Facts: Law enforcement alleges that in January 2017, Mother drove Father to someone’s home. Mother knocked on the door, and the person answered. Father pushed his way through the front door armed with a pistol. Once in the house, Father demanded money and pills. When the person said he didn’t have any, Father shot him in the head. Mother drove Father away from the scene.

Father was arrested that day and charged with several felonies, including first-degree murder. Father has been incarcerated ever since.

Seven months later, Mother gave birth to Child, who was born addicted to drugs. Child was removed from Mother and found dependent and neglected.

A few months later, a DNA paternity test confirmed paternity, and Father, who has been incarcerated throughout the entirety of Child’s life, was declared the legal father of Child.

Less than a year later, the Department of Children’s Services (DCS) petitioned to terminate Mother’s and Father’s parental rights.

As to Father, DCS alleged several grounds, including abandonment by an incarcerated parent by showing wanton disregard for Child’s welfare.

Father denied knowing Mother was pregnant until DCS served him legal papers. However, he acknowledged that he knew the DNA test would confirm his paternity before he knew the results.

But did he know that Mother was pregnant at the time of his behavior in January 2017?

The trial court determined that DCS proved all alleged grounds by clear and convincing evidence, including that Father exhibited a wanton disregard for Child’s welfare. The trial court noted that Father had a criminal history such that he knew the consequences of engaging in unlawful conduct. After finding termination in Child’s best interest, Father’s parental rights were terminated.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court on the ground of wanton disregard.

Parental rights can be terminated on the ground when an incarcerated parent “abandoned” the child by engaging in conduct that exhibits a wanton disregard for the child’s welfare in the four months preceding incarceration.

This reflects the commonsense notion that parental incarceration is a strong indicator that there may be problems in the home that threaten the child’s welfare. A parent’s decision to engage in conduct that has the risk of incarceration is itself indicative that the parent may not be fit to care for the child.

However, parental incarceration is not an infallible predictor of parental fitness. The 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 child’s welfare.

For this ground to apply to a parent’s pre-incarceration behavior, the parent must know of the child’s existence. Because a person cannot disregard or display indifference about someone he does not know exists, Tennessee law requires that the father knows of the child when his actions constituting wanton disregard are taken.

The Court found insufficient evidence that Father knew of Child’s existence at the time of his criminal behavior:

The only evidence presented at trial was Father’s testimony that he did not know Mother was pregnant until he was served with paperwork from DCS, which would not have occurred before Child’s birth … over five months following his arrest. The burden was upon DCS to prove Father’s knowledge and when it was held. As DCS failed to produce sufficient evidence to overcome Father’s testimony, we conclude that DCS failed to prove Father’s new of Child’s existence at the time of his pre-incarceration conduct leading to his arrest and incarceration.

In the absence of establishing at what point Father became aware of Mother’s pregnancy with Child, we cannot conclude that Father exhibited wanton disregard for Child at the time of his alleged offenses and arrest.

The Court reversed the trial court’s conclusion about abandonment by wanton disregard. However, the other ground found by the trial court was affirmed, as was the trial court’s finding that termination is in Child’s best interest. Thus, the termination of Father’s parental rights was affirmed.

In re Elijah H. (Tennessee Court of Appeals, Middle Section, October 6, 2021).

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