Civil Cases – Opinions Released in Calendar Year 2023

In Re Markus E. (Parental Rights Termination & Fairness of Termination Proceeding)

Style: In Re Markus E.

TSC Docket Number: M2019-01079-SC-R11-PT

Date of TSC Opinion:  May 19, 2023

Opinion of the TSC:   Click here.     Concurring Opinion.

TSC Summary of the Opinion:

In this appeal, we address the standards for severe child abuse as a ground for termination of parental rights. The statute defining severe child abuse includes “knowing” failure to protect a child from abuse or neglect likely to cause serious injury or death. Tenn. Code Ann. § 37-1-102(b)(22)(A)(i) (Supp. 2016). The statutes do not define “knowing.” We hold that, for severe child abuse, a person’s conduct is considered “knowing,” and a person is deemed to “knowingly” act or fail to act, when he actually knows of relevant facts, circumstances or information, or when he is either in deliberate ignorance of or in reckless disregard of such facts, circumstances, or information presented to him. Under this standard, the relevant facts, circumstances, or information would alert a reasonable parent to take affirmative action to protect the child. For deliberate ignorance, a parent can be found to have acted knowingly when he has specific reason to know the relevant facts, circumstances, or information but deliberately ignores them. For reckless disregard, if the parent has been presented with the relevant facts, circumstances, or information and recklessly disregards them, the parent’s failure to protect can be considered knowing. Here, the trial court terminated the parental rights of the parents of an infant who suffered over twenty rib fractures, in part for knowing failure to protect the child. The Court of Appeals affirmed. We reverse, holding under the particular circumstances of this case that the proof in the record does not clearly and convincingly show that the parents’ failure to protect the child was “knowing.”

Concurring Opinion:

I concur in the Court’s judgment reversing the termination of parental rights as to both Mother and Father, and I join nearly all of Justice Kirby’s opinion for the majority. In particular, I agree with the majority’s conclusion that this case presents circumstances that call strongly for application of the prior-construction canon. I would hesitate to apply the canon if only one or two intermediate appellate courts had interpreted the language at issue. Here, however, the Court of Appeals had issued at least eight opinions interpreting “knowing” in a uniform manner before the General Assembly’s reenactment of that language. See, e.g., Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (finding “the uniformity of . . . judicial precedent construing the [statutory] definition significant”); Kentucky v. Biden, 57 F.4th 545, 554 (6th Cir. 2023) (noting that the force of the prior-construction canon is “stronger when the lower courts uniformly adopt a particular interpretation of an oft-invoked statute”); cf. Bruesewitz v. Wyeth LLC, 562 U.S. 223, 243 (2011) (declining to apply canon where “widespread disagreement exist[ed] among the lower courts”).

Link to Court of Appeals Opinion:

Summary by the Court of Appeals:

A mother and father appeal the termination of their parental rights. The trial court concluded that there was clear and convincing evidence of two statutory grounds for termination of the mother’s rights and one statutory ground for the termination of the father’s parental rights. The trial court also concluded that there was clear and convincing evidence that termination of their parental rights was in their child’s best interest. After a thorough review, we affirm.

Permission to Appeal Granted: March 23, 2022

Appellants’ Briefs Filed: April 16, 2022 and April 18, 2022

Appellees’ Briefs Filed: August 31, 2022 and September 1, 2022

Appellants’ Reply Brief Filed: September 16, 2022

Appellees’ Reply Brief Filed:

Amicus Briefs Permitted:  

Oral Argument Date:  September 28, 2022

Link to Oral Argument Video:


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