Facts: Two-year old Child lived with Mother and Mother’s boyfriend.  When the maternal grandmother observed bruised condition of Child, she took Child to the hospital, who then reported suspected abuse to the Department of Children’s Services (“DCS”).  Child was reported to be a pale green color and bruised all over his body.  DCS’s investigation revealed the home to be roach-infested, “there was not enough food in the cabinets to make a full meal, and there was only beer, condiments, and empty baby bottles in the refrigerator.”  Mother was aware of Child’s battered condition for days but made no effort to seek help for Child.  The boyfriend, “Mr. Lee”,

indicated that the Child had been crying and that he had “flipped out.” Mr. Lee admitted that he threw the Child in the bed extremely hard and punched him in the face with closed fists approximately three times. According to Mr. Lee, he later “hit at [Child] and hit him swinging back” when the Child was crying again. Mr. Lee then “took both hands and smacked at him at the same time on the cheeks.” Finally, before putting the Child in his crib, Mr. Lee “pushed him hard into the wall two or three times.” Mr. Lee observed at trial that the Child looked like a “punching bag” and was swollen black and blue.

The treating physician testified as follows:

[T]he Child sustained the following injuries: a laceration to his liver; three fractured ribs: a fractured left hip; a fractured left elbow; a fractured nasal septum; a fractured left shoulder blade; a possible skull fracture; cigarette burns to the top of his left foot and third toe; trauma to his ear; and extreme bruising all over his body. Dr. Keegan opined that the injury to the arm would have been obvious to anyone. He noted that due to the damage to the artery in the arm, the Child could have lost the arm in as little as three days. The physician observed that the injury to the hip caused it to be very painful for Caleb to walk. He opined that the Child would have been in extreme pain.

The trial court found that Mother committed severe child abuse by failing to protect Child, which finding constitutes grounds to terminate Mother’s parental rights.  Mother appealed.

The Court of Appeals affirmed the trial court.  Tenn. Code Ann. § 37-1-102(b)(23) defines “severe child abuse” as:

(A) The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause great bodily harm or death and the knowing use of force on a child that is likely to cause great bodily harm or death;

(B) Specific brutality, abuse or neglect toward a child which in the opinion of qualified experts has caused or will reasonably be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child’s ability to function adequately in the child’s environment, and the knowing failure to protect a child from such conduct; or

(C) The commission of any act toward the child prohibited by §§ 39-13-502-39-135-04, 39-13-522, 39-15-302, and 39-17-1005 or the knowing failure to protect the child from the commission of any such act towards the child . . . .

Mother argued she did not “knowingly” fail to protect Child because she was never present when Child was abused.  The Court defined the legal inquiry:

We consider a person’s conduct to be “knowing,” and a person to act or fail to act “knowingly” when he or she has actual knowledge of the relevant facts and circumstances or when he or she is either in deliberate ignorance of or in reckless disregard of the information that has been presented to him or her. Accordingly, parents who are present when a child is abused, but who fail to intervene to protect the child, have knowingly exposed the child to or have failed to protect the child from abuse. However, the “knowing” requirement in Tenn. Code Ann. § 37-1-102(b)(23) is not limited to parents who actually are present when severe abuse occurs. A parent’s failure to protect a child will also be considered “knowing” if the parent had been presented with sufficient facts from which he or she could have and should have recognized that severe child abuse had occurred or that it was highly probable that severe child abuse would occur. Therefore, we must determine whether Mother had specific reason to know but deliberately or recklessly ignored that Mr. Lee had severely abused the Child or that it was highly probable that Mr. Lee would severely abuse the Child.

The Court found ample evidence to sustain the trial court’s finding:

A reasonable person possessing the information that Mother possessed would have inferred that abuse was possibly occurring. Mother admitted that whenever she allowed Mr. Lee to watch the Child, her son would have unexplained bruises. She admitted that Mr. Lee would “go overboard” in his discipline of the Child. She admitted that Mr. Lee had been physically abusive toward her before he moved into her home. Mother insists that she was motivated by her fear of Mr. Lee to keep quiet about the Child’s injuries, but even in instances where Mr. Lee was not around, she did not utilize her available resources at work or when Mr. Lee left for work. Mother, by deliberately and recklessly ignoring the obvious signs of abuse and by failing to seek proper medical care for the Child, committed severe child abuse as defined by Tenn. Code Ann. § 37-1-102(b)(23).

Turning to Child’s best interest, the Court found:

In the instant case, the Child is now in a safe and stable home with foster parents who love him and want to adopt him. He has had no contact with Mother in over a year. A change of caretakers and physical environment would likely have a detrimental effect on the Child’s emotional and psychological condition. We do not doubt that Mother loves her son, but she failed him miserably when she sacrificed his health and safety for a relationship with an abusive boyfriend.

In re Caleb J.B.W. (Tenn. Ct. App. July 14, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.