                        IN THE COURT OF APPEALS OF TENNESSEE
                                   AT KNOXVILLE
                                  May 12, 2003 Session


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
 RB, IN THE MATTER OF: REB, (D.O.B. 6/20/96) A Child Under Eighteen
                        Years of Age.

                       Direct Appeal from the Juvenile Court for Carter County
                              No. J16615   Hon. John W. Walton, Judge

                                           FILED JUNE 9, 2003

                                     No. E2002-01950-COA-R3-CV



Trial Court terminated father’s parental rights for failure to support child. On appeal, we affirm.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed.


HERSCHEL PICKENS FRANKS , J. delivered the opinion of the court, in which CHARLES D. SUSANO,
JR., J., and D. MICHAEL SWINEY, J., joined.


Janice A. Russell, Mountain City, Tennessee, for Appellant.

Paul G. Summers, Attorney General, and Elizabeth C. Driver, Assistant Attorney General, Nashville,
Tennessee, for Appellee.

Mark Dugger, Elizabethton, Tennessee, Guardian Ad Litem for the minor child, REB.



                                                OPINION

                The Trial Court terminated appellant’s parental rights to REB1 . The issue on appeal, as
stated by appellant is:


          1
              The parental rights of the mother were also terminated in the proceeding, but she did not
appeal.
                 Whether the Trial Court erred by relying on a statute that has been declared
                 unconstitutional to terminate the parental rights of the appellant . . . .

                 Appellant has a history of DUI’s and other motor offenses. His sixth conviction on DUI
and other charges in January 2001 resulted in an effective 4 ½ year prison sentence. He has been
incarcerated in the Tennessee Department of Corrections since March 14, 2000.

                 It is not disputed that appellant paid child support to his brother, during the 5-month period
the brother had custody of the child, pursuant to a Court order. An Order entered on August 12, 1999,
when DHS resumed custody, ordered appellant to pay child support of $45.26 per week through the
Clerk’s office, commencing August 13, 1999. He was employed at the time, but paid no further child
support after DHS had custody of his son. Appellant conceded at the termination hearing that his case
manager, told him he had to pay support. He testified that he went to the courthouse twice to make
arrangements for payment and both times was told that “it wasn’t on the computer.” He admitted that
he knew he had the obligation, but did not follow up on making payments.

                Evidence established that since the child came into the custody of the State, he has serious
behavioral and emotional problems, which increased after visitation with the appellant. The child had
lived in at least six different homes before age 5, including foster homes over a 15-month period.
Eventually he was placed in the TRACES program, where he has made progress. He is now with a foster
family with whom he has assimilated well, and has bonded with his foster family.

                 At the conclusion of the evidentiary hearing, the Trial Court specifically found that
appellant’s testimony regarding his attempts to pay support was not credible. The Court found upon clear
and convincing evidence, the parental rights of the appellant should be terminated for wilfully failing to
support or make reasonable payments toward the support of the minor child after August 8, 1999.

                The standard of review in a termination of parental rights cases is de novo upon the record
with a presumption of correctness of the findings of fact by the trial court. Tenn. Dept. of Human Services
v. Riley, 689 S.W.2d 164 (Tenn. Ct. App. 1984). 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).

                  The statutory grounds by which the court may terminate parental rights are listed in Tenn.
Code Ann. § 36-1-113. Pursuant to Tenn. Code Ann. § 36-1-113(g)(1), a ground for termination of
parental rights is a determination of abandonment which is defined in. § 102. Willful non-payment of
child support or failure to make reasonable payments toward child support for four (4) consecutive months
immediately preceding the filing of the petition to terminate rights, establishes a basis to sever the parents’
relationship with the child. Tenn. Code Ann. § 36-1-102(1)(A). If the parent was incarcerated during all
or part of the four-month pre-petition period, then the time runs from the four months prior to the parent’s
incarceration. Tenn. Code Ann. §36-1-102(1)(A)(iv).

                 The Supreme Court in In re Swanson, 2 S.W.3d 180 (Tenn. 1999) examined the Code’s
definitions of “abandonment,” “willfully failed to support” and “willfully failed to make reasonable
payments” toward support, and concluded that the definitions were unconstitutional because they
effectively created an irrebuttable presumption that a mere failure to pay support constituted abandonment.


                                                     -2-
Id. at 188. As a consequence, Swanson elided subsection (D), holding that until the legislature provided
otherwise, the definition of abandonment contained in the prior law would be the proper definition.
Specifically, Swanson directed that the 1994 statute should be used. The 1994 version of Tenn. Code Ann.
§ 36-1-102 reads in relevant part:

                As used in this part, unless the context otherwise requires:

                (1)(A) "Abandoned child" means:

                (I) A child whose parents have willfully failed to visit or have willfully failed to support
                or make reasonable payments toward such child's support for four (4) consecutive months
                immediately preceding institution of an action or proceeding to declare the child to be an
                abandoned child. For purposes of this part, a father who has willfully failed to visit or
                willfully failed to support or make reasonable payments toward the support of the child's
                mother during the four (4) months immediately preceding the birth of the child is deemed
                to have willfully failed to visit or willfully failed to support or make reasonable payments
                toward the support of the child. . . .

Tenn. Code Ann. § 36-1-102(1)(A)(I)(Supp. 1994).

                Appellee points out that appellant incorrectly relies upon the standard for willfulness which
was applied in In re Satterwhite, 2001 WL 3877389 (Tenn. Ct. App. Apr. 17, 2001) and Koivu v. Irwin,
721 S.W.2d 803, 807 (Tenn. Ct. App. 1986). In those cases, abandonment is construed as “conduct on
the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all
parental claims to the child. . . a conscious disregard or indifference to the parental obligations. . .” 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.” This Section of our Court recently
acknowledged Swanson’s return to the 1994 standard, which distinguished between adoption and non-
adoption cases:

                Having found the statutory definition of "willfully failed to support" and "willfully failed
                to make reasonable payments toward such child's support" to be unconstitutional, the
                Supreme Court held that "the definition that was in effect under prior law shall be
                applied." [citation omitted] In a footnote, the Supreme Court stated that "[w]e wish to
                make it clear that the definition previously in effect was the definition as it existed in
                1994." Id. at 189, n. 14.

                In 1994, there were different standards of "abandonment" depending upon whether the
                case was a proceeding to terminate parental rights unaccompanied by an adoption request
                or was an adoption proceeding. The Supreme Court in Swanson articulated the 1994
                standard applicable to adoption cases--the standard that is once again in effect following
                the holding in Swanson: . . .

C.D.C. v. C.E.D. WL 869942, *5 -6 (Tenn.Ct.App.,2002).



                                                     -3-
                  In State v. C.H.H., 2002 WL 1021668 at *7 (Tenn. Ct. App. May 21, 2002), a parent
argued that termination of his parental rights was unconstitutional because the lower court made no finding
that his failure to pay support was intentional, given that he had made some voluntary payments. This
Court examined the language of the Final Decree, which read in relevant part: “(2)Father abandoned the
Child by willfully failing to support or make reasonable payments toward the support of the Child for the
4 consecutive months preceding the filing of DCS’ Petition to Terminate Parental Rights. See Tenn. Code
Ann. §§ 36-1-113(g)(1); 36-1-102(1)(A).” Id. This Court affirmed the Trial Court, because the language
tracked the constitutionally-permissible definition of “willful failure to support” found in the 1994 statute.
The operative language used by the Trial Court in C.H.H. is remarkably similar to the language set forth
in the Order of this case:

                “. . .that for four (4) months and longer preceding [his incarceration], Ronnie Blevins has
                willfully failed to support or make reasonable payments toward the support of the child.
                The evidence shows that the last support provided by Ronnie Blevins was on or about
                August 8, 1999. This evidence and testimony was uncontroverted by Ronnie Blevins.
                The Court finds the stat’s proof to be clear and convincing that Ronnie Blevins has
                willfully abandoned the child, Ronnie Blevins, Jr., as defined in Tenn. Code Ann. § 36-1-
                102(1)(A)(iv).”

               Based upon the evidence, the Trial Court did not err in finding that appellant had
abandoned the child by willful failure to pay child support.2

                For the foregoing reasons, we affirm the Judgment terminating the parental rights of
appellant, and remand with the cost of the appeal assessed to the appellant, RB.




                                                           _________________________
                                                           HERSCHEL PICKENS FRANKS , J.




        2
          Appellant claims there is no proof he received the Court Order with the child support obligation,
while conceding that he knew he owed support but was waiting for the Court to contact him by letter. He
also testified that it was difficult for him to get to the courthouse. We have previously rejected these
arguments. See, e.g., In re Hoover-Crawford, 2001 WL 846044 at *7 (Tenn. Ct. App. July 27, 2001).
Also see, State v. TK, 2002 WL 1115730 at 5 (May 30, 2002).

                                                     -4-
