Facts: Child was born prematurely at 31 weeks and spent the first three weeks of his life in the neonatal intensive care unit. In the ensuing months, Child suffered from various conditions and regularly received medical treatment.

During several medical visits, Mother reported that Child experienced heavy, labored breathing, congestion, and irritability. Child was repeatedly diagnosed with upper respiratory infections.

Mother took Child to a walk-in clinic and reported Child had been coughing for a couple of days. A chest x-ray revealed a rib fracture.

Mother took Child to Vanderbilt Medical Center for further evaluation. Child’s skeletal survey revealed 22 rib fractures, some of which were, upon further review, now observed in a scan that occurred four months earlier. After eliminating any medical cause for the rib fractures, the child abuse specialist, Dr. Brown, concluded that Child’s rib fractures resulted from nonaccidental trauma and diagnosed him as an abused child. Vanderbilt notified the Department of Children’s Services (“DCS”) and law enforcement.

Vanderbilt doctors also diagnosed Child with other health conditions, including a viral infection, laryngomalacia (which makes breathing noisy and difficult), and enlarged adenoids that obstructed 90% of his airway.

DCS placed Child in foster care and petitioned the juvenile court to find Child dependent and neglected and the victim of “severe abuse.” The juvenile court made those findings, and the parents sought a de novo appeal to the circuit court. While that appeal was pending, DCS petitioned to terminate the parental rights of Mother and Father.

Dr. Brown testified that the only external indications of rib fractures in a pre-verbal infant would be crying, fussiness, and perhaps difficulty breathing when the fractures are acute. She admitted that caregivers might be unable to tell the child’s fussiness was attributable to rib fractures.

Both parents and one of Child’s grandmothers describe hearing a “crackling sound” coming from Child’s rib area. Mother and Father testified that Mother took Child to see various doctors on over 30 occasions in the first six months of Child’s life. When she mentioned the crackling ribs to Child’s healthcare providers, she was told nothing was wrong and the sound was related to Child being born premature.

The trial court terminated Mother and Father’s parental rights on grounds of severe abuse. Nearly 2 ½ years after they filed their appeal, the Court of Appeals affirmed the trial court’s finding. The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Supreme Court reversed the termination of parental rights.

In a case to terminate parental rights, “severe child abuse” means

the knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death.

In the context of severe child abuse, a person’s conduct is considered “knowing,” and a person is considered to “knowingly” act or fail to act, when they actually know of the relevant facts and circumstances or when they are in deliberate ignorance of or in reckless disregard of the information that has been presented to them.

The Court found the proof insufficient to find, by clear and convincing evidence, that the parents knowingly did not protect Child:

[DCS] needs to show, as to both parents, that they were aware of facts, circumstances, or information that would alert a reasonable parent to take affirmative action to protect the child. Thus, even if it cannot be determined which was the “perpetrator” parent, both can be held responsible for having knowingly failed to protect the child.

That is the situation here. The trial court found there was no medical cause for [Child’s] rib fractures and they were nonaccidental in nature….

It is clear that Mother and Father both failed to protect [Child] from injury. However, to affirm a finding of severe child abuse as to both parents, the evidence in the record must show that the failure to protect was “knowing” as to both. We focus, then, on the proof in the record as to both parents: what did they know and when did they know it?

It can be reasonably inferred that the trial court found that the parents’ testimony about the “crackling sound” was knowingly false and offered with intent to deceive.

Still, the inference from this testimony can only take us so far. The parents’ lack of credibility is relevant but not sufficient. It tells us that the parents were untruthful about what they knew before the [walk-in clinic’s] x-rays revealed a rib fracture. But it does not tell us what the parents actually knew or when they knew it.

The record shows that [Child] had many physical challenges other than the rib fractures. He was born premature and had several conditions related to his premature birth. [Child] had skull abnormalities and subdural hematomas. He had frequent breathing, congestion, and feeding issues. After [Child] was admitted to Vanderbilt, physicians there diagnosed him with a viral infection, and abnormality of the cartilage around his larynx called laryngomalacia, and enlarged adenoids that obstructed his airway.

Sometimes, evidence of multiple unexplained injuries to a child can point to abuse by the custodial parents.

That is not the case here. The trial court did not find, nor does the evidence indicate, that [Child’s] other physical issues were nonaccidental, inflicted injuries…. Thus, in this record, no evidence shows that any of [Child’s] physical conditions other than the rib fractures can be attributed to abuse.

Against this backdrop, we consider what Mother and Father would have observed about [Child’s] rib fractures before they were first spotted on the [walk-in clinic’s] x-ray. Dr. Brown described in her testimony how a child with rib fractures would appear to caregivers. “In the beginning when a fracture is caused,” she said, “they’re going to be fussy and in pain.” Because rib fractures are not necessarily accompanied by external bruising or other identifiable body damage, the source of the pain, even from an acute or recent injury, may not be obvious…. Dr. Brown’s testimony indicates that a caregiver of [Child] who did not inflict the injuries would have noticed, at most, fussiness, crying, and perhaps some difficulty breathing.

One would expect reasonable parents to notice persistent fussiness, crying, and breathing difficulties, and to seek medical attention. In this record, Mother and Father did both. Even crediting the trial court’s finding that Mother’s testimony was not credible, it is undisputed in the record that Mother took [Child] to see several healthcare providers during the relevant period, and that Father relied on Mother to do so.

All of these medical providers examined and treated [Child]. Until the [walk-in clinic’s] x-ray, none recognized or suspected rib fractures or injury. None of [Child’s] medical records document visible signs of injury. In addition, Grandmother and the Daycare Provider both cared for [Child] during the relevant period. Both testified they never saw or heard anything to cause them to suspect [Child] was injured or in pain.

With benefit of hindsight, we can see that at least some of [Child’s] fussiness, congestion, breathing difficulties, and feeding issues were likely caused by his rib fractures. Hindsight, however, is not the proper lens. We look at what the non-perpetrating parent knew or must have known before discovery of the abuse by authorities. In the specific circumstances in this case, even Dr. Brown acknowledged that [Child’s] other physical conditions … could have obfuscated the signs of rib fracture detailed in her expert testimony.

In cases where our appellate courts have upheld a finding of knowing failure to protect from severe abuse, there was proof that the non-perpetrating parent was presented at the time with facts, circumstances, or information showing that the child had been, or was likely to be, subjected to abuse or neglect.

Absent such proof, a finding of “knowing” failure to protect will not stand.

Here, the trial court made no finding on which parent inflicted [Child’s] rib fractures, or if both parents did. In this posture, the finding of severe child abuse may be affirmed only if the proof shows that both parents’ failure to protect [Child] was “knowing,” i.e., both were aware of facts, circumstances, or information that would alert a reasonable parent to take affirmative action to protect the child, and yet they failed to act. We find no such proof in this record.

We must conclude that the evidence in the record does not clearly and convincingly show that the failure of Mother and Father to protect [Child] from the nonaccidental rib fractures was “knowing.”

The Court reversed the termination of parental rights and remanded the case to the juvenile court to address the pending dependency and neglect petition that was stayed when the termination petition was filed.

Concurring Opinion: Our newest justice, Justice Campbell, issued a concurring opinion where she expressed disagreement with the majority opinion’s reference to a longstanding and widely-accepted principle of statutory construction, namely that the obvious goals and purposes of the statute being interpreted can and should inform the interpretation of the statutory language. Justice Campbell would limit that analysis to the rare situations where a statute expressly states its goals and purposes. Justice Campbell’s objection to what the majority opinion recognizes as “common sense” suggests Justice Campbell may adhere to a judicial philosophy that’s considered extreme even among strict textualists. Lawyers should take note.

K.O.’s Comment: (1) DCS’s expert testified to her opinions without having reviewed Child’s medical records other than those from Vanderbilt. For a premature infant with many resulting medical conditions and over 30 medical appointments in the first six months of his life, this is hard to understand. Without direct evidence of abuse, this lack of context is meaningful.

(2) Tennessee’s judicial system failed this child, who was in foster care for eight years while this litigation ran its course. Although Mother and Father have exercised regular visitation, nothing can undo the damage caused by an eight-year separation. I trust DCS will promptly dismiss the dependency and neglect petition and reunify this family without delay. Enough is enough.

Source: In re Markus E. (Tennessee Supreme Court, May 19, 2023).

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