By David L. Hudson, Jr.

The Tennessee Supreme Court unanimously reversed a Tennessee Court of Appeals opinion that had found there was clear and convincing evidence that both parents of a young infant found with 22 rib fractures had committed “severe child abuse.”   Instead, the state high court found in In Re Markus E. that there was insufficient evidence that the parents’ actions or omissions were “knowing.”

The case involved a prematurely born infant – known in court papers as Markus E. – who suffered from a variety of ailments, including neonatal Graves disease, an overactive thyroid condition, chronic subdural hematomas, bronchitis and — most disturbingly – 22 rib fractures.

A child abuse specialist at Vanderbilt determined that the likely cause of the fractures was child abuse.  Because of this diagnosis, the Department of Children’s Services (DCS) got involved and ultimately sought a termination of the parental rights of both the mother and father of Markus E.

In September 2015, a juvenile court in Davidson County found Markus E. to be a dependent and neglected child.  The parents appealed the dependency and neglect finding to circuit court. While this appeal was pending, DCS moved to terminate both parent’s parental rights.  Ultimately, in May 2019, a trial court issued a 73-page opinion granting DCS’s petition to terminate the parental rights of both parents. The court credited expert testimony that the rib fractures were caused by child abuse.  The Tennessee Court of Appeals also found clear and convincing evidence to support the ground of severe child abuse as to both parents.

On appeal, the Tennessee Supreme Court reversed in its May 19, 2023. Writing for the majority, Justice Holly Kirby explained that to terminate parental rights, a party, such as DCS in this case, must first establish a ground of termination and then show that termination of parental rights is in the best interests of the child.

DCS sought two grounds in this case: (1) severe child abuse for both parents; and (2) substantial noncompliance with the permanency plan by the mother.

The bulk of the Tennessee Supreme Court’s analysis examined what is “knowing” within the meaning of the “severe child abuse” statute in Tennessee.   The statute defines “severe child abuse” as follows:

The knowing exposure of a child to or the knowing failure to protect a child from abuse or neglect that is likely to cause serious bodily injury or death and the knowing use of force on a child that is likely to cause serious bodily injury or death.

Kirby explained that “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.”

She added that a person can knowingly commit severe child abuse “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.”

She also explained that in these type cases, “the evidence shows that one parent inflicted the abuse and the other parent failed to protect the child from it.”

Kirby noted that Markus E. suffered many physical injuries and problems and that there was no finding that these were non-accidental, inflicted injuries.”  The mother, in fact, had taken her child to a variety of hospitals and health care providers when she had custody.   Furthermore, Kirby wrote that “[b]ecause rib fractures are not necessarily accompanied by external bruising or other identifiable body damage, the source of the pain, even from an acute or recent injury, may not be obvious.”

Kirby concluded that “the evidence in the record does not clearly and convincingly show that the failure of Mother and Father to protect Markus from the non-accidental rib fractures was ‘knowing.’”

Justice Sarah Campbell wrote a short concurring opinion that agreed with nearly all of Justice Kirby’s analysis.  However, Campbell wrote that in interpreting legislature purpose, the emphasis must be on the statutory text: “My only point of disagreement with the majority opinion is its suggestion that statutory interpretation requires consideration of a statute’s purposes and objectives separate and apart from its text.”

Questions about this article?  Contact daniel [at] horwitz.law.

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