Facts: Mother and Father divorced three years after Child’s birth.

Their agreed parenting plan designated Mother as the primary residential parent and required supervision of Father’s parenting time by his mother, along with child support.

Five months after the divorce, Mother and Stepfather married. One year later, they petitioned to terminate Father’s parental rights and for a stepparent adoption.

As the trial date approached, Father was arrested.

Father’s counsel moved to reschedule the trial because of Father’s incarceration. The trial court denied the motion.

On the day of trial, Father was not present in the courtroom. His lawyer advised that he was in custody and attending an appearance in criminal court that morning.

The trial proceeded in Father’s absence.

The trial court terminated Father’s parental rights. In evaluating both grounds and the child’s best interests, the trial court, noting Father’s absence, applied the missing witness rule. The trial court also found Father “guilty of unclean hands” based on a false interrogatory answer. The trial court ruled that Father “should be repelled at the courthouse steps from receiving any relief that he has requested in this cause.”

Father appealed.

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

A parent has a fundamental right to the care and custody of his child. But parental rights are not absolute. Sometimes, the State’s interest in a child’s welfare justifies interference with a parent’s right to his child. Because of this, parents are constitutionally entitled to fundamentally fair procedures in actions to terminate parental rights.

Missing Witness Rule. Under the missing witness rule, a party may argue, and have the jury instructed, that if the party has it within his power to produce a witness whose testimony would naturally be favorable to him, failing to call that witness creates an adverse inference that the testimony would not favor his contentions.

Application of the missing witness rule requires evidence

• showing that the witness knew of material facts;
• that a relationship exists between the witness and the party that would naturally incline the witness to favor the party, and
• that the missing witness was available to the process of the court for the trial.

The party invoking the rule must establish the necessary elements.

The Court found it was error to apply the missing witness rule here:

Even assuming for the sake of argument that Mother and Stepfather established the necessary elements, the missing witness rule is not applicable here. There was no jury. This Court has stated, on more than one occasion, that the rule does not apply to bench trials.

Additionally, the missing “witness” was a party. Generally, a defendant in a civil case is not required to testify and has the right to rely upon the duty of the plaintiff to carry the burden of proof and to avail himself of the plaintiff’s failure to make out a case. With a party, similar to the missing witness rule, the court may make unfavorable inferences as a result of the party’s failure to testify. But an adverse inference does not supply proof of a particular fact; rather, it may be used only to weigh facts already in evidence.

It does not appear the court merely applied an adverse inference to weigh the facts in evidence. Instead, the court appears to have presumed the existence of evidence based on Father’s failure to testify.

Unclean Hands. The doctrine of unclean hands is a maxim of equity. It is based on the principles that one who seeks equity must do equity. It provides the court with a basis to decline to grant relief to parties who have willfully engaged in unconscionable, inequitable, immoral, or illegal acts regarding the subject of their claims. The doctrine applies to one who affirmatively seeks equitable relief. Thus, it is not applicable to a defendant not asserting a counter- or crossclaim.

The Court found the doctrine of unclean hands inapplicable:

To the extent that a parental termination and stepparent adoption may be considered an action in equity, the unclean hands doctrine had no application to Father. Only Mother and Stepfather were seeking relief. Thus, Father should not have been, in the words of the court, “repelled at the courthouse steps from receiving any relief that he has requested in this cause.” Far from being repelled at the courthouse steps, Father had a constitutional right to be there.

Bring it home, Court of Appeals:

We conclude that the trial lacked fundamental fairness based on the court’s application of the missing witness rule and the doctrine of unclean hands. Neither the rule nor the doctrine was applicable. And their application undermined the protections to which Father was entitled by virtue of the liberty interest at stake.

The Court found that Mother and Stepfather also failed to clearly and convincingly prove the two grounds for termination on which they relied. For every possible reason, the trial court’s termination of Father’s parental rights was reversed.

In re Mattie L. (Tennessee Court of Appeals, Western Section, April 14, 2020).