Facts: Child was born to Mother and Father. When Child was two months old, law enforcement filed a petition alleging dependency and neglect because Father allegedly held the then one-month-old Child upside down by both feet and threatened to drop him unless Mother took naked photos of two girls aged 10 and 11. Mother allegedly took the photos, gave them to Father, who then used the photos for “inappropriate purposes.” The petition also alleges Father is a convicted sex offender.

At the preliminary hearing, Father stipulated that Child was dependent and neglected because of Father’s incarceration without admitting or denying the other allegations. Child was placed in the custody of the Department of Children’s Services (DCS).

Father was charged with child pornography crimes in state court. These charges were later dismissed and replaced by similar charges in federal court.

Two years later, DCS petitioned to terminate Father’s parental rights. Mother later surrendered her parental rights.

The proof of the allegations in the petition—that Father held the infant Child upside down and threatened to drop him unless Mother supplied him with nude photos of children—was limited to the testimony of the DCS caseworker that Child was removed from Father’s custody based on these allegations. There was no proof that the allegations were true.

The trial court found DCS proved several grounds for termination and that termination was in Child’s best interest. Father’s parental rights were terminated.

Father appealed.

On Appeal: In a 2-1 decision, the Court affirmed the trial court’s judgment.

Parental rights may be terminated in Tennessee after a court finds by clear and convincing evidence that grounds for termination have been proven and termination is in the child’s best interest.

The Court unanimously agreed that the findings of fact regarding grounds of (1) persistence of conditions and (2) failure to manifest an ability and willingness to assume custody or financial responsibility “contain facts not in evidence, as well as blatant misstatements of the testimony,” and, therefore, those grounds were reversed.

The ground of substantial noncompliance with the permanency plan was also reversed for different reasons.

The Court then turned to the last remaining ground upon which this termination could survive: abandonment by wanton disregard.

Wanton disregard applies when the parent “has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child.”

“Wanton disregard” is not a defined term, but Tennessee courts have repeatedly found that probation violations, repeated incarceration, criminal behavior, substance abuse, and not providing support or supervision for a child can, alone or in combination, constitute conduct that exhibits a wanton disregard for the child’s welfare. This often involves the intentional performance of illegal or unreasonable acts with indifference to the consequences for the child.

The Majority found enough proof to sustain the ground of wanton disregard:

Father’s repeated incarcerations taken together with his pre-incarceration actions demonstrate an inability to adequately supervise or to provide a safe and stable environment for the child. For example, [the DCS caseworker] testified:

Q.  Do you also know if the child was removed by an order from the Giles County Juvenile Court?

A.  He was.

Q.  Was that order entered as a result of the petition filed by DCS?

A.  Yes, it was.

Q.  Do you know if that petition alleged dependency and neglect as to [Child]?

A.  It did.

Q.  What were those allegations in that dependency and neglect petition?

A.  The allegations were that [Father] was going to drop [Child] on his head if [Mother] did not take pictures of the girls that lived next door.

Father’s counsel did not object to this line of questioning. At the time of the dependency and neglect proceedings, Father made “no stipulation as to [the] allegations in [the] petition being true or false.” Since then, Father has not affirmatively denied that he held his newborn son upside down and threatened to drop the child on his head unless Mother provided explicit photos of minor children.

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We find no error in the trial court’s determination that there was clear and convincing evidence supporting the termination of Father’s parental rights for abandonment by wanton disregard.

The Court found termination in Child’s best interest and affirmed the termination of Father’s parental rights.

Dissent: Judge Stafford issued a dissenting opinion explaining why he would have reversed the ground of wanton disregard:

We have also held that unless the conduct was particularly egregious and directly threatened the child’s safety, more than one type of bad conduct is generally required to prove wanton disregard.

The window of time for proving wanton disregard prior to incarceration is extremely limited. It appears that the child was only approximately two months old when Father was incarcerated. Father’s wanton disregard must therefore have been exhibited in this time period. Due to this brief window, the Majority Opinion chooses to focus on a single instance of bad conduct allegedly committed by Father: the alleged incident where he dangled the child by his feet in order to compel Mother to commit criminal activity. This conduct, if proven, is arguably egregious and certainly a direct threat to the child’s safety. The problem, however, is that there was no evidence that this incident actually occurred.

The only support for this allegation of bad conduct cited in the Majority Opinion is testimony from [the DCS caseworker] that a dependency and neglect petition was filed alleging that Father threatened to drop the child if the mother did not engage in criminal conduct. In my view, however, this was not competent evidence that the conduct actually occurred. For one, [the DCS caseworker] was merely reciting the allegations that had been made in a dependency and neglect petition. Allegations in a petition are simply not evidence.

Moreover, absolutely nothing in the record indicates that [the DCS caseworker] had a personal knowledge of the facts alleged in the petition. … Without personal knowledge, I must conclude that [the DCS caseworker’s] testimony does not provide competent evidence that Father committed the act alleged in the dependency and neglect petition.

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The Majority Opinion’s focus on the fact that Father did not “affirmatively deny” the allegations contained in the dependency and neglect petition is misguided. The burden of establishing the grounds is on the party seeking termination and never shifts to the parent. Father’s failure to deny the allegations is not affirmative proof that they occurred. … Thus, I must conclude that DCS failed to present any competent proof that Father committed this incident of bad conduct. … As a result, I must conclude that DCS failed to prove even a single ground to terminate Father’s parental rights.

If it is true that Father committed the heinous acts alleged by DCS, DCS has failed to submit competent proof to support its allegations. But DCS cannot mitigate its failure by drafting an order that is not an accurate reflection of the proof presented. And this Court simply cannot litigate DCS’s case for it. Nor can we save DCS from the effects of its own failures through a legal analysis that lacks legal and factual support in an effort to reach a perceived correct result. In this case, it was not only the [DCS]-prepared order, but also the proof that was deficient. As a result, I believe that the only proper disposition is to reverse the judgment of the trial court and remand for the dismissal of DCS’s petition.

K.O.’s Comment: (1) Judge Stafford’s dissent is legally and logically sound. Pretend-Judge Herston would have joined it (reluctantly).

(2) As alluded to in Judge Stafford’s dissent, DCS’s trial attorney prepared the order terminating Father’s parental rights that the Court found to contain “mere allegations, evidence ruled inadmissible, and facts that DCS failed to prove at trial.” The Court chastised DCS and encouraged the Department “to review this Court’s and the Tennessee Supreme Court’s guidance on party-prepared orders.”

(3) There may be no more noble use of a law license than protecting children. It is widely known that DCS attorneys are overworked and underpaid. DCS is chronically in desperate need of adequate funding to compensate its legal staff, attract better lawyers, reduce caseloads, and provide necessary resources and support staff.

When our State chronically underfunds such a critical agency, we cannot be surprised by results like this where members of the judicial branch must strain to perform logical gymnastics to protect a child because the system created by the legislative branch and run by the executive branch did not do so.

In re Jackson H. (Tennessee Court of Appeals, Middle Section, August 25, 2021).

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