Posted by: koherston | April 1, 2013

Tennessee Supreme Court Clarifies Standard of Review in Termination of Parental Rights Cases: In re Taylor B.W., et al.

Facts: The parties divorced in March 2002. In November 2002, Mother purported to give Father a flu vaccination but instead injected him with a chemical used to euthanize animals. In May 2003, Mother pleaded guilty to the attempted second degree murder of Father and received a sentence of twelve years to be served at thirty percent (meaning that she would be eligible for release after approximately four years). The children were seven and five years old at the time Mother was sentenced.

In 2004, while Mother was incarcerated, the parties amended their parenting plan by agreement to  provide visitation with the children’s maternal grandmother one weekend per month to allow the children to visit Mother in prison. It also provided for a gradual return to the original parenting schedule upon Mother’s release from prison.

Several years later, Father married Stepmother. They subsequently filed an action to terminate Mother’s parental rights and to obtain a stepparent adoption.

After the trial, the trial court concluded that Father and Stepmother had proved by clear and convincing evidence that Mother had been sentenced to a period of incarceration of twelve years when the children were under eight years of age, which is a ground for terminating Mother’s parental rights per Tennessee Code Annotated § 36-1-113(g)(6).

The trial court then considered the children’s best interest. The trial court found no proof that Mother posed a danger to the children and that she had done nothing but attempt to have a relationship with the children. Still, after weighing its findings as to the factors in Tennessee Code Annotated § 36-1-113, the trial court concluded that termination of Mother’s parental rights was in the best interests of the children.

Mother filed a motion to alter or amend in which she argued the trial court improperly allocated the burden of proof to her as to certain statutory factors. The trial court agreed and reexamined its findings. The trial court then determined that “[b]ecause the case is so close,” Father and Stepmother failed to prove by clear and convincing evidence that it was in the best interests of the children to terminate Mother’s parental rights. The trial court therefore entered an amended order denying Father and Stepmother’s petition to terminate parental rights.

Father and Stepmother appealed. The Court of Appeals found “it is clear the [t]rial [c]ourt’s first ruling that termination was in the best interest[s] of the children was supported by clear and convincing evidence.” The Court of Appeals reinstated the trial court’s first order terminating Mother’s parental rights.

Mother appealed to the Tennessee Supreme Court.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals and affirmed the trial court.

The Tennessee Supreme Court concluded:

Having reviewed the record, we agree with the trial court that none of the factors support termination of Mother’s parental rights. We therefore cannot conclude that Father has proven by clear and convincing evidence that it is in the best interests of the children to terminate Mother’s parental rights. . . .

We reverse the judgment of the Court of Appeals and affirm the trial court’s amended order concluding that Father and Stepmother have not shown by clear and convincing evidence that terminating Mother’s parental rights is in the best interests of the children.

Most importantly, the Supreme Court, after noting that in the past it has applied differing standards of review in termination of parental rights cases, clarified the standard of review as follows:

We now make clear that we review findings of fact by a trial court in civil actions de novo on the record, with a presumption of correctness of the findings, unless the preponderance of the evidence is otherwise. When a trial court has made no finding of fact, however, we conduct a de novo review to determine where the preponderance of evidence lies. Following our evaluation of the facts, we review the trial court’s order to determine whether the facts amount to clear and convincing evidence that the termination of parental rights is in the best interests of the children. Clear and convincing evidence is “evidence in which there is no serious or substantial doubt as to the correctness of the conclusions drawn from the evidence.”

K.O.’s Comment: Both the trial court and the Supreme Court commented on the lack of expert proof. The trial court said:

[T]here was no expert testimony about the psychological or emotional impact that such a change in allowing the Mother more time in the children’s lives would have. All the court had was testimony from the Stepmother and the children about their fear of what may happen during a visit with Mother. Expert evidence would have been helpful.

The Supreme Court concurred, stating:

The trial court correctly reflected that expert testimony could have provided the trial court with a basis for determining the authenticity of the children’s fear of Mother and a prediction of the psychological effect of required visitation.

In re Taylor B.W., et al. (Tennessee Supreme Court, February 21, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.


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