The Hes also seek to persuade this Court to apply a notice requirement similar to that found in section 37-2-403(a)(2) of the Tennessee Code to private custody agreements by citing to the decisions of this Court applying that statute and holding that a parent's failure to receive the required statutory notice warranted a reversal of the trial court's finding of abandonment. See In re S.M., 149 S.W.3d 632, 637-38 (Tenn.Ct.App. 2004); State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 Tenn. App. LEXIS 569, at *29-32 (Tenn.Ct.App. Aug. 13, 2003) (no perm. app. filed); In reJ.J.C., 148 S.W.3d 919, 926-27 (Tenn.Ct.App. 2004); In reC.L.H., No. M2000-02799-COA-R3-JV, 2001 Tenn. App. LEXIS 424, at *13-15 (Tenn.Ct.App. June 5, 2001) (no perm. app. filed); Pierce v. Bechtold, 448 S.W.2d 425, 429-30 (Tenn.Ct.App. 1969). The Fourteenth Amendment to the United States Constitution provides as follows: "nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
So long as a parent is financially unable to render financial support, the failure to do so cannot be voluntary, hence cannot constitute abandonment." Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn.Ct.App. 1969). The children in this case were voluntarily placed into DCS custody due to Mother's recognized inability to maintain adequate housing for the children following S.C.'s decision to leave the marital home and cease any monetary contributions to the family.
In re Rigsby, supra, slip op. at 10. In re Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d at 547; In re Rigsby, supra, slip op. at 10; In re Adoption of Self, 836 S.W.2d 581, 582-83 (Tenn. Ct. App. 1992); In re Adoption of Parsons, 766 S.W.2d at 200; Pierce v. Bechtold, 60 Tenn. App. 478, 485-86, 448 S.W.2d 425, 428-29 (1969). The pending legislation to rewrite the adoption laws specifically "overrules" the current judicially created adoption standards.
If a parent is not financially able to provide support, the parent's failure to support is not willful. In re Audrey S. , 182 S.W.3d at 864 n.33 (citing O'Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995) ; Pierce v. Bechtold , 60 Tenn.App. 478, 448 S.W.2d 425, 429 (1969) ); see alsoIn re Laura F. , No. M2017-01767-COA-R3-PT, 2019 WL 1896560, at *7 (Tenn. Ct. App. Apr. 29, 2019) (citing In re Aaron E. , No. M2014-00125-COA-R3-PT, 2014 WL 3844784, at *6 (Tenn. Ct. App. Aug. 4, 2014) ). Willful unemployment can be construed as a willful failure to support.
Although a minority of jurisdictions find that a father's failure to support a child indicates abandonment of parental rights, see, e.g., Claunch v. Entrekin, 272 Ala. 35, 128 So.2d 100, (1961); Petition of Martensen, 129 Colo. 125, 267 P.2d 658 (1954); Re Adoption of Johnson, 399 Pa. 624, 161 A.2d 358 (1960), a majority of jurisdictions find that failure to support a child, alone, is not sufficient to constitute abandonment. Logan v. Coup, 238 Md. 253, 208 A.2d 694 (1965); Smith v. Smith, 119 Ga. App. 619, 168 S.E.2d 609 (1969); Pierce v. Bechtold, 60 Tenn. App. 478, 448 S.W.2d 425 (1969); Re Adoption of Anonymous, 31 Misc.2d 324, 220 N.Y.S.2d 910 (1961); In Re Y.R.V. and M.A.V., 179 Ga. App. 18, 345 S.E.2d 121 (1986). This decision does not in any way condone Charles Schoffstall's failure to pay child support.
Parental failure to support a child is a factor to be considered, Petition of J.E.G. M.K.G., D.C.App., 357 A.2d 855 (1976), but where the parent is financially unable to render support the failure to do so is not voluntary and such failure cannot constitute abandonment. Pierce v. Bechtold, 60 Tenn. App. 478, 448 S.W.2d 425 (1969). We hold that the evidence amply supports the trial court's finding that appellant abandoned her child.
A parent's failure to support a child is not willful if the parent is financially unable to do so. In re Aaron E., No. M2014-00125-COA-R3-PT, 2014 WL 3844784, at *6 (Tenn. Ct. App. Aug. 4, 2014) (citing Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969)).
A parent's failure to support a child is not willful if the parent is financially unable to do so. In re Aaron E., No. M2014-00125-COA-R3-PT, 2014 WL 3844784, at *6 (Tenn. Ct. App. Aug. 4, 2014) (citing Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969)). In making a willfulness determination, the court must review a parent's means, which includes both her income and available resources for purposes of support.
O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995), superseded by statute on other grounds, 1995 Tenn. Pub. Acts, ch. 532, as recognized in In re Swanson, 2 S.W.3d 180, 184 (Tenn. 1999) (citing Pierce v. Bechtold, 60 Tenn. App. 478, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969)). DCS presented scant evidence regarding Mother's ability to pay support during the relevant four-month time period.
As Mother and Father point out, a parent's financial capacity to pay support must be considered in determining willfulness. If a parent is financially incapable of paying support, the parent is not willfully failing to support. Pierce v. Bechtold, 448 S.W.2d 425, 429 (Tenn. Ct. App. 1969). Therefore, in most instances, the court should examine the parent's means, including income and available resources for support.