Facts: Child was removed from Mother’s custody and found to be dependent and neglected.

While Child remained in custody of the Department of Children’s Services (DCS), Father’s whereabouts were unknown. It was eventually discovered that Father was incarcerated in federal prison before Child’s birth for selling marijuana while in possession of a firearm.

DCS petitioned to terminate Father’s parental rights on grounds of wanton disregard for Child’s welfare and failing to manifest an ability and willingness to assume custody.

Father participated in the trial by telephone. He testified he knew Mother was pregnant with Child when he committed the crime for which he was incarcerated. Before his incarceration, he testified he was employed as a diesel mechanic and sent money to Mother each month during her pregnancy.

Once he is released from prison, Father testified he plans to return to his wife and three other children in Texas where he will return to work, “get his life together,” and be with Child.

The trial court found Father abandoned Child through wanton disregard and failed to manifest an ability and willingness to assume custody. After finding that termination of Father’s parental rights is in Child’s best interest, the trial court terminated his parental rights.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

To terminate parental rights, a Tennessee court must find clear and convincing evidence that one statutory ground for termination has been proven and that termination is in the child’s best interest.

Abandonment by wanton disregard. One ground for termination of parental rights in Tennessee arises when the parent engaged in conduct before incarceration that shows a wanton disregard for the child’s welfare.

While the ground reflects the commonsense notion that incarceration is a strong indicator there may be problems in the home that threaten the child’s welfare, incarceration is not an infallible predictor of parental fitness.

Incarceration itself does not satisfy this ground for termination; rather, a parent’s incarceration is a triggering mechanism that permits the court to examine the parent’s behavior before incarceration.

Tennessee courts then take a closer look at the child’s situation to see whether the behavior that resulted in incarceration is part of a broader pattern of conduct that makes the parent unfit or poses a risk of substantial harm to the child.

Tennessee courts often find wanton disregard to reflect a “me first” attitude involving the intentional performance of illegal or unreasonable acts and indifference to how the consequences affect the child. Examples include probation violations, repeated incarceration, criminal behavior, substance abuse, and not providing adequate support or supervision for a child, any of which can, alone or in combination, constitute wanton disregard for the child’s welfare.

The trial court found wanton disregard because:

Father committed a very serious drug crime in which he was also employing the use of a firearm. Father committed this crime knowing he had a child on the way; his decision cost him being a part of the child’s life for her first five years, even if she had not been removed by DCS custody.

The unanimous Court found the ground of wanton disregard was not proved by clear and convincing evidence:

[T]he record contains little to no evidence regarding Father’s pre-incarceration circumstances. … Father’s testimony that prior to being arrested he was employed as a diesel mechanic and lived with his wife and children in El Paso. Although our caselaw requires us to consider whether Father’s incarceration is part of a broader pattern of conduct, DCS presented no proof that assists us in this analysis. This omission is significant because in cases where wanton disregard is found, but the parent’s actions did not directly threaten the child’s safety, more than one type of bad conduct has usually been present.

Notwithstanding the dearth of evidence regarding Father’s pre-incarceration conduct, the trial court concluded that the offense leading to Father’s current incarceration was serious enough, standing alone, to amount to abandonment by wanton disregard.

*     *     *     *     *

When considering whether a parent’s criminal conduct constitutes wanton disregard, we consider the severity and frequency of the criminal acts. In this case, DCS offered insufficient proof as to the severity of Father’s single criminal act, and no proof as to whether Father frequently engages in such acts. … [W]e cannot conclude that DCS satisfied its burden in this case.

The Court reversed the ground of wanton disregard.

Failure to manifest an ability and willingness to assume custody. Another ground for terminating parental rights in Tennessee arises when the parent has failed to manifest an ability and willingness to assume custody or financial responsibility for the child.

Then the petitioner must then show that placing the child in the parent’s custody poses a risk of substantial harm. The variability of human conduct prevents a precise definition of “substantial harm.” However, it generally means a significant danger that is likely to occur and not merely a theoretical possibility.

The trial court found “Father certainly cannot be said to be able to care for the child” because he will remain incarcerated until 2022.

A majority of the Court found this insufficient to prove the ground for termination:

[T]he conclusion that [the ground of failure to manifest an ability and willingness to assume custody] is not satisfied by the fact of incarceration alone dovetails with well-settled principles of termination law, specifically the heightened burden of proof and the maxim that not all parental conduct is irredeemable.

[The proof shows] nothing of Father’s proclivity for parenting and his expressed desire to have a relationship with his daughter after his release….

While Father’s single instance of criminal activity certainly raises doubt as to his actual willingness to assume custody or financial responsibility for the child, raising doubt is not the same as proving by clear and convincing evidence. Although common sense indicates Father’s circumstances are not beneficial to Child, we cannot say, under the limited proof in this record, that clear and convincing evidence establishes Father’s failure to manifest an ability and willingness to assume custody or financial responsibility for Child.

*     *     *     *     *

Because the risk of substantial harm must be more than a theoretical possibility, we are careful not to equate Father’s inmate status, in the absence of any further evidence, with a risk of substantial harm.

*     *     *     *     *

DCS simply failed to establish by clear and convincing evidence that Child would be at risk of substantial harm if she were to be removed from the foster parents. As with Father, we can discern very little about Child and her circumstances based on the record before us. Inasmuch as we are forced to speculate as to what would befall Child if she were removed from her current placement, we are unpersuaded that the second prong of “the ground” was proven by clear and convincing evidence.

In a 2-1 decision, the Court reversed the ground of failure to manifest an ability and willingness to assume custody.

Because no ground for termination was proven, the trial court’s judgment terminating Father’s parental rights was reversed.

Dissent: Judge McGee dissented, writing:

When analyzing this ground [of failure to manifest an ability and willingness to assume custody] in prior opinions, this Court has recognized that incarcerated parents do not have the ability to assume custody of their children.

Likewise, the father in this case is incarcerated and unable to assume custody of the child. The father has been incarcerated since prior to the child’s birth. The record shows that his earliest possible release date is May 28, 2022. Therefore, based on these limited but undisputed facts, I would find that there is clear and convincing evidence [of this ground].

*     *     *     *     *

The majority emphasizes that Father has only been incarcerated one time rather than engaging in “repeated misconduct.” However, the fact remains that Father is not able to take custody of the child because he is incarcerated. The frequency of his incarceration may speak to other issues (e.g., lifestyle choices or “willingness” or best-interest concerns), but it does not have a bearing on his “ability” to personally assume custody. He simply cannot care for a child while he is in jail, regardless of whether he is a repeat or first-time offender. According to the statute, the inability alone is enough to satisfy this prong.

In re Ahleigha C. (Tennessee Court of Appeals, Eastern Section, August 4, 2021). If you found this helpful, please share it using the buttons below.