In re Markus E.

• Court: Tennessee Supreme Court
• Writing for the Court: Holly Kirby, J.
• Citation: In re Markus E., 671 S.W.3d 437 (Tenn. 2023)
• Docket Number: M2019-01079-SC-R11-PT
• Decision Date: 19 May 2023
• Parties: IN RE MARKUS E.

671 S.W.3d 437

IN RE MARKUS E.

No. M2019-01079-SC-R11-PT

Supreme Court of Tennessee, AT NASHVILLE.

September 28, 2022 Session

FILED May 19, 2023

Nick Perenich (on appeal), Nashville, Tennessee; and Elijah Wilhoite (at trial), Nashville, Tennessee, for the appellant, Mark E.

Rebecca McKelvey Castañeda (on appeal), Nashville, Tennessee; Connie Reguli (on appeal to the Court of Appeals), Brentwood, Tennessee; and Lorraine Wade (at trial), Nashville, Tennessee, for the appellant, Nakesha M.

Jonathan Skrmetti, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor General; and Jordan K. Crews, Senior Assistant Attorney General, for the appellee, Tennessee Department of Children's Services.

David R. Grimmett (on appeal), Franklin, Tennessee; and Jerice Glanton (at trial), Antioch, Tennessee, guardian ad litem for the child, Markus E.

Holly Kirby, J., delivered the opinion of the court, in which Roger A. Page, C.J., and Sharon G. Lee, Jeffrey S. Bivins, JJ., joined and Sarah K. Campbell, J., joined in part. Sarah K. Campbell, J., filed a separate concurring opinion.

Holly Kirby, J.

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."

FACTUAL AND PROCEDURAL HISTORY

Defendant/Appellant Mark E. ("Father") and Defendant/Appellant Nakesha M. ("Mother") are the parents of the child at issue in this appeal, Markus E.

On May 24, 2014, Markus was born premature at thirty-one weeks. At birth, he weighed only three pounds and four ounces. He suffered from neonatal Graves’ disease, an inherited overactive thyroid condition that caused thrombocytopenia, that is, low platelets in his blood. Markus spent the first three weeks of his life in the neonatal intensive care unit at Vanderbilt Children's Hospital. After that, Father and Mother brought Markus home to live with them in Nashville.

In August 2014, when Markus was a bit over two months old, Mother worked a few days a week and alternating weekends as a psych technician at Middle Tennessee Mental Health Institution. Father worked two jobs, delivering supplies at Vanderbilt during the day and cleaning schools at night.

On days when both parents worked, Father typically dropped Markus off early in the morning at an in-home daycare operated by Carlithia P. ("Daycare Provider"). Markus's maternal grandmother, Nadine M. ("Grandmother"), often picked the child up from daycare and cared for him at her house until Mother picked him up. Thus, during his infancy, Markus had four regular caregivers: Mother, Father, Grandmother, and Daycare Provider.

During the same period, from roughly late July through the end of 2014, Mother took Markus to see several healthcare providers for various issues. In early August 2014, Mother took Markus to a hospital emergency room for an upper respiratory infection, and later that same month she brought him to a hospital emergency room for minor oral bleeding. She brought him to see a pediatric urologist for an inguinal hernia.¹ Mother also brought Markus to follow-up appointments with a pediatric endocrinologist to track his then-stabilized thyroid function.

At some point, the pediatric endocrinologist noticed abnormalities in Markus's skull and referred him to a pediatric plastic surgeon. In mid-September 2014, the plastic surgeon ordered a scan of Markus's head. The scan revealed chronic subdural hematomas, that is, bleeding in the protective layer surrounding his brain.² The radiologist thought the skull abnormalities could be related to the underlying hematomas. Regardless, the plastic surgeon told Mother and Father there was no need for more intervention.

On December 2, 2014, Mother took Markus to see a nurse practitioner for follow up from his premature birth. In that appointment, Mother reported that Markus had experienced heavy, labored breathing, congestion, irritability, and would sometimes not take his bottle. The nurse practitioner diagnosed another upper respiratory infection and encouraged Mother to work with their regular pediatrician to address the breathing and feeding issues. A week later, Mother brought Markus to another follow-up appointment with his pediatric endocrinologist, who indicated that the thyroid condition had resolved.

On Christmas Eve and Christmas Day 2014, Father was out of town at a funeral. During the night on Christmas Eve, Markus woke up coughing and congested. Around 4:00 a.m. on Christmas Day, Mother took Markus to the Vanderbilt Hospital emergency room. The triage nurse confirmed he was moderately congested but said he was not in acute distress. The emergency room attending physician diagnosed Markus with another upper respiratory infection and discharged him.

On January 10, 2015, Mother took Markus to a walk-in clinic at TriStar Centennial Medical Center ("TriStar"). She reported he had been coughing for a couple of days.

To determine whether Markus had bronchitis, providers at TriStar did a chest x-ray. The x-ray revealed a rib fracture. The clinic staff recommended to Mother that she take Markus to Vanderbilt for further evaluation of the child's ribs, and she did.³

When Mother took Markus to Vanderbilt, providers there did an initial skeletal survey. This survey revealed nineteen rib fractures. Some of the fractures were acute and others were in various stages of healing.

Once Vanderbilt staff realized the child had multiple rib fractures, they contacted law enforcement and the Tennessee Department of Children's Services ("DCS"). Vanderbilt physicians admitted Markus to the hospital, and he remained at Vanderbilt for several weeks.

While Markus was at Vanderbilt, physicians did a follow-up skeletal survey. This survey showed twenty-two rib fractures. Vanderbilt physicians also took a closer look at the results of the scan done to look for skull abnormalities, four months earlier. The scan showed Markus had some fractured ribs at that time.

Because of these test results, Vanderbilt asked a child abuse specialist, Verena Brown, M.D., to review Markus's case. Dr. Brown first looked at whether there could be a medical cause for the many rib fractures. She ruled out a temporary or permanent bone weakness, based on the child's past records and more recent testing. Specialists ruled out a bleeding disorder or thyroid issue as a possible cause of the rib fractures.

After eliminating any medical cause for the rib fractures, Dr. Brown concluded that Markus's rib fractures were inflicted injuries, the result of non-accidental trauma. She diagnosed him as an abused child.

Because of Dr. Brown's diagnosis, DCS reached an agreement with Mother and Father for the child's placement upon release from the hospital. They agreed Markus would be placed with Mother's brother and sister-in-law, i.e., the child's uncle and aunt.

While hospitalized, Markus continued to have respiratory problems; some required emergency intervention. Vanderbilt providers also diagnosed Markus with other health conditions, in addition to the rib fractures and subdural hematomas. These included a viral infection, laryngomalacia,⁴ and enlarged adenoids that obstructed nearly ninety percent of his airway.

On January 26, 2015, Markus underwent surgery to remove his adenoids. Afterward, his breathing and feeding difficulties improved significantly. Four days later, Markus was discharged from the hospital.

As agreed, upon discharge, Markus was safety-placed with Mother's brother and sister-in-law. Five days later, they contacted DCS to ask them to place Markus elsewhere, citing Mother's hostility towards them and her refusal to abide by the placement rules.

DCS next placed Markus with Mother's aunt, Sherita M., where he remained for a little over two months. In April 2015, DCS received a report of a physical altercation between Mother's aunt and both Mother and Father. The report alleged that Markus sustained scratches on his face during the altercation.

As a result, DCS took custody of Markus, then around eleven months old, and placed him in a foster home. During the ensuing year, DCS moved Markus to another foster home.

Meanwhile, in June 2015, DCS entered into the first of three permanency plans with Mother and Father, with the stated goal of returning Markus to their care. The plan required both parents to participate in regular visitation, obtain parenting assessments and go to parenting classes as recommended, obtain mental health assessments and follow related recommendations, and to use anger...