Facts: Child was born in June 2016, and placed in the custody of the Tennessee Department of Children’s Services (DCS) shortly thereafter. Three older children of Mother and Father were already in DCS custody because of drug use, drug paraphernalia in the home, and environmental neglect.

Child was placed in a preadoptive foster home, and his foster family was the only family he had ever known. Father never met Child.

In November 2016, DCS petitioned to terminate Father’s parental rights on the ground of abandonment by an incarcerated parent by exhibiting a wanton disregard for the child. Mother voluntarily surrendered her parental rights.

Father acknowledged his lengthy criminal history and admitted that he had violated probation at least four or five times. Father affirmed he was charged with vandalism in September 2015, and this violated his probation such that, in March 2016, he was sentenced to five years’ incarceration. When Child was born in June 2016, Father was in prison.

Father admitted his history of drug use and that he continued to use drugs until he was incarcerated in March 2016. Father also stated, however, that he had been drug-free during his 15 months of incarceration.

The trial court found clear and convincing evidence of wanton disregard as grounds for termination. Upon finding that termination was in Child’s best interest, Father’s parental rights were terminated.

Father appealed.

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

A person seeking to terminate parental rights must prove the existence of one of the statutory grounds for termination and that termination is in the child’s best interest.

Both the grounds for termination and the best-interest inquiry must be established by clear and convincing evidence. Evidence is clear and convincing when it 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 Tennessee, an incarcerated or recently incarcerated parent can be found to have committed the grounds of abandonment 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.

A parent’s incarceration acts as a triggering mechanism that allows the court to examine more closely the child’s situation to determine whether the parental behavior that resulted in incarceration as 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.

For a parent to disregard or show indifference to a child, the parent must know of the child’s existence.

Any person under the age of 18 is considered a child. When analyzing the ground of abandonment by wanton disregard for the welfare of the child, Tennessee courts have extended the meaning of “child” to include the time before birth but after conception.

Tennessee law requires that the father know of the child at the time his actions constituting wanton disregard are taken.

The Court concluded that DCS failed to prove that Father knew of Child’s existence when his bad acts occurred:

[I]t appears to this Court that the trial court failed to consider Father’s knowledge of the child’s existence in its findings on this factor. Here, none of Father’s criminal conduct occurred after the birth of the child. The child was born in June 2016. Clearly, then, the trial court’s reliance on Father’s criminal conduct in 2009, 2012, and 2013, years before the child at issue’s birth, was in error.

Less clear, however, is whether the trial court erred in considering Father’s September 2015 vandalism charge, which ultimately led to Father’s incarceration in March 2016, in making its wanton disregard termination. Although the trial court found that Mother and Father were “together” when the child was conceived, the trial court made no findings as to whether Father was aware of Mother’s pregnancy at the time he committed this crime. The trial court’s lack of finding on this issue is unsurprising, as after a thorough review of the record, we can find no evidence that meets the clear and convincing standard to show that Father had knowledge of the existence of the child prior to his birth.

[T]he burden falls on DCS, not Father, to prove Father’s wanton disregard of the child by clear and convincing evidence. After a thorough review of the record, we conclude that DCS failed to provide any evidence that Father knew of the child’s conception at the time he committed the criminal act that DCS now contends constituted a wanton disregard for the child’s welfare. . . . DCS alleges, however, that the child was likely conceived around September 2015, the same time that Father committed the vandalism that led to the violation of his probation. Even assuming that the child was conceived in September 2015, however, this evidence alone does not establish by clear and convincing evidence that Father knew of the child’s existence at this early date.

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Because Father testified without dispute that he and Mother were not in a relationship throughout the proceedings at issue, we cannot conclude that Mother’s knowledge of the child’s existence at some unspecified point in her pregnancy should be imputed to Father, especially at the early date of September 2015. Instead, Father was simply never asked at trial the date upon which he or Mother discovered the pregnancy. . . . [W]e cannot merely assume Father’s knowledge in the absence of proper evidence. Thus, the trial court erred in relying on any of Father’s admitted criminal conduct in this case because DCS failed to prove that any of this conduct occurred at a time when Father was aware of the existence of the child.

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While it was undisputed by Father that he continued to abuse drugs until his incarceration in March 2016, Father’s abuse of drugs suffers from the same malady that befell the evidence of his criminal conduct: there is no evidence in the record to show that Father knew of the child’s existence at the time he was using illegal drugs. . . . [W]hile it is possible that Father knew of the child’s existence prior to his current incarceration, as Mother appears to have known at some point prior to the child’s birth, assumptions and surmises regarding Father’s knowledge do not meet the clear and convincing standard necessary to justify the permanent termination of his parental rights on this ground. Thus, with no evidence or testimony regarding Father’s knowledge of the existence of the child while he was using illegal drugs, we conclude that the trial court also erred in considering Father’s illegal drug use up until March 2016 in its wanton disregard termination.

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In sum, DCS failed to prove that Father engaged in any criminal conduct or illegal drug use after he became aware of the existence of the child.

Thus, the trial court’s judgment terminating Father’s parental rights was reversed.

In re Michael O. (Tennessee Court of Appeals, Western Section, January 26, 2018).