IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 2, 2016

IN RE GABRIELLA D.

Appeal from the Circuit Court for Hamilton County

No. 13-A-193 L. Marie Williams, Judge

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No. E2016-00139-COA-R3-PT-FILED-NOVEMBER 30, 2016

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J. STEVEN STAFFORD, P.J.,W.S., dissenting in part.

I fully concur in the majority‟s affirmance on the ground of severe abuse as to 

Gabriella D. Because I cannot agree that Foster Parents have shown clear and convincing 

evidence sufficient to forever sever the parent-child relationship at issue in this case, 

however, I must respectfully dissent from the majority‟s decision to reverse the trial court 

and grant Foster Parents‟ petition to terminate Mother‟s parental rights. 

A brief summary of the history of this case is helpful. Mother‟s ignominious 

history with child protective services began as early as 2005. In 2007, Mother‟s parental 

rights to her two oldest children were terminated. Mother soon, however, gave birth to 

three other children, all of whom she proceeded to abuse and/or neglect until they were 

removed from her custody in 2012. During this time, the children lived with Foster 

Parents, who filed a petition to terminate Mother‟s parental rights. Soon after the filing of 

the petition, on October 2, 2013,1 DCS returned the children to Mother‟s physical custody 

for a trial home visit. This trial home visit had lasted nearly two years at the time of trial. 

During the trial home visit, no incidents of abuse or neglect were reported to DCS and 

Mother failed no drug screens that had been administered to her.

As my learned colleagues correctly point out, whether termination of parental 

rights is appropriate is a two-part inquiry. Foster Parents must prove: (1) a ground for 

termination; and (2) that termination is in the child‟s best interest. Tenn. Code Ann. § 36-

1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 

 

1 According to documents in the record, although the order allowing the children to be 

returned to Mother‟s physical custody was entered on October 2, 2013, the children actually 

began residing with Mother in September 2013. 
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539, 546 (Tenn. 2002). The purpose of the two-prong test is readily apparent. Because 

not all parental conduct is irredeemable, “Tennessee‟s termination of parental rights 

statutes recognize the possibility that terminating an unfit parent‟s parental rights is not 

always in the child‟s best interest.” As such, even where a ground for termination has 

been established, Tennessee courts must also consider whether termination is in the 

child‟s best interest. This focus mandates that termination is to serve neither as “a 

punishment to be meted out nor an award to be rendered to a parent.” In re Kaedince M., 

No. E2015-00763-COA-R3-PT, 2015 WL 6122776, at *7 (Tenn. Ct. App. Oct. 19, 2015). 

Both the ground for termination and the best interest of the child must be 

established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1); In re 

Valentine, 79 S.W.3d at 546. The clear and convincing evidence standard defies precise 

definition, Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989), but has been 

described as a “high evidentiary burden.” In re Alex B.T., No. W2011-00511-COAR3PT, 2011 WL 5549757, at *9 (Tenn. Ct. App. Nov. 15, 2011); see also In re Audrey 

S., 182 S.W.3d 838 (Tenn. Ct. App. 2005) (explaining the need for the “heightened” 

standard of proof as due to the stakes of a termination proceeding being “so profoundly 

high”); Gates v. Williams, No. E2010-01192-COA-R3-CV, 2011 WL 683935, at *3 

(Tenn. Ct. App. Feb. 28, 2011) (describing the clear and convincing standard as a “high 

burden”). It is more exacting than the “preponderance of the evidence” standard, although 

it does not demand the certainty required by the “beyond a reasonable doubt” standard. 

In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). Clear and convincing evidence 

“establishes that the truth of the facts asserted is highly probable . . . and eliminates any 

serious or substantial doubt about the correctness of the conclusions drawn from the 

evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence 

“produces in a fact-finder‟s mind a firm belief or conviction regarding the truth of the 

facts sought to be established.” Id. The burden of establishing the ground for termination 

and the best interest of the child by this high evidentiary burden is on the party seeking 

termination and never shifts to the parent. See In re Dustin T., et al., No. E2016-00527-

COA-R3-PT, 2016 WL 6803226, at *18 (Tenn. Ct. App. Nov. 17, 2016) (Stafford, J., 

dissenting).

I do not dispute the majority‟s conclusion that Foster Parents established a ground 

for termination by clear and convincing proof. I cannot agree, however, that the proof 

that termination was in the children‟s best interest was clear and convincing. The 

Tennessee General Assembly has set out a number of factors for the court‟s use in 

determining whether termination of parental rights is in a child‟s best interest. See Tenn. 

Code Ann. § 36-1-113(i). Although we must consider every applicable factor, one factor 
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may “dictate the outcome of the analysis.” In re Audrey S., 182 S.W.3d 838, 878 (Tenn. 

Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)). 

The abuse and neglect that Mother inflicted on the children, coupled with Mother‟s 

refusal to admit her own culpability and her failure to inform physicians of her drug 

addiction, certainly weigh in favor of termination in this case. 

Still, I believe that the majority Opinion too easily discounts the fact that the 

children had been living in Mother‟s home, incident-free, for nearly two years at the time 

of trial. Instead, the majority Opinion chooses to focus on the past abuse and neglect 

inflicted on the children and its suggestion that Mother‟s progress will reverse as soon as 

she is no longer under intense DCS supervision. As previously discussed, however, the 

focus of the best interest analysis is not to punish a parent for his or her historically bad 

behavior; instead, the focus must center on what is best for the children at present and in 

the future. See Kaedince, 2015 WL 6122776, at *7. Here, the trial court found, and the 

evidence supports, that the children had been living with Mother for the two years prior 

to trial without suffering any ill effects, that the children are bonded to Mother so that 

removal from her would cause the children “a loss,” and that at least one child has 

appeared to flourish under her care. Respectfully, after two-years of incident-free 

parenting in Mother‟s home, I cannot fathom how much more incident-free parenting 

time would be required to persuade the majority that Mother‟s improvements will be 

lasting.2

Furthermore, it is my opinion that where a case involves evidence so equally 

balanced both in favor of termination and against, the clear and convincing evidence 

standard demands that we find in favor of continuing the parental relationship. A similar 

circumstance was at issue in In re Wesley P., No. W2014-02246-COA-R3-PT, 2015 WL 

3430090, at *1 (Tenn. Ct. App. May 29, 2015). In Wesley, there was little dispute that the 

parents had committed severe abuse by exposing the child to methamphetamine. Id. at 

*8–*9. The Court of Appeals noted, however, that the trial court “clearly struggled with”

the issue of whether termination was in the child‟s best interest. Ultimately, we held that 

DCS failed to meet its burden where “the applicable factors do not reveal a clear picture 

in favor of a finding that termination is in the child‟s best interest.” Id. at *11. In reaching 

this result, the Court noted that the mother‟s “inability to guarantee that she will remain 

sober” in the future did not constitute clear and convincing evidence to support a finding 

that termination was in the child‟s best interest, even where there was no dispute that the 

child could not be immediately returned to the mother‟s home. Id. at *12. In that case, we 

 

2 Moreover, it is not Mother‟s burden to show that her changes will be lasting, but Foster Parent‟s 

burden to show that they will not. 
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instead held that DCS “failed to „eliminate [] any serious or substantial doubt‟” that 

termination was in the child‟s best interest, as required to meet the clear and convincing 

standard of proof. Id. at *13 (citing In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 

2004)).

While the abuse in this case is much more egregious than that at issue in Wesley, 

the record in this case also contains much more proof of Mother‟s lasting adjustment in 

circumstances, the stability of her home, and the safety of her children should they be 

returned to Mother‟s care. Indeed, in this case, the children have been returned to 

Mother‟s home and Foster Parents have put on no proof that the children have in anyway 

suffered as a result. From my review of the record, it appears that by the time of the trial 

on the termination petition, the children had been residing in Mother‟s home for a longer 

period of time than they resided with Foster Parents.3 As we noted in Wesley: “Often, the 

best interest element of a termination of parental rights case turns on a delicate balance 

between the substantial need to provide the child stability and the interest of the child in 

maintaining a relationship with his or her biological family.” In re Wesley P., 2015 WL 

3430090, at *13. Here, because the children have been residing in Mother‟s home 

without incident for a number of years, it appears that both the interest in stability and the 

interest in maintaining the parent-child relationship are furthered by denying the 

termination petition in this case. Accordingly, I cannot agree that Foster Parents have 

established “a clear picture in favor of a finding that termination is in the child‟s best 

interest.” Id. at *11. I would therefore hold that Foster Parents failed to show, by clear 

and convincing evidence, that termination was in Gabriella D.‟s best interest.

Based on the foregoing, I must respectfully dissent from the majority Opinion 

reversing the trial court‟s denial of Foster Parent‟s petition to terminate Mother‟s parental 

rights to Gabriella D. 

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J.STEVEN STAFFORD, JUDGE

 

3 As the majority Opinion states, the children resided with Foster Parents for a period of nineteen 

months. At the time of trial, the children had been living with Mother for approximately two years.