Facts: Child was born to Mother and Father while Father was incarcerated.

About a year later, Mother was arrested on drug and weapons charges. Child went to live with her maternal grandmother.

After Mother was released the following year, she and Child moved in with Father, where they remained for approximately two years. Throughout this time, Father took no action to establish legal parentage.

Because of Mother’s serious drug abuse problem, Child returned to her maternal grandmother.

Child’s half-brother alleged abuse against the maternal grandmother.

The Department of Children’s Services (“DCS”) obtained emergency custody of Child and her half-brother. The two children have remained in DCS custody since then and have shared the same foster homes.

Two years later, Father took a court-ordered DNA test that confirmed his biological parentage.

DCS petitioned to terminate the parental rights of Mother, Father, and the fathers of Child’s two siblings.

Among other grounds, the termination petition alleged that Father failed to manifest a willingness and ability to assume custody and placing Child with Father would pose a risk of substantial harm to her welfare.

A DCS employee testified that Child knew Father but they had no real relationship, concluding that it would “most definitely” be harmful to change Child’s placement, particularly since Child was especially bonded with her younger half-brother.

Another DCS employee testified she would be concerned to separate Child from her younger brother and that disrupting the continuity of Child’s current placement would be psychologically harmful.

The trial court found that removing Child from her current placement would pose a risk of substantial physical or psychological harm, noting that she had a strong bond with her half-brothers and her current caregivers and that Father had done little to establish a relationship with Child. The trial court terminated Father’s parental rights on that ground and several others.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court’s judgment on grounds of failure to manifest a willingness and ability to assume custody but affirmed everything else, including the termination of Father’s parental rights.

Tennessee law provides that parental rights may be terminated on, inter alia, the ground that the parent failed to manifest an ability and willingness to assume custody and that placing the child in the parent’s custody would pose a risk of substantial harm to the physical or psychological welfare of the child.

A substantial risk of harm requires a real hazard or danger that is not minor, trivial, or insignificant and requires the harm to be more than a theoretical possibility but to be sufficiently probable to prompt a reasonable person to believe the harm will occur more likely than not.

To terminate parental rights in Tennessee, grounds must be proven by clear and convincing evidence.

Here, the Court found there was not enough evidence of substantial risk of harm to sustain that ground for termination:

Appellate courts have previously upheld a finding that a risk of substantial harm existed based on the absence of a relationship between the parent and the child.

However, we note that in these cases, the party seeking termination introduced significant evidence regarding the child’s current situation and the effect separation from current caregivers would have on the child. Here, the evidence introduced by DCS largely consisted of conclusory statements that removal would be harmful.

The evidence presented does point toward harm in detaching [Child] from the existing relationships within the foster structure. However, the evidence presented as to these relationships is too thin, too conclusory, to support the conclusion that substantial harm would result at a clear and convincing level.

The Court reversed the trial court’s finding that the ground of failure to manifest a willingness and ability to assume custody was proven by clear and convincing evidence. The remaining grounds were affirmed, as was the termination of Father’s parental rights.

In re J.S. (Tennessee Court of Appeals, Middle Section, January 10, 2023).

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