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

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

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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 
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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.

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J.STEVEN STAFFORD, JUDGE