                                                                                                          08/20/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs August 3, 2020

                                        IN RE NEVAEH B.

                     Appeal from the Juvenile Court for Sevier County
                       No. 19-001163      Jeffrey D. Rader, Judge
                        ___________________________________

                                No. E2020-00315-COA-R3-PT
                           ___________________________________

This is a termination of parental rights case. The trial court found the sole ground raised
by the Department for termination against the child’s father of failure to manifest an ability
and willingness to assume legal and physical custody of the child or assume financial
responsibility pursuant to Tennessee Code Annotated section 36-1-113(g)(14) had been
established. The court further found that the termination of father’s parental rights was in
the child’s best interests. Father filed a timely appeal. On appeal, we vacate the trial court’s
order terminating father’s parental rights due to the court’s failure to consider all required
elements of the statutory ground for termination.

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

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

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Cody W.

Herbert H. Slattery, III, Attorney General and Reporter; Lexie Ward, Assistant Attorney
General, for the appellee, Tennessee Department of Children’s Services.

Robert L. Huddleston, Maryville, Tennessee, Guardian ad Litem.

                                               OPINION

                         I. BACKGROUND AND PROCEDURAL HISTORY

        Nevaeh B.1 (“the Child”) was born to Dianna B. (“the Mother”) and Cody W. (“the

        1
        The Court has a policy of protecting children’s identities in parental termination cases. Therefore,
when appropriate, we will present certain names by their initials.
Father”) in September of 2018. Mother and Father were unmarried. The Department of
Children’s Services (“the Department”) became involved on January 25, 2019 when the
Child was removed from the Mother’s custody due to a protective custody order issued as
a result of the Child’s methamphetamine exposure and a severe burn from a
methamphetamine pipe located on the Child’s abdomen. The Sevier County Juvenile Court
later adjudicated the Child to be dependent and neglected by the Mother. The Father
stipulated to the Child’s dependency and neglect adjudication as he was incarcerated at the
time.2 Thereafter, the Child was placed into the foster care system where she has remained
throughout these proceedings.

       Upon the Child’s removal from the Mother’s custody, the Department created a
permanency plan with the intention of reunification. However, neither the Father nor the
Mother completed the permanency plan. The Department offered the parents two visits
with the Child each month. The Father, however, visited the Child only three times since
her removal from custody despite the opportunity to schedule additional visits.

        Trial as to the termination of the parties’ parental rights was set for February 5,
2020. At the time of trial, both parents were incarcerated at the Sevier County Jail. At the
outset of the proceedings, the Mother surrendered her parental rights to the Child and trial
commenced as to the Father’s rights. Following the conclusion of the termination hearing,
the juvenile court entered a written order terminating the Father’s parental rights on the
sole ground sought against him by the Department codified at Tennessee Code Annotated
section 36-1-113(g)(14), finding that the Father “failed to demonstrate and manifest an
ability to parent the child.” Additionally, the court found that the termination of the
Father’s parental rights was in the Child’s best interests.

                                        II. ISSUES PRESENTED

          The Father appeals the order terminating his parental rights and raises the following
issues:

              1. Whether the trial court erred in finding that the Father failed to manifest an
                 ability and willingness to personally assume legal and physical custody, or
                 financial responsibility of the Child by clear and convincing evidence.
              2. Whether the trial court erred in finding that the termination of the Father’s
                 parental rights was in the best interests of the Child by clear and convincing
                 evidence.




          2
        The Father has been in and out of jail for the duration of Child’s life, including her birth and upon
her removal from Mother’s custody.
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                                III. STANDARD OF REVIEW

        “A biological parent’s right to the care and custody of his or her child is among the
oldest of the judicially recognized liberty interests protected by the due process clauses of
the federal and state constitutions.” In re M.L.P., 228 S.W.3d 139, 142 (Tenn. Ct. App.
2007) (citations omitted). “Although this right is fundamental and superior to claims of
other persons and the government, it is not absolute.” In re J.C.D., 254 S.W.3d 432, 437
(Tenn. Ct. App. 2007) (citation omitted). “It continues without interruption only as long
as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its
limitation or termination.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)
(citations omitted). In Tennessee, “[w]ell-defined circumstances exist under which a
parent’s rights may be terminated.” In re Roger T., No. W2014-02184-COA-R3-PT, 2015
WL 1897696, at *6 (Tenn. Ct. App. Apr. 27, 2015). Pursuant to the Tennessee Code,
parties who have standing to seek the termination of a parent’s parental rights must prove
two things. They must first prove at least one of the statutory grounds for termination. In
re J.C.D., 254 S.W.3d at 438 (citing Tenn. Code Ann. § 36-1-113(c)). Second, parties
must prove that the termination of parental rights is in the child’s best interests. Id. (citing
Tenn. Code Ann. § 36-1-113(c)(2)).

        Because the decision to terminate a parent’s parental rights has “profound
consequences,” trial courts must apply a higher standard of proof in deciding termination
cases. In re M.L.P., 228 S.W.3d at 143. “To terminate parental rights, a court must
determine that clear and convincing evidence proves not only that statutory grounds exist
but also that termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539,
546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). “Clear and convincing evidence
is evidence that eliminates any substantial doubt and that produces in the fact-finder’s mind
a firm conviction as to the truth.” In re M.A.B., No. W2007-00453-COA-R3-PT, 2007 WL
2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007) (citation omitted). This heightened burden
of proof “minimizes the risk of erroneous decisions.” In re M.L.P., 228 S.W.3d at 143
(citations omitted).

       Due to the heightened burden of proof requirement as per the statute, we must adapt
our customary standard of review. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App.
2005). “First, we must review the trial court’s specific findings of fact de novo in
accordance with Tenn. R. App. P. 13(d).” In re M.J.B., 140 S.W.3d at 654. “Second, we
must determine whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent’s parental rights.” Id. (citations omitted).

                                       IV. DISCUSSION

      In order to support the termination of parental rights, only one ground must be
proven, so long as it is done by clear and convincing evidence. In re D.L.B., 118 S.W.3d
                                            -3-
360, 367 (Tenn. 2003). Here, the trial court relied on Tennessee Code Annotated section
36-1-113(g)(14), the sole ground raised by the Department against Father, as the ground
for terminating the Father’s parental rights, which provides as follows:

        A parent or guardian has failed to manifest, by act or omission, an ability and
        willingness to personally assume legal and physical custody or financial
        responsibility of the child, and placing 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[.]

Tenn. Code Ann. § 36-1-113(g)(14). This ground for termination requires the Department
to establish two separate elements by clear and convincing evidence. In re Maya R., No.
E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018)
(citation omitted). First, the Department must prove that the Father “failed to manifest ‘an
ability and willingness to personally assume legal and physical custody or financial
responsibility of the child[ren].’” Id. (quoting Tenn. Code Ann. § 36-1-113(g)(14)).3
Second, the Department must prove that placing the Child in the Father’s legal and physical
custody would “pose a risk of substantial harm to the physical or psychological welfare of
the child.” Id.

        In this case, the trial court’s ultimate findings as to this ground were as follows:
        [A] ground for termination under Tennessee Code Annotated § 36-1-
        113(g)(14) of [Father’s] parental rights to [Child] exists as the Father has
        failed to demonstrate and manifest an ability to parent the child. This is found
        by clear and convincing evidence.

In making its findings, the trial court relied on a record replete with evidence against the
Father, including the Father’s frequent incarceration, lack of housing, transportation, and
employment, failure to undergo a full psychological examination, and the infrequent visits
the Father had with the Child.

        Despite its reliance on the aforementioned evidence, the trial court’s findings are

        3
          This Court is split over the proper interpretation of the first prong of Tennessee Code Annotated
Section 36-1-113(g)(14). See In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL 1943522, at *9-11.
(Tenn. Ct. App. Apr. 23, 2020) (describing the Court’s conflicting views on the first prong of the statute).
The split concerns whether a parent must fail to manifest both an ability and willingness to assume custody
or financial responsibility or whether a parent must fail to manifest either an ability or willingness to assume
custody or financial responsibility. Compare In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018) with In re Amynn K., No. E2017-01866-COA-R3-PT, 2018
WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). Because there was not a ground for termination
properly established, we do not reach this issue here. The Tennessee Supreme Court recently certified two
questions for review on this issue of statutory interpretation of Tennessee Code Annotated section 36-1-
113(g)(14). See In re Neveah M., M2019-00313-SC-R11-PT, Order, filed June 15, 2020.
                                                     -4-
not responsive to each of the statutory elements regarding this ground for termination. As
discussed previously, the applicable statute requires that (1) the Department show the
Father’s failure to manifest an ability and willingness to assume physical or legal custody
of the Child, or assume financial responsibility, and (2) that placing the Child in the
Father’s custody would pose a risk of substantial harm to the Child. See Tenn. Code Ann.
§ 36-1-113(g)(14). (emphasis added). Although the trial court addressed the first element
by finding that the Father’s constant entanglement with the law, as well as his apparent
lack of preparedness or familiarity with the Child negated any ability on his part to assume
legal or physical custody, it made no specific finding as to whether placing the Child in the
Father’s legal or physical custody would pose a risk of substantial harm to the physical or
psychological welfare of the child as required under Tennessee Code Annotated section
36-1-113(g)(14).

        The absence of this specific finding is not without consequence. With respect to
termination cases, the trial court is specifically directed by the statute to “enter an order
that makes specific findings of fact and conclusions of law.” Tenn. Code Ann. § 36-1-
113(k). Furthermore, neither the trial court nor this Court may proceed to termination
absent clear and convincing evidence of each necessary element of a ground for
termination. In re R.L.M., No. E2013-02723-COA-R3-PT, 2015 WL 389635, at *4 (Tenn.
Ct. App. Jan. 29, 2015). Because the trial court did not make specific findings regarding
each of the elements applicable to the failure to manifest ground, we are compelled to
vacate the termination order with respect to this ground for termination as to the Father and
remand for the preparation of appropriate findings of facts and conclusions of law as is
required by the statute. See In re Mickeal Z., No. E2018-01069-COA-R3-PT, 2019 WL
337038, at *14 (Tenn. Ct. App. Jan. 25, 2019) (vacating termination order as to the Father’s
rights because of a failure to make proper findings to each element as required under
Tennessee Code Annotated section 36-1-113(g)(14)); In re Brianna B., No. M2017-
02436-COA-R3-PT, 2018 WL 6719851, at *8 (Tenn. Ct. App. Dec. 19, 2018) (noting that
the trial court failed to issue any specific findings of fact concerning the substantial harm
element of the statute).

                                   V. BEST INTERESTS

        Because we have vacated the sole ground for termination against Father, we do not
address the trial court’s best interests analysis as to the termination of Father’s parental
rights. See Tenn. Code Ann. § 36-1-113(c) (requiring first a finding by the court of a ground
for termination of parental rights and then a determination as to whether the termination is
in the child’s best interests); In re D.L.B., 118 S.W.3d at 368 (refusing to reach the issue
of best interests due to a failure to establish a ground for terminating parental rights).

                                     VI. CONCLUSION

       The judgment of the trial court is vacated, and the case is remanded for further
                                          -5-
proceedings not inconsistent with this Opinion. Concerning the proceedings occurring on
remand, we direct the trial court to promptly address these matters pursuant to Tenn. Code
Ann. § 36-1-124 (providing that contested termination proceedings shall be expedited).




                                                ___________________________
                                                ARNOLD B. GOLDIN, JUDGE




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