In Re Gabriella D.

IN THE SUPREME COURT OF TENNESSEE
AT KNOXVILLE
June 2, 2017 Session

IN RE GABRIELLA D., ET AL.

Appeal by Permission from the Court of Appeals
Circuit Court for Hamilton County
Nos. 13-A-193, 13-A-194, 13-A-195 L. Marie Williams, Judge
___________________________________

No. E2016-00139-SC-R11-PT – Filed September 29, 2017
___________________________________

The Tennessee Department of Children’s Services (“DCS”) removed three children from
the custody of their parents and placed them with foster parents in March 2012 because
one of the children, an infant, was severely malnourished. By July 2012, the children’s
mother was cooperating with DCS and complying with a permanency plan that set the
goal for the children as reunification with their mother or another relative. The mother
continued to comply with the permanency plan for the next sixteen months that the
children were in foster care. On the day the children were scheduled to begin a trial
home visit with the mother, July 31, 2013, the foster parents filed a petition in circuit
court seeking to terminate the mother’s parental rights and to adopt the children. After
the foster parents filed their petition in circuit court, the juvenile court, which had
maintained jurisdiction over the dependency and neglect proceeding, ordered DCS to
place the children with the mother for the trial home visit. The circuit court trial on the
foster parents’ petition did not occur until September 2015. By that time, the children
had resided with the mother on a trial basis for two years without incident. The mother,
DCS, and the guardian ad litem appointed by the juvenile court in the dependency and
neglect proceeding opposed the foster parents’ petition. The foster parents and a
guardian ad litem appointed by the circuit court sought termination of the mother’s
parental rights. After the multi-day trial, the trial court dismissed the petition, finding
that the foster parents had proven a ground for termination by clear and convincing proof
but had failed to establish by clear and convincing proof that termination is in the
children’s best interests. The foster parents appealed, and the Court of Appeals reversed.
We granted the mother’s application for permission to appeal and now reverse the
judgment of the Court of Appeals and reinstate the trial court’s judgment dismissing the
foster parents’ petition. We conclude that the trial court correctly determined that the
proof does not amount to clear and convincing evidence that termination of the mother’s
parental rights is in the children’s best interests.
 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals
Reversed; Judgment of the trial court reinstated

CORNELIA A. CLARK, J., delivered the opinion of the court, in which JEFFREY S. BIVINS,
C.J., AND SHARON G. LEE, HOLLY KIRBY, AND ROGER A. PAGE, JJ., joined.

Rachel M. Wright, Hixson, Tennessee, for the appellant, Carla D.

Susanne Lodico, Chattanooga, Tennessee, for the appellees, Karen P. and Thomas S.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
General; Alexander S. Rieger, Deputy Attorney General; and Kathryn A. Baker,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.

Sam Byrd, Chattanooga, Tennessee, Guardian Ad Litem.

Cara C. Welsh, Chattanooga, Tennessee, Amicus Curiae and Guardian Ad Litem for the
Children in the Hamilton County Juvenile Court.

OPINION

I. Factual and Procedural Background1

The appellant, Carla D. (“Mother”), now resides in Hamilton County, Tennessee,
which borders Georgia, and has previously resided in Georgia. Mother has a long history
with the child welfare agencies in both Georgia and Tennessee, specifically the Georgia
Division of Family and Children’s Services (“GDFCS”) and DCS.2 Mother has five

1
Because this appeal involves minors, all participants will be identified in a manner that protects
the privacy of the minors. State v. Qualls, 482 S.W.3d 1, 4 n.3 (Tenn. 2016). We note as well that the
record and briefs in this appeal were filed under seal in the Court of Appeals and shall remain under seal
in this Court. See Tenn. Ct. App. R. 14.

2
In an April 9, 2015 order, the trial court ruled that the Georgia records regarding this family
were not hearsay and had been properly authenticated but reserved ruling on any other objections to the
admissibility of the records until trial. The Georgia records were submitted as exhibits three through
fourteen but were marked for identification only, pending the trial court’s ruling on what the parties
referred to as a motion in limine. This motion is not in the record on appeal. The trial court announced it
would rule on the motion in its final opinion. But at the conclusion of the trial, when the trial court asked
the parties to provide proposed findings of fact and conclusions of law, counsel for the foster parents
asked the trial court to first rule on the motion in limine, so the parties would know which facts could be
included in the proposed findings. Counsel for DCS then asked the trial court for permission to brief the
-2-
biological children with the same man, Julius D. (“Father”).3 Mother’s first child was
born December 24, 2004, in Georgia. GDFCS became involved with the family five
months later, on May 23, 2005, as a result of an incident of domestic violence that
occurred in the presence of the child.

On February 3, 2006, Mother’s second child was born addicted to drugs. Fifteen
days later, GDFCS took both children into custody after Mother and Father were
involved in an automobile accident in eastern Tennessee while under the influence of
drugs and while their oldest child was in the vehicle with them. Mother, Father, and the
child were transported to a hospital, and hospital personnel would not release the child to
Mother and Father because of their intoxication. Mother and Father had tested positive at
the hospital for marijuana, benzodiazepines, and methadone, and hospital personnel had
to shake them to elicit a response. When GDFCS took the children into custody, the
youngest child was still experiencing withdrawal symptoms and had a severe case of
thrush, caused, at least in part, by dirty bottles. On September 11, 2007, a Georgia court
terminated Mother’s and Father’s parental rights to these two children, and the children
were later adopted by two different families.4

motion in limine. The trial court instructed counsel for all parties to decide whether the issue would be set
for a hearing or submitted on briefs and to advise the trial court of their decision. The record on appeal
does not contain any document indicating which option the parties agreed upon, nor does it contain any
briefs addressing the motion in limine or raising additional objections to the admissibility of the Georgia
records, nor does it contain any rulings by the trial court on the referenced motion in limine or on any
additional objections to the admissibility of the Georgia records. Given the pretrial ruling of admissibility
and the lack of any subsequent order ruling the Georgia records inadmissible, we have included facts
gleaned from those records in this opinion. We note that the parties have also included facts from the
Georgia records in their briefs, and that both the trial court and the Court of Appeals included facts from
the Georgia records when reciting the factual history of this family.

3
Father and Mother were married when these children were born and were still married at the
time of the hearing in this matter, although Mother had filed for divorce. Father is not a party to this
appeal because, as explained hereinafter, a Georgia court terminated his parental rights to the two oldest
children in 2007, and Father, with the assistance of counsel, voluntarily surrendered his parental rights to
the three youngest children while this matter was pending in the trial court.
4
In its order terminating Father’s and Mother’s parental rights the Georgia court found:

The Court has previously found a cause of [child] deprivation [by] substance
abuse by the parents. Neither parent has provided six consecutive months [of] negative
drug screens nor have they completed a substance abuse treatment program. [Father] has
failed to complete anger management counseling. The parents have failed for greater
than one year to complete a case plan designed for the reunification of the children with
the parents. The parents suffer from mental illness rendering them incapable of properly
parenting the children and have failed to seek appropriate mental health treatment. The
parents have physically, mentally and emotionally neglected the children and have failed
to protect the children from the maternal grandmother who has a criminal history. The
-3-
 On March 18, 2008, only six months after the Georgia court entered its
termination order, Mother gave birth to Gabriella in Tennessee, across the border from
where she lived in Georgia. Within a month of Gabriella’s birth, GDFCS petitioned the
Georgia court, asking the court to order Mother to participate with drug screening, citing
Mother’s history with GDFCS and history of drug abuse. The record does not reflect the
disposition of this petition. But, on June 26, 2008, GDFCS received a report that Mother
and Father had been smoking marijuana in Gabriella’s presence and also abusing
prescription medication. While Georgia law enforcement and GDFCS officials were in
the home investigating the complaint, they noticed that Father appeared to be under the
influence. He was caring for Gabriella at the time, and he dropped her while moving her
from a bed into a nearby infant seat, hitting her head on the side of the infant seat. Law
enforcement officers also found drug paraphernalia in the home. Additionally, a count of
Mother’s and Father’s prescription medications revealed far fewer Xanax and Oxycontin
pills remaining than what would have remained had the medication been taken as
prescribed. GDFCS then took Gabriella into protective custody and placed her for eight
months in the home of the family that had adopted one of her older siblings.

After losing custody of Gabriella, Mother began cooperating with Georgia
officials and complying with the conditions GDFCS had imposed for her to regain
custody of Gabriella. Mother reported to GDFCS that she had separated from Father and
was seeking a divorce, and she sought a protective order against Father. Mother
completed an alcohol and drug intensive outpatient program, had clean drug screens, and
enlisted the assistance of her own mother (“Maternal Grandmother”), who moved from
Florida to Georgia to support Mother and help care for Gabriella while Mother worked.
On February 2, 2009, Mother regained custody of Gabriella after a Georgia court found
that she “had completed her case plan.” But, in the order returning custody to Mother,
the Georgia court directed GDFCS to provide “aftercare” for Mother and Gabriella for
thirty days and also ordered Mother to “ensure” that Father have “no contact” with
Gabriella.

Unfortunately, Mother soon violated the Georgia order by returning to Father and
resuming her drug use. Not quite eleven months after regaining custody of Gabriella,
Mother gave birth to Jude in a Tennessee hospital on December 31, 2009.5 He was born
addicted to drugs. DCS received a referral because of Jude’s drug addiction and required
Mother to complete an alcohol and drug assessment. Mother satisfied this requirement,
and DCS did not remove either Gabriella or Jude from Mother’s custody or impose
additional requirements.

parents have failed for greater than one year to maintain a meaningful and supportive
parental bond with the children. The parents have failed to support the children.
5
As noted, Mother lived at the time in an area of Georgia that borders Hamilton County,
Tennessee.
-4-
 On May 12, 2010, Mother returned to the home she shared with Father to find him
unconscious on the floor, and a friend’s child, whom the friend had left in Father’s care,
dead in a travel crib.6 Father’s mother (“Paternal Grandmother”) ordinarily cared for
Gabriella and Jude in this home while Mother worked, but Paternal Grandmother and the
children were not present in the home when this tragedy occurred, so the children were
not removed from Mother’s custody.

About a month later, in June 2010, DCS received a new referral based on the
Georgia order directing Mother to ensure that Gabriella have no contact with Father.
DCS removed Gabriella and Jude from Mother’s custody. During this removal, Mother
had been using drugs and failed a drug screen. Nevertheless, DCS placed the children
back with Mother three days later on the condition that she comply with a non-custodial
permanency plan that, among other things, required her to stop abusing drugs and to keep
the children away from Father until he received treatment for drug use. By August 20,
2010, Mother had passed three drug screens and had informed DCS that Father knew he
could not have any contact with the children until he completed drug treatment. DCS
returned the children to Mother without supervision or follow-up and closed its case.

But, yet again, not long after regaining custody of the children, Mother returned to
Father, resumed using drugs, and became pregnant again. Her fifth child—Chance—was
born on September 9, 2011, and he had methadone in his system that Mother had
received at the hospital prior to his birth to treat her addiction. Chance weighed six
pounds and fourteen ounces at birth. About six months later, on March 5, 2012, Father
took Chance to see a doctor, because Chance was not gaining weight. Chance was
immediately transported from the doctor’s office to the emergency room of a local
Tennessee hospital, where he remained for four days. At the time of his admission,
Chance weighed only seven pounds and six ounces, having gained only eight ounces
since his birth. Chance was diagnosed with severe malnutrition and failure to thrive.
Mother, who had been responsible for caring for Chance, claimed that she had been
feeding him six to eight ounces of formula, six to eight times daily, along with baby
cereal. She said he was not spitting up more than normal and was not having excessive
diarrhea. Father reported that Mother knew Chance was not gaining weight properly but
refused to seek medical treatment for him, fearing DCS would take custody of the
children.

After learning of Chance’s malnutrition, DCS removed all three children from
Mother’s custody on March 5, 2012, and filed a petition in the Juvenile Court of
Hamilton County (“Juvenile Court”). The Juvenile Court issued an order of protective
custody on March 7, 2012.

6
The record is not entirely clear, but it appears Father’s home was located in Tennessee near the
Georgia border.
-5-
 DCS placed the children with the appellees, Karen P. and Thomas S. (collectively
“Foster Parents”)7 in east Tennessee. Foster Parents had only recently completed their
training and had no prior experience as foster parents. Gabriella and Jude arrived at
Foster Parents’ home before Chance was released from the hospital. Both children were
infested with lice that required a prescription to treat successfully. Neither had been to a
doctor in more than eighteen months, and both were far behind on their vaccinations.
Jude chewed food and kept it in his cheeks, seemingly out of fear that he would not be
fed again for some time. Additionally, the children had no established routine and were
accustomed to bedtimes of between midnight and 1:00 a.m. Gabriella, not quite four
years old, openly used inappropriate language when speaking to and about her two-year-
old brother, but she could not recite the alphabet, spell her own name, or count to ten.

When Chance joined his siblings at Foster Parents’ home a few days later, he
looked and acted more like a newborn than a six-month-old. He had a distended belly,
stick-like arms and legs, and a disproportionately large head, and he appeared emaciated,
like “something that you saw on [] a commercial for [starving] children in Africa,”
according to Foster Mother. Chance could not hold his head up on his own, and he stared
blankly and could not follow objects with his eyes. He was described as suffering
“developmental delays” by hospital staff and “significantly neurologically impaired” by
an expert witness physician.

DCS assigned family services worker Latisha Ball to the case. Ms. Ball assisted in
developing the first family permanency plan, signed on March 21, 2012. The
permanency plan indicated that Mother and Father had long been addicted to prescription
drugs and had attended a methadone clinic off and on for many years. Reunification was
listed as the goal of the permanency plan, but it also stated that DCS would not be bound
to that goal if the Juvenile Court made a finding of severe abuse. The permanency plan
stated that if the Juvenile Court made a finding of severe abuse, DCS would immediately
file a motion to be relieved of any obligation to make reasonable efforts at reunifying the
children with Mother and Father.8 The permanency plan required Mother to: (1)
complete a mental health intake to determine treatment needs; (2) maintain a safe, stable
home for at least six months; (3) complete an alcohol and drug assessment and follow all
recommendations; (4) adhere to the plan to wean herself off of methadone, attend
aftercare meetings and counseling with her methadone counselor, and not sell methadone
wafers to others; (5) submit to random drug screens; (6) sign releases for DCS to obtain
progress notes and treatment plans; (7) attend visitation; (8) obtain legal, verifiable means

7
When referring separately to Foster Parents we shall use “Foster Mother” and “Foster Father.”

8
Pursuant to Tennessee Code Annotated section 37-1-166(g)(4) (2014 & Supp. 2017), DCS need
not make reasonable efforts to assist a parent whose parental rights have been previously terminated to a
sibling or half-sibling of the child, or a parent who has committed severe abuse against the child or any
sibling or half-sibling of the child.
-6-
of income and provide proof of income; (9) attend all medical appointments with the
children and seek medical attention for them when needed; (10) pay child support as
ordered; and (11) inform DCS of any change in circumstances.

Mother initially made little progress toward complying with the permanency plan.
Foster Mother said that, at one of Jude’s medical appointments, Mother appeared “kind
of out of it, slurring her words, [and] not steady on her feet,” “as if she was on some sort
of narcotic.” At a medical appointment to evaluate Jude’s motor and cognitive skills,
Mother indicated that Jude had no relevant medical history and failed to tell the nurse that
he had been born addicted to drugs. Foster Mother had to step in and inform the nurse of
this medical information. Mother also brought a photo album for the children to keep
while in foster care, which included what Foster Mother believed were inappropriate
photographs. In one of the photos, Father appeared to be holding a “joint.” Another
photo taken before DCS removed the children showed Jude holding an emaciated
Chance.

Because Mother initially failed to comply with the permanency plan, Ms. Ball
discussed adoption with Foster Parents and told them that DCS planned to amend its
petition in Juvenile Court to allege severe child abuse.9 However, this conversation
occurred before Mother’s conduct changed in July 2012, after she and Father separated.
Mother then asked for and received separate visitation, began complying with her
permanency plan, and had no more positive drug screens after June 6, 2012.

On September 5, 2012, Ms. Ball submitted a confidential report to the Juvenile
Court, summarizing the progress that had been made. Ms. Ball stated that the permanency
goal for each child was to “[e]xit [c]ustody to [l]ive with [r]elatives/[r]eunification.”
Mother was living in Georgia with Maternal Grandmother, and Father was living in
Tennessee at that time. On September 26, 2012, Ms. Ball prepared a “Case Recording
Summary” in which she stated that Foster Parents were “very upset that the [Juvenile
Court] did not make a finding of severe abuse.” According to Ms. Ball, Foster Mother
expressed her intent to ask Mother to allow Foster Parents to adopt the children,
expressed her dislike of the in-home worker Family Menders had assigned to Mother, and
stated that Mother and Father should not be taught parenting skills because they should
already know them.

9
Although the record of the Juvenile Court proceeding is not included in the record on appeal, it
is undisputed that DCS ultimately did not amend its petition in Juvenile Court to allege severe abuse.
Some testimony in the record on appeal indicates that the amendment was an oversight that occurred
when the DCS attorney initially assigned to the case left DCS and another attorney took over the case.
Whether the amendment was omitted as an intentional, considered decision or through oversight, the fact
remains that the petition was not amended.
-7-
 In the fall of 2012, DCS attempted to place the children with Mother, who was
then living with Maternal Grandmother in Georgia.10 To do so, the Interstate Compact on
Placement of Children Act required DCS to obtain the approval of GDFCS for the
placement.11 In a letter dated October 3, 2012, GDFCS refused to approve DCS’s
request, stating that Mother “appear[ed] to be continuing the pattern of behavior” that had
resulted in the termination of her parental rights to her oldest two children.

At the end of October 2012, Ms. Ball transferred to another position within DCS,
and in November 2012, another DCS family services worker, Kelly Dyer, was assigned
to Mother’s case. Ms. Dyer had worked as a case manager for DCS for eleven years.
After learning that GDFCS had already refused the DCS request to place the children
with Mother in Georgia, Ms. Dyer advised Mother to obtain suitable and appropriate
housing in Tennessee.12 Ms. Dyer also continued to assist Mother in making progress on
completing the tasks required in the permanency plan. According to Ms. Dyer, Mother
completed all the tasks required by the permanency plan, including ongoing alcohol and
drug education, Narcotics Anonymous meetings, random drug screens, and completion of
a program titled “Celebrate Recovery.” Mother also visited with the children and
obtained and kept employment.

Based on Mother’s progress on the permanency plan, Mother had been granted
unsupervised visitation with the children around September of 2012, before Ms. Dyer
was assigned to the case. After receiving the case assignment, Ms. Dyer often made
unannounced visits to Mother’s home when the children were visiting. Ms. Dyer
observed Mother cooking and feeding the children substantive, appropriate food, and she
also saw Mother and the children playing together and interacting appropriately.
According to Ms. Dyer, the children were attached to Mother, and Mother’s home was
clean and appropriate for the children. Ms. Dyer occasionally transported the children to
and from their visits with Mother. She described Gabriella as eager to visit Mother and
upset when the visits ended and the time came to return to Foster Parents’ home.

In contrast, Foster Mother stated that Gabriella initially became upset and did not
want to participate in extended visitation with Mother. According to Foster Mother, after
the unsupervised visits began, the children regressed to the behaviors they had exhibited
upon first arriving at Foster Parents’ home, although their behavior would normalize after
a few days back with Foster Parents.

10
The record on appeal is not entirely clear whether the placement would have officially been
with Mother or Maternal Grandmother, because they were living together.

11
Tenn. Code Ann. § 37-4-201 art. III(d) (2014 & Supp. 2016).

12
Ms. Dyer stated that it was not uncommon for Georgia to disapprove DCS requests for
placement pursuant to the Interstate Compact on the Placement of Children Act.
-8-
 On February 27, 2013, the Juvenile Court held a permanency hearing and found
that Mother was in substantial compliance with her permanency plan—meaning that she
had cooperated with DCS, completed alcohol and drug treatment, passed random drug
screens, obtained employment, and no longer resided with Father. The Juvenile Court
found that the primary barrier to reunification at that time was Mother’s lack of
appropriate housing in Tennessee.

Shortly after the permanency hearing, Mother obtained appropriate housing in
Tennessee. Ms. Dyer stated that Maternal Grandmother and Mother’s brother (“Uncle”)
moved to Tennessee as well to assist Mother. Uncle lived with Mother. Ms. Dyer
observed the children interacting with these relatives and believed that, with the help of
Maternal Grandmother and Uncle, Mother had established a strong family support system
for herself and the children.

In March 2013, DCS conducted an internal review, confirmed that Mother was
continuing to comply with her permanency plan, and confirmed that the goal remained
reunification. In June 2013, the children’s unsupervised visits with Mother transitioned
and expanded to overnight visits. Soon after, DCS began developing a timeline for
placing the children with Mother on a trial basis. Acting on the recommendations of the
therapist for the children, DCS planned to stagger the children’s trial return to Mother’s
home, referred to as a “trial home visit,” with Gabriella going first, followed a few weeks
later by Jude, followed a few weeks later by Chance. DCS settled on July 31, 2013, as
the date to begin the trial home visit, with the target date for reunification set as October
2013.

However, on the date the trial home visit was set to begin, July 31, 2013, Foster
Parents, who by then had been caring for the children for sixteen months, filed the
petition in circuit court from which this appeal arises, seeking to terminate Mother’s
parental rights and to adopt the children. As statutory grounds for termination, Foster
Parents alleged that Mother had committed severe abuse against Chance as evidenced by
his severe malnutrition at the time of removal.13 Foster Parents further alleged that
terminating Mother’s parental rights was in the best interests of all the children.

Within a short time after Foster Parents filed their petition, the juvenile court
guardian ad litem filed a petition asking the Juvenile Court to conduct an immediate

13
Tenn. Code Ann. § 37-1-102(b)(22) (Supp. 2017). Foster Parents also alleged as another
ground for termination that the conditions leading to the removal of the children had persisted. The trial
court found that Foster Parents failed to prove this ground by clear and convincing evidence, and Foster
Parents have not challenged this finding on appeal.

-9-
review of the circumstances and placement of the children.14 Additionally, on
September 4, 2013, Mother was arrested and charged with aggravated child abuse of
Chance due to his severe malnutrition in March of 2012.15

The Juvenile Court hearing on the petition filed by the juvenile court guardian ad
litem occurred on September 27, September 30, and October 2, 2013. The Juvenile Court
entered its order on the petition on November 11, 2013. In this order, admitted as an
exhibit below in this proceeding, the Juvenile Court found that DCS left the children in
an improper placement too long because the children remained in Foster Parents’ home
after Foster Parents voided their contract with DCS by filing this parental termination
action. The Juvenile Court further found that DCS should have initiated the trial home
visit with Mother as planned in July 2013, despite Foster Parents’ filing the termination
and adoption petition in circuit court. The Juvenile Court set a further hearing to review
the status of the trial home visit with Mother, to review the need for a future adjudicatory
hearing, should the trial home visit not succeed, and to review the status of Foster
Parents’ termination and adoption petition, which the Juvenile Court “believe[d] should
be dismissed.” Although the Juvenile Court’s order was not entered until November
2013, the record reflects that the children actually began residing with Mother in either
late September 2013, or by no later than October 2, 2013.

On March 26, 2014, Mother resolved the criminal charges that were filed against
her on September 6, 2013, by pleading guilty to attempted child neglect, a Class A
misdemeanor. She received a sentence of eleven months and twenty-nine days, but she
was allowed to serve the sentence on probation. Specifically, Mother was ordered to
complete six months of supervised probation followed by six months of unsupervised
probation.

According to Melanie Benson, the probation officer who supervised Mother’s
probation from March to September 2014, Mother was required to call a “drug line” daily
during this time and learn whether she had been selected to submit to random drug
testing. If selected, Mother had one day to report for the drug screen. Although Mother
had tested positive for hydrocodone on one drug screen during her supervised probation,
Mother had provided a corresponding prescription for the drug that explained the positive
drug screen. Mother was also required to pay all probation supervision fees and court
costs and to provide proof of employment and any prescriptions she had received that

14
When an adoption petition is filed, the adoption court receives exclusive jurisdiction of all
matters pertaining to the child except that the juvenile court retains jurisdiction “to the extent needed to
complete any reviews or permanency hearings for children in foster care as may be mandated by federal
or state law.” Tenn. Code Ann. §§ 36-1-116(f) (2017), 37-1-103(c) (2014 & Supp. 2017).

15
According to the November 11, 2013 order, Mother was arrested outside the Juvenile Court on
her way to a hearing in the Juvenile Court.
- 10 -
would result in a positive drug screen. Mother fully complied with and completed her
probation—completing supervised probation on September 30, 2014, and completing
unsupervised probation by the end of March 2015.

For various reasons,16 the trial in circuit court on Foster Parents’ petition to
terminate Mother’s parental rights did not occur until September 8-10, 2015. By that
time, as already noted, Mother had completed her probation, and the children had been
residing with Mother without incident for about two years.17

The proof offered at the circuit court trial established that Foster Parents had been
skeptical about the reunification goal since early in the case. The first DCS family
services worker assigned to the case, Ms. Ball, had broached the subject of adoption with
Foster Parents and indicated that DCS intended to ask the Juvenile Court to make a
finding of severe abuse. But DCS ultimately did not seek a finding of severe abuse in
Juvenile Court. Foster Parents believed that DCS should have sought that finding, and
they grew more dissatisfied with the goal of reunification as the case progressed, their
love, affection, and bond with the children grew, and their concerns about Mother’s
parenting skills persisted and deepened. Foster Mother also related specific incidents that
caused her concern. She reported each of these incidents to Ms. Dyer. On one occasion,
Mother had picked up the children from daycare for a visit in the morning, taken them to
a restaurant for pancakes before the normal lunch hours, and returned them to daycare
after lunch, without informing the daycare that the children had not eaten lunch. When
Foster Mother picked up the children from daycare, the children, particularly Gabriella,
complained of hunger.

Ms. Dyer investigated this incident and learned that the children had eaten
breakfast at Foster Parents’ home and again at the daycare, before having pancakes with
Mother. The children had also received an afternoon snack after Mother returned them to
daycare. Although Ms. Dyer counseled Mother about the incident, she did not view it as
a resumption of the problems that had resulted in Chance’s malnourishment because the
children had eaten three meals by the time Mother returned them to daycare.

16
Foster Parents argue that this delay resulted from DCS’s failure to comply with discovery
requests, and they point to statements by the trial court supporting their argument. DCS insists that the
delay resulted from Foster Parents twice amending their petition and failing to effect service of process on
Father in a timely manner, even though he was incarcerated and easy to locate. We need not resolve
where the blame lies for this delay but wish to emphasize that delays should always be avoided where the
permanent placement of children is at issue.

17
Nearly two more years have passed since the conclusion of the trial, and the children
apparently are still residing with Mother.
- 11 -
 Foster Mother described another incident where Mother brought Jude back to
daycare with a 104 degree fever but failed to inform the daycare of his condition.
According to Foster Mother, the daycare staff realized almost immediately that Jude was
not well and called Foster Parents, who took him to a doctor. Foster Mother related that,
on another occasion, Chance returned after an overnight visit with Mother and had what
Foster Mother described as “one of the worst cases of diaper rash” he had suffered since
his placement with Foster Parents.

Ms. Dyer testified that she investigated all the many incidents Foster Parents
reported to her and did not consider any of them to be grounds for not returning the
children to Mother. According to Ms. Dyer, Foster Parents became less willing to
cooperate with DCS as the date to return the children to Mother’s home on a trial basis
approached and reunification became more of a reality.

Foster Parents also described how their affection for the children and the
children’s affection for them developed and deepened. Gabriella and Jude initially
referred to Foster Parents as “Ms. Karen” and “Mr. Tommy.” But eventually, on their
own and without prompting, the children began referring to Foster Parents as “mommy”
and “daddy.” On one occasion after the children had moved back to Mother’s home,
Jude told Ms. Dyer he missed “Mr. Tommy” and asked her to tell “Mr. Tommy” he said
“hi.”

Foster Parents also described how the children had thrived in their care, with
Chance’s weight returning to normal and his developmental delays addressed with
eighteen months of “extensive” physical therapy that Foster Parents helped him complete.
By the time Jude, age three, left Foster Parents’ home, he had already acquired many of
the skills that Gabriella had lacked when she came to Foster Parents’ home at age four.
For example, Jude could count to ten, spell his name, and recite the alphabet, all tasks
Gabriella could not complete at age four.

Gabriella too had thrived in Foster Parents’ care. She enrolled in kindergarten in
the summer of 2013, while still with Foster Parents. She achieved one of the highest
scores on the entrance test administered to students at the beginning of the year. Ms.
Patty Keller, a teacher with thirty years’ experience and Gabriella’s kindergarten teacher
before she left Foster Parents’ home in late September or early October, 18 described
Gabriella as a “perfect” student, the “star” of her class, and an “amazing” little girl who
was “joyful” and “talkative.” Ms. Keller stated that Foster Parents were very involved in
Gabriella’s education, and very protective of Gabriella. Ms. Keller had initially assumed
Foster Parents “were her biological parents” because she was so “relaxed and happy with
them.” Ms. Keller never witnessed Foster Parents being negative toward Mother in
Gabriella’s presence. But, Ms. Keller stated that Gabriella became visibly upset upon

18
Ms. Keller testified by deposition.
- 12 -
learning that she would be returning to Mother’s home, began acting out, and changed
from being talkative and happy to being tense, stiff, nervous, and anxious.

Foster Parents also described how Gabriella’s behavior changed as the children’s
visits with Mother increased in duration and frequency. They testified that Gabriella
became “sullen,” anxious, angry, sad, and tearful and started “acting out” and
“completely shut[ting] down” at other times. Gabriella also began hoarding food,
something she had not done since her earliest days in foster care. When Ms. Keller asked
Gabriella why she was hoarding food, Gabriella responded, “Because I don’t get food.”
When Ms. Keller replied, “But, Gabby, I’m sure you get food,” Gabriella responded,
“Well, could I just save this? I want to share this with my brother. . . .” When Ms. Keller
stated, “I’m sure your mom will give you food at home,” Gabriella said, “Sometimes,
no.”

Foster Parents did not dispute that Mother had complied with the permanency
plan. But they viewed her compliance as another instance in Mother’s long history of
dealing with child protective agencies and of meeting the requirements just long enough
to regain custody of the children, but all the while intending to return to Father and drug
abuse when DCS’s involvement ends.

To establish the alleged ground for termination of severe abuse, Foster Parents
offered the testimony of Dr. Paul Dassow, an expert in family medicine and pediatric
care. Dr. Dassow spends thirty percent of his time teaching and seventy percent of his
time seeing patients. Approximately twenty-five percent of his patients are newborns and
children. Dr. Dassow reviewed Chance’s medical records and opined that Chance’s
malnutrition had been life threatening. Dr. Dassow described Mother’s claim that she
had given Chance formula in appropriate amounts multiple times daily as a “medical
impossibility.” According to Dr. Dassow, babies typically gain eight pounds during their
first six months. Dr. Dassow found no medical reason in Chance’s medical records, such
as acid reflux, vomiting, or inability to absorb food, to explain Chance’s failure to gain
weight normally during the first six months of his life. Dr. Dassow pointed out that
Chance had gained three pounds his first month in foster care, had gained four more
pounds by May 11, 2012, and had continued gaining weight thereafter at a normal rate.
Dr. Dassow described Chance’s situation as the “worst case of malnutrition in any six-
month-old that” he had “ever seen . . . including cases in Africa that resulted in infant
death.” Dr. Dassow stated that when he saw Chance’s weight listed in the records, he
thought it was a misprint. After learning it was not an error, Dr. Dassow was “surprised”
to learn that Chance had survived. Dr. Dassow explained that Chance’s weight at six
months was literally off the charts—“shockingly below the oneth percentile” of a child
growth chart published by the World Health Organization. Dr. Dassow stated that
children who suffer severe malnutrition during the first six months of life often have
developmental delays with social interactions, neurocognitive delays, and intellectual
disabilities, although these problems typically are not discovered until children start
- 13 -
school. These children are also at a higher risk of death, persisting into adulthood,
including a greater risk of heart issues. Dr. Dassow opined that Chance was neglected to
the extent that he was at risk of suffering serious bodily injury or death. But, Dr. Dassow
had never met or examined Chance and could not reach an opinion on whether Chance
actually had suffered any persistent developmental delays, intellectual disabilities, and/or
impairments.

Ms. Sara Starla Landrum, a teacher with ten years’ experience, had been
Gabriella’s kindergarten teacher after the children began residing with Mother in late
September or early October 2013. Ms. Landrum testified in person at the circuit court
trial, describing Gabriella as happy, bright, gifted, healthy, and clean. She said Gabriella
had good attendance her kindergarten year, was on time for school, and was well fed.
Gabriella had lots of friends and was socially appropriate. Ms. Landrum said that
Gabriella had achieved a reading level “well beyond the end of the first grade level” by
the time she finished kindergarten.

By the time of the trial in circuit court, Jude was a student in Ms. Landrum’s
kindergarten class and had also been her student in a summer program before
kindergarten. Ms. Landrum described Jude as interacting well with other children. She
said that an ADHD diagnosis he had received had not interfered with his ability to learn
because his caretakers ensured that he received his medication daily before school. She
said Jude knew the alphabet coming into the summer program and that he is well cared
for, happy, healthy, always clean, and on time for school. She described Jude as “just a
normal five-year-old boy,” who is “very active” and “plays” but is also “able to sit and do
his work.”

Ms. Tiffany Welch, Gabriella’s first grade teacher, also testified live at the
hearing. She described Gabriella as a very bright, friendly child, and a helper to her
teachers. Gabriella had only five absences in first grade and was tardy four times, which
the teacher characterized as “pretty good” for a first grader. Ms. Welch agreed that
Gabriella was “very advanced” intellectually. She also described Gabriella as always in
dress code, always clean and well cared for, always well fed and never complaining of
being hungry, “a great kid,” “friends with everybody,” and “always doing the right
thing.” Ms. Welch had referred Gabriella for gifted testing, which is an unusual referral
for a first grader. Gabriella tested as gifted.

Both teachers testified that Mother, Maternal Grandmother, and Uncle
communicate with them often, provide the children with appropriate and strong support,
and complete the tasks required of them, such as signing homework assignments and
responding to notes teachers sent home.

- 14 -
 Cheryl Gebelein, a parent educator with Family Menders, also testified at the
circuit court trial. She began working with Mother in the fall of 2012, providing in-home
services and, over the next two years, they covered a variety of topics, including proper
supervision of children, proper nutrition, healthy relationships, domestic abuse, respect
and responsibility, alcohol and drug awareness, age-appropriate discipline, and medical
care for children. Ms. Gebelein addressed alcohol and drug counseling at every session.
Mother had remained fully compliant with the Family Menders in-home services plan
during this entire time. The results of Mother’s random drug screens, which were a
requirement of the Family Menders plan, convinced Ms. Gebelein that Mother was clean,
sober, and making progress. She had given Mother “a number of drug screens . . . and
they all came back clean.” Ms. Gebelein never saw Mother impaired and never saw any
other indications of drug relapse, such as drug paraphernalia in Mother’s home. Ms.
Gebelein observed Mother interacting with the children on a consistent basis during this
two-year period, making a point to drop by Mother’s home unannounced twice each
week on average, and never failing to stop by at least once every week. She made a point
too of stopping by around the time Mother was getting home from work and had seen
Mother cooking dinner a number of times. According to Ms. Gebelein, Mother
appropriately cared for and interacted with the children, and the children were well fed.
Ms. Gebelein believed that Mother no longer needs in-home services, and she was
satisfied that Mother is sober and that the alcohol and drug counseling, as well as the
domestic-violence counseling, has been effective.

Ms. Dyer, the DCS family services worker assigned to the case since November
2012, explained that even at the time of the trial in circuit court, she was still making
visits to Mother’s home, communicating with Mother by texts and phone calls, visiting
with the children, and contacting providers to monitor Mother’s progress. Ms. Dyer
explained that she is required to visit the home at least once monthly and to see the
children at the home or elsewhere at least twice monthly. Based on her observation and
monitoring of the case, Ms. Dyer testified that the children need to remain with Mother.
Ms. Dyer was satisfied that the malnourishment that resulted in their removal from
Mother’s custody is no longer a concern. She pointed out that the children had gained
and maintained weight in Mother’s care. Ms. Dyer was not concerned that Mother would
relapse to drug abuse or return to Father. Ms. Dyer emphasized that Mother has
remained separated from Father and drug free longer than she ever had previously, and
Mother had filed for divorce. She emphasized Mother’s strong family support system.
Uncle lives with Mother and assists with supervising the children. Maternal
Grandmother helps with caring for the children and takes them to doctor, dentist, and
counseling appointments. Ms. Dyer also believed that the lengthy court hearings had
taught Mother perseverance and resiliency, and she noted that Mother had continued to
comply with the permanency plan and care for the children throughout the court
proceedings. Ms. Dyer opined that Mother had worked her permanency plan “three times
over,” consistently complying with it and meeting stated goals. Ms. Dyer believed that
Mother is ready to have legal custody of the children. Ms. Dyer stated that the children
- 15 -
are attached to Mother and that “the best outcomes are when children can be reunited
with their family.” When asked whether reuniting children with parents is “rare,” Ms.
Dyer responded, “I can’t say that I don’t return children, but mom got on the ball and she
got it done and she continues to do it. So I don’t have any complaints. I really don’t.”

DCS Team Coordinator Susan Jaquith became involved with the case as the
children were transitioning from Foster Parents to live with Mother. Ms. Jaquith, a social
worker with over thirty years’ experience, testified by stipulation as an expert in social
work. She opined that the children “have been with [Mother] for two years” and that it
would “be extremely traumatic, very traumatic, for the children” to be removed from
Mother.

Dr. Alice Greaves also testified in person at the trial. Dr. Greaves has a doctorate
in clinical psychology and is a psychological examiner at the Center for Individual and
Family Effectiveness. All counsel stipulated that Dr. Greaves was qualified to testify as
an expert in clinical psychology. Dr. Greaves conducted a parenting assessment with
Mother on May 8, 2013, more than two years before the hearing in circuit court. At the
time of Dr. Greaves’ assessment, Mother “had met her responsibilities,” “passed her drug
screens,” was no longer involved with Father, was working full time, had health
insurance, and had a place to live. Dr. Greaves described Mother’s compliance with the
permanency plan as “commendable” and noted that full compliance “doesn’t happen on a
regular basis” with parents who have children removed from their custody. Although Dr.
Greaves diagnosed Mother with polysubstance dependence sustained full remission,
anxiety disorder, and personality disorder, with dependent and avoidant features, Dr.
Greaves concluded that Mother’s mental health diagnoses and past substance abuse do
not prevent Mother from parenting the children. Dr. Greaves acknowledged, however,
that should Mother relapse, it could cause substantial harm to the children. Accordingly,
Dr. Greaves recommended that Mother engage in individual therapy, complete alcohol
and drug rehabilitation, complete domestic-violence counseling, and take parenting
classes, if she had not already done so at that time. Given Mother’s history of drug
abuse, Dr. Greaves recommended individual counseling because she believed psychiatric
treatment might pose a temptation for Mother to seek psychiatric drugs. DCS considered
Mother to be in full compliance with Dr. Greaves’ recommendations because Mother had
cooperated with and participated in these recommended services since 2012, and for two
more years after Dr. Greaves’ evaluation and recommendation. Dr. Greaves opined that
Mother has the ability to stay away from Father and saw no indication Mother would
return to Father. However, Dr. Greaves was unaware that Mother had immediately
returned to Father in the past after completing permanency plans and of the family history
of involvement with GDFCS and DCS, although Dr. Greaves was aware of the previous
termination of Mother’s parental rights in Georgia. Dr. Greaves testified that knowing
these facts, she would also recommend “some long-term involvement, like in-home
services, over the first couple of years that the children were back [with Mother] . . . to
monitor the situation.” By the time of trial, the children had already been back with
- 16 -
Mother for two years, and DCS had been monitoring the situation and providing services
during that time.

A few days before the trial in circuit court, Mother broke a bone in her foot at
work and received treatment at an emergency room. Mother also had two dental
surgeries in the year preceding the trial and had received treatment twice at an emergency
room for a large abscess on her arm. On each of these five occasions, Mother had
received a short term prescription for narcotic pain medication to treat the pain from the
acute injury or procedure. Mother had failed to inform the treating medical professionals
of her history of drug abuse, and on the intake forms she completed, Mother had checked
the boxes indicating that she had no history of drug abuse. Mother also had failed to
request non-narcotic pain medications. But Mother had notified Ms. Dyer after receiving
these prescriptions. Dr. Greaves opined that receiving prescription medication and using
it as prescribed for an acute injury or surgery is not considered a relapse to drug abuse.
According to Dr. Greaves, a person who has a negative drug screen for two years, lives in
the same house, stays away from the abusive person in her life, and engages in alcohol
and drug treatment is a success in the treatment process. Dr. Greaves agreed, however,
that it would be troubling to learn that a person with a history of drug abuse had failed to
disclose her history or failed to ask for non-narcotic medication, as Mother did here,
saying it would not be “wise” behavior.

Dr. Irene Ozbek, an expert in rehabilitative psychology and pediatric
rehabilitation, performed a bonding study on Mother and the children on March 4, 2015,
six months before the hearing in circuit court. Dr. Ozbek was deposed on April 17, 2015,
and her deposition testimony was introduced at trial. Dr. Ozbek opined that the children
are bonded and attached to their mother and have positive relationships with Uncle. Dr.
Ozbek stated that Mother handles the children very well and uses appropriate discipline.
The children did not display insecure or anxious behavior of any kind and did not seem
afraid of Mother. Rather, they listened to her and followed her directions. Dr. Ozbek did
not observe “anything that would suggest a developmental delay except for the ADD
signs” in Chance, although she did not perform a formal assessment of his functioning.
Chance also appeared to be well fed. Gabriella and Jude told Dr. Ozbek they want to live
with Mother. Dr. Ozbek opined that Mother and the children are a family unit and said
that the children are settled into a functioning family structure. Dr. Ozbek opined that
removing the children from Mother and changing caretakers again would have a negative
effect on the children. Dr. Ozbek believed that if the children were removed from
Mother, it would be a loss for all three children, but particularly for Gabriella and Jude.
Dr. Ozbek stated that terminating Mother’s parental rights is not in the children’s best
interests. Mother informed Dr. Ozbek that she was no longer attending group meetings
for drug recovery but was attending group meetings for people who had been involved in
relationships where there was domestic violence. Dr. Ozbek stated that Mother’s decision
to attend group domestic violence meetings rather than drug recovery meetings was not a
concern, given the constraints on Mother’s time, and would be a concern only if other
- 17 -
issues were occurring. Like Dr. Greaves, Dr. Ozbek expressed concern upon learning
that Mother had not told her treating physicians about her history of drug abuse and said
it was Mother’s responsibility to do so. Dr. Ozbek also stated that, considering Mother’s
history of drug abuse, Mother should have requested an alternative medication for pain
control. Dr. Ozbek also noted inconsistencies in Mother’s statements about Father. For
example, although Mother professed to have no knowledge of Father, she was aware that
Father was in a relationship with another woman.19 Mother also had not informed Dr.
Ozbek about an incident where Father called Mother’s cell phone and spoke with Jude,
but Mother told the children not to tell anyone that Father had called. Dr. Ozbek
described the incident as “a problem” and acknowledged that Mother returning to Father
was “a realistic possibility . . . based on prior patterns.” Dr. Ozbek recommended that
Father’s parental rights be terminated and/or that Mother obtain a divorce. Based on
Mother’s history and the severity of her past problems, Dr. Ozbek recommended
continued monitoring and supervision of the family for one year, so the children would
“have a safety net.” She described the type of monitoring as a “monthly check with an
external agency that has access to all three children.” Five months passed between the
date Dr. Ozbek made this recommendation and the date of trial, and during this time,
DCS monitored and supervised Mother and the children.

Mother testified that she was certain that she would be able to maintain the same
stable lifestyle she had maintained for years. By the time of trial, Mother had been in the
same home for two and a half years and had been “clean and sober” for three years.
Additionally, the children had been in Mother’s full-time care for two years, with Mother
responsible for their clothing, daily care, food, medical care, and schooling. The children
were in counseling and were regularly seen by a doctor. When Mother is not working,
she spends all her time with the children and family. Mother believed that Gabriella
would be devastated were the children removed from her care, and Jude had told Mother
that he wants to live with her forever even when he is “grown-up.” Although Chance
was not in school at the time of trial, he was attending day care and meeting his
milestones.

Mother admitted that Father had been a toxic influence in her life. He had
physically and mentally abused her, supplied her with drugs, and joined her in abusing
drugs. By the time of the circuit court hearing, Mother had filed for divorce from Father,
a step she had never taken in the past, although she had previously expressed an intent to
do so.20 Mother had also been separated from Father for longer than she ever had in the
past. Regarding the call Father made to Mother’s cell phone, Mother stated that she

19
Mother testified that Father had posted about his relationship on social media, and others had
told her about the post.
20
Although the trial court’s order states that Mother’s divorce was final, the basis of this
statement is not included in the record on appeal.
- 18 -
changed her cell phone number and blocked Father on social media after their separation.
But, in July 2014, Father called her new cell phone number and Jude answered. When
Mother learned the identity of the caller, she hung up. Father called back, and Mother
asked why he was calling and how he had gotten her number. Mother insisted at trial that
she had not given her number to Father. Mother said she learned that Father had obtained
her number from a person on an online dating site to whom Mother had given the
number. Mother admitted that she had not informed DCS of Father’s call and had told the
children not to tell anyone about it. Gabriella had informed Ms. Dyer of the call and of
Mother’s instructions not to disclose it. Ms. Dyer had spoken with Mother, reiterated that
she was to have no contact with Father, and afterwards, Mother again changed her cell
phone number. She had not been in contact with Father again.

Mother also acknowledged that she failed to tell medical providers of her history
of drug abuse when she received the five short-term prescriptions for opiates during the
fourteen months preceding trial. Mother testified that, although she had used all of these
medications, she had only used them as prescribed and had not abused them. Mother
denied asking for the second prescription she received to treat the abscess. Mother
testified that she told the treating physician that she had hydrocodone pills remaining, but
he wrote her a prescription for Percocet anyway, saying that the abscess was “really bad.”
Mother acknowledged having received a prescription for thirty Percocet just prior to trial
for pain in her broken foot.

Mother reiterated that she had cooperated with home visits from DCS personnel
and from the lawyers appointed guardians ad litem in juvenile and circuit court.
According to Mother, the circuit court guardian ad litem had visited her home only twice,
and the final visit had occurred a month or two after the children were returned to her
home in late September or early October 2013, almost two years before the trial in circuit
court. The circuit court guardian ad litem had never visited the children’s school.
Mother stated that the children are happy, have a good life, and that her own life now is
“about [her] kids.”

The trial court took the case under advisement and later ruled that Foster Parents
had proven by clear and convincing evidence that Chance’s malnourishment constituted
severe abuse. Nevertheless, the trial court concluded that Foster Parents had failed to
establish by clear and convincing evidence that terminating Mother’s parental rights is in
the best interests of the children.

Foster Parents appealed. The Court of Appeals unanimously affirmed the trial
court’s finding of severe abuse; however, a majority of the Court of Appeals reversed the
trial court’s finding that Foster Parents had failed to prove by clear and convincing
evidence that terminating Mother’s parental rights is in the children’s best interests. In re
Gabriella D., No. E2016-00139-COA-R3-PT, 2016 WL 6997816, at *1 (Tenn. Ct. App.
Nov. 30, 2016), perm. app. granted (Tenn. Mar. 8, 2017). The majority therefore granted
- 19 -
Foster Parents’ petition for termination and remanded to the trial court for an adjudication
of Foster Parents’ adoption petition. Id. Judge Steven Stafford filed a separate opinion
concurring with the majority’s decision affirming the trial court’s finding of severe abuse
but dissenting from its reversal of the trial court’s finding that termination of Mother’s
parental rights is not in the best interests of the children. Id. at *20 (Stafford, J.,
dissenting). Judge Stafford reasoned that the majority had focused too much on the past
abuse and neglect and on the possibility that Mother would relapse to drug abuse and
return to Father as soon as DCS supervision ended. Id. at *22. Judge Stafford stated that
the evidence supported the trial court’s finding that the children had been living with
Mother for two years without incident prior to the circuit court trial and had bonded with
Mother so that their removal from her would be “a loss.” Id. Judge Stafford could not
“fathom” “how much more incident-free parenting time would be required to persuade
the majority that Mother’s improvements will be lasting.” Id.

Thereafter, Mother filed an application for permission to appeal, which we
granted. Tenn. R. App. P. 11.21

II. Standards of Review

The standard of review in Rule 13(d) of the Tennessee Rules of Appellate
Procedure applies to an appellate court’s review of a trial court’s findings of fact in a
termination proceeding. In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016)
(citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re Angela E., 303 S.W.3d
240, 246 (Tenn. 2010)). Under the Rule 13(d) standard, factual findings are reviewed de
novo with a presumption of correctness, unless the evidence preponderates otherwise. Id.
at 524 (citing In re Bernard T., 319 S.W.3d at 596; In re M.L.P., 281 S.W.3d 387, 393
(Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007)). A trial
court’s determination as to whether facts amount to clear and convincing evidence
supporting termination of parental rights is a conclusion of law. Id. (citing In re M.L.P.,
281 S.W.3d at 393). Thus, an appellate court reviews this determination de novo,
affording no deference to the trial court’s decision, and makes its own determination as to
whether the facts amount to clear and convincing evidence of the elements necessary to
terminate parental rights. Id. (citing In re Bernard T., 319 S.W.2d at 596-97). The
dispositive issue in this appeal is a question of law: whether the facts presented amount to
clear and convincing evidence that termination of Mother’s parental rights is in the best
interests of the children.

21
Three separate notices of appeals were filed when this matter was appealed to the Court of
Appeals, one for each child, and three separate appeals were initiated, even though the circuit court held a
single trial addressing Mother’s parental rights to all the children and all the parties, counsel, issues,
transcripts of evidence, and exhibits for all three cases were the same in all three appeals. In the order
granting Mother’s application, this Court consolidated these three appeals pursuant to Tennessee Rule of
Appellate Procedure 16(a). In re Gabriella D., No. E2016-00139-SC-R11-PT (Tenn. Mar. 8, 2017) (order
granting Mother’s application and consolidating the appeals).
- 20 -
 III. Analysis

“A parent’s right to the care and custody of her child is among the oldest of the
judicially recognized fundamental liberty interests protected by the Due Process Clauses
of the federal and state constitutions.” In re Carrington H., 483 S.W.3d at 521 (footnote
omitted). Parental rights have been described as “far more precious than any property
right.” Id. at 522 (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)). But
although parental rights are fundamental, precious, and constitutionally protected, they
are not absolute. Id. (citing In re Angela E., 303 S.W.3d at 250). Nevertheless, in light
of the profound interests and consequences at stake, when judicial proceedings are
initiated to terminate parental rights, parents are constitutionally entitled to certain
fundamentally fair procedures. Id. (citing Santosky, 455 U.S. at 753-54; Lassiter v. Dep’t
of Soc. Servs., 452 U.S. 18, 27, (1981)). As this Court recently explained:

Among the constitutionally mandated fundamentally fair procedures is a
heightened standard of proof—clear and convincing evidence. This
standard minimizes the risk of unnecessary or erroneous governmental
interference with fundamental parental rights. Clear and convincing
evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and eliminates any serious or substantial
doubt about the correctness of these factual findings. The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not.

Id. (citations and internal quotation marks omitted). This constitutionally mandated
standard of proof is incorporated in a Tennessee statute as well. Tenn. Code Ann. § 36-1-
113(b)(1), (c) (Supp 2017).22 Thus, a party seeking to terminate parental rights in
Tennessee must prove two elements by clear and convincing evidence: (1) that at least
one statutory ground for termination exists, see id. § 36-1-113(g) (listing the grounds for
terminating parental rights); and (2)“[t]hat termination of the parent’s . . . rights is in the
best interests of the child.” Id. § 36-1-113(b)(1), (c).

A trial court adjudicating a petition to terminate parental rights first determines
whether at least one ground for termination has been proven by clear and convincing
evidence. If so, the court next determines whether the proof amounts to clear and
convincing evidence that terminating parental rights is the best interests of the child. In
re Carrington H., 483 S.W.3d at 523 (citing In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn.
2015)). “The best interests analysis is separate from and subsequent to the determination

22
The text of the statute currently in effect is the same as that of the statute in effect of the time
of the proceedings in the trial court, except for minor modifications not relevant to this case. Thus,
quotations and citations in this opinion are to the current statute.
- 21 -
that there is clear and convincing evidence of grounds for termination.” In re Angela E.,
303 S.W.3d at 254.

When conducting the best interests analysis, courts must consider nine statutory
factors listed in Tennessee Code Annotated section 36-1-113(i). These statutory factors
are illustrative, not exclusive, and any party to the termination proceeding is free to offer
proof of any other factor relevant to the best interests analysis. In re Carrington H., 483
S.W.3d at 523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455 S.W.3d at 555
(citing In re Audrey S., 182 S.W.3d at 861). “After making the underlying factual
findings, the trial court should then consider the combined weight of those facts to
determine whether they amount to clear and convincing evidence that termination is in
the child’s best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s, rather than the
parent’s, perspective.” In re Audrey S., 192 S.W.3d at 878. Indeed, “[a] focus on the
perspective of the child is the common theme” evident in all of the statutory factors. Id.
“[W]hen the best interests of the child and those of the adults are in conflict, such conflict
shall always be resolved to favor the rights and the best interests of the child . . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).

Ascertaining a child’s best interests involves more than a “rote examination” of
the statutory factors. In re Audrey S., 182 S.W.3d at 878. And the best interests analysis
consists of more than tallying the number of statutory factors weighing in favor of or
against termination. White v. Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004).
Rather, the facts and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d at
878. Simply put, the best interests analysis is and must remain a factually intensive
undertaking, so as to ensure that every parent receives individualized consideration
before fundamental parental rights are terminated. In re Carrington H., 483 S.W.3d at
523. “[D]epending upon 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 re
Audrey S., 182 S.W.35 at 878 (citing White v. Moody, 171 S.W.3d at 194). But this does
not mean that a court is relieved of the obligation of considering all the factors and all the
proof. Even if the circumstances of a particular case ultimately result in the court
ascribing more weight—even outcome determinative weight—to a particular statutory
factor, the court must consider all of the statutory factors, as well as any other relevant
proof any party offers.

In this case, Mother, DCS, and amicus curiae juvenile court guardian ad litem
argue that, in reversing the trial court, the Court of Appeals relied too heavily on a single
statutory factor, Tennessee Code Annotated section 36-1-113(i)(6), and erroneously
minimized the many other statutory factors and substantial evidence indicating that
- 22 -
termination is not in the children’s best interests. Foster Parents and the circuit court
guardian ad litem contend that the Court of Appeals correctly reversed the trial court and
determined that termination is in the best interests of the children.

Having carefully reviewed the record, we conclude that the Court of Appeals erred
by reversing the trial court’s determination that the combined weight of the facts does not
amount to clear and convincing evidence that termination is in the children’s best
interests. We begin by agreeing with the Court of Appeals that Mother’s parenting skills
were essentially nonexistent in the years before the children were removed from her
custody in March 2012 and, indeed, even afterwards, until Mother separated herself from
Father in July 2012. During this time, Mother’s energies and efforts were focused much
more on abusing drugs and continuing her abusive and toxic relationship with Father than
on parenting her children. The combined weight of the factual evidence very clearly and
convincingly established that Mother’s neglect, exacerbated by drug abuse, resulted in
Chance’s severe abuse.

Nevertheless, the proof offered at trial also establishes that, “[n]ot all parental
misconduct is irredeemable.” In re Audrey S., 182 S.W.3d at 877. Although Mother did
not bear the burden of proof in this termination proceeding, she offered proof touching
upon each of the statutory factors that are to be considered in the best interests analysis.
The record on appeal, evaluated in its entirety, simply does not contain clear and
convincing evidence establishing that termination is in the children’s best interests.
Rather, the combined weight of the factual proof comes much closer to amounting to
clear and convincing evidence of just the opposite conclusion—that termination is not in
the children’s best interests. A detailed and comprehensive recitation of the proof has
already been provided and will not be repeated. However, providing a brief analysis of
the proof as it relates to each of the nine statutory factors is necessary to more clearly
illustrate how the factual proof falls far short of amounting to clear and convincing
evidence that termination of Mother’s parental rights is in the best interests of the
children.

As for the first statutory factor, several witnesses testified that Mother “has made
such an adjustment of circumstance, conduct, or conditions as to make it safe” and in the
children’s best interests to be in her home. Tenn. Code Ann. § 36-1-113(i)(1). Ms. Dyer
explained that Mother has obtained and held a job for more than two years, has obtained
stable and safe housing, has established a strong family support system to assist her and
the children, and has cooperated with DCS and complied with her permanency plan
“three times over.” Mother testified that her life has changed and now revolves around
her children. Ms. Gebelein, the parent educator from Family Menders, described the
parenting skills and topics she and Mother covered for two years and expressed her belief
that Mother has satisfied all the requirements and has no further need of in-home
services. Dr. Greaves viewed Mother as successfully completing all her responsibilities
and being in remission from drug abuse. It is true that Dr. Greaves recommended
- 23 -
monitoring and supervision for two years after the children were back with Mother. But,
by the time of trial, the children had been back with Mother for two years, and DCS had
monitored the family during this time.

Several witnesses also offered testimony bearing on the second factor, which
inquires whether Mother has effected “a lasting adjustment after reasonable efforts by
available social services agencies.” Id. § 36-1-113(i)(2). Again Ms. Dyer described
Mother’s changes as lasting, explaining that Mother’s compliance with all of the DCS
requirements had persisted for almost three years by the time of trial and that Mother had
not wavered despite facing criminal charges, Juvenile Court proceedings, and Foster
Parents’ petition to terminate her parental rights. Mother testified that she had remained
drug free and separated from Father for longer than she ever had previously, had filed for
divorce, and was confident she would maintain the same stable lifestyle in the future.
Ms. Gebelein testified that Mother had effected a lasting change and no longer needed in-
home parental education services. Ms. Benson, Mother’s probation officer, testified that
Mother had completed six months of supervised probation and random drug screens
successfully and had also successfully completed six months of unsupervised probation.
Dr. Greaves testified that Mother had achieved success in the alcohol and drug treatment
process and has the ability to stay away from Father.

As for the third statutory factor—“whether the parent . . . has maintained regular
visitation or other contact” with the children, id. § 36-1-113(i)(3), the proof
unquestionably favored Mother. By the time of trial, the children had lived with Mother
for almost two years without incident. Additionally, Mother had visited the children
regularly before they began residing with her.

As for the fourth factor, substantial proof was offered to establish that Mother and
the children have a “meaningful relationship.” Id. § 36-1-113(i)(4). Ms. Dyer testified
that Mother plays with and cares for the children appropriately and that the children are
very attached to Mother. Dr. Ozbek, who performed the bonding study only six months
before trial, testified that the children are bonded to Mother, that they are a family unit,
and that Gabriella and Jude want to live with Mother. Mother described her own
attachment to the children, explaining that her children are her life. Although Foster
Parents presented evidence suggesting that the children were upset and acted out when
the frequency and duration of their visits with Mother initially increased, these incidents
occurred more than two years before the trial in this matter. And other testimony,
including that of Gabriella’s and Jude’s teachers, indicated that the children have thrived
in Mother’s care and are attached to her.

As for the fifth factor—“[t]he effect a change of caretakers and physical
environment is likely to have on the child[ren]’s emotional, psychological and medical
condition”—the proof indicated that removing the children from Mother would have a
detrimental impact on them. Id. § 36-1-113(i)(5). Dr. Ozbek testified that removing the
- 24 -
children from Mother would be a loss for the children, particularly the two older children.
She opined that terminating Mother’s parental rights was not in the best interests of the
children. Ms. Jaquith, an expert in social work, testified that removing the children from
Mother would be extremely traumatic for the children. Ms. Dyer also testified that the
children are attached to and should remain with Mother.

As for the sixth statutory factor, “[w]hether the parent, or guardian, or other person
residing with the parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult in the family or
household,” id. § 36-1-113(i)(6), the Court of Appeals appropriately considered Mother’s
conduct prior to July 2012. Mother’s conduct had resulted in a Georgia court terminating
her parental rights to her two oldest children in 2007. One of these children had been
born addicted to drugs, and Mother had driven, while intoxicated, with the other child in
the car, and was involved in a car accident that required Mother, Father, and the child to
be transported to a hospital. As the Court of Appeals pointed out, Mother’s poor
parenting and drug abuse continued after Gabriella’s birth and during her pregnancy with
Jude. Jude was born addicted to drugs. Furthermore, Chance was born with drugs in his
system because Mother received methadone to treat her drug addiction. Additionally,
Chance was severely malnourished for six months while Mother was entirely responsible
for his care. The conduct that resulted in Mother losing custody of these children and
having her parental rights terminated to two other children by a Georgia court was,
without question, reprehensible. By the time of this trial, however, more than three years
had passed since Mother engaged in the reprehensible conduct that cost her the custody
of these children. The proof shows that from at least July 2012 until the time of the trial,
Mother had complied fully with the conditions DCS imposed for regaining custody of the
children.

The seventh statutory factor inquires “[w]hether the physical environment of the
parent’s . . . home is healthy and safe, whether there is criminal activity in the home, or
whether there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent . . . consistently unable to care for the child[ren] in a
safe and stable manner.” Id. § 36-1-113(i)(7). Ms. Dyer and Ms. Gebelin had both
visited Mother’s home on numerous occasions, and both testified that her home is healthy
and safe. Neither observed any evidence of drug abuse. No proof was offered of any
criminal activity in Mother’s home. Although Mother failed to disclose her drug abuse
history to medical providers and failed to request a non-narcotic pain medication, the
proof showed that Mother had received only five short-term prescriptions for narcotic
pain medications, had used the drugs as prescribed, and had notified DCS of the
prescriptions. Both Dr. Greaves and Dr. Ozbek stated that using short term pain
medications as prescribed is not a relapse to drug abuse, although both also expressed
concern about Mother’s failure to disclose her history of drug abuse to medical providers
or to request non-narcotic pain medication. No proof was offered to establish that
Mother had relapsed to drug abuse. All the proof indicated that Mother had not failed a
- 25 -
drug screen since June 2012, more than three years prior to the trial, even though she had
been drug tested on many occasions both by Family Menders and by her probation
officer.

The eighth statutory factor inquires “[w]hether the parent’s or guardian’s mental
and/or emotional status would be detrimental to the child[ren] or prevent the parent or
guardian from effectively providing safe and stable care and supervision for the
child[ren].” Id. § 36-1-113(i)(8). Dr. Greaves testified that Mother’s anxiety and
personality disorders and history of drug abuse do not prevent her from parenting the
children. Dr. Greaves recommended that Mother seek counseling rather than psychiatric
treatment to help her cope with anxiety because Dr. Greaves believed psychiatric
treatment might pose a temptation for Mother to seek psychiatric drugs. Dr. Greaves
opined that Mother’s compliance with the permanency plan was commendable and that
Mother was capable of caring for the children and staying away from Father. Gabriella’s
and Jude’s teachers also testified that the children were performing well in Mother’s care,
always appeared clean and well fed, had few absences and ordinarily arrived on time for
school, with Jude having received his ADHD medication before arriving at school.
Gabriella had tested as gifted in first grade, an unusual distinction. Mother, Maternal
Grandmother, and Uncle all had communicated frequently and appropriately with the
teachers and satisfied parenting obligations.

The ninth and final statutory factor inquires “[w]hether the parent . . . has paid
child support consistent with the child support guidelines . . . .” Id. § 36-1-113(i)(9).
Because the children had lived with Mother for nearly two years, little time was devoted
to this statutory factor. Mother testified that she had paid child support. Additionally, the
2012 permanency plan required Mother to pay child support as ordered, and the proof
was undisputed that Mother had fully complied with that plan.

As the foregoing summary illustrates, almost all of the statutory factors, evaluated
in the context of this case, weigh heavily against finding that terminating Mother’s
parental rights is in the best interests of the children. In reversing the trial court and
holding that the proof amounts to clear and convincing evidence that termination is in the
children’s best interests, the Court of Appeals erroneously placed outcome-determinative
weight on statutory factor six, and more specifically, on the proof regarding Mother’s
severe neglect of the children in the past. The Court of Appeals also placed great weight
on Mother’s history of drug abuse, which exacerbated the neglect, and the risk that, after
she regains custody of the children and DCS is no longer involved, Mother will behave as
she has in the past, return to Father, and resume abusing drugs. Foster Parents agree with
the Court of Appeals and argue, as they have throughout these proceedings, that if
Mother’s parental rights are not terminated, she will follow the same pattern she has in
the past after regaining custody of the children and ending DCS involvement and return
to Father and drug abuse.

- 26 -
 To be sure, the risk remains that Mother may abandon her many positive
achievements—all too rare in parental termination proceedings—return to Father, and
resume abusing drugs after DCS is no longer involved. Given the circumstances these
children have already endured and the testimony indicating that they could again suffer
substantial harm should Mother relapse, the Court of Appeals properly considered this
risk when conducting the best interests analysis. Yet, the risk that Mother may relapse is
a possibility only and does not amount to clear and convincing evidence that termination
is in the best interests of these children.

Based on the proof in this record, Mother has achieved a rare accomplishment for
parental termination proceedings. She has separated herself from a person who was long
an abusive and toxic influence in her life. She has cooperated with DCS and completed
all the tasks the permanency plan required of her. She has obtained treatment for a
longstanding drug addiction and has remained drug free, as drug screens have
demonstrated, for years after completing treatment. She has reestablished relationships
with her children and built a strong family support system for herself and the children.
The children have thrived in Mother’s care and wish to remain with Mother. The expert
witnesses and DCS witnesses opined that removing the children from Mother would not
be in their best interests. The Juvenile Court opined that the children should remain with
Mother. Considering the record as a whole, we conclude that the trial court correctly
held that the combined weight of the proof does not amount to clear and convincing
evidence that termination is in the best interests of the children.

By so holding, we do not at all condone or excuse the conduct that resulted in the
removal of these children from Mother’s custody. We also do not endorse every aspect
of DCS’s handling of this case. And we certainly do not minimize the genuine concern
and affection Foster Parents have for these children. Our decision instead results from an
objective and comprehensive review of the record to determine whether the facts
presented satisfy the constitutionally mandated heightened standard of proof. This
heightened standard is designed specifically to reduce the risk of erroneous decisions
depriving parents of their precious and fundamental rights to the care and custody of
children. In this case, this heightened standard of proof was not satisfied. We recognize
that the result in this case is unusual, but this is an unusual case. Too often parents fail to
rehabilitate themselves and make the changes needed to avoid losing their parental rights
forever. The proof in this record establishes that Mother has been able to make the
necessary adjustments. This is precisely how the system is designed to function. Should
Mother revert to the reprehensible conduct that started the process that culminates with
this decision, DCS will have the option of filing a termination petition, as the circuit
court’s finding of severe abuse has not been disturbed on appeal. Tenn. Code Ann. § 36-
1-113(g)(4).

- 27 -
 IV. Conclusion

The judgment of the Court of Appeals terminating Mother’s parental rights is
reversed. The judgment of the trial court dismissing Foster Parents’ petition is reinstated.
Costs of this appeal are taxed to Foster Parents, for which execution may issue if
necessary.

_________________________________
CORNELIA A. CLARK, JUSTICE

- 28 -