In Re Mattie L.

In this parental termination case, we review the trial court’s application of the missing witness rule to a party in a non-jury trial, the trial court’s reliance on the doctrine of unclean hands, and whether the trial court erred in terminating parental rights on the grounds of abandonment. A mother and stepfather petitioned the trial court to terminate a father’s parental rights and allow the stepfather to adopt the child. The trial court terminated the father’s parental rights based on a finding of abandonment by willful failure to support, willful failure to make reasonable or consistent support payments, and willful failure to visit. The trial court also found termination was in the child’s best interest. In reaching these conclusions, the trial court presumed that because the father—a missing witness—did not appear for trial, his testimony would have been unfavorable to him. In addition, the trial court ruled that under the doctrine of unclean hands, the father should be “repelled at the courthouse steps” because he made false statements in his interrogatory answers. The Court of Appeals reversed, finding the trial court erred by applying the missing witness rule in a non-jury trial and by applying the doctrine of unclean hands. The Court of Appeals also held the mother and stepfather’s evidence of abandonment was less than clear and convincing. We hold: (1) the missing witness rule may apply in a non-jury trial, although here the trial court misapplied the rule; (2) the trial court erred in applying the doctrine of unclean hands to the father because he was defending against a petition for statutory relief while seeking no equitable relief, and his alleged misconduct was collateral to the issue of abandonment; and (3) the evidence of abandonment was not clear and convincing. Thus, we hold the trial court erred in terminating the father’s parental rights. We reverse the judgment of the trial court and dismiss the petition to terminate the father’s parental rights.