In Re: Maria B.S. and Anna J.S. ( 2012 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 23, 2012 Session
IN RE: MARIA B. S. and ANNA J. S.
Direct Appeal from the Circuit Court for Knox County
No. 3-410-10 Wheeler Rosenbalm, Judge
No. E2011-01784-COA-R3-PT-FILED-APRIL 25, 2012
Father appeals from an order terminating his parental rights, claiming that the order failed
to make sufficient findings regarding grounds for termination. We reverse in part, vacate and
remand for the preparation of an order that contains the requisite findings of fact and
conclusions of law.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Reversed in
Part, Vacated in Part, and Remanded
A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which H OLLY M. K IRBY,
J., and J. S TEVEN S TAFFORD, J., joined.
Robin Gunn, Knoxville, Tennessee, for the appellant, Lewis S.
N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Matthew V. and Carlene V.
OPINION
I. F ACTS & P ROCEDURAL H ISTORY
This appeal involves a petition to terminate the parental rights of Lewis S. (“Father”)
that was filed by the foster parents of his twin daughters. The children were born out-of-
wedlock on January 1, 2010, and their mother surrendered her parental rights shortly
thereafter. The petition seeking to terminate Father’s parental rights alleged several statutory
grounds for termination. First, the petition alleged that Father had abandoned the children
pursuant to Tennessee Code Annotated section 36-1-113(g)(1). Specifically, the petition
alleged that Father’s conduct met two alternative definitions of abandonment: Tennessee
Code Annotated section 36-1-102(1)(a)(i), which is willful failure to visit or support during
the four months preceding the filing of the petition; and section 36-1-102(1)(a)(iv), which
applies to incarcerated parents and requires willful failure to visit or support during the four
months preceding incarceration or conduct prior to incarceration that exhibited a wanton
disregard for the welfare of the child. The second ground for termination alleged in the
petition was the one commonly referred to as “persistent conditions,” which is set forth at
Tennessee Code Annotated section 36-1-113(g)(3). Finally, the petition alleged that Father’s
name did not appear on the children’s birth certificates and that he had never been
adjudicated as the legal father of the children. Accordingly, the petition alleged that grounds
for termination existed pursuant to 36-1-113(g)(9), which lists six additional grounds for
terminating the rights of non-legal fathers. After detailing various factual allegations, the
petition further alleged that termination was in the best interest of the children.
At the time of commencement of the proceedings and at the time of trial, Father was
incarcerated. He participated in the trial and testified by telephone over the intercom system.
Several other witnesses testified before the court. Thereafter, the trial court entered a 22-
page order in which it terminated Father’s parental rights on several grounds. Father timely
filed a notice of appeal.
II. I SSUE P RESENTED
The sole issue presented by Father on appeal is whether the trial court’s order
terminating Father’s parental rights is fatally deficient due to a lack of specificity with regard
to which grounds for termination were found to exist. Father did not provide this Court with
a transcript or statement of the evidence from the hearing, and he does not present any
argument regarding the sufficiency of the evidence offered in support of any particular
ground. Indeed, Father argues that it was impossible for him to formulate arguments on
appeal because he could not discern from the trial court’s order which grounds for
termination were found to be applicable. Having reviewed the trial court’s order, we
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likewise find it to be deficient. Therefore, we reverse in part, vacate and remand the case
with directions for the trial court to make the required specific written findings of fact and
conclusions of law regarding grounds for termination.
III. D ISCUSSION
In Tennessee, proceedings to terminate a parent’s parental rights are governed by
statute. “Parties who have standing to seek the termination of a biological parent's parental
rights must prove two things.” In re Audrey S., 182 S.W.3d 838, 860 (Tenn. Ct. App. 2005);
see also In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). First, they must prove
the existence of at least one of the statutory grounds for termination, which are listed in
Tennessee Code Annotated section 36-1-113(g). Id. Several grounds for termination are
listed in subsection (g), but the existence of any one of the grounds enumerated in the statute
will support a decision to terminate parental rights. In re S.R.C., 156 S.W.3d 26, 28 (Tenn.
Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App. 2004). Second, the
petitioner must prove that terminating parental rights is in the child's best interest,
considering, among other things, the factors listed in Tennessee Code Annotated section 36-
1-113(i). In re Audrey S., 182 S.W.3d at 860. Because no civil action carries graver
consequences than a petition to sever family ties forever, both of the elements for termination
must be proven by clear and convincing evidence. Id. at 860–61. In sum, “[t]o terminate
parental rights, a trial court must determine by clear and convincing evidence not only the
existence of at least one of the statutory grounds for termination but also that termination is
in the child's best interest.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006) (citing In
re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002)).
Tennessee Code Annotated section 36-1-113(k) “explicitly requires courts terminating
parental rights to enter an order which makes specific findings of fact and conclusions of law
whether they have been requested to do so or not.” In re Audrey S., 182 S.W.3d at 861.
“The findings of fact and conclusions of law required by Tenn. Code Ann. § 36-1-113(k)
must address the two necessary elements of every termination case.” In re J.D.C., No.
E2007-02371-COA-R3-PT, 2008 WL 1899987, at *8 (Tenn. Ct. App. Apr. 30, 2008). They
must address whether one or more of the statutory grounds for termination have been
established by clear and convincing evidence, and they must address whether terminating
parental rights is in the child’s best interest. Id. “[G]iven the importance of establishing the
permanent placement of a child who is the subject of a termination of parental rights
proceeding, the trial court should include in its final order findings of fact and conclusions
of law with regard to each ground presented.” In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003). “If the trial court addresses each ground that is raised in a termination proceeding,
the child's permanent placement will not be unnecessarily delayed due to a remand for
findings on alternate grounds.” Id. In sum, “trial courts must prepare and file written
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findings of fact and conclusions of law with regard to every disposition of a petition to
terminate parental rights, whether they have been requested or not.”1 In re K.N.R., No.
M2003-01301-COA-R3-PT, 2003 WL 22999427, at *2 (Tenn. Ct. App. Dec. 23, 2003).
“Meticulous compliance with the mandates of Tenn. Code Ann. § 36-1-113(k) [is]
required by appellate courts.” In re MEI, No. E2004-02096-COA-R3-PT, 2005 WL
2346978, at *3 (Tenn. Ct. App. Sept. 26, 2005). “When a trial court has not complied with
Tenn. Code Ann. § 36-1-113(k), we cannot simply review the record de novo and determine
for ourselves where the preponderance of the evidence lies as we would in other civil,
non-jury cases.” In re K.N.R., 2003 WL 22999427, at *3.
A trial court's failure to comply with Tenn. Code Ann. § 36-1-113(k)
affects more than the standard of appellate review. It affects the viability of
the appeal. When a trial court fails to enter an order containing adequate
findings of fact and conclusions of law with regard to all alleged grounds for
termination, the Tennessee Supreme Court has instructed the appellate courts
to remand the case to the trial court for the preparation of appropriate written
findings of fact and conclusions of law. In re D.L.B., [118 S.W.3d at 367].
In re C.R.B., No. M2003-00345-COA-R3-JV, 2003 WL 22680911, at *4 (Tenn. Ct. App.
Nov. 13, 2003) (footnote omitted).
In the case at bar, the trial court’s order discusses at length the unfortunate facts and
circumstances surrounding the birth of these young children. Father has been incarcerated
since before the children were born.2 The court detailed Father’s lengthy criminal history,
his involvement with DCS, and his lack of involvement with the children. However, with
specific regard to grounds for termination, the court’s order is confusing and unclear. The
order states, “Petitioners allege that the following statutory grounds exist to terminate the
parental rights of [Father],” and then the order quotes Tennessee Code Annotated section 36-
1-113(g)(1) regarding abandonment, (g)(2) regarding substantial noncompliance with a
permanency plan, (g)(3) regarding persistent conditions, and (g)(9) regarding grounds
1
Our Supreme Court has similarly instructed the Court of Appeals to review the trial court's findings
of fact and conclusions of law as to each ground for termination, even though the statute only requires the
finding of one ground to justify terminating parental rights, in order to further the policies of permanently
placing children, reaching just and speedy resolutions of cases, and preventing unnecessary remands of cases
heard by the Supreme Court. In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010).
2
The mother was in jail on a prostitution charge when the children were born. She returned to jail
after their birth without naming them, stating that she did not want the children. Both children have
significant health issues.
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applicable to non-legal parents. Immediately thereafter, the trial court’s order states that the
court “finds by clear and convincing evidence that termination of the alleged father’s parental
rights is proven by statutory grounds and that termination . . . is in the best interest of the
child,” but it does not specify at this point which specific “statutory grounds” were actually
proven. At the conclusion of the lengthy order, the trial court states that Father’s rights “are
hereby terminated upon the statutory grounds set forth at Tenn. Code Ann. Sec. 36-1-
113(g)(1), (2) and (3)[.]” The statutory ground listed at (g)(2), regarding substantial
noncompliance with a permanency plan, was not alleged in the termination petition, and the
petitioners concede on appeal that they did not seek termination under (g)(2). They do not
attempt to argue that termination was proper pursuant to (g)(2), but instead suggest that the
trial court’s reference to (g)(2) must have been a typographical error. Because the order
simply states that Father’s rights “are hereby terminated upon the statutory grounds set forth
at Tenn. Code Ann. Sec. 36-1-113(g)(1), (2) and (3),” without elaboration, it is impossible
for us to determine the trial court’s intent. Subsection (g)(2) was mentioned at two separate
locations in the trial court’s order, and some of the trial court’s factual findings appear to
suggest that the trial court was considering whether Father substantially complied with a
permanency plan. Thus, it is not clear to this Court that the reference to (g)(2) was a simple
typographical error.
As for the allegation of abandonment pursuant to subsection (g)(1), the trial court’s
order does quote the definition of “abandonment” listed in Tennessee Code Annotated
section 36-1-102(a)(1)(iv)3 , which applies to incarcerated parents and requires a willful
failure to visit or support during the four months preceding incarceration or conduct prior to
incarceration that exhibited a wanton disregard for the welfare of the child. However, after
quoting this definition, the trial court did not specifically discuss if or how this definition
applies to Father’s conduct. The court never stated that Father abandoned the children, that
he exhibited a wanton disregard for their welfare, or that he willfully failed to visit or support
them during the four months prior to his incarceration. Thus, we find the trial court’s
findings with regard to this ground insufficient.
3
The full text of this definition of abandonment, listed at Tenn. Code Ann. § 36-1-102(a)(1)(iv),
states:
A parent or guardian is incarcerated at the time of the institution of an action or proceeding
to declare a child to be an abandoned child, or the parent or guardian has been incarcerated
during all or part of the four (4) months immediately preceding the institution of such action
or proceeding, and either has willfully failed to visit or has willfully failed to support or has
willfully failed to make reasonable payments toward the support of the child for four (4)
consecutive months immediately preceding such parent's or guardian's incarceration, or the
parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
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The statutory ground listed in (g)(3), persistent conditions, contains the following
elements:
The child has been removed from the home of the parent or guardian by order
of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in all
reasonable probability would cause the child to be subjected to further abuse
or neglect and that, therefore, prevent the child's safe return to the care of the
parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early
date so that the child can be safely returned to the parent(s) or guardian(s) in
the near future; and
(C) The continuation of the parent or guardian and child relationship greatly
diminishes the child's chances of early integration into a safe, stable and
permanent home[.]
Tenn. Code Ann. § 36-1-113(g)(3). However, the trial court did not make any findings
specifically referring to these elements or discussing how they apply to this case. As such,
we must again conclude that the trial court failed to make sufficient findings regarding this
ground for termination.4
Finally, with regard to the six additional grounds that are listed in (g)(9) for non-legal
fathers, the trial court did make some statements in its order that mirror the language found
in the statute.5 For example, the order states at one point that Father “has not manifested an
4
The appellees claim in their brief on appeal that the trial court made various findings that “overlap”
between grounds, such as abandonment and persistent conditions. The appellees basically compile several
of the factual findings made throughout the 22-page order which, in their opinion, would demonstrate
“persistent conditions” or a “wanton disregard” for the children’s welfare. The simple fact is, however, that
the trial court never stated which facts in this case clearly and convincingly establish the elements required
to terminate parental rights. We decline the appellees’ invitation to attempt to match factual findings to the
numerous grounds alleged in this case. “It is the role of the trial court to address, in the first instance,
whether a ground for termination of parental rights is shown by the evidence and to make findings in that
regard.” In re Landon H., No. M2011-00737-COA-R3-PT, 2012 WL 113659, at *7 (Tenn. Ct. App. Jan.
11, 2012).
5
Subsection (g)(9) provides, in relevant part:
(A) The parental rights of any person who, at the time of the filing of a petition to terminate
the parental rights of such person or, if no such petition is filed, at the time of the filing of
a petition to adopt a child, is not the legal parent or guardian of such child or who is
(continued...)
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ability and willingness to assume legal and physical custody of the children,” and it also
states that “placing the twins in this case in the care of [Father] poses a risk of substantial
harm to the physical and psychological welfare of the children.” This language would appear
to suggest that the trial court found at least two of the additional grounds listed in (g)(9) to
be applicable. However, the trial court never stated that it found (g)(9) applicable, and in
fact, it appears to specifically omit (g)(9) as a basis for its decision when it states in
conclusion that Father’s rights “are hereby terminated upon the statutory grounds set forth
at Tenn. Code Ann. Sec. 36-1-113(g)(1), (2) and (3)[.]”
As we have said before, we do not condone unnecessary delays in the final resolution
of proceedings to terminate parental rights. See e.g., In re C.R.B., 2003 WL 22680911, at
*4. “All parties affected by these proceedings have a right to a prompt and just adjudication
of their rights and interests. However, the parties also have a reasonable and legally
enforceable expectation that . . . the courts will comply with the plain statutory requirements
when they undertake to extinguish the relationship between a parent and his or her children.”
Id. Because the order in this case fails to sufficiently identify which grounds for termination
were found to exist, and fails to make sufficient conclusions of law in connection with those
grounds, we are left with no choice but to remand the case with directions to make the
required specific written findings of fact and conclusions of law.
5
(...continued)
described in § 36-1-117(b) or (c) may also be terminated based upon any one (1) or more
of the following additional grounds:
(i) The person has failed, without good cause or excuse, to pay a reasonable share of
prenatal, natal, and postnatal expenses involving the birth of the child in accordance with
the person's financial means promptly upon the person's receipt of notice of the child's
impending birth;
(ii) The person has failed, without good cause or excuse, to make reasonable and consistent
payments for the support of the child in accordance with the child support guidelines
promulgated by the department pursuant to § 36-5-101;
(iii) The person has failed to seek reasonable visitation with the child, and if visitation has
been granted, has failed to visit altogether, or has engaged in only token visitation, as
defined in § 36-1-102(1)(C);
(iv) The person has failed to manifest an ability and willingness to assume legal and physical
custody of the child;
(v) Placing custody of the child in the person's legal and physical custody would pose a risk
of substantial harm to the physical or psychological welfare of the child; or
(vi) The person has failed to file a petition to establish paternity of the child within thirty
(30) days after notice of alleged paternity by the child's mother, or as required in §
36-2-318(j), or after making a claim of paternity pursuant to § 36-1-117(c)(3)[.]
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IV. C ONCLUSION
For the aforementioned reasons, we reverse in part the decision of the circuit court,
to the extent that the court terminated parental rights on the ground not asserted in the
petition, Tennessee Code Annotated section 36-1-113(g)(2), and we vacate the remainder of
the order and remand for further proceedings. Costs of this appeal are taxed equally to the
appellant, Lewis S., and to the appellees, Matthew V. and Carlene V., for which execution
may issue if necessary.
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ALAN E. HIGHERS, P.J., W.S.
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