Facts: Mother and Father are the never-married parents of Child. The Department of Children’s Services (“DCS”) alleged Child was dependent and neglected because of Father’s abuse and domestic violence of Mother. The juvenile court entered an ex parte order temporarily prohibiting Father from having contact with Child.

Mother petitioned in Circuit Court to establish paternity and obtain temporary exclusive custody. After an evidentiary hearing, the circuit court found Father physically abused Mother and Child. Father was ordered to submit to a mental health evaluation, but he was awarded supervised visitation. The proof showed that Mother interfered with Father’s efforts to exercise his court-ordered visitation.

Father pleaded guilty to domestic assault and agreed to go to an anger management course as part of his plea agreement.

One and a half years later, Mother and Stepfather petitioned to terminate Father’s parental rights and for Stepfather to adopt Child. The proof in the termination trial included text messages and audio recordings reflecting Father’s threats to kill Mother, photographs of Mother’s injuries at the hands of Father, and Mother’s testimony that Child was present for all the abuse that occurred after Child’s birth. Father admitted he struck Child in the mouth, bit Child’s finger, and pulled Child’s hair. He denied any further abuse. The trial court found Father’s denials were not credible.

A clinical psychologist, Dr. Biller, who examined Father testified that Father was not a threat to Child but recommended anger management treatment and supervised visitation before the trial court considered terminating Father’s parental rights. This was based, in part, on testimony about Father’s effective parenting of his stepchildren. The trial court placed great emphasis on the expert testimony of Dr. Biller.

After finding grounds for termination, the trial court ruled that there was not clear and convincing evidence that terminating Father’s parental rights is in Child’s best interest.

Mother and Stepfather appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court.

When a parent has been deemed unfit by establishing at least one statutory ground for termination of parental rights, the focus shifts to what is in the child’s best interest. TCA § 36-1-113(i) lists several factors trial courts must consider when determining if termination is in the child’s best interest. The relevancy and weight to be given to each factor depend on the unique facts of each case. The child’s best interest must be determined from the child’s perspective and not the parent’s.

The Majority opinion explains its disagreement with the trial court:

Here, Father’s past violence toward Mother (both during her pregnancy and the later in Child’s presence), his abusive and inappropriate discipline of Child, and his refusal to take responsibility for such behavior and how that behavior would impact Child are paramount considerations that are most concerning….

Father’s refusal to recognize his role in the past abuse also gives us pause respecting Father’s mental and emotional fitness to parent. [T]he trial court placed great emphasis on Dr. Biller’s opinion that Father was mentally and emotionally fit to parent. However, the proof is clear that Father omitted key facts when discussing his situation with Dr. Biller. Dr. Biller testified at trial that Father never admitted to having been abusive with Mother and instead advanced that she had lied about or staged her injuries, or that he was actually the victim of her aggression. Dr. Biller was similarly unaware of Father’s inappropriate treatment of Child during her infancy.

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Based upon our de novo review of the facts presented, we cannot concur with the trial court’s conclusion that denying the petition for termination of Father’s parental rights was in Child’s best interest. Particularly troubling is the documented threatening, violent, and abusive behavior exhibited by Father, as well as his refusal to accept any responsibility for such behavior. Despite the fact that Father was found to have repeatedly abused Mother by two trial courts, Father continued to deny such behavior to the courts, Dr. Biller, [] and witnesses who testified on his behalf. Mother’s bruises and other injuries were recorded in photographic evidence and corroborated by her family, who witnessed same in real time during the parties’ relationship. Moreover, Father was arrested for such abuse and pleaded guilty on at least one occasion to domestic assault. Both the Circuit Court and the trial court found Father’s denial of his abusive behavior to be non-credible by reasons of the corroborating photographs, written messages, and audio recordings.

Of equal importance is Father’s “inappropriate” treatment of Child while she was in his care. As the trial court noted, Father admitted to “popping [Child] in the mouth to get her attention,” “biting Child’s finger to ‘let her feel my teeth,’” and “pulling Child’s hair to incentivize her to abstain from doing it to others.” Although this behavior was not determined to constitute “severe” child abuse as it is defined in the respective statute, it is abusive behavior nonetheless. Again, Father expressed no remorse for such behavior and took no measures to ensure that it would not be repeated in the future.

Had Father expressed remorse or concern for his past actions or undertaking any efforts to attend anger management training or other professional services to address his behavior/issues, he may have been able to demonstrate that adjustment of his circumstances was possible…. Although Father consulted Dr. Biller for a few follow-up sessions after his evaluation, Dr. Biller’s testimony at trial demonstrated that Father had never accepted his role in the abuse of Mother or Child during counseling and continued to deny any violent behavior on his part…. Dr. Biller admitted that proof of such violent behavior by Father would negate some of the findings from the psychological testing and would demonstrate that Father’s answers given on the tests were inaccurate….

The trial court placed great emphasis on Dr. Biller’s opinions, but we determine Dr. Biller’s acknowledgment that he was not presented with all the facts concerning Father’s abuse of Mother and Child to be significant. Dr. Biller’s own testimony demonstrates that his opinions were somewhat skewed because of Father’s failure to self-report all the facts surrounding his relationship with Mother and Child…. [W]e respectfully conclude that his testimony should not have been afforded the weight assigned by the trial court due to Dr. Biller’s lack of knowledge regarding the full constellation of facts concerning Father’s past behavior.

The Majority held that clear and convincing evidence militates in favor of the termination of Father’s parental rights as being in Child’s best interest.

Dissenting Opinion. Judge Stafford filed this dissenting opinion:

[B]ecause of Mother’s persistent efforts to prevent Child from forming a relationship with Father, there is nothing in the record, other than the assumption that Father’s past behavior will continue, to indicate that Father currently poses any threat to Child.

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The trial court in the Majority Opinion clearly have a difference of opinion as to which factors should be given more weight. While the former placed more weight on Father’s apparent progress and current ability to parent Child, the latter places more weight on Father’s past abuse and his refusal to take responsibility for it…. In a typical case, however, the parent’s failure to complete steps toward reunification results solely from their own failure to do the work necessary to meet that goal.

Yet this is not the typical case. Rather, the analysis of Father’s efforts is complicated by Mother’s admitted interference in Father’s ability to interact with Child. Moreover, Mother’s own statements demonstrate that her interference stemmed not from a reasonable fear of Father, but from a desire to gain a strategic advantage in this litigation. Thus, by giving Mother the very benefit that she sought—findings in her favor due to Child’s lack of visitation with and attachment to Father—the Majority Opinion tacitly approves of Mother’s conduct intentionally flouting the circuit court’s orders.

Moreover, to the extent that Father was permitted limited interactions with Child, those interactions were generally positive…. And all the testimony about Father’s current parenting skills showed him to be a good, proper parent.

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Father and his witnesses testified that Father was a good parent and that he would be a positive influence in Child’s life. While my colleagues and I might have made contrary findings on this issue given the evidence presented, the trial court chose to credit this testimony, despite Father’s history of abuse. Although the heightened standard of review requires that we consider whether the combined weight of the facts amounts to clear and convincing evidence de novo, it does not give this Court carte blanche to overturn factual findings or credibility determinations without sufficient evidentiary support. Indeed, “the credibility of witnesses is a matter that is peculiarly within the province of the trial court.” I am unconvinced that the record in this case supports a deviation from this long-standing tradition of deference.

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Although they effectively establish that Father’s behavior during his relationship with Mother may have rendered him unfit to parent Child in years past, [Mother and Stepfather] presented no such evidence establishing Father’s present inability. And while Father’s past behavior was atrocious and he has not fully atoned or accepted responsibility for that behavior, his conduct, as found by the trial court based on the evidence provided, shows that he has made progress toward becoming a better parent and partner. As a result, I agree with the trial court’s determination that [Mother and Stepfather] have not met their burden. I simply lack the strong conviction that severing Father’s ties to this very young child permanently and forever is in her best interest. I must therefore respectfully dissent from the Majority Opinion.

Concurring Opinion. Judge Usman, part of the Majority, wrote a lengthy concurring opinion in response to the dissenting opinion:

While the dissent expresses entirely legitimate concerns regarding an appellate court overstepping its bounds in reviewing a trial court’s factual findings in credibility determinations, I do not agree that such overstepping has occurred in this case. The divide with the trial court is not over the facts and credibility findings reached by the trial court, which are accepted, but instead as to how these factual findings intersect with the best interest factors, and even more so the relative weight of the various factors under the circumstances of the present case.

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In the present case, Father engaged over the course of an extended period of time in repeated acts of extreme violence toward Mother. Testimony indicated that he made statements suggesting such violence as an appropriate manner of maintaining compliance by women. He repeatedly threatened to murder Mother, and he threatened to kidnap [Child]. He also abused [Child]. Father refused to acknowledge wrongdoing; he refused to attempt to remedy the harm. Instead of accepting that he had done grievous wrong, he attempted to shift the blame to Mother and [Child].

Judge Usman concluded that the evidence clearly and convincingly demonstrated that it is not in Child’s best interest to preserve Father’s parental rights.

K.O.’s Comment: We have four accomplished judges, one in the trial court and three in the Court of Appeals, yet two believe the proof requires termination, and two believe the proof requires the opposite, each of them earnestly believing their conclusion is the correct one. This illustrates why the most responsible answer to many family law questions is, “It depends.”

Source: In re Mia C. (Tennessee Court of Appeals, Eastern Section, August 30, 2024).

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