In Re Braxton M. - Concur in Part/Dissent in Part

It is often said that “hard cases make bad law.” This case is more than hard — it is tragic. In circumstances such as these, which evoke strong emotions, this Court must resist the temptation to bypass the limits of our appellate review and re-try cases and re-evaluate facts to achieve what some deem to be a more just result. Unfortunately, in my view, the majority’s opinion does exactly this – essentially abrogating the role of the trial judge as a factfinder. Specifically, the majority opinion reverses the trial court’s determination that no grounds existed for termination, reverses the trial court’s conclusion that termination of parental rights is not in Braxton’s (“the Child’s”) best interest, reverses factual findings made by the trial court, and even disregards credibility findings made by the trial court. I agree that clear and convincing evidence exists to establish abandonment under Tennessee Code Annotated section 36-1-102(1)(A)(i). The majority and I then choose different paths. Although I would reverse the trial court’s ruling as to abandonment, I would affirm in all other respects. In my view the majority ignores the presumption of correctness in the standard of review and does not give sufficient weight to the trial court’s credibility findings to travel the path they deem just. I do not agree that the evidence preponderates against the trial court’s findings of fact, nor that the aggregation of the individual facts amounts to clear and convincing evidence that termination of Father’s parental rights is in the Child’s best interest.