized
decision-making which must take place when a fundamental right is at stake.” Id. at 188. The issue,

         4
            Aba ndonment can also be established by showing a parent’s failure to visit the child within the four months
preceding the petition or the parent’s incarc eration, if applicab le. See Tenn. Code Ann. § 36-1-102(1)(A), (C), (E)
(Supp. 200 3). In this case, DCS conced es that clear and convincing evidence did not establish the Father willfully failed
to visit the children during the pertinent time pe riod. Thus, to estab lish abandonment, DC S relies solely on Father’s
failure to p ay support.

                                                           -6-
then, is whether Father’s failure to make any meaningful support payments within the four months
preceding his incarceration was “willful.”

        Failure of a parent to pay support under the termination statutes is “willful” if the parent “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.” In re Adoption of
Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)
(citing cases from other jurisdictions). “The willfulness of particular conduct depends upon the
actor’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. . . . Accordingly, triers-of-fact must infer intent
from the circumstantial evidence, including a person’s actions or conduct.” Id.

        In this case, the evidence of Father’s conduct after the children were taken into DCS custody
was essentially undisputed. While Father was incarcerated during the first year the children were
in DCS custody, Father sent Mother money he earned on work release for the needs of Mother and
the children.5 When Father was released from jail, he contacted DCS to discuss his plans with
respect to the children. The record includes no evidence that DCS explained to Father that he was
obligated to pay support, lest he lose all parental rights to his children. Father continued to visit the
children and buy them small gifts and food, but testified that had he been aware of his obligation to
pay child support, he would have put the money spent on gifts toward support.

         Moreover, the permanency plans not only failed to state that Father was obligated to pay child
support, they, in fact, implied that he was not required to do so unless there was a court order of
support. The June 1998 plan stated that child support was to be paid “if ordered by the courts.”
Similarly, the September 1999 and August 2000 parenting plans indicated only that there was no
current order of child support entered through the child support division of DCS or the trial court.
In its oral ruling at the conclusion of trial, the trial court seemed to acknowledge that the evidence
of abandonment was less than overwhelming, remarking, “I’ll go ahead and throw it in, for the
state’s benefit the failure to support. I question whether the Court of Appeals would uphold it on
that particular ground, alone, but, will do so here.”

        Under these circumstances, we cannot conclude that the State established by clear and
convincing evidence that Father’s failure to pay was willful. We find persuasive the reasoning in
State v. Demarr, in which this Court reversed a finding of willful failure to support, because DCS
never explained to the mother that her failure to make support payments could result in her losing
her child. The Demarr court reasoned:

         In [the mother’s] case, no child support was ever ordered by the court nor was a child
         support obligation placed in either Permanency Plan. DCS provided no monitoring


         5
           W e note that Father’s payment of money to Mother, rather than paying money to DCS when the children were
in DCS custody, does not satisfy Father’s obligation to pay supp ort. It may, howe ver, co nstitute evid ence of Father’s
intent not to aba ndon his children.

                                                          -7-
       or assistance for almost a year. There is no evidence in the record that [the mother]
       was ever requested by DCS to provide any form of support for her child, nor was it
       ever explained to her that failure to provide support could result in losing her child
       permanently. DCS continually reiterated the need for her to find a place of her own,
       regular employment, and childcare, all without offering any assistance. Considering
       the burdens placed on [mother] by DCS, her limited income, and her lack of
       understanding of the importance of paying child support to her parental rights, we
       find no clear and convincing evidence that her failure to pay was willful.

State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *13 (Tenn. Ct. App. Aug.
13, 2003). In the instant case, DCS understandably focused much of its efforts on Mother, in an
attempt to help her rectify her drug problems so that she would be able to take care of the children.
In the process, it seems, Father’s issues were given considerably less attention. 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.

       DCS argues that, even if this Court determines that the evidence was insufficient to show
abandonment, we should nevertheless affirm the trial court’s termination of Father’s parental rights
based on ground of “persistent conditions.” The applicable statute provides that parental rights may
be terminated when:

        . . . The child has been removed from the home of the parent or guardian by order of
        a court for a period of six (6) months and:

                   (i) The conditions which led to the child’s removal or other
                conditions which in all reasonable probability would cause the child
                to be subjected to further abuse or neglect and which, therefore,
                prevent the child’s safe return to the care of the parent(s) or
                guardian(s), still persist;

                  (ii) There is little likelihood that these conditions will be remedied
                at an early date so that the child can be safely returned to the parent(s)
                or guardian(s) in the near future; and

                   (iii) The continuation of the parent or guardian and child
                relationship greatly diminishes the child’s chances of early integration
                into a safe, stable and permanent home.

Tenn. Code Ann. § 36-1-113(g)(3)(A) (Supp. 2003). Although the amended petition of DCS alleged
persistent conditions as a ground for the termination of Father’s rights, the trial court did not address
that ground in its ruling. DCS argues that the undisputed facts in the record establish by clear and


                                                   -8-
convincing evidence that, as to Father, persistent conditions exist, namely, Father’s admitted use of
drugs while the children were in the home, and the fact that he continues to live with Mother, an
admitted cocaine addict. These are indeed cause for grave concern. It must be noted, however, that
the permanency plans do not address drug use by Father. Moreover, there is nothing in the record
indicating that Father was informed that his continued cohabitation with Mother, a cocaine addict,
would result in the termination of his parental rights. Under these circumstances, it is unclear
whether there was sufficient evidence to show that persistent conditions existed with respect to
Father. Therefore, we remand the cause to the trial court for a determination regarding whether, with
respect to Father, there is clear and convincing evidence that conditions which prevent the children’s
safe return to Father’s custody still persist and are unlikely to be remedied at an early date, and that
continuation of Father’s relationship with the children greatly diminishes their chances of integration
into a safe permanent home. The trial court may, in its discretion, consider further evidence on
remand.

       The decision of the trial court is reversed, and the cause is remanded for proceedings not
inconsistent with this Opinion. Costs on appeal are to be taxed to Appellee State of Tennessee,
Department of Children’s Services, for which execution may issue, if necessary.




                                                        ___________________________________
                                                        HOLLY M. KIRBY, JUDGE




                                                  -9-
