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

Mother remarried, and later she and Stepfather petitioned to terminate Father’s parental rights and for a stepparent adoption.

Shortly before trial, Father was arrested. Because he was in jail, he did not appear at the trial.

After the trial court denied a continuance, the six-day trial proceeded in Father’s absence.

The trial court granted Mother and Stepfather’s request to apply the missing witness rule and presumed that Father’s testimony, had he appeared, would have been unfavorable to him.

The trial court granted their request to apply the equitable doctrine of unclean hands to disallow Father from obtaining any relief because he had been untruthful under oath during discovery about his military service and previous treatment for alcoholism.

The trial court terminated Father’s parental rights.

The Court of Appeals reversed, finding the trial court erred by applying the missing witness rule in a bench trial and relying on unclean hands’ doctrine. Finding that the remaining evidence was not clear and convincing, the Court of Appeals reversed the termination of Father’s parental rights.

The Tennessee Supreme Court accepted the request for permission to appeal.

On Appeal: The Supreme Court reversed the trial court’s judgment.

Tennessee’s law of evidence recognizes the common-law rule that a party may comment upon the opposing party’s failure to call an available and material witness whose testimony would ordinarily be expected to favor the opposing party.

The missing witness rule may apply when the evidence shows that a witness who was not called to testify knew about material facts, had a relationship with the party that would naturally incline the witness to favor the party, and the witness was available to the process of the court.

In civil trials, this rule applies when the missing witness is also a party—with knowledge of material facts, naturally favorable testimony, and availability to judicial process.

Courts must strictly construe the missing witness rule and its elements.

The logic of this principle stems from the commonsense inference that a party’s intentional efforts to keep evidence from the fact-finder is reasonably interpreted as an implied admission of weakness in that party’s case.

After the Court of Appeals held the missing witness rule only applied to jury trials, the Tennessee Supreme Court extended its scope to include bench trials:

We hold that the missing witness rule may apply in both jury and nonjury trials. The essence of the rule is that the trier of fact, whether it be a jury or a judge, may make a permissible inference from a party’s failure to testify. The confusion about the rule’s application may arise because most often the rule operates through a set of proper jury instructions.

The Court of Appeals was not without authority in holding the missing witness rule did not apply, relying on [several cases]. These Court of Appeals cases are overruled it to the extent they hold that the missing witness rule does not apply to a nonjury trial.

The trial court erred in its application of the missing witness rule by applying a presumption against Father rather than a permissive inference. While a presumption tilts the scales of legal reasoning toward a particular result, a permissive inference merely enables the trier of fact to draw on logical leaps that are ordinary to our shared experience.

The missing witness rule carries no more legal force than the commonsense inference it permits the trier of fact to apply in weighing the evidence. But the inference is not substantive proof and does not relieve a party of the burden of proving a prima facie case.

Thus, in a nonjury trial, a trial court should not apply the missing witness rule in a mechanical or conclusory fashion to replace evidence. Instead, the court should carefully consider the commonsense inference that withheld testimony is likely unfavorable when the court weighs other available evidence. The missing witness rule alone does not resolve any issue.

Father’s purported testimony facially satisfies the elements [of the missing witness rule.] He likely knew material facts about the grounds for termination; he was naturally inclined to oppose termination of his parental rights; and although in jail, Father was available to judicial process for at least some portion of the trial through a subpoena or request to transfer his custody to the trial court. But the trial court applied the missing witness rule too broadly. It hardly stands to reason, for example, that Father’s testimony about his willingness to care for his child would have been unfavorable, especially given his repeated efforts to exercise his visitation rights during the relevant four-month period. Not only did the trial court mischaracterize the rule as creating a sweeping presumption rather than a permissive inference, the trial court also failed to explain how it applied this inference in determining any particular fact. When the trial court serves as trier of fact, it should explicitly integrate the inference created by the missing witness rule into its findings for the rule to work. In sum, the trial court erred by presuming that Father’s entire testimony would have been unfavorable to him.

The Supreme Court agreed with the Court of Appeal is that the trial court erred in applying the doctrine of unclean hands:

We hold that the trial court erred by applying the doctrine of unclean hands. The doctrine applies only to parties who seek an equitable remedy from a court. Mother and Stepfather petitioned the trial court for statutory relief under Tennessee Code Annotated § 36-1-113. Father was in court only to defend against Mother and Stepfather’s petition for statutory relief—he sought no equitable relief. Thus, the doctrine of unclean hands does not apply to Father. To compound its error, the trial court relied on Father’s conduct that was collateral to the abandonment issue. The doctrine of unclean hands is limited to “misconduct connected with the particular matter in litigation; and does not extend it to any misconduct, however gross, which is unconnected therewith, and with which [the opposing party] is not concerned.” Alleged misrepresentations in sworn answers relate to the litigation as a whole, and we do not condone such misrepresentations. Even though Father’s misrepresentations about his military service and his course of addiction treatment are troubling, they are not material to whether Father had abandoned his child. In sum, the trial court erred in applying the doctrine of unclean hands.

The termination of Father’s parental rights was reversed.

K.O.’s Comment: (1) Lawyers and judges often confuse presumptions and permissive inferences. For more on the differences between them, see Mawn v. Tarquinio.

(2) The proof showed that Mother rebuffed Father’s requests for visitation because he was behind on child support. For example, Mother emailed Father, “no money—no kid.” This drew the Supreme Court’s attention:

Mother’s policy of “no money—no kid” is unacceptable. Failure to visit is not willful if it is the result of coercion. Father’s lack of visitation from August to December 2016 resulted from coercion—Mother’s refusal to allow visitation unless a Father paid support.

In re Mattie L. (Tennessee Supreme Court, February 5, 2021).

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