Facts: Father and Mother were not in a relationship. Father testified they were not a regular couple. According to Father “It was just, you know, no couple things – just we were having sex. You know what I’m saying.”

Father violated probation and was re-incarcerated in May 2007. Mother gave birth to Child in January 2008.

While Father admitted he understood that “when you’re having unprotected sex, then people can get pregnant,” he maintained he “didn’t know she was pregnant until after the fact.” Father claimed he didn’t learn of Mother’s pregnancy until two or three days after Child was born. When he was specifically asked whether he had any knowledge that Mother was pregnant during her pregnancy, father replied, “Sir, I didn’t [have] no knowledge until after she had the baby.”

The trial court terminated Father’s parental rights on the grounds of wanton disregard for the welfare of the child.

Father appealed.

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

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines abandonment as follows:

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.

The term “child” is defined in Tennessee Code Annotated § 36-1-102(13) as “any person or persons under eighteen (18) years of age.” In the context of “wanton disregard for the welfare of the child,” Tennessee courts have extended the definition of “child” to include the period of pregnancy.

This case presents an issue of first impression in Tennessee, namely whether a Father can exhibit a wanton disregard for the welfare of the child if he does not know the child exists. The Court concluded he cannot, reasoning:

Logically, a person cannot disregard or display indifference about someone whom he does not know exists. In our opinion, while the statutory reference to “the child” can mean a child in utero, the wanton disregard language of Tennessee Code Annotated § 36-1-102(1)(A)(iv) must be construed to require that the father has knowledge of the child at the time his actions constituting wanton disregard are taken. In this case, the guardian ad litem did not prove that Father had such knowledge.

Accordingly, the trial court’s termination of Father’s parental rights was reversed.

In re Anthony R. (Tennessee Court of Appeals, Middle Section, June 9, 2015).

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