Court Divided over Scope of Wanton Disregard as Grounds for Termination of Parental Rights: In re K.F.R.T.

Facts: Father’s children were adjudicated dependent and neglected and put in the custody of the Department of Children’s Services (“DCS”) after Father committed domestic assault against Mother.

criminal recordsDCS petitioned to terminate Father’s parental rights to the children on grounds of, inter alia, wanton disregard for the welfare of the children.

Father was incarcerated at the time the petition was filed. He has a lengthy criminal history, most of which occurred 5 to 6 years prior to the filing of the petition to terminate his parental rights. Father is a Mexican national who now lives in Mexico.

After a trial, the trial court refused to terminate Father’s parental rights because it held there was insufficient evidence to establish grounds for termination.

The children’s guardian ad litem appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court and terminated Father’s parental rights.

Tennessee Code Annotated § 36-1-102(1)(A)(iv) defines “abandonment” to include when

A parent . . . 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 . . . has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and . . . the parent . . . has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child[.]

An incarcerated or recently incarcerated parent can be found guilty of abandonment only if the court finds, by clear and convincing evidence, that the parent’s pre-incarceration conduct displayed a wanton disregard for the welfare of the child. Thus, the parent’s incarceration serves only as a triggering mechanism that allows the court to take a closer look at the child’s situation to determine whether the parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the child.

Tennessee courts have repeatedly held that probation violations, repeated incarceration, criminal behavior, and substance abuse can, alone or in combination, constitute conduct that exhibits a wanton disregard for the welfare of a child.

It does not matter whether that conduct occurred during the four months immediately preceding the parent’s incarceration or at some earlier point in time.

After reviewing the record, a majority of the Court of Appeals concluded:

The statute now under discussion pertains to “conduct . . . that exhibits a wanton disregard for the welfare of the child[ren].”This part of the statute focuses as much on a parent’s state of mind vis-à-vis his children, as it does on the conduct itself. In other words, what does the bad conduct tell us about a parent’s concern for the welfare of his children or lack thereof? If you really love and care for your children, would you repeatedly get drunk and drive or batter your wife in your children’s presence?

The evidence in this case clearly shows a man who has no qualms about engaging in criminal conduct….

Over the course of time, the father in this case was arrested for theft, multiple D.U.I. offenses, repeated traffic offenses, domestic violence against the biological mother of the children central to this appeal, multiple illegal border crossings, and even extortion. These arrests resulted in multiple incarcerations and/or deportations. When viewed in their totality, these offenses clearly indicate that the “parental behavior that resulted in incarceration is part of a broader pattern of conduct that renders [father] unfit or poses a risk of substantial harm to the welfare of the child[ren].”

Is this the conduct of a man who is concerned with his children’s welfare? The question is rhetorical in nature. He says he illegally crossed the border on multiple occasions in an attempt to see his children. Where is the proof of this other than his own self-serving statement? During the five years his children have been in DCS custody, where is the proof that, outside of a couple of phone conversations, he made any real attempt to maintain a meaningful relationship with his children?…

Father’s criminal conduct in fact led to a number of incarcerations and deportations. He must have known — or is certainly charged with knowledge — that his conduct could land him in jail or ensure a one-way ticket back to Mexico. He apparently did not care how all of this could and would affect the welfare of his children….

The evidence on the issue of best interest is clear, convincing, and overwhelming. It is in the best interest of the children to terminate father’s parental rights and allow these children to be adopted by a family who will love and care for them.

Accordingly, the trial court’s judgment was reversed and Father’s parental rights were terminated.

Dissent: Judge Swiney dissented from the majority opinion, writing:

[T]he majority accurately outlines Father’s record of criminal misdeeds. I do not in any sense belittle the wrongness of Father’s offenses. However, going back five or six years to dredge up DUIs, for example, is a stretch when it comes to terminating a parent’s right to his or her child, a fundamental right….

Clearly, in every case there is some point in time at which prior conduct so far in the past becomes irrelevant or at least its impact lessens as to whether a parent has displayed wanton disregard for the welfare of his or her child. This reasoning applies to a single incident of domestic violence, even though it is indeed a loathsome act. I submit that an additional legion of parents may well be at risk of losing their parental rights under such a sweeping interpretation of wanton disregard as adopted today by the majority.

Thus, Judge Swiney would affirm the trial court’s decision declining to find wanton disregard.

K.O.’s Comment: I have long been critical of the scope of the “wanton disregard” ground for termination of parental rights. See my comment in this post from February 2014.

In the In re Anthony R. opinion, the Middle Section was (I think) critical of the jurisprudence on this issue when it wrote, “By defining [wanton disregard] by examples, Tennessee courts have recognized ‘wanton disregard’ in much the same way as Justice Potter Stewart identified pornography: ‘[we] know it when [we] see it.'” I am glad to finally see some critical analysis of the scope of this particular ground for termination of parental rights. I think courts should apply a more critical eye when petitioners rely on wanton disregard.

In re K.F.R.T. (Tennessee Court of Appeals, Eastern Section, March 10, 2016).

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

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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