                                                                                                     08/23/2019
                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs August 1, 2019

                               IN RE BRIANNA B., ET AL.1

                   Appeal from the Chancery Court for Maury County
                     No. A-041-16       Stella L. Hargrove, Judge
                       ___________________________________

                              No. M2019-00446-COA-R3-PT
                          ___________________________________

This is the second appeal in a case in which the mother of two children appeals the
termination of her parental rights to the children. In the first appeal, this Court vacated
the trial court’s holdings with respect to the grounds for termination and the
determination that termination of the mother’s rights was in the children’s best interest;
we remanded the case for the court to make additional factual findings and conclusions of
law. On remand, the trial court considered the record and its previous order and entered
an order in which it declined to make additional findings, and held “that its ruling is
correct and is more than sufficient to find by clear and convincing evidence, that one or
more statutory grounds for termination exist, and further, that termination is in the best
interest of Lizzie, the remaining minor child.” Upon consideration of the record, we
vacate the order entered following the remand from the prior appeal and remand the case
for entry of an order that makes the factual findings and conclusions of law previously
ordered by this Court.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Brandon E. White, Columbia, Tennessee, for the appellant, Debra H.

L. Samuel Patterson, Columbia, Tennessee, for the appellees, Michael B. and Jacqualin
B.



1
  This Court has a policy of protecting the identity of childre4n by initializing the last names of the
parties.
                                     MEMORANDUM OPINION2

       This case comes before us for the second time; the salient facts were set forth in
the prior opinion:

          The Children at issue, Brianna and Elizabeth, were born of the marriage
          between Debra H. (“Mother”) and Michael B. (“Father”) in January 2001
          and August 2006, respectively. Mother and Father (collectively “the
          Parents”) later divorced, and Father was designated as the primary
          residential parent pursuant to an agreed parenting plan. Pursuant to the
          parenting plan, dated March 22, 2012, Mother was not required to remit
          child support and was awarded co-parenting time every other weekend
          from Thursday through Sunday.

          Father married Jacqualin B. (“Stepmother”) (collectively “the Petitioners”)
          in October 2012, and the Children have resided with them since that time.
          The record reflects that the Parties did not adhere to the parenting plan and
          that Mother exercised co-parenting time on an occasional basis. Neither
          party filed a petition to modify the parenting plan. Instead, Petitioners filed
          a petition to terminate Mother’s parental rights on October 21, 2016, based
          upon the statutory grounds of abandonment for failure to support and to
          visit, wanton disregard for the children’s welfare, and failure to manifest an
          ability and willingness to assume responsibility for the Children.

          Mother objected and moved for visitation with the Children. On June 26,
          2017, the court granted visitation in accordance with the terms provided in
          the existing parenting plan, pending the final hearing on the termination
          petition. Petitioners then filed a motion to end Mother’s visitation on
          August 15, alleging that visitation was not in the best interest of the
          Children. Petitioners claimed that Brianna refused to visit and that Mother
          discussed the facts of the case with Elizabeth, causing the child additional
          stress and anxiety. Following a hearing on August 30, the court suspended
          Mother’s visitation based upon the living conditions at the residence and


2
    Rule 10 of the Rules of the Court of Appeals states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.

                                                       2
       Brianna’s refusal to visit. The court advised Mother to file a renewed
       motion once her living conditions improved.

       The case proceeded to a hearing on the termination petition on October 30,
       2017, and concluded on October 31. …

       Following the hearing, the trial court granted the termination petition,
       sustaining each ground but abandonment based upon wanton disregard and
       finding that termination was in the best interest of the Children. The court
       specifically found that Mother was not a credible witness.

In re Brianna B., No. M2017-02436-COA-R3-PT, 2018 WL 6719851, at *1, *6 (Tenn.
Ct. App. Dec. 19, 2018) (“Brianna I”).

        In the order terminating Mother’s rights which was appealed in Brianna I, the trial
court made the following factual findings relating to the ground of abandonment by
failure to support:

              Upon entry in March of 2012, the Permanent Parenting Plan did not
       require [Mother] to pay child support. [Father] did not pursue court ordered
       support. Without receipts, the Court cannot accept [Mother]’s testimony of
       providing school supplies and clothing for the children as truthful. Also,
       [Mother]’s testimony concerning medical insurance for the children is not
       credible.

       ***

               When Mr. G[.] was in jail or in the penitentiary, [Mother] showed
       some interest in her children. She always had the money to post bail for Mr.
       G[.] and to buy cigarettes; yet, she showed no interest in helping to support
       her children. When Mr. G[.] is not incarcerated, [Mother] is financially
       dependent on him. She maintains she has to care for Edward and Brenda
       full time; however, Mr. G[.] and she are living in a separate mobile home,
       using a baby monitor to monitor their care. [Mother] testified she is now
       willing to get a full-time job and pay child support.

              There is no evidence in this record of [Mother] ever being physically
       unable to work. She testified she did not have surgery for her alleged carpal
       tunnel injuries. She simply chooses not work. [Mother] knows that her
       children are cared for by [Father and Stepmother]. She has never helped
       with their support. This is not a case where a parent turns down support
       from the other parent. [Mother] never offered any support to be turned
       down.
                                             3
      ***

      The Court finds [Mother]’s failure to visit and support her children to be
      willful, in that she was aware of her duty to support and visit with them; she
      had the capacity to do so; she made no attempt to do so, and she has no
      justifiable excuse for not doing so.

The court made these findings as to abandonment by failure to visit:

      [Mother]’s position in regard to initiating phone calls from the children is
      not supported by the record. The Court finds that Brianna’s testimony is
      very accurate in describing her mother’s lack of interest and lack of
      involvement in the children lives: “Drugs, alcohol and bars were more
      important than family; her main focus is her phone — phone time for her
      and we were there — we were company; she’s always depending on some
      man; she’s not really interested in us.”

      ***

             The Court finds this is a classic case of willful abandonment by
      token visitation. . . . This record is devoid of any interference with
      [Mother]’s token attempts to see her children. This ground, alone, is more
      than sufficient to terminate her parental rights.

             The Court finds [Mother]’s failure to visit and support her children
      to be willful, in that she was aware of her duty to support and visit with
      them; she had the capacity to do so; she made no attempt to do so, and she
      has no justifiable excuse for not doing so.

With respect to the ground of failure to manifest the ability and willingness to assume
custody of the children, the court found:

            The record reflects that these children have never been a primary
      focus in [Mother]’s life. She plays the role of mother only when it is
      convenient for her. She gives short notice wanting to see the children, with
      no regard for the children’s school schedules, work schedules or family
      schedules and commitments. The Court finds [Mother] 100% selfishly
      motivated.

              [Mother] is not interested in the children’s schooling, extracurricular
      activities, and Brianna’s job. She asked about sending lunch money for
      Lizzie. Lunches had been provided by the school for two years.
                                              4
               [Mother] has never shown any interest in assuming legal and
       physical custody of these children. Her lifestyle leaves no room for raising
       children. [Mother]’s primary focus is Mr. G[.], the man on whom she is
       totally financially dependent. It is clear to the Court that [Mother] has never
       wanted custody of her children.

       In Brianna I, this Court vacated the holding that Mother abandoned the children
by her failure to visit and remanded for consideration of “Mother’s willfulness in light of
Father’s denial of visitation and the Parties’ course of dealing in scheduling visitation
since the time of the divorce.” Id. at *7. We also vacated the court’s holding that Mother
abandoned the children by her failure to support them and remanded for consideration of
Mother’s willfulness in light of the provision in the parenting plan that excused Mother
from paying support. Id. We also vacated the holding pursuant to Tennessee Code
Annotated section 36-1-113(g)(14) that Mother had failed to manifest an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the children and that placing them in her legal and physical custody would post a risk of
substantial harm to their physical or psychological welfare. We remanded the case for
the court to make additional findings of fact and conclusions of law relative to this
ground because “the court failed to issue any findings of fact or conclusions of law
concerning whether placing the Children in Mother’s care would pose a risk of
substantial harm to their physical or psychological welfare.” Id. at *7.

       With respect to the trial court’s best interest determination, this Court held:

       This case offers a unique situation in light of the agreed upon parenting
       plan and the Children’s ages at the time of the hearing. While Mother’s
       involvement with the Children was sporadic and inconsistent with the terms
       of the parenting plan, Elizabeth evidenced a bond with her mother and a
       desire to maintain that relationship. Brianna understandably did not
       evidence such a bond and indicated her desire to end the relationship.
       However, Brianna will attain the age of majority in January 2019, likely
       before the trial court’s ruling upon remand is even final. Mother has also
       taken steps to improve her life and make room for the Children and
       evidenced her improvement by maintaining regular visitation with
       Elizabeth when permitted by the court. With all of the above considerations
       in mind, we also vacate the court’s best interest finding and remand for
       additional findings of fact and conclusions of law on this issue in light of
       the Children’s respective ages and varying levels of attachment to Mother.

Id. at *9.


                                              5
       On December 20, 2018, the day after our opinion in was issued in Brianna I,
Mother filed a renewed motion for visitation. The trial court held a hearing on January
28 at which Mother and Father testified. It appears that, in the course of the hearing the
court requested that the parties inform the court as to whether they desired to put on
additional proof or wanted the Court to make the additional findings of fact and
conclusions of law based on the existing record. Mother notified the court by letter,
which is included in the Technical Record in this appeal, that she requested that the court
rely on the existing record.

        On February 5, the trial court entered an order denying Mother’s request for
visitation, and on February 13, entered another order that stated in part:

             The Court has reviewed the record and states that there are no
      additional findings of fact or conclusions of law to justify the termination of
      Respondent’s parental rights.

              The Court maintains that its ruling is correct and is more than
      sufficient to find by clear and convincing evidence, that one or more
      statutory grounds for termination exist, and further, that termination is in
      the best interest of Lizzie, the remaining minor child.

After the mandate was issued from this Court, the trial court entered an Amended Order
on March 1, containing the same language immediately quoted above; that order did not
address the motion for visitation.

        Mother appeals, contending that the court erred when it declined to make
additional findings of fact and conclusions of law. Mother urges us to reverse and vacate
the trial court’s order of termination and to remand the case with instructions that it be
assigned to a different trial judge for purposes of determining Mother’s visitation
schedule. For the reasons set forth below, we have determined that the order entered
following the remand does not comply with our instructions in Brianna I and,
accordingly, the judgment must be vacated and the case remanded.

      Our consideration of this appeal is informed by the analysis from Rudd v. Rudd:

             This Court has held that “inferior courts must abide the orders,
      decrees and precedents of higher courts.” Weston v. State, 60 S.W.3d 57, 59
      (Tenn. 2001) (citing State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995);
      Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976)). When a trial court
      receives a case that has been remanded, the trial court must strictly comply
      with the appellate court’s mandate, and typically lacks the power to deviate
      from the terms of the appellate court’s mandate, absent either permission
      from the appellate court or extraordinary circumstances. Silvey v. Silvey,
                                           6
        No. E2003-00586-COA-R3-CV, 2004 WL 508481, at *3; 2004 Tenn. App.
        LEXIS 167, at *8 (Tenn. Ct. App. Mar. 16, 2004).

Rudd v. Rudd, No. W2011-01007-COA-R3-CV, 2011 WL 6777030, at *7 (Tenn. Ct.
App. Dec. 22, 2011).

        For the reasons set forth in Brianna I, we disagree with the trial court’s statement
that its earlier ruling was “more than sufficient.” The court’s failure to comply with this
court’s order precludes our meaningful review of the willfulness of Mother’s actions
relative to the grounds of abandonment by failure to visit and to support.3 We likewise
have no trial court finding to review concerning whether placing Elizabeth in Mother’s
care would pose a risk of substantial harm to her physical or psychological welfare, as
required to sustain the ground for termination found at Tennessee Code Annotated
section 36-1-113(g)(14). The trial court’s post-remand order also fails to address the best


3
  In In re Audrey S., 182 S.W.3d 838, 863-864 (Tenn. Ct. App. 2005), this Court discussed willfulness in
the context of termination cases:

        The concept of “willfulness” is at the core of the statutory definition of abandonment. A
        parent cannot be found to have abandoned a child under Tenn. Code Ann. § 36-1-
        102(1)(A)(i) unless the parent has either “willfully” failed to visit or “willfully” failed to
        support the child for a period of four consecutive months. . . .

        In the statutes governing the termination of parental rights, “willfullness” does not
        require the same standard of culpability as is required by the penal code. Nor does it
        require malevolence or ill will. Willful conduct consists of acts or failures to act that are
        intentional or voluntary rather than accidental or inadvertent. Conduct is “willful” if it is
        the product of free will rather than coercion. Thus, a person acts “willfully” if he or she
        is a free agent, knows what he or she is doing, and intends to do what he or she is doing.

        Failure to visit or support a child is “willful” when a person is aware of his or her duty to
        visit or support, has the capacity to do so, makes no attempt to do so, and has no
        justifiable excuse for not doing so. Failure to visit or to support is not excused by another
        person’s conduct unless the conduct actually prevents the person with the obligation from
        performing his or her duty, . . . or amounts to a significant restraint of or interference with
        the parent’s efforts to support or develop a relationship with the child. The parental duty
        of visitation is separate and distinct from the parental duty of support. Thus, attempts by
        others to frustrate or impede a parent’s visitation do not provide justification for the
        parent’s failure to support the child financially.

        The willfulness of particular conduct depends upon the actor’s intent. Intent is seldom
        capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to
        assess intentions or motivations. Accordingly, triers-of-fact must infer intent from the
        circumstantial evidence, including a person’s actions or conduct.

(Citations and footnotes omitted.)

                                                      7
interest findings “in light of the Children’s respective ages and varying levels of
attachment to Mother.”4

       For the foregoing reasons, we vacate the March 1 Amended Order and remand the
case for entry of an order that complies with the opinion entered in Brianna I, which is
the law of the case. We are mindful of the importance and deference given to the trial
court’s determinations of the facts and the credibility of parties and witnesses, as well as
the priority these cases are given in light of the nature of the rights at issue. In light of
those considerations, we decline to order that the case be reassigned to a different judge
on remand. If the trial court, however, determines that it is unable to comply with this
opinion, the court is instructed to refer the case to the presiding judge of the 22nd Judicial
District for reassignment.




                                                      RICHARD H. DINKINS, JUDGE




4
  While the case was pending on remand, Brianna reached the age of majority; thus, Mother’s parental
rights regarding her are no longer at issue. As contemplated in the remand order in Brianna I, further
consideration of Elizabeth’s best interests is warranted.
                                                  8
