                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             Assigned on Briefs October 21, 2015

                                        IN RE K.J.G.

                     Appeal from the Circuit Court for Greene County
                        No. 12A027 Douglas T. Jenkins, Judge1


                   No. E2015-00087-COA-R3-PT – Filed March 28, 2016


This is a termination of parental rights case. The trial court found clear and convincing
evidence of grounds for terminating the parental rights of R.P.G. II, (father) to K.J.G. (the
child). By the same quantum of proof, the court found that termination was in the child‘s
best interest. Father appeals. We hold that the trial court‘s final judgment does not
include or incorporate written findings of fact justifying its decision as required by Tenn.
Code Ann. § 36-1-113(k) (2014). For this reason, we vacate the trial court‘s judgment
and remand for further proceedings consistent with this opinion.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                    Vacated; Case Remanded for Further Proceedings

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J., joined. D. MICHAEL SWINEY, C.J., filed a separate dissenting opinion.

Jennifer A. Luther, Greeneville, Tennessee, for the appellant, R.P.G., II.

Roger Alan Woolsey, Greeneville, Tennessee, for the appellees, M.R.T. and J.N.T.

                                         OPINION

                                             I.

       The child was born on April 28, 2008. Father was listed as a parent on the child‘s
birth certificate. J.N.T. (mother) and father were never married, though they were living
together at the time of the child‘s birth. Mother testified that father moved out of the
home in July 2008, leaving her with the child and the child‘s older sibling. The latter
died in a tractor accident later that year. In May 2012, mother married M.R.T.
(stepfather).

       1
           Sitting by interchange.
        Father admitted at trial that in about 2005 he began using illegal drugs. He
testified that in 2009 he sought treatment for his drug use, but that he had begun using
again by the summer of 2010. According to him, he last used drugs in May 2013. From
April 2, 2012, until July 31, 2012, father was incarcerated for stealing from his father and
grandmother. Mother and stepfather (collectively the petitioners) filed a petition to
terminate father‘s parental rights on August 22, 2012. In the same petition, the stepfather
sought to adopt the child.

       The trial court held a hearing on November 18, 2014. The court found clear and
convincing evidence (1) of grounds to terminate father‘s parental rights and (2) that
termination was in the child‘s best interest. The trial court filed its judgment on January
13, 2015. The judgment referenced an attached transcript of the trial court‘s oral ruling
from the bench and then stated,

              Based on the foregoing:

              IT IS THEREFORE ORDERED, ADJUDGED AND
              DECREED by the Court that that Petitioners by clear and
              convincing evidence have proven that [Father] has willfully
              failed to visit or have any contact (other than token visitation)
              with the minor child . . . for a period of at least four months
              before the filing of the Petition.

              IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED by the Court that [father], by clear and
              convincing evidence has willfully failed to support the minor
              child. . . forat [sic] least the four months preceding the filing
              of the Petition to Adopt.

              IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED by the Court that by clear and convincing
              evidence, [Father] exhibited a willful disregard2 for the
              welfare of the child as demonstrated by his frequent
       2
          The language ―willful disregard‖ does not appear in Tenn. Code Ann. §§ 36-1-
102(1)(A) or -113(g) (2014). In the initial petition to adopt the child and terminate father‘s
parental rights, mother and stepfather stated they would ―show that by clear and convincing
evidence the [father] has willfully abandoned the child pursuant to [Tenn. Code Ann.] § 36-1-
102(1)(A).‖ The phrase ―wanton disregard‖ appears in subsection (iv) of Tenn. Code Ann. § 36-
1-102(1)(A). Additionally, in his oral ruling from the bench, the trial judge referred to this
ground as ―wanton disregard,‖ though the phrase ―willful disregard‖ also was used to describe
this ground at trial. It is clear to us that these references were all intended to reference the
ground of ―wanton disregard.‖
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              incarcerations, in and out of jail. During the subject period of
              time, he had violated probation and admitted to pretty much
              total dependence on drugs, being frequently intoxicated and
              under the influence of drugs.

              IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED by the Court that by the clear and convincing
              evidence presented in Court, it is in the best interest of the
              minor child for the Court to terminate [father‘s] parental
              rights in and with the minor child . . . .

              IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED by the Court that the natural rights of the natural
              father . . . should be and are hereby terminated with and for
              the minor child . . . .

              IT IS FURTHER ORDERED, ADJUDGED AND
              DECREED by the Court that the termination of the parental
              rights of the father . . . shall have the effect of forever
              severing all the rights, responsibilities and obligations of the
              father . . . with and to the minor child . . . who is the subject
              of this judgment and the child of the father and that said
              termination would be in the child‘s best interests.

(Footnote added; capitalization in original.) Father appeals.

                                             II.

       Father raises three issues on appeal, which we repeat verbatim from his brief.

              Whether the Circuit Court erred in finding by clear and
              convincing evidence that [father] had abandoned his daughter
              by willfully failing to visit the four (4) months preceding his
              incarceration.

              Whether the Circuit Court erred by failing to enter Findings
              of Fact and Conclusions of Law within the statutorily
              required 30 day time frame following the termination of
              [father‘s] parental rights.

              Whether the Circuit Court erred in finding by clear and
              convincing evidence that it was in the child‘s best interest for
              [father‘s] rights to be terminated.

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(Paragraph numbering in original omitted.)

        The trial court found three grounds for abandonment under Tenn. Code Ann. § 36-
1-102(1)(A) – willful failure to visit, willful failure to support, and wanton disregard for
the child‘s welfare. Father challenges only one of the three on appeal. Still, ―in an
appeal from an order terminating parental rights the Court of Appeals must 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., — S.W.3d —, —, No. M2014-00453-SC-R11-PT, 2016
WL 819593, at *13 (Tenn. Jan. 29, 2016) (citing In re Angela E., 303 S.W.3d 240, 251
n.14 (Tenn. 2010)).

                                             III.

       ―Both the United States and Tennessee Constitutions protect a parent‘s right to the
custody and upbringing of his or her child.‖ In re Swanson, 2 S.W.3d 180, 187 (Tenn.
1999) (citing Stanley v. Illinois, 405 U.S. 645, 650 (1972); Hawk v. Hawk, 855 S.W.2d
573, 579 (Tenn. 1993)). It is ―among the oldest of the judicially recognized liberty
interests protected by the Due Process Clauses of the federal and state constitutions.‖ In
re S.M., 149 S.W.3d 632, 638 (Tenn. Ct. App. 2004) (citing Troxel v. Granville, 530
U.S. 57, 65 (2000); Hawk, 855 S.W.2d at 578-79; Ray v. Ray, 83 S.W.3d 726, 731
(Tenn. Ct. App. 2001)). ―While this right is fundamental and superior to the claims of
other persons and the government, it is not absolute.‖ In re G.N.S., No. W2006-01437-
COA-R3-PT, 2006 WL 3626322, at *4 (Tenn. Ct. App. W.S., filed Dec. 13, 2006) (citing
In re S.M., 149 S.W.3d at 638).

       Under Tennessee law, the proof in a termination case must show, by clear and
convincing evidence, at least one statutory ground. In re Adoption of T.L.H., No.
M2008-01408-COA-R3-PT, 2009 WL 152475, at *3 (Tenn. Ct. App. M.S., filed Jan. 21,
2009) (citation omitted); Tenn. Code Ann. § 36-1-113(c)(1). A petitioner must also
prove by clear and convincing evidence that termination is in the child‘s best interest. In
re Adoption of T.L.H., 2009 WL 152475, at *3; Tenn. Code Ann. § 36-1-113(c)(2).
―Clear and convincing evidence is evidence in which there is no serious or substantial
doubt about the correctness of the conclusions drawn from the evidence.‖ In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (internal quotation marks and citation
omitted). ―This heightened standard of review prevents unwarranted termination or
interference with a biological parent‘s parental rights.‖ In re Adoption of Muir, No.
M2002-02963-COA-R3-CV, 2003 WL 22794524, at *2 (Tenn. Ct. App. M.S., filed Nov.
25, 2003) (citing In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000)).

       We review the trial court‘s findings of fact de novo with a presumption of
correctness, unless the evidence preponderates otherwise. In re Audrey S., 182 S.W.3d

                                              4
838, 861 (Tenn. Ct. App. 2005); Tenn. R. App. P. 13(d). We review the trial court‘s
conclusions of law de novo, with no presumption of correctness. State Dep’t of
Children’s Servs. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004) (citing
Campbell v. Fla. Steel Corp., 919 S.W.2d 26 (Tenn. 1996)).

                                            IV.

       ―Tenn. Code Ann. § 36-1-113(k) explicitly requires trial courts to ‗enter an order
which makes specific findings of fact and conclusions of law‘ in termination cases.‖ In
re Adoption of Muir, 2003 WL 22794524, at *3. Each ―parental termination order must
set forth the findings of fact that underlie the conclusions of law.‖ In re Adoption of
T.L.H., 2009 WL 152475, at *5 (citing In re K.N.R., No. M2003-01301-COA-R3-PT,
2003 WL 22999427, at *4 (Tenn. Ct. App. M.S., filed Dec. 23, 2003)). ―Because of
Tenn. Code Ann. § 36-1-113(k), trial courts cannot follow the customary practice of
making oral findings from the bench and later adopting them by reference in their final
order.‖ In re Adoption of Muir, 2003 WL 22794524, at *3. Instead, ―trial courts must
prepare and file written findings of fact and conclusions law with regard to every
disposition of a petition to terminate parental rights, whether [such findings] have been
requested or not.‖ Id. This ―applies with equal force to the best interest component.‖ In
re B.L.R., No. W2004-02636-COA-R3-PT, 2005 WL 1842502, at *15 (Tenn. Ct. App.
W.S., filed Aug. 4, 2005) (citing White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
2004)); accord In re Adoption of T.L.H., 2009 WL 152475, at *5.

       A trial court‘s noncompliance with this rule ―fatally undermines the validity of a
termination order.‖ In re S.M., 149 S.W.3d at 639 (citing In re D.L.B., 118 S.W.3d 360,
367-68 (Tenn. 2003); In re Adoption of Muir, 2003 WL 22794524, at *3). Although
enforcement of this rule ―will unfortunately prolong the uncertainty for the child and
parties . . . the termination statute and the constitutional implications require remand.‖ In
re Kadean T., No. M2013-02684-COA-R3-PT, 2014 WL 5511984, at *11 (Tenn. Ct.
App. M.S., filed Oct. 31, 2014) (citing In re Angela E., 303 S.W.3d at 255).

       The importance of this rule is well established. Proceedings to terminate parental
rights require ―individualized decision making‖ due to ―the gravity of their
consequences,‖ In re K.H., No. W2008-01144-COA-R3-PT, 2009 WL 1362314, at *7
(Tenn. Ct. App. W.S., filed May 15, 2009) (citing In re Tiffany B., 228 S.W.3d 148, 156
(Tenn. Ct. App. 2007); In re Swanson, 2 S.W.3d at 188) (internal quotation marks
removed) and the ―importance of establishing the permanent placement of a child who is
the subject of a termination proceeding,‖ In re Adoption of T.L.H., 2009 WL 152475, at
*5. Further,

              the requirement that the trial court make specific findings of
              fact and conclusions of law is not a mere technicality; rather,
              compliance with Section 36-1-113(k) serves an important

                                             5
             purpose. See White v. Moody, 171 S.W.3d 187, 191 (Tenn.
             Ct. App. 2004). ―Without such findings and conclusions, this
             court is left to wonder on what basis the court reached its
             ultimate decision.‖ In re M.E.W., No. M2003-01739-COA-
             R3-PT, 2004 WL 865840, at *19 (Tenn. Ct. App. M.S., filed
             April 21, 2004).

In re K.H., 2009 WL 1362314, at *8. ―Tenn. Code Ann. § 36-1-113(k) . . . reflects the
General Assembly‘s understanding that findings of fact and conclusions of law facilitate
appellate review and promote the just and speedy resolution of appeals.‖ In re Adoption
of Muir, 2003 WL 22794524, at *3 (citing Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn.
Ct. App. 1990)).

       In this case, the trial court made no written findings of fact in its final order.
Instead, the final order attached a transcript of the court‘s oral findings given from the
bench at the close of the trial. The written order then listed the court‘s conclusions of
law. As explained by the cases above, this is insufficient under Tenn. Code Ann. § 36-1-
113(k). When such findings of fact are not made, ―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 . . . . [W]e must remand the case for the preparation
of appropriate written findings of fact and conclusions of law.‖ In re Adoption of Muir,
2003 WL 22794524, at *3 (internal citation omitted); see also In re G.N.S., 2006 WL
3626322, at *7 (citing In re M.J.B. & M.W.S., Jr., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004)). For the reasons stated above, we vacate the trial court‘s final order and remand
the case with directions to prepare the written findings of fact and conclusions of law as
required by Tenn. Code Ann. § 36-1-113(k).

                                            V.

       Based upon the undisputed facts in the case, we note that the trial court‘s final
judgment applied an incorrect time period in finding that father abandoned the child by
willful failure to visit and willful failure to support.

      Tenn. Code Ann. § 36-1-113(g) relies on the definition of abandonment provided
in Tenn. Code Ann. § 36-1-102(1)(A) (2014), which states that abandonment occurs if:

             (i) For a period of four (4) consecutive months immediately
             preceding the filing of a proceeding or pleading to terminate
             the parental rights of the parent . . . of the child who is the
             subject of the petition for termination of parental rights or
             adoption, that the parent . . . either have willfully failed to
             visit or have willfully failed to support or have willfully failed


                                             6
               to make reasonable payments toward the support of the child;
               [or]
                                     *     *     *
               (iv) A parent . . . 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 . . . 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 . . .
               incarceration, or the parent . . . has engaged in conduct prior
               to incarceration that exhibits a wanton disregard for the
               welfare of the child[.]

(Emphasis added.) Subsection (iv) ―tracks the language of the first statutory definition of
abandonment but shifts the focus from the four-month period immediately preceding the
filing of the termination petition to the four-month period immediately preceding the
parent‘s incarceration.‖ In re Audrey S., 182 S.W.3d at 865. Since the start date of
father‘s incarceration was April 2, 2012, the applicable four month period in this case is
December 2, 2011, to April 1, 2012.3 This is the four-month period that the trial court
should focus on following remand.

                                               VI.

       As father correctly points out, the trial court erred when it failed to enter the
findings of fact and conclusions of law within the statutorily required thirty-day
timeframe following the conclusion of father‘s termination of parental rights hearing.
Tenn. Code Ann. § 36-1-113(k) states that ―. . . [t]he court shall enter an order that makes
specific findings of fact and conclusions of law within thirty (30) days of the conclusion
of the hearing[.]‖ In the case now before us, the trial court is directed to file the required
written findings of fact and conclusions of law within thirty days of the filing of this
opinion or, if a further hearing is held following remand, within thirty days of that
hearing.


       3
          See, e.g., In re Jacob C. H., No. E2013-00587-COA-R3-PT, 2014 WL 689085, at *6
(Tenn. Ct. App. E.S., filed Feb. 20, 2014) (―In our view, a more reasonable construction is that
the applicable four month window for determining whether child support has been paid in the
context of the ground of willful failure to support includes the four months preceding the day the
petition to terminate parental rights is filed but excludes the day the petition is filed. In other
words, the last day of the four month period is the day before the petition is filed.‖)
                                                7
                                         VII.

       The judgment of the trial court is vacated and the case is remanded for further
proceedings consistent with this opinion. The costs on appeal are taxed equally between
the appellees, J.T. and M.T., and the appellant, R.P.G., II.



                                                 _______________________________
                                                 CHARLES D. SUSANO, JR., JUDGE




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