Facts: In 2011, Child was born to Mother and Father. At birth, Child weighed 6 pounds, 14 ounces. Six months later, Child weighed a mere 7 pounds, 6 ounces, having gained only 8 ounces.

When Child saw a doctor, Child was immediately transported to the emergency room, where he remained for four days. Child was promptly removed from the parents’ custody.

When Mother and Father separated in July 2012, Mother began complying with the requirements of the permanency plan. Specifically, Mother had completed in-home education classes, which included instruction in domestic violence, proper nutrition, appropriate discipline, various parenting topics, the impact of alcohol and drugs on children, and the impact of domestic violence on children. She got sober and maintained her sobriety thereafter.

By June 2013, Mother had obtained appropriate housing.

In July 2013, Foster Parents petitioned to terminate Mother’s parental rights and to adopt Child.

The juvenile court placed Child on a trial home visit with Mother in October 2013. As of the date of trial two years later, Child remained on a trial home visit with Mother. The proof showed she provided an appropriate home, maintained employment, divorced her husband, and maintained her sobriety throughout those two years.

After finding that grounds for termination of Mother’s parental rights exists, namely severe abuse, the trial court found Mother had made such an adjustment of circumstance, conduct, and conditions as to make it in Child’s best interest to remain in her home. The trial court found that a change in caregivers would be detrimental to Child. The trial court specifically found the evidence relied upon by Foster Parents is historical and would require the court to speculate that Mother will relapse into her prior behaviors.

Foster Parents appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court’s Finding that the termination of Mother’s parental rights was not in Child’s best interest.

When at least one ground for termination of parental rights has been established, the petitioner must then prove by clear and convincing evidence that termination of the parent’s rights is in the child’s best interest. When a parent has been found to be unfit by the establishment of a ground for termination, the interests of the parent and child diverge, and the focus shifts to what is in the child’s best interest. Further, the best interest of the child must be determined from the child’s perspective and not the parent’s.

Ascertaining a child’s best interests does not call for a rote examination of each of Tennessee Code Annotated § 36-1-113(i)’s nine factors in a determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case. Thus, depending on the circumstances of a particular child and a particular parent, the consideration of one factor may very well dictate the outcome of the analysis.

In a 2-1 decision, a majority of the Court concluded the evidence preponderates against the trial court’s determination regarding Child’s best interest:

We emphasize that in the instant case, Mother’s history is extremely troubling. In the past, Mother has repeatedly abused or neglected [Child] and his siblings. . . .

The evidence supports that Mother’s abuse and neglect of these Children has been extensive and damaging to the Children . . . . Mother has repeatedly demonstrated that she is not a fit parent.

Mother has a long history of complying with requirements of child welfare agencies in both Tennessee and Georgia when necessary in order to regain or retain custody of her children before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children when a child welfare agency is no longer involved.

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We recognize that not every factor listed in Tennessee Code Annotated § 36-1-113(i) weighs in favor of termination in this case. However, we cannot overlook the severity and the extent of Mother’s abuse and neglect toward [Child and his] siblings throughout the years and, most significantly, her severe child abuse of [Child].

The case was remanded for the trial court to terminate Mother’s parental rights and rule on Foster Parents’ petition for adoption.

Dissent: Judge Stafford wrote a passionate and persuasive (to me) dissent:

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 . . . .

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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. . . . [T]he 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.  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. 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.

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.

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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. . . . 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.

K.O.’s Comment: (1) As readers of these opinions, we lack access to the record from the trial court. The only way we can judge an opinion is based on the summaries of evidence contained in the opinion itself. For that reason, none of us readers are in as good a position as the members of the Court to decide or comment on these cases.

With that disclaimer out of the way, I find this outcome quite surprising and hope Mother seeks permission to appeal from the Tennessee Supreme Court. From both the trial court’s ruling, the majority Opinion, and the Dissent, it appears Foster Parents’ argument consists largely of speculation about what Mother may do in the future based on what she has done in the past, never mind her perfect record over the past two years. Granted, there is reason to speculate, but I don’t think speculation should ever form the basis for forever severing the parent-child relationship. To find that termination of the parent’s rights is in the child’s best interests, the proof must be clear and convincing, i.e., it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Can that be said here?

Four judges have reviewed this case: the trial court and three appellate judges. They have divided 2-2 on that question. I hope five Tennessee Supreme Court Justices weigh in.

(2) There are two companion cases for the two other children at issue in this home. Although the cases are separate, they were tried together, the proof is the same, the issues are the same, and the three appellate opinions and dissents are the same. The other two cases are In re Jude D. (and dissent) and In re Gabriella D. (and dissent).

In re Chance D. (Tennessee Court of Appeals, Eastern Section, November 30, 2016).

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