                                                                                       12/22/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs October 2, 2017

                             IN RE BRIANNA T. ET AL.

                  Appeal from the Juvenile Court for Knox County
                       No. 40100 Timothy E. Irwin, Judge
                     ___________________________________

                           No. E2017-01130-COA-R3-PT
                      ___________________________________


Father appeals from the termination of his parental rights to his four children. Father,
who did not attend the final hearing, stipulated through counsel that a statutory ground
existed for termination of his parental rights and that termination was in the children’s
best interest. The juvenile court terminated Father’s parental rights based on his
stipulation and the proof offered by DCS. Despite the stipulation, we conclude that there
was clear and convincing evidence of a statutory ground for termination but not for the
finding that termination was in the children’s best interest. Thus, we reverse the
termination of Father’s parental rights and remand for entry of a judgment dismissing the
petition.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
                               and Case Remanded

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and ARNOLD B. GOLDIN, JJ., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Ronald T., Sr.

Herbert H. Slatery III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
                                        OPINION

                                             I.

       Ronald T., Sr. (“Father”) and Amy E. (“Mother”) are the parents of Brianna T.,
Summer E., Aaliyah T., and AnnaBella T. The children range in age from three to seven
years old.

                      A. FACTUAL & PROCEDURAL BACKGROUND

       On November 25, 2015, the children’s half-sister was visiting with Father when
she discovered “concerning marks and bruising on Aaliyah’s face” and “extensive
bruising” on the rest of Aaliyah’s body. After receiving a referral alleging physical
abuse, lack of supervision, and medical neglect of the children, the Tennessee
Department of Children’s Services (“DCS”) began an investigation. The investigation
led to the discovery of extensive injuries to Aaliyah and of the parents’ failure to seek
appropriate medical care and to follow recommendations for the other three children.

      On December 3, 2015, DCS petitioned the Juvenile Court for Knox County,
Tennessee, seeking a finding of dependency and neglect as to the children and a severe
abuse finding as to Aaliyah. The court entered a protective custody order on the same
day.

       After an adjudicatory hearing, on October 19, 2016, the juvenile court entered an
order adjudicating all of the children dependent and neglected and finding that Aaliyah
was a severely abused child at the hands of Mother and Father. The court observed that
Aaliyah “was covered from head to toe with bruises, scabs, scratches, and other marks”
and that “[n]early every place on [her] body was injured.” Her medical records recounted
the injuries, including:

      multiple contusions/bruises over her entire body (numerous areas on her
      chest, back, abdomen and extremities; significant area on her chest just
      below the neck; under her tongue; circumferencing [sic] both ankles
      including petechial lesions; bilaterally on buttocks including 6 cm bruise;
      several to right flank; at left upper pubic area including 3 cm bruise; at right
      groin to right lower abdomen with 9 cm bruise; right hip; entire top of right
      foot with scratch in center), an injury to the left side of her tongue, a bite
      mark to her right wrist, elevated liver enzymes, scabs throughout her scalp,
      multiple scratches to her face including a 3 cm scratch with petechiae,
      multiple scratches to bilateral ear lobes and pinna, and diffuse scratches to
      extremities including hands and fingers.

                                             2
        Father attempted to explain away Aaliyah’s injuries, claiming that she was prone
to falls and “easy bruising.” Father also sought to blame Aaliyah’s injuries on her
siblings. But the court flatly rejected both contentions. It found no medical evidence to
support Father’s claims and noted that even Father testified to his belief that someone had
beaten the child. According to the court, the medical records indicated that “the majority
of the injuries were inflicted by non-accidental trauma and not by ‘rough play.’”

       Ultimately, the court found that “[o]ne or the other of these parents caused the
injuries to Aaliyah, and the other knowingly failed to protect the child from those injuries
or further injuries.” The court also found that the parents failed to seek medical care for
the other children and failed to follow recommendations of the children’s pediatrician.

       On December 1, 2016, DCS filed a petition to terminate Father’s parental rights to
the four children.1 The petition alleged three grounds for termination: severe child abuse
against Aaliyah, substantial noncompliance with the permanency plans, and persistence
of conditions. The petition also alleged that termination of Father’s parental rights was in
the best interest of the children.

                                   B. PROOF AT THE HEARING

       On May 9, 2017, the juvenile court held a hearing on the termination petition.
Father did not attend the hearing, but Father’s counsel advised the court that Father
authorized her to stipulate to the finding of severe child abuse, “that the Foster Parents
are appropriate caregivers and that it’s in the best interest of his children to be adopted.”2
In light of this stipulation, counsel for DCS elected not to pursue the grounds of
substantial noncompliance with the permanency plans and persistence of conditions.

      DCS nevertheless offered into evidence the children’s birth certificates, the
December 3 protective custody order, and the October 19 order adjudicating the children
dependent and neglected. DCS also called two witnesses to testify.

        A DCS case manager generally testified about the services the children were
receiving through school and counseling. According to the case manager and foster
mother, the children were doing well and got along with each other. When the girls
initially came into foster care, however, they would “run around, hitting, fighting over


       1
           DCS also filed a petition seeking termination of Mother’s parental rights. Mother’s parental
rights are the subject of a separate appeal. See In re Brianna T., E2017-01132-COA-R3-PT.
       2
           During the case manager’s testimony, Father’s counsel announced that she had received a text
message from Father. According to Father’s counsel, “[Father] is with . . . the mother,” “[t]hey are
stranded six hours away,” and “[t]hey wanted [the court] to know that they planned to be present to
stipulate but that [parents’ counsel] have their permission to stipulate.”
                                                  3
toys, lots of screaming and crying.” Although they still had some behavioral issues, the
children had improved and “listen[ed] very well to the foster parents.”

       As of the date of trial, the children had only lived with the foster family for two
and a half months. And the foster family had yet to decide if they wished to adopt the
children.

                           C. THE JUVENILE COURT’S RULING

        The court ruled from the bench, finding the stipulated ground of severe abuse and
that “it’s in the best interest of these children to stay right where they are.” Because the
children were “in a place where they are loved and in a place that they love,” the court
“s[aw] no reason to run down the list of factors in this case because [Father] at this time
wouldn’t be an option.” The court also found that Father did not have a suitable home
and had not made an adjustment of circumstances. As a result, the court found that
“[t]here’s no reason to move these children.”

       On or about May 25, 2017, the juvenile court entered an order terminating
Father’s parental rights to the children. The court terminated Father’s parental rights on
the ground of severe child abuse and acknowledged DCS’s withdrawal of the two
remaining grounds. The juvenile court also determined that termination of Father’s
parental rights was in the children’s best interest.

                                            II.

        A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d
at 250. Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. See Tenn. Code
Ann. § 36-1-113(g) (2017).

        Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-
113(g). Tenn. Code Ann. § 36-1-113(c)(1). Second, they must prove that terminating
parental rights is in the child’s best interest. Id. § 36-1-113(c)(2).


                                             4
        Because of the constitutional dimension of the rights at stake in a termination
proceeding, the parties seeking to terminate parental rights must prove both the grounds
and the child’s best interest by clear and convincing evidence. In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of
A.M.H., 215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002)). This heightened burden of proof serves “to minimize the possibility of
erroneous decisions that result in an unwarranted termination of or interference with these
rights.” In re Bernard T., 319 S.W.3d at 596. “Clear and convincing evidence” leaves
“no serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). Such
evidence produces a firm belief or conviction in the fact-finder’s mind regarding the truth
of the facts sought to be established. In re Bernard T., 319 S.W.3d at 596.

        On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). Additionally, as this Court has explained, “[w]hen the resolution of an issue in a
case depends upon the truthfulness of witnesses, the trial judge, who has had the
opportunity to observe the witnesses and their manner and demeanor while testifying, is
in a far better position than this Court to decide those issues.” In re Navada N., 498
S.W.3d 579, 591 (Tenn. Ct. App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d
412, 415 (Tenn. 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App.
1997)). Thus, we give great weight to the credibility accorded to a particular witness by
the trial court. Id. (citing Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997)).

       After reviewing the record, we “must then make [our] own determination
regarding whether the facts, either as found by the trial court or as supported by a
preponderance of the evidence, provide clear and convincing evidence that supports all
the elements of the termination claim.” In re Bernard T., 319 S.W.3d at 596-97. We
review the trial court’s conclusions of law de novo with no presumption of correctness.
In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007). We “review the trial court’s
findings as to each ground for termination and as to whether termination is in the child’s
best interests, regardless of whether the parent challenges these findings on appeal.” In
re Carrington H., 483 S.W.3d 507, 525 (Tenn. 2016), cert. denied sub. nom. Vanessa G.
v. Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016).

       As an initial matter, we agree with Father that the trial court may not rely on his
stipulations that a statutory ground exists for termination of his parental rights or that
termination of his parental rights is in the children’s best interest.3 Our supreme court has

        3
           We disagree with Father’s contention that he had to be present in the courtroom for his
stipulation to be effective. In support, he cites Rule 11 of the Rules of Criminal Procedure and Tennessee
Code Annotated § 36-1-111. But Tennessee Rule of Criminal Procedure 11 has no application here
                                                    5
previously held that, in order to terminate a parent’s parental rights, the trial court is
statutorily required to make written findings of fact and conclusions of law supported by
clear and convincing evidence presented at the hearing regardless of whether the parent
consents to or contests the termination. In re Angela E., 303 S.W.3d at 256; see also
C.J.H. v. A.K.G., No. M2001-01234-COA-R3-JV, 2002 WL 1827660, at *8 (Tenn. Ct.
App. Aug. 9, 2002) (“An [unopposed] action to terminate parental rights . . . is subject to
the same statutory requirements as one that is opposed: proof by clear and convincing
evidence that grounds exist and that the child’s best interests are served by the
termination.”). Thus, the party seeking termination of parental rights is not relieved of its
statutory burden of proving by clear and convincing evidence both the ground for
termination and that termination is in the child’s best interest simply because a parent
does not oppose the termination.

        Further, “questions of law are not subject to stipulation by the parties to a lawsuit.”
Mast Advert. & Publ’g, Inc. v. Moyers, 865 S.W.2d 900, 902 (Tenn. 1993). And a “trial
court’s ruling that the evidence sufficiently supports termination of parental rights is a
conclusion of law.” In re Carrington H., 483 S.W.3d at 524. A stipulation that evidence
satisfied a statutory ground for termination or that termination of parental rights was in a
child’s best interest would be a nullity. See Mast Advert. & Publ’g, Inc., 865 S.W.2d at
902 (“[A] stipulation purporting to state a proposition of law is a nullity.”).

       Although the juvenile court accepted Father’s stipulations, it also heard proof
presented by DCS at the termination hearing. So we must determine whether the proof
presented together with any facts to which Father stipulated constituted clear and
convincing evidence of both the ground for termination and that termination was in the
best interest of the children.

                     A. GROUND FOR TERMINATION OF PARENTAL RIGHTS

       The court terminated Father’s parental rights as to all of the children solely on the
ground of severe abuse. As the statute makes clear, the finding of severe abuse can be
based on a prior court order or on evidence of “severe child abuse” submitted to the court
hearing the termination case. A parent’s rights may be terminated if

        [t]he parent or guardian has been found to have committed severe child
        abuse as defined in § 37-1-102, under any prior order of a court or is found

because “[a] termination of parental rights case is a civil, not criminal, proceeding.” In re S.M., Jr., No.
01-A-01-9506-JV-00233, 1996 WL 140410, at *3 (Tenn. Ct. App. Mar. 29, 1996); see Tenn. R. Crim. P.
1(a) (“These rules govern the procedure in all criminal proceedings conducted in all Tennessee courts of
record.”). And the procedural requirements of Tennessee Code Annotated § 36-1-111 apply to voluntary
surrenders of parental rights or parental consent to adoption, not termination of parental rights cases. See
In re Angela E., 303 S.W.3d 240, 247-51 (Tenn. 2010) (distinguishing between a surrender proceeding
and a termination proceeding and their respective procedural requirements).
                                                     6
       by the court hearing the petition to terminate parental rights or the petition
       for adoption to have committed severe child abuse against the child who is
       the subject of the petition or against any sibling or half-sibling of such
       child, or any other child residing temporarily or permanently in the home of
       such parent or guardian[.]

Tenn. Code Ann. § 36-1-113(g)(4) (2017). A finding of severe abuse against one child
can be the basis for terminating parental rights to a sibling, including a half-sibling. See
In re Envy J., No. W2015-01197-COA-R3-PT, 2016 WL 5266668, at *12 (Tenn. Ct.
App. Sept. 22, 2016), perm. app. denied, (Tenn. Dec. 16, 2016).

       Here, the court found severe child abuse based on its prior order adjudicating all of
the children dependent and neglected. The prior order was entered into evidence, so
consideration of Father’s stipulation is unnecessary. Still, Father contends that the proof
presented was insufficient. Father argues that, because there was no specific finding in
the order as to his actual role in the abuse of Aaliyah, the previous finding “should not
[have] be[en] admissible as evidence in [this] subsequent termination” proceeding.
Specifically, Father takes issue with the juvenile court’s alternative finding that “[o]ne or
the other of these parents caused the injuries to Aaliyah, and the other knowingly failed to
protect the child from those injuries or further injuries.”

       We conclude that the prior order contained sufficient findings. “Severe child
abuse” includes “the knowing failure to protect a child from abuse or neglect that is likely
to cause serious bodily injury.” Tenn. Code Ann. § 37-1-102(b)(21)(A)(i) (Supp. 2017).
A finding that one parent inflicted severe abuse on a child may warrant a finding of
severe abuse against the other parent for failing to protect the child from the abuse. In re
Americus C., No. M2014-02493-COA-R3-PT, 2015 WL 5781419, at *5-6 (Tenn. Ct.
App. Sept. 30, 2015). Here, the prior order found that “[o]ne or the other of these parents
caused the injuries to Aaliyah” and that Father either perpetrated the abuse or failed to
protect the child from the abuse.

       More importantly, the prior order also found by clear and convincing evidence that
Aaliyah was the victim of “severe child abuse” as defined by Tennessee Code Annotated
§ 37-1-102 at the hands of both Mother and Father. Father concedes that he did not
appeal this order. As a consequence, the finding of severe child abuse is res judicata. See
In re Heaven L.F., 311 S.W.3d 435, 439-40 (Tenn. Ct. App. 2010) (“[T]he issue of
whether [m]other committed severe child abuse is res judicata and the trial court properly
found by clear and convincing evidence that Mother’s parental rights should be
terminated [on this ground].”). Accordingly, we conclude that clear and convincing
evidence supports the juvenile court’s finding that there was a ground for terminating
Father’s parental rights.


                                             7
                                 B. BEST INTEREST OF THE CHILDREN

       As DCS proved at least one ground for termination of parental rights against
Father, we next consider the issue of whether termination is in the best interest of the
children. Because “[n]ot all parental misconduct is irredeemable, . . . Tennessee’s
termination of parental rights statutes recognize the possibility that terminating an unfit
parent’s parental rights is not always in the child’s best interests.” In re Marr, 194
S.W.3d 490, 498 (Tenn. Ct. App. 2005). Tennessee Code Annotated § 36-1-113(i)4 lists
nine factors that courts may consider in making a best interest analysis. The focus of this
analysis is on what is best for the child, not what is best for the parent. Id. at 499.

       4
           The statutory factors include, but are not limited to, the following:

                           (1) Whether the parent or guardian has made such an adjustment
                  of circumstance, conduct, or conditions as to make it safe and in the
                  child’s best interest to be in the home of the parent or guardian;
                           (2) Whether the parent or guardian has failed to effect a lasting
                  adjustment after reasonable efforts by available social services agencies
                  for such duration of time that lasting adjustment does not reasonably
                  appear possible;
                           (3) Whether the parent or guardian has maintained regular
                  visitation or other contact with the child;
                           (4) Whether a meaningful relationship has otherwise been
                  established between the parent or guardian and the child;
                           (5) The effect a change of caretakers and physical environment is
                  likely to have on the child’s emotional, psychological and medical
                  condition;
                           (6) Whether 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;
                           (7) Whether the physical environment of the parent’s or
                  guardian’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 or guardian
                  consistently unable to care for the child in a safe and stable manner;
                           (8) Whether the parent’s or guardian’s mental and/or emotional
                  status would be detrimental to the child or prevent the parent or guardian
                  from effectively providing safe and stable care and supervision for the
                  child; or
                           (9) Whether the parent or guardian has paid child support
                  consistent with the child support guidelines promulgated by the
                  department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i).

                                                       8
Additionally, the analysis should take into account “the impact on the child of a decision
that has the legal effect of reducing the parent to the role of a complete stranger.” In re
C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June
26, 2006). Although “[f]acts relevant to a child’s best interests need only be established
by a preponderance of the evidence, . . . the combined weight of the proven facts [must]
amount[] to clear and convincing evidence that termination is in the child’s best
interests.” In re Carrington H., 483 S.W.3d at 535.

       The juvenile court first found that Father “ha[d] not made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the children’s best interest
to be in his home despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible.” These
findings appear to be addressed to both the first and second statutory best interest factors.
See Tenn. Code Ann. § 36-1-113(i)(1), (2). But based on our review of the record, no
proof was presented at the hearing to support the findings.

       The court next found that “[a] change in caretakers and physical environment is
likely to have a detrimental effect on the children’s emotional and psychological
condition.” See id. § 36-1-113(i)(5). But again DCS failed to offer any proof to support
such a finding.

       Perhaps in reliance upon Father’s stipulation, at the final hearing, DCS presented
scant proof regarding whether termination would be in the children’s best interest.
Transcribed, the witness testimony was barely fourteen, double-spaced pages. The only
findings supported by the evidence were that Father “ha[d] committed severe abuse
toward one of his daughters,” as shown by the prior order, and that the children “ha[d]
blossomed in their current foster home and [we]re learning to be healthy, caring sisters.”5

       Even taking into consideration Father’s stipulation of fact “that the Foster Parents
[we]re appropriate caregivers,” the evidence presented fell far short of that required.
DCS, as the party seeking to terminate Father’s parental rights, had the burden of proof.
See Tenn. Code Ann. § 36-1-113(c)(1); In re Bernard T., 319 S.W.3d at 596. That
evidentiary burden required DCS to prove that “the combined weight of the proven facts
amounts to clear and convincing evidence that termination is in the child’s best interests.”
In re Carrington H., 483 S.W.3d at 535. DCS simply failed to meet that burden.


        5
           Our supreme court has recently held that “[e]ven 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 re Gabriella D., ___ S.W.3d ___, No. E2016-00139-SC-R11-PT, 2017 WL 4324959, at
*15 (Tenn. Sept. 29, 2017) (emphasis added). Here, the juvenile court did not—and could not have—
considered all of the statutory best interest factors. DCS did not present enough proof for the court to
conduct any meaningful best interest analysis.
                                                      9
                                            III.

       Based on the foregoing, we conclude that the ground of severe abuse was proven
by clear and convincing evidence. But because we conclude that the juvenile court’s best
interest determination was not supported by clear and convincing evidence, we reverse
the termination of Father’s parental rights. This case is remanded to the juvenile court for
entry of a judgment dismissing DCS’s petition.


                                                   _________________________________
                                                   W. NEAL MCBRAYER, JUDGE




                                            10
