Facts: Mother has two children. She also has a history of homelessness, mental health issues, substance abuse, child neglect, and poor judgment. For example, she and the children often slept in their car, but sometimes she would leave the children with their grandfather, a registered sex offender.

The juvenile court found the children dependent and neglected.

Significant concerns surrounding Mother still existed one year later, so the Department of Children’s Services (“DCS”) petitioned to terminate Mother’s parental rights.

The ensuing trial involved evidence of Mother’s continued drug use, arrests, criminal charges, failure to maintain a stable residence, and inconsistency in visiting the children.

The trial court found DCS proved a long list of grounds for termination and that termination was in the children’s best interest.

Mother appealed.

On Appeal: The Court of Appeals reversed the grounds of abandonment but affirmed everything else.

Tennessee law provides grounds to terminate parental rights when an incarcerated parent displays “wanton disregard” for the children’s welfare.

“Wanton disregard” is not a defined term. Acts amounting to wanton disregard typically reflect a “me first” attitude involving the intentional performance of illegal or unreasonable acts and indifference to the consequences of the actions for the child. Thus, probation violations, repeated incarceration, criminal behavior, substance abuse, and not providing adequate support or supervision for a child can, alone or in combination, constitute conduct that shows a wanton disregard for the welfare of a child.

The Court found error in the trial court’s analysis of this ground:

The trial court specifically found—without reference to any temporal marker end date—that Mother “engaged in conduct that exhibits a wanton disregard for the children’s welfare by engaging in criminal behavior [the children’s] entire lives” and then specifically cited to, among other things, behavior of Mother’s that occurred after the incarceration incident that triggers review here…. Although the current version of the statute does look to whether the parent “engaged in conduct prior to, during, or after incarceration that exhibits a wanton disregard for the welfare of the child,” the operative statute here looks to the period “prior to incarceration.” Inasmuch as the trial court did not cabin its wanton disregard analysis to the pre-incarceration. Dictated by the controlling statutory language, we determine that its conclusion under this ground should be vacated.

The Court affirmed several other grounds found by the trial court and that termination is in the children’s best interest.

K.O.’s Comment: When this petition was filed, the statute for wanton disregard was limited to conduct that occurred before the parent’s incarceration, but the trial court commented on Mother’s conduct after incarceration. After this petition was filed, that statute was amended to let Tennessee courts consider a parent’s conduct “prior to, during, or after incarceration.” Still, the statute in effect when the petition was filed is the operative statute, and the trial court erred by not limiting its analysis to Mother’s pre-incarceration conduct.

Source: In re Aubria H. (Tennessee Court of Appeals, Middle Section, December 8, 2023).

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