Facts: Mother and Father are the unmarried parents of Child. In 2008, Child was brought into the custody of the Department of Children’s Services (“DCS”) because, among other reasons, Mother tested positive for cocaine, marijuana and opiates, and lacked adequate housing. The trial court found Mother failed to comply with her permanency plan. Mother’s parental rights were terminated. Although Mother’s issues were addressed on appeal, they will not be discussed in this blog post.

At the time of trial, Father was serving an eight-year sentence for selling drugs within 1000 feet of a school. The trial court found that Father engaged in conduct that exhibits a wanton disregard for Child’s welfare by not visiting regularly with Child prior to DCS custody, showing a lack of interest in Child’s welfare by not monitoring her well-being, being convicted of selling drugs within 1000 feet of a school and, as a result, becoming incarcerated and being unable to provide for Child or visit with Child. The trial court further found that Father’s “repeated criminal acts further show a wanton disregard for the children in the community by selling dangerous drugs where schoolchildren are likely to be present.”

After finding termination of Father’s parental rights to be in Child’s best interests, Father’s parental rights were terminated. Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

It is well established that parents have a fundamental right to the care, custody, and control of their children. However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute.

Termination of parental rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent’s or guardian’s rights is in the best interests of the child. Before a parent’s rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence. Clear and convincing evidence supporting any single ground will justify a termination order.

In pertinent part, Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides:

(1)(A) For purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, “abandonment” means that:
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(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child….

Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, substance abuse, and the failure to provide adequate support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child. While a parent’s criminal behavior does not automatically constitute wanton disregard for the welfare of a child, it certainly may constitute such wanton disregard under the appropriate circumstances. Both the severity and frequency of the criminal acts are factors to be considered in determining whether a parent’s criminal behavior constitutes wanton disregard for the welfare of a child.

After reviewing the record, the Court concluded:

Father’s criminal behavior was serious and detrimental to his child’s welfare. As a result of Father’s crimes, Father has rendered himself absent from [Child’s] life for most of her childhood. It also is noteworthy that Father’s acts were committed on two separate dates. Father’s criminal behavior was, therefore, repeated, and this repetition served only to increase the jeopardy to [Child’s] welfare.

Finding that the evidence does not preponderate against the findings made by the trial court, the Court of Appeals affirmed the finding of abandonment by wanton disregard and, subsequently, the termination of Father’s parental rights.

K.O.’s Comment: I have always been troubled by the “wanton disregard” ground for termination. In practice, I find it to be an all-encompassing “catch-all” ground that lacks a consistent analytical framework. Family law attorneys, litigants, and trial courts would benefit from greater clarity from the appellate courts as to when it applies and how it should be analyzed. The existing standard of “appropriate circumstances” — whatever that means — is not helpful at all.

In re Kierra B. (Tennessee Court of Appeals, Eastern Section, January 14, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.