Tennessee Supreme Court Reverses Termination of Parental Rights for Lack of Evidence of Knowing Failure to Protect Child

The Tennessee Supreme Court today reversed the termination of the parental rights of two parents whose infant son suffered multiple rib fractures while he was in their custody. The Court held that, under Tennessee law, the evidence did not support the trial court’s finding that the parents’ failure to protect their child from injury was “knowing.”

The case involved the parents of Markus E., who was born premature in 2014 with several significant medical conditions.  As an infant, the parents took Markus to see many doctors about his medical conditions. Early in 2015, when he was around seven months old, the mother took Markus to a hospital for breathing problems. X-rays ultimately showed the child had 22 rib fractures. Doctors determined the rib fractures were not the result of the child’s other medical conditions or an accident.

The hospital notified the Tennessee Department of Children’s Services, which removed the child from the parents’ custody because they suspected severe child abuse. Markus was later placed in foster care, where he has remained.

DCS later sued Markus’s parents to terminate their parental rights. The lawsuit claimed that the mother and father had severely abused Markus. Both parents denied any abuse. After a trial in the Circuit Court for Davidson County, the trial judge terminated the rights of both parents for severe child abuse. The parents appealed to the Court of Appeals, which affirmed. The Tennessee Supreme Court granted the parents’ permission to appeal.  

On appeal, the Tennessee Supreme Court explained that, under Tennessee law, severe child abuse can either be knowingly using force on a child that is likely to cause serious injury or death, or knowingly failing to protect a child from such force. For very young children in the custody of both parents, the child may be too young to say which parent hurt him, and it may not be possible to determine it from the evidence.  In such cases, under Tennessee law, the court is not always required to figure out which parent did what. Courts can hold that both parents committed severe abuse if the proof shows at least one of them must have knowingly inflicted the injury and the other must have knowingly failed to protect the child from it.

But the Supreme Court pointed out that the proof must show—as to both parents—that even if they didn’t actually inflict the injuries, they must have knowingly failed to protect the child.  To show the failure to protect was “knowing,” DCS needed to prove both parents were aware of facts that would alert a reasonable parent to take action to protect the child, and yet the parents did not act. The Supreme Court said courts must ask as to both parents: “What did they know and when did they know it?”

In this trial, the Supreme Court observed, the doctor who testified for DCS said a child with rib fractures will seem fussy and in pain, and may have breathing difficulties, but there would not be bruising or other visible signs of injury. The doctor admitted that a parent who didn’t inflict the rib fractures wouldn’t be able to tell the difference between fussiness from rib fractures and fussiness from another cause. Here, Markus had other unrelated medical conditions that could have caused him to be fussy, in pain, and have breathing difficulties. The parents noticed the child’s symptoms and took him for medical care. None of the doctors suspected rib fractures until finally x-rays revealed them.

Here, the Supreme Court said, given Markus’s other medical conditions and medical care he received before the x-rays revealed the rib fractures, the proof did not show the parents’ failure to protect Markus was “knowing.” The Court reversed the termination of the parental rights of Markus’s parents.

The Court emphasized that its decision to reverse the termination of parental rights did not mean that the parents automatically regain custody of the child. It pointed out that separate dependency and neglect proceedings on Markus are still pending, and they involve different standards. The Court also recognized that the trial court must consider that Markus has been living in foster care since 2015, and “events and lives have not stood still” while the dispute played out in the courts.    

Justice Sarah K. Campbell wrote a separate opinion concurring in part and concurring in the Court’s judgment. She said the majority opinion suggests that statutory interpretation requires consideration of a statute’s purposes and objectives separate and apart from its text, and she disagreed with that premise. Justice Campbell stressed that courts must focus on the text of a statute and be careful to use the text itself to define the statutory purpose.        

To read the Court’s opinion in In re Markus E., authored by Justice Holly Kirby, and the separate opinion authored by Justice Sarah K. Campbell, go to the opinions section of TNCourts.gov.