Facts: The parties’ four-year marriage was troubled, with numerous verbal altercations witnessed by the children, periods of separation, and frequent discussions of divorce. On August 19, 2021, Mother informed Father via text message that she was going to file for divorce. The next day, Father obtained an ex parte order of protection against Mother, temporarily barring Mother from contact with him and the children. As a result, Father kept their two young sons, ages 4 (“Brother,” who was autistic and nonverbal) and 2 (“Child”) in his sole care.

On August 21, 2021, Father took the children on a morning outing. He stopped for gas and left the children unattended in his truck for about 10 minutes while he went inside a gas station. He then drove to a salon for personal grooming (an eyebrow wax), leaving the children alone in his truck with the engine running and windows up. Both boys were fastened in their car seats. Father spent approximately 35-40 minutes inside the salon.

When Father returned to the truck after the first salon visit, he noticed the younger child had vomited (“spit up”) on himself. According to a friend’s testimony, Father also reported that Brother was “breathing funny,” looking “blood red,” and unresponsive when Father tried to get Brother’s attention. Father, however, claimed the children were “fine” apart from the minor spit-up and proceeded to a second salon for a haircut.

Father left Brother and Child unattended in the vehicle a second time for approximately 65 minutes while he got a haircut. He returned to find Child covered in vomit and Brother unresponsive. Father started driving home but soon pulled over and called 911. Paramedics arrived and discovered Brother had a piece of corn dog blocking his airway. Both children were suffering from carbon monoxide poisoning from the truck’s exhaust leak. Tragically, Brother died, though Child survived after emergency treatment.

Following this incident, Father was charged with multiple crimes, including homicide and child abuse. He ultimately pleaded guilty to two misdemeanor counts of leaving a child unattended in a motor vehicle (for the 40-minute and 65-minute periods) and served about one year in jail. A jury acquitted him of the more serious charges related to Brother’s death.

During Father’s incarceration, Mother—who had filed for divorce—had sole custody of Child, later marrying Stepfather. A parenting plan in the divorce awarded Mother all parenting time and gave Father zero days. Father was released from jail in February 2023 but made no effort to contact Child or provide any financial support. He did not petition to modify visitation until June 2023, and even then, he paid nothing toward Child’s support despite securing employment and purchasing a new truck.

Mother and Stepfather petitioned to terminate Father’s parental rights in September 2023. They alleged two statutory grounds: abandonment by willful failure to support (no child support in the four months before the petition) and severe child abuse (from the August 2021 incident). They also alleged that terminating Father’s rights was in Child’s best interest.

After a trial, the trial court denied the termination petition. The trial court found that neither ground was proven by clear and convincing evidence. In its oral ruling and written order, the trial court concluded Father had not willfully failed to support Child because he was following a court-approved parenting plan that set his support obligation at zero. The trial court further found that Father did not knowingly cause Brother’s death or otherwise commit severe child abuse. The trial judge noted the tragic circumstances but found Father “acted appropriately once he realized something was wrong” and had no reason to know h’s is truck had a carbon monoxide leak. The trial court also found that ongoing contact with Father would not harm Child, reasoning that Father could provide a stable home now that he was employed and engaged to be remarried. Concluding that maintaining Father’s parental rights was in Child’s best interests, the trial court refused to terminate Father’s rights.

Mother and Stepfather appealed.

On Appeal: In a 2-1 decision on the ground of “severe abuse,” the Court of Appeals reversed the trial court and terminated Father’s parental rights.

Tennessee law requires “clear and convincing evidence” of at least one statutory ground for termination and that termination is in the child’s best interest.

Abandonment by failure to support a child is defined as a parent’s failure to provide any monetary support or only token support for four consecutive months immediately preceding the filing of the termination petition. Every parent is presumed to know they have a legal duty to support their child, even without a court order mandating payments. Lack of a support order is not a defense to abandonment. Moreover, Tennessee law provides that the absence of willfulness is an affirmative defense to abandonment, which a parent must plead and prove; otherwise, any claim that the failure to support was not willful is waived.

Severe child abuse is defined to include “the knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect likely to cause serious bodily injury or death”. Importantly, “knowing” does not require that a parent intended to harm the child; it refers to the parent’s awareness of the facts and circumstances that made harm likely. A parent acts “knowingly” when they have actual knowledge of such facts or when they deliberately ignore or recklessly disregard information that would alert a reasonable parent to protect the child.

After reviewing the record, the Court of Appeals held that the trial court erred in rejecting both grounds for termination. First, the appellate court found clear and convincing evidence of abandonment by failure to support. Father had been out of jail for over four months before the petition was filed and admittedly paid no child support during that time. He also failed to plead the absence of willfulness as a defense. Tennessee law presumes parents know of their duty to support their children even without a support order, and a parent cannot avoid a finding of abandonment by belatedly offering support after a termination petition is filed. The appellate court noted that the undisputed facts met the statutory definition of abandonment. In short, because Father paid nothing for Child in the relevant four-month window (or even since his release from jail), this ground was satisfied.

Regarding the ground of severe abuse, the Court of Appeals determined that the trial court applied too narrow a view of the “knowing” requirement. The trial judge had focused on the lack of proof that Father intentionally harmed the children or knew about the truck’s exhaust leak. The Court of Appeals emphasized that a parent need not purposefully intend to harm a child to be culpable; it is enough that the parent was aware (or should have been aware) of serious danger and chose to ignore it.

In this context, “the term ‘knowing’ does not require proof the parent intended for the child to suffer abuse or neglect, but instead focuses on the parent’s awareness of relevant facts.” “[A] person is deemed to ‘knowingly’ act or fail to act, when ‘he or she has actual knowledge of the relevant facts and circumstances or when he or she is either in deliberate ignorance of or in reckless disregard of the information that has been presented to him or her.’” “Under this standard, the relevant facts, circumstances, or information would alert a reasonable parent to take affirmative action to protect the child.” The term “knowing” includes “awareness of facts, circumstances, or information indicating that the child is at risk or in danger of suffering abuse or neglect.” “If the parent has been presented with such facts, circumstances, or information and recklessly disregards them, the parent’s failure to protect can be considered knowing.” “Similarly, a parent’s failure to protect can be considered knowing if the parent was deliberately ignorant, as where the parent avoids actual knowledge of the abuse or neglect but is aware of facts, circumstances, or information that would put a reasonable parent on notice of the risk and the need to protect the child.”

We conclude that Father was, at the very least, deliberately ignorant or recklessly disregarding the facts. In fact, we conclude that Father had actual knowledge of relevant facts and circumstances “that would have triggered a reasonable parent’s duty to take affirmative action” to protect Brother from neglect. Father told the dispatcher, when he returned to the truck after his first salon visit, that “something’s wrong.” Father knew that Brother, a four-year-old autistic nonverbal child, was breathing funny and either choking or trying to throw up, and that he had turned red. He also knew that two-year-old [Child] had already vomited. Still, Father left the children alone again, for over an hour, while he went inside for a haircut, and this resulted in Brother’s death.

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Father, at a minimum, recklessly disregarded that known duty, even though he knew that both children were in distress, particularly Brother, when he returned to his vehicle. Thus, we conclude that Father “knowingly exposed the children to neglect that not only had the likelihood of causing serious injury or death, but in fact did result in the death of one of [his] children.” We further conclude that Father knowingly failed to protect the children from neglect. The term “protect” means to “defend or guard against injury or danger” and to “keep safe.” Father was aware of facts that “would alert a reasonable parent to take affirmative action to protect the child.” We have no serious or substantial doubt that the combined weight of the facts establishes severe child abuse by clear and convincing evidence.

Having found both statutory grounds proven, the Court of Appeals next evaluated Child’s best interests. The court noted that by the time of trial, Father had not seen Child in over two years, and Child had thrived in Mother and Stepfather’s stable home during that time. Child, now age four, regarded Stepfather as his dad and had no memory or bond with Father. The panel stressed that the best-interest analysis centers on the child’s perspective, not the parent’s. The Court found that virtually all the best-interest factors weighed in favor of termination: Father had provided no stability or support for two years, had no meaningful parent-child attachment with Child, and reintroducing Child to a virtual stranger would likely cause emotional harm. Termination would allow Child to continue flourishing in a safe, permanent family with Mother and Stepfather, without the disruption of introducing a parent he does not know. Accordingly, the Court of Appeals held that terminating Father’s parental rights was clearly in Child’s best interest.

In a 2-1 decision, the Court of Appeals reversed the trial court’s judgment and remanded the case for the entry of an order terminating Father’s parental rights.

Dissenting Opinion: Judge Smith concurred with the majority’s conclusion that Father abandoned Child by failing to support. However, she dissented from the decision to terminate Father’s rights on the ground of severe child abuse.

It is often said that hard cases make bad law. This case is more than hard — it is tragic. In circumstances such as these, which evoke strong emotions, this Court must resist the temptation to bypass the limits of our appellate review and re-try cases and re-evaluate facts to achieve what some deem to be a more just result. Unfortunately, in my view, the majority’s opinion does exactly this, essentially abrogating the role of the trial judge as a factfinder. 

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While my disagreement with the majority opinion is multi-faceted, the simplest end to my analysis is that in these circumstances I do not consider Father’s conduct irredeemable and would ultimately affirm the trial court. In my view, this case largely hinges on credibility. I would hold that the trial judge considered the testimony and made findings supported by the record. My own review of the record supports those findings. Outside of this case, the majority’s application of the standard of review represents a degradation of both the presumption of correctness and a trial court’s credibility findings. The implications of that shift in this Court’s review are of great consequence. 

Mother’s desire to remove Father from the Child’s life overshadows the Child’s best interests. The majority opinion focuses on her feelings and best interest rather than the Child’s. The grief felt and tears shed here are undoubtedly immeasurable. Given the factors we are directed to consider by our Supreme Court and the General Assembly, I do not agree that the record demonstrates clear and convincing proof that termination is in the Child’s best interest. I fully agree that Father made a foolish decision to leave his children in his truck while he attended personal grooming appointments. I also fully agree with the trial court that that behavior is not likely to happen again. By determining that Father and the Child’s relationship shall be forever terminated, the majority buttresses one tragedy with another. I believe they chose the wrong path. I respectfully dissent.

K.O.’s Comment: (1) A parent’s conduct need not be intentional to constitute “severe child abuse” under Tennessee’s termination statutes. Many parents may not realize that reckless indifference to a child’s serious risk of harm is legally equivalent to intentional abuse. In this case, Father’s decision to leave his children in a vehicle—even without desiring to hurt them—met the definition of severe abuse because a reasonable parent would have recognized the extreme danger and acted to protect the children. The Tennessee Supreme Court’s opinion in In re Markus E. clarified that “knowing” can include deliberate ignorance or reckless disregard of information indicating danger to the child. Parents should take note: if something seems wrong with your child’s safety, you cannot shrug it off without peril. A parent’s failure to act in the face of known danger can cost them their parental rights just as surely as affirmative abuse.

(2) Judge Smith’s partial dissent raises another point that deserves attention: she notes that reunification proceedings between Father and Child had been occurring since July 2025, well after the trial court’s order and during the pendency of the appeal. She argued that the majority’s reasoning on best interests relies on facts that are no longer reality and circumstances that have changed.

This highlights a practical problem in termination appeals. These cases take time, and by the time an appeal is decided, circumstances may have changed significantly. A child who had no relationship with the parent at the time of trial may have begun supervised visits. A parent who was recently released from incarceration at the time of trial may have established stability and employment.

Should appellate courts consider these changed circumstances? Judge Smith thought so.

The majority apparently did not address this issue substantively. This is worth watching in future cases. If you have a termination case on appeal and circumstances have changed since trial, consider whether to bring those changed circumstances to the appellate court’s attention and argue for their consideration or, alternatively, whether to seek modification of the trial court’s order based on changed circumstances.

The tension between finality and flexibility in termination cases is real. On one hand, children need stability and permanency. On the other hand, parents who have addressed the issues that led to the termination petition may deserve a second chance if it truly is in the child’s best interest.

Source: In re Braxton M., No. W2024-00762-COA-R3-PT (Tennessee Court of Appeals, Western Section, April 9, 2026).

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