In Re JACOBE M.J.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 19, 2013

IN RE: JACOBE M. J.

Direct Appeal from the Chancery Court for Putnam County

No. 201210A Ronald Thurman, Chancellor

No. M2013-01246-COA-R3-PT - Filed December 5, 2013

This is a termination of parental rights case. Father appeals the trial court's termination

of his parental rights on the ground of abandonment by willful failure to visit and willful

failure to support pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-

102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit and

willful failure to support is met by clear and convincing evidence in the record, and that there

is also clear and convincing evidence that termination of Father's parental rights is in the

child's best interest. Affirmed and remanded.

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

and Remanded

J. S TEVEN S TAFFORD J., delivered the opinion of the Court, in which A LAN E. H IGHERS,

P.J.,W.S., and D AVID R. F ARMER, J., joined.

Jason F. Hicks, Cookeville, Tennessee, for the appellant, Jerry P. J.

Martelia T. Crawford, Cookeville, Tennessee, for the appellee, Yvette F. D.

OPINION

I. Background

The child at issue, Jacobe M. J., was born on January 7, 2009 to Jessica M. D.

(“Mother”) and Jerry P .J. (“Father,” “Respondent,” or “Appellant”).1 Mother and Father

1

It is the policy of this court to use the initials of children and parties involved in juvenile court

actions to protect the privacy of the children involved.

were never married.2 Yvette F.D. (“Petitioner,” “Grandmother,” or “Appellee”) is the

child’s maternal grandmother.

On April 17, 2012, Grandmother filed a petition in the trial court, seeking to terminate

both Mother and Father’s parental rights to the minor child. Grandmother also sought to

adopt the child. As the ground for termination of their parental rights, Grandmother alleged

that Mother and Father had abandoned the child by willful failure to visit and willful failure

to support. Tenn. Code Ann. §36-1-113(g)(1); Tenn. Code Ann. §36-1-102(1)(A)(i).

According to her petition, Grandmother obtained physical custody of the child on or about

May 13, 2011, when she was granted temporary legal custody under a temporary restraining

order. This temporary restraining order, which was entered by the juvenile court on May 13,

2011, enjoins Mother and Father from “removing the minor child from the [Grandmother’s]

physical custody.”3 Although Grandmother obtained physical custody through the May 13,

2011 temporary restraining order, the testimony at trial revealed that the child had been living

with Grandmother continuously since November of 2010, when Mother moved into

Grandmother’s house with the child. Grandmother testified that Mother stayed with her “on

and off” for several months, but that Mother often left the child in Grandmother’s care for

days without indicating her whereabouts. When Mother moved out of Grandmother’s house,

she left the child in Grandmother’s care.

Father filed an answer to Grandmother’s petition on May 10, 2012. While he

admitted that the child had lived with Grandmother since at least 2011, Father denied that he

had abandoned the child and averred that he had “attempted to provide support to the child.”

By order of July 2, 2012, a guardian ad litem was appointed to represent the child. On

October 2, 2012, Father’s attorney filed a motion to withdraw, which motion was granted by

order of November 14, 2012. The case was set for hearing and, on December 27, 2012,

Grandmother’s attorney filed an affidavit of service, indicating that Father was served with

notice of the hearing by certified mail. Thereafter, Father requested that he be appointed

counsel. By order of January 24, 2013, Father was found to be indigent and an attorney was

appointed to represent him. By order of January 30, 2013, the case was continued to April

11, 2013 so that Father’s new attorney could prepare for the hearing; the same order also

changed the child’s guardian ad litem.

2

Mother’s parental rights were terminated by default judgment entered on August 14, 2012. She

is not a party to the instant appeal.

3

On June 12, 2012, the trial court entered a second temporary restraining order, enjoining Mother

and Father from removing the child from any daycare or from the custody of any care provider.

-2-

Following the April 11, 2013 hearing, on May 14, 2013, the trial court entered a final

judgment, terminating Father’s parental rights on the ground of abandonment. We will

discuss the trial court’s specific findings below.

II. Issues

Father appeals the trial court’s termination of his parental rights. He raises two issues

for review as stated in his brief:

1. Whether the trial court erred in finding, by clear and

convincing evidence, that the Father abandoned the child by

willfully failing to support him and failing to visit him.

2. Whether the trial court erred in finding, by clear and

convincing evidence, that it was in the best interest of the child

to terminate Father’s parental rights.4

III. Standard of Review

Under both the United States and Tennessee Constitutions, a parent has a fundamental

right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,

651 (1972); Nash–Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state

may interfere with parental rights only if there is a compelling state interest. Nash–Putnam,

921 S.W.2d at 174–75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination

statutes identify “those situations in which the state's interest in the welfare of a child justifies

interference with a parent's constitutional rights by setting forth grounds on which

termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT,

M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing

Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove

both the existence of one of the statutory grounds for termination and that termination is in

the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367

(Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because of the fundamental nature of the parent's rights and the grave consequences

of the termination of those rights, courts must require a higher standard of proof in deciding

termination cases. Santosky, 455 U.S. at 769. Consequently, both the grounds for termination

and the best interest inquiry must be established by clear and convincing evidence. Tenn.

4

Although this appeal was originally docketed for oral argument, upon agreement of the parties, the

case was ultimately submitted to this Court on briefs.

-3-

Code Ann. § 36–3–113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing

evidence “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 M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence

“produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts

sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a

reviewing court must modify the customary standard of review as set forth in Tennessee Rule

of Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo

with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.

App. P. 13(d). We must then determine whether the facts, as found by the trial court or as

supported by the preponderance of the evidence, clearly and convincingly establish the

elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.

2002).

We note that in its May 14, 2013 order, the trial court specifically found that “after

hearing the testimony of all the witnesses . . . the Grandmother, and her witnesses were very

credible.” It is well settled that when the resolution of an issue in a case depends upon the

truthfulness of witnesses, the trial judge who has had the opportunity to observe the witnesses

and their manner and demeanor while testifying is in a far better position than this Court to

decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);

Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith, and

credit to be given to any witness' testimony lies in the first instance with the trier of fact, and

the credibility accorded will be given great weight by the appellate court. See id.; see also

Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).

IV. Ground for Termination of Father's Parental Rights

As set out in its May 14, 2013 order, the trial court terminated Father’s parental rights

on the ground of abandonment pursuant to Tennessee Code Annotated Section 36-1-

113(g)(1). In relevant part, the order states:

2. The Court hereby finds that the allegations by the Petitioner

Grandmother are abandonment by the Father, as to willful

failure to visit and willful failure to pay child support, and that

based on the testimony in open court, the court finds that the

ground[] ha[s] been proven by clear and convincing evidence

that the Father has willfully abandoned the child and that the

Grandmother met her burden of proof.

-4-

The Court further finds that there has been absolutely no

child support paid by the father since the minor child went to

reside with the Grandmother in November 2010, that the father

was not and is not disabled, that he has maintained employment

during this period of time, and he had the ability to pay child

support. The court further finds that the Father did not pay for

any daycare costs, did not provide any food, clothing or other

necessaries for the minor child since November 2010. The court

finds that the grandmother did nothing to prevent the father from

paying any form of child support and providing any necessities

for the minor child.

The court further finds that the father’s excuse that there

was no court order or request for child support, is insufficient to

offset his duty of support.

Therefore, the court specifically finds that the father has

willfully failed to support his minor child since November 2010.

The court further finds that there were no visits between

the Father and the minor child between November 2010 until

February 2013, and the father’s excuse to this court was that his

former attorney told him not to contact the Grandmother. The

court finds that this excuse is insufficient because the Juvenile

Court Order, he makes reference to, stated that neither parent

could remove the child from the custody of the Grandmother

and had nothing to do with contact or visits with the child. The

Court further finds that the Father made no effort on his part to

restore his relationship with the child until February 2013. The

court finds that under the case law, the father has to take

affirmative action or steps, which the father did not do in this

case, to restore his relationship with his child, or to seek

visitation. The court additionally finds that the Grandmother did

nothing to prevent or hinder the father with his visitation.

Therefore, the court finds that the Grandmother has proven

father’s willful failure to visit with the minor child by clear and

convincing evidence.5

5

Tennessee Rule of Civil Procedure 52 requires that, "[i]n all actions tried upon the facts without

a jury, the court shall find the facts specially and shall state separately its conclusions of law and direct the

entry of the appropriate judgment." It is too often the case that this rule is not strictly followed; however,

this is not one of those cases. Here, the trial court made very specific findings concerning both its finding

(continued...)

-5-

Tennessee Code Annotated Section 36-1-102(1)(A)(i) defines “abandonment,” in

relevant part, as follows:

For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the parent(s) or guardian(s) of the child who

is the subject of the petition for termination of parental rights or

adoption, that the parent(s) or guardian(s) either have willfully

failed to visit or have willfully failed to support or have

willfully failed to make reasonable payments toward the support

of the child; . . . .

For purposes of this subdivision, “willfully failed to support” or “willfully failed to

make reasonable payments toward such child's support” means the “willful failure, for a

period of four (4) consecutive months, to provide monetary support or the willful failure to

provide more than token payments toward the support of the child.” Tenn. Code Ann. §36-1-

102 (1)(D).6 Willful failure to visit means “the willful failure, for a period of four (4)

consecutive months, to visit or engage in more than token visitation.” Tenn. Code Ann. § 36-

1-102(1)(E).7 As defined in Tennessee Code Annotated Section 36-1-102(1)(A)(i), supra,

the four month time period for the ground of willful failure to visit or support is the four

months immediately preceding the filing of the petition to terminate parental rights. As noted

above, the petition to terminate Father’s parental rights in this case was filed on April 17,

2012.

Prior to the filing of the petition for termination of his parental rights, Grandmother

testified that Father had visited, at most, two times—once around Christmas of 2010, and

again in January of 2011 around the child’s birthday. Neither of those visits occurred in the

four months preceding the filing of the petition to terminate Father’s parental rights.

However, after the petition was filed, sometime in January of 2013, Grandmother stated that

5

(...continued)

regarding the ground for termination of Father's parental rights, and its determination that termination is in

the child's best interest, see infra. Accordingly, we are able to make a meaningful review in this case, and

we wish to commend the trial court for the specificity contained in its order.

6

Token support means that “the support, under the circumstances of the individual case, is

insignificant given the parent's means.” Tenn. Code Ann. §36– 1– 102 (1)(B).

7

Token visitation means that "visitation, under the circumstances of the individual case, constitutes

nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration

as to merely establish minimal or insubstantial contact with the child." Tenn. Code Ann. § 36-1-102(1)(C).

-6-

Father contacted her to set up a visit. Grandmother did not oppose this request and agreed

to meet Father, with the child, at a local restaurant. From the record, it is clear that during

the relevant time period, i.e., four months prior to the April 17, 2012 filing of the petition to

terminate his parental rights, Father did not see the child, nor did he attempt to do so. It was

only after the petition was filed that Father attempted to see the child. Tennessee Code

Annotated Section 26-1-102(1)(F) clearly states that: “Abandonment may not be repented

of by resuming visitation or support subsequent to the filing of any petition seeking to

terminate parental or guardianship rights or seeking the adoption of a child.” Accordingly,

Father’s visitation after the filing of the petition cannot cure his failure to visit in the four

month period prior to the filing date. However, even after the petition was filed, the record

indicates that Father’s visitation was sporadic, and that his requests were made at his own

convenience. After the initial visit in January of 2013, Grandmother testified that Father had

visited with the child only four other times. Accordingly, even if we could consider the

visitation after the petition was filed, based upon the record, we could only conclude that this

visitation was, at best, token visitation. Tenn. Code Ann. § 36-1-102(1)(C).

Father testified that at one point while Mother was living at Grandmother’s home with

the child, he and Mother had gotten into a verbal altercation at Grandmother’s home. At that

time, Grandmother indicated that she did not want either Father or Mother at her home.

However, other than this one occasion, there is no indication in the record that Grandmother

ever kept Father from visiting with the child. In fact, as noted above, Grandmother

accommodated Father’s visitation requests by bringing the child to meet him. In his

testimony, Father attempted to explain his lack of visitation by stating that he was under the

impression (based upon alleged statements by his attorney) that he would be in violation of

the temporary restraining orders, supra, if he tried to have visitation with the child. As noted

above, the temporary restraining orders only enjoin Father from removing the child from

Grandmother’s physical custody and from taking him from daycare or from his care provider.

There is nothing in these orders to indicate any limitation on Father’s visitation.

Concerning abandonment by failure to provide more than token support, Grandmother

testified that during one post-petition visitation, the child had complained of being hungry,

but that Father made no attempt to buy the child any food. Rather, Father waited until after

the Grandmother had paid for the child’s meal then said: “If I had known he was hungry, I

would have bought him something to eat.” In addition, she testified that Father had never

offered any financial support for the child, and had not otherwise provided any necessities

for the child such as diapers, food, or the like. Grandmother further stated that Father had

never sent Christmas or birthday gifts for the child. Grandmother, however, did indicate that

during the four or five visits (beginning in January of 2013), Father did purchase items (such

as drinks and food items) for the child, totaling approximately $12.00. Other than these

nominal expenditures, there is no evidence that Father provided any other support for the

-7-

child. Grandmother’s testimony reveals that she has paid for the child’s daycare expenses,

his clothing, food, and everything else the child has needed.

Father testified that he had offered to pay the child’s daycare expenses, but conceded

that the Grandmother had ultimately paid the bill. Concerning the fact that he had never paid

child support, Father testified that he would have paid child support had there been a court

order requiring him to do so. When asked whether he had taken diapers or other necessities

to Grandmother for the child, Father stated that he had not done so based upon his belief, see

discussion infra, that he would be in violation of the temporary restraining order by doing so.

Father did testify that he has been employed for most of the child’s life. The record indicates

that although Father’s statement is true in that he has had a steady stream of employment, he

has not retained any job for a significant time period. Rather, he appears to change jobs

regularly because of layoffs or because he simply quits. However, from the record, it appears

that, during the child’s lifetime, Father has had the means to pay some level of support, but

has not done so.

Tennessee Code Annotated Section 36-1-102(1)(H) states that “every parent who is

eighteen (18) years of age or older is presumed to have knowledge of a parent's legal

obligation to support such parent's child or children.” A parent’s obligation to support his or

her child exists regardless of a court order requiring the parent to pay support. See, e.g., In

re Shandajha A.G., No. E2012-02579-COA-R3PT, 2013 WL 3787594 (Tenn. Ct. App. July

17, 2013) As discussed by this Court in State ex rel. Hayes v. Carter, No.

W2005-02136-COA-R3-JV, 2006 WL 2002577 (Tenn. Ct. App. July 6, 2006):

It is well settled in Tennessee that biological parents must, as a

general matter, support their children until they reach the age of

majority. See T.C.A. § 34-1-102(a), (b) (2001); Smith v. Gore,

728 S.W.2d 738, 750 (Tenn.1987). Their support obligations are

joint and several, and the extent of their obligations depends on

their ability to provide support. . . . The parent's obligation to

support, as well as the child's right to support, exist regardless

of whether a court order exists, and regardless of whether the

parents were ever married.

Id. at *2. At the time of the filing of the petition, Father was over the age of eighteen;

furthermore, there is no indication that Father was unaware, at any point in the child’s life,

that he was the child’s natural father. Accordingly, like the trial court, we find Father’s

argument that his failure to pay any child support due to the fact that there was not a court

order requiring him to do so to be unpersuasive.

-8-

V. Best Interest

When at least one ground for termination of parental rights has been established, the

petitioner must then prove, by clear and convincing evidence, that termination of the parent's

rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.

App.1994). When a parent has been found to be unfit upon establishment of a ground for

termination of parental rights, then the interests of parent and child diverge. In re Audrey S.,

182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). The focus shifts to the child's best interest. Id.

at 877. Because not all parental conduct is irredeemable, Tennessee's termination of parental

rights statutes recognize the possibility that terminating an unfit parent's parental rights is not

always in the child's best interest. Id. However, when the interests of the parent and the child

conflict, courts are to resolve the conflict in favor of the rights and best interest of the child.

Tenn. Code Ann. § 36-1-101(d). “The child's best interest must be viewed from the child's,

rather than the parent's, perspective.” Moody, 171 S.W.3d at 194.

In addition to the ground of abandonment by willful failure to either visit or support

the child, the trial court also specifically found that termination of Father’s parental rights

was in the child’s best interest:

3. In making a best interest analysis, the court has evaluated the

factors set forth in TCA 36-1-113(i), as to best interest, and

finds as follows:

A. That the father has not made sufficient adjustment to his

circumstances that would make it safe for the child to be in his

home. In particular, the father, knowing the child has serious

medical problems (i.e., Asthma), smokes at least one (1) pack of

cigarettes per day, and his girlfriend smokes, as well.

B. The Grandmother has provided a safe, stable and good

environment for the child. The Father is without excuse for

failure to visit as stated hereinabove. Grandmother has been

there for the child. . . .

C. The father does not have a meaningful relationship with the

child and is not bonded to the child. The court finds that just

because a child recognizes a person does not mean that they are

bonded to that person. The [Grandmother]. . .[has] established

a meaningful relationship with the child, and the child is bonded

with the Grandmother.

D. The child is safe with the Grandmother and his medical

condition has improved because of the efforts of the

-9-

Grandmother, in caring for the child. . . .

E. The father was neglectful of the child in that he has

previously allowed the child to be in the presence of the Mother,

whom he admitted, in open court was addicted to drugs, and

allowed the Mother to drive and care for the child unsupervised.

That the father continues to smoke knowing that the child

suffers from a serious medical condition[, which is] aggravated

by second hand smoke.

F. The Grandmother’s home is safe and a good environment for

the child. . . .

G. The father has paid no child support, and the Grandmother

has paid significant costs to care for her grandson.

The Tennessee Legislature has codified certain factors that courts should consider in

ascertaining the best interest of the child in a termination of parental rights case at Tennessee

Code Annotated Sections 36-1-113(i). These factors include, but are not limited to, the

following:

(1) Whether the parent or guardian has made such an adjustment

of circumstance, conduct, or conditions as to make it safe and in

the child's best interest to be in the home of the parent or

guardian;

***

(3) Whether the parent or guardian has maintained regular

visitation or other contact with the child;

(4) Whether a meaningful relationship has otherwise been

established between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment

is likely to have on the child's emotional, psychological and

medical condition;

***

(7) Whether the physical environment of the parent's or

guardian's home is healthy and safe, whether there is criminal

activity in the home, or whether there is such use of alcohol or

-10-

controlled substances as may render the parent or guardian

consistently unable to care for the child in a safe and stable

manner;

(8) Whether the parent's or guardian's mental and/or emotional

status would be detrimental to the child or prevent the parent or

guardian from effectively providing safe and stable care and

supervision for the child; or

(9) Whether the parent or guardian has paid child support

consistent with the child support guidelines promulgated by the

department pursuant to § 36–5–101.

Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not

exhaustive, and the statute does not require a trial court to find the existence of each

enumerated factor before it may conclude that terminating a parent's rights is in the best

interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending

on the circumstances of an individual case, the consideration of a single factor or other facts

outside the enumerated, statutory factors may dictate the outcome of the best interest

analysis. In re Audrey S., 182 S.W.3d at 877.

Turning to the record, Grandmother testified about the child’s breathing issues, which

include asthma, sinusitis, and bronchitis. In addition, the child has tubes in his ears. He also

suffers from occasional bouts of eczema. Grandmother testified that the child’s condition

has gotten better during his time with her. She stated that she makes sure he has regular

doctor’s visits, and that he takes his prescribed medications on schedule. Grandmother

further stated that pursuant to doctors’ orders, the child cannot be exposed to certain

allergens, including smoke, perfumes, air fresheners, etc. Grandmother indicated that she

has arranged her home so that the child will have minimal contact with such allergens.

Father testified that he has lived in his fiancé’s home with her for approximately two

years. Both Father and his fiancé have one child each from previous relationships. Both of

these children live in the home with Father and his fiancé. Father briefly testified that the

Department of Children’s Services had been involved with him concerning the child in his

care and custody, but that the case had been closed with him retaining custody. The record

does not elaborate on the particular facts surrounding the Department’s involvement.

Regardless, Father’s fiancé testified that both she and Father smoke. She stated that Father

smokes approximately one pack of cigarettes per day, and that she smokes approximately

three “little” cigars per day.

-11-

The record indicates that Grandmother retired from employment with the Cookeville

Police Department in March of 2013. At the time of the hearing, Grandmother stated that

she was employed full-time as a fitness instructor. Grandmother testified that she owns a

three-bedroom, two-bath home in Cookeville, where she has lived since 1996. The child has

his own bedroom in the home. Grandmother testified that she does have family help from

her father, the child’s great-grandfather, in caring for the child. The great-grandfather also

testified at the hearing, and his testimony corroborates Grandmother’s.

Concerning the child’s relationship with Father, Grandmother testified that: “He [the

child] doesn’t ask about his father. We’ve had five visits. He doesn’t talk about his father

after the visits and doesn’t ask about seeing him again.” Betsy Dunn, a friend of

Grandmother’s, also testified. Ms. Dunn indicated that although she works for the Tennessee

Department of Children’s Services, she was not testifying in her official capacity. Ms. Dunn

stated that she had visited Grandmother’s home many times and had observed the child’s

relationship with Grandmother. Ms. Dunn testified that the relationship between the

Grandmother and the child is “more like a mother-son bond.” Ms. Dunn was also present

at the meeting between the child and Father, which is mentioned above. She stated that

although the child calls Father “Daddy,” the child did not appear to be overly excited to see

him. Rather, she opined that the child treats the Father as a “playmate.” Father was also

asked about his relationship with the child. In response to the question: “What kind of

relationship do you and [the child] have,” Father answered: “At this point, because of the

two-year process that’s been going on, it is slim. But that’s not nothing [sic] that I . . . don’t

want to change.”

From the totality of the circumstances, and in light of the statutory factors set out

above, we conclude that clear and convincing evidence exists in the record to support both

the trial court’s termination of Father’s parental rights on the ground of abandonment, and

the trial court’s finding that termination of Father’s parental rights is in the child’s best

interest.

VI. Conclusion

For the foregoing reasons, we affirm the order of the trial court, terminating Father's

parental rights on the ground of abandonment by willful failure to visit and willful failure to

support. The case is remanded for further proceedings as may be necessary and are consistent

with this opinion. Costs of the appeal are assessed against the Father. Because Father is

proceeding as a pauper in this appeal, execution may issue for costs if necessary.

-12-

_________________________________

J. STEVEN STAFFORD, JUDGE

-13-