Facts: Child’s siblings were exposed to drugs from Mother while she was pregnant, and Father failed to protect them from it. Child tested positive for amphetamine and methamphetamine at birth. Child was placed into protective custody by the Department of Children’s Services (DCS).

Two weeks later, Father was arrested and charged with possession of various illegal drugs, drug paraphernalia, and violating probation.

Five months later, DCS petitioned to terminate Father’s parental rights to Child on the grounds of wanton disregard, severe child abuse, and failure to manifest an ability and willingness to assume custody.

Regarding the ground of wanton disregard, DCS argued that Father committed crimes knowing he would end up in jail and thus be unable to parent Child.

The trial court found grounds of wanton disregard, explaining: “[Father] voluntarily committed the criminal acts that he engaged in with the result that he was incarcerated. His incarceration made him unavailable to parent his child, showing a wanton disregard for the welfare of his child.”

After finding that termination was in Child’s best interest, the trial court terminated Father’s parental rights.

Father appealed.

On Appeal: The Court of Appeals reversed the grounds of wanton disregard.

One ground used to terminate parental rights is that the parent abandoned the child by engaging in conduct before incarceration that exhibits a wanton disregard for the welfare of the child.

A parent’s incarceration serves only as a triggering mechanism that allows the court to look closely 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.

Probation violations, repeated incarceration, criminal behavior, substance abuse, and failing 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.

The Court found the trial court erred by basing its finding solely on Father’s incarceration:

DCS is correct in that probation violations, criminal behavior, getting incarcerated repeatedly, substance abuse, and other such conduct may give rise to wanton disregard. In fact, we can well visualize a scenario where a parent’s one-time conduct is so egregious that it could, by itself, constitute wanton disregard. However, we have cautioned that it is necessary for courts to avoid making incarceration solely on its own into a de facto ground for termination as our General Assembly has not deemed it appropriate to make incarceration solely by itself a ground for termination. . . .

Here, the [trial] court made no specific findings. It found merely that Father became incarcerated. We do not even know the status of his criminal charges. Here, [] the [trial] court’s findings as to wanton disregard are based solely and exclusively on Father’s incarceration, without any additional finding. Tennessee law requires more to sustain the ground of wanton disregard than just incarceration. If a parent’s actions resulting in incarceration always are sufficient to show wanton disregard, our General Assembly would just need to say incarceration alone is a ground for terminating parental rights. It has not done so. This being so, we vacate the ground of wanton disregard.

The Court affirmed the other grounds relied on by the trial court, along with its finding that termination of Father’s parental rights is in Child’s best interest. Thus, while the finding of wanton disregard was reversed, the termination of Father’s parental rights was affirmed.

In re Trinity H. (Tennessee Court of Appeals, Middle Section, August 28, 2020).