                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                       ASSIGNED ON BRIEFS MARCH 17, 2005

       IN THE MATTER OF B.L.R., D.O.B. 10/14/02, A CHILD UNDER
                    EIGHTEEN YEARS OF AGE

                 Direct Appeal from the Juvenile Court for Weakley County
                         No. C-1422 James H. Bradberry, Judge



                     No. W2004-02636-COA-R3-PT - Filed August 4, 2005


This appeal involves the termination of the parental rights of a biological father to his infant
daughter. The day after the daughter was born, the Department of Children’s Services became
involved with the family and learned that both the mother and father were using methamphetamine.
Shortly after the department became involved in this case, the mother took very little interest in her
infant daughter. The department implemented several permanency plans calling for father to
demonstrate that he remained drug free and was attending counseling to resolve his addiction. When
the father failed to attend counseling on a regular basis and continually tested positive for
methamphetamine, the department filed a petition to terminate his parental rights. Following a
hearing on the petition, the trial court held that the department had proven, by clear and convincing
evidence, all the grounds for termination alleged in the petition. The trial court also held that
terminating father’s parental rights was in the child’s best interest. Father appealed, and we affirm
the trial court’s decision regarding the grounds for termination, however, we vacate the order and
remand this case to the trial court for further action consistent with this opinion.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY , J., joined.

Langdon S. Unger, Jr., Martin, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Kate Eyler, Deputy Attorney General, Nashville,
TN, for Appellee
                                                    OPINION

                                                          I.
                         FACTUAL BACKGROUND AND PROCEDURAL HISTORY


       On October 14, 2002, Brandy Lynn Adams (“Mother”) gave birth to a daughter, B.L.R.
While Mother was not married at the time she gave birth to B.L.R., Larry Gene Roney (“Father” or
“Appellant”) subsequently acknowledged that he is the biological father of B.L.R. Mother and
Father never married.

        On October 15, 2002, the Department of Children’s Services (“DCS”) received a referral,
apparently from hospital staff, concerning B.L.R. Camille Liggons (“Ms. Liggons”), an investigator
with Child Protective Services, was assigned the referral. Ms. Liggons learned that, despite having
a normal delivery, Mother had not engaged in prenatal care, and Mother and Father were using,
manufacturing, and/or selling methamphetamine.1 Thereafter, DCS placed Intensive Family
Preservation into the home on October 21, 2002, to work with Mother. At the time of B.L.R.’s birth,
Mother lived with her mother and father. During Ms. Liggons’ initial interview with Mother, Mother
stated that she and Father were having relationship problems, and she agreed that she would continue
to reside with her parents.2 Shortly after B.L.R. was born, Mother’s parents forced her to leave their
home. Mother then moved in with Father, and DCS paid the rent and some utilities to assist Mother
and Father with setting up a new home. However, Mother and Father were ultimately evicted when
they stopped paying rent. Mother subsequently took B.L.R. and returned to her parents’ home.

        On December 12, 2002, Ms. Liggons attempted to contact Mother and Father to follow up
on their progress, but she could not locate them. On December 18, 2002, Ms. Liggons finally located
Mother and B.L.R. at a house occupied by one of Father’s relatives. Ms. Liggons stated that she
found B.L.R. to be “extremely dirty” and Mother to be “strung out.” DCS apparently administered
a drug screen, and Mother tested positive for methamphetamine use. DCS could not locate Father,
and Ms. Liggons learned that both Mother and Father had outstanding warrants for their arrest. On
December 18, 2002, DCS took B.L.R. into protective custody. On December 20, 2002, DCS filed
a “Petition for Temporary Custody” in the Juvenile Court of Weakley County, Tennessee, claiming
that B.L.R. was a dependent and neglected child. That same day, the juvenile court entered a
“Protective Custody Order” temporarily placing B.L.R. into the custody of DCS.

         After DCS took custody of B.L.R., Mother disappeared and could not be located for some



         1
          In approximately 1998, Mother gave birth to a son who tested positive for methamphetamine at birth. DCS
took custody of the child, and Mother’s parental rights to her son were eventually terminated. Around the year 2000,
a family adopted B.L.R.’s older brother.

         2
          Around the time of B.L.R.’s birth, Father had just been released from jail on bail pending resolution of
charges for domestic violence assault against Mother.

                                                         -2-
time. On January 14, 2003, DCS created a permanency plan with the sole goal of returning B.L.R.
to her parents. Under this plan, Father was responsible for satisfying the following requirements
before he could regain custody of B.L.R.: (1) complete an alcohol and drug assessment, follow
treatment recommendations, and submit to random drug screens; (2) maintain a safe and stable home
for at least four months; (3) complete a mental health evaluation, follow treatment recommendations,
and continue with any counseling until released by the counselor; and (4) resolve all pending legal
issues. Subsequent plans entered on July 213 and September 23, 2003,4 reiterated the above
requirements, but they also required Father to avoid associating with known drug users and/or
dealers, maintain employment, and obtain his driver’s license.5 After creating the initial permanency
plan, DCS referred Father for an alcohol and drug assessment and also made a referral for a mental
health evaluation. DCS subsequently placed Intensive Family Preservation services in the home to
help Father work toward reunification. All of the services required by the permanency plans were
paid for by either DCS or TennCare.

        Father underwent an initial mental health evaluation in January of 2003. DCS apparently
permitted Father, based upon the recommendation of the mental health counselor, to have
unsupervised visitation with B.L.R. for eight hours one day per week. DCS subsequently learned
that Father had allegedly molested a child a number of years prior, therefore, DCS referred Father
for a psychological and psycho-sexual evaluation. DCS also filed a petition in the juvenile court on
June 20, 2003, seeking a no contact order. That same day, the juvenile court entered a “Restraining
Order and No Contact Order” forbidding contact between Father and B.L.R. pending a future
hearing. On July 18, 2003, the trial court entered an order requiring that future visitation between
B.L.R. and Father be supervised. Father never completed a psycho-sexual evaluation.

        On November 3, 2003, DCS filed a petition in the juvenile court seeking to terminate
Father’s parental rights regarding B.L.R.6 The petition alleged that B.L.R. had been in DCS custody
since December 18, 2002. The petition also alleged that Father had been given nine drug screens,
five of which revealed he tested positive for methamphetamine use. DCS also stated that Father had
not complied with the drug and mental health counseling required by the permanency plans.
Accordingly, DCS alleged the following as grounds for terminating Father’s parental rights: (1)


        3
            This permanency plan listed the dual goals of returning B.L.R. to her parents or placement with a relative.

        4
            This permanency plan listed the dual goals of returning B.L.R. to her parents or adoption.

        5
         Father had previously been convicted of driving under the influence, and he was also arrested for driving
on a revoked license during the pendency of the case.

        6
          In its petition, DCS also sought to terminate M other’s parental rights. That same day, the DCS case
manager assigned to the case filed an affidavit with the juvenile court stating that Mother’s whereabouts were
unknown. DCS’s last contact with Mother occurred in August of 2003 when Mother refused a drug screen stating
that she used methamphetamine the prior weekend. The trial court ordered that notice of the petition be published in
a local newspaper for four consecutive weeks. On March 3, 2004, the juvenile court entered an order terminating
Mother’s parental rights to B.L.R. by default. Mother has not filed an appeal in this case, therefore, we are only
concerned with Father’s parental rights to B.L.R. on appeal.

                                                           -3-
abandonment by his willful failure to visit, (2) abandonment by his willful failure to support, (3) the
condition which led to removal, or other conditions, still persist in the home, and (4) substantial
noncompliance with the permanency plans implemented by DCS. On August 19, 2004, the juvenile
court conducted a hearing on DCS’s petition. At trial, DCS presented the testimony of numerous
witnesses and introduced several exhibits to primarily explain Father’s lack of effort toward
satisfying the requirements in the permanency plans between the implementation of the first
permanency plan and the date of trial.

        Terry Winbush (“Mr. Winbush”), a licensed addictions therapist with Pathways Behavioral
Health Services (“Pathways”), testified concerning Father’s level of participation in drug counseling.
He conducted the initial alcohol and drug assessment of Father on February 21, 2003. In conducting
the evaluation, Mr. Winbush found that Father had a “high probability of having a substance
dependence disorder and is in need of care.” Father subsequently entered substance abuse
counseling with Pathways on an outpatient basis on March 27, 2003. On August 21, 2003, Mr.
Winbush created a report explaining that Father had attended three sessions and missed four up to
that date. In this report, Mr. Winbush stated that “[Father’s] progress is mostly superficial and has
a poor prognosis.” He also discussed a letter, dated December 9, 2003, that he and a colleague
drafted at the request of Father’s attorney stating that, as of that date, Father attended eleven and
missed seven of his appointments with the counselors. Mr. Winbush also stated in the letter that
he believed Father to be drug free at that point. Mr. Winbush admitted, however, that, at the time
he drafted the letter, he had never seen the results of any of Father’s drug screens. The last time Mr.
Winbush saw Father was on March 15, 2004, and he had not released Father from counseling at that
point. Mr. Winbush testified that Father simply stopped coming to their sessions. He admitted that
Father called him after he stopped attending the counseling sessions, but he did not have time to
return his calls. Mr. Winbush also expressed his opinion that, if Father were allowed to embark on
a new program of counseling, Father could overcome his addiction.

        Several witnesses called by DCS to testify at the hearing presented testimony and exhibits
demonstrating that Father continued to use methamphetamine both prior to and after DCS filed the
petition to terminate Father’s parental rights to B.L.R. Laura Tony (“Ms. Tony”), an employee of
Pathways, testified that she conducted random drug screens of Father. Ms. Tony stated that, early
on during the process, Father would come to her office and request a drug screen, but she refused
his offers because the test would not be random. She first tested Father on February 12, 2003, and
performed a total of eight drug screens on Father by taking urine samples. Her records indicated that
Father tested positive for methamphetamine on February 12, 2003, February 20, 2003, and March
6, 2003. Father tested negative for methamphetamine on March 26, 2003, October 14, 2003,
December 9, 2003, January 13, 2004, and May 25, 2004. Emily Gatlin (“Ms. Gatlin”), the records
custodian for Rapid Care, a facility which collects and screens different samples to identify drug use,
identified two documents showing the results for two drug screens performed on hair samples
submitted by Father. The first test, performed on July 8, 2003, indicated that Father tested positive
for methamphetamine. The second test, performed on December 9, 2003, indicated that Father
tested positive for methamphetamine and amphetamine.



                                                 -4-
        Dr. James Meeker (“Dr. Meeker”), a licensed toxicologist with West Tennessee Health Care,
testified concerning the various samples used to test for drugs in the human body. Dr. Meeker
reviewed several drug screens performed on Father’s hair, blood, and urine between February of
2003 and March of 2004. He stated that methamphetamine can be detected in blood for up to forty-
eight (48) hours, urine for three to four days, and hair, if taken from the base of the scalp, for up to
ninety (90) days.7 After analyzing the test results of the various samples taken from Father, Dr.
Meeker created a chart encompassing all of the months of 2003. Dr. Meeker used this chart to
explain to the trial court how, using the results from various samples, he charted Father’s drug use
during 2003. Dr. Meeker did admit, however, that his analysis could not identify a particular drug
user’s specific pattern or frequency of use.

        Dr. Meeker evaluated two urine samples submitted by Father which were tested in February
of 2003, both revealing positive results for methamphetamine. With the ability to detect
methamphetamine in urine for three to four days, he surmised that father used methamphetamine in
the month of February 2003. Next, he evaluated a blood sample which was taken from Father and
tested in May of 2003, and it also indicated positive for methamphetamine use. This result from a
blood sample, he opined, would mean that Father used methamphetamine in May of 2003 within
forty-eight (48) hours of that test. He also evaluated the test results from a hair sample taken from
Father in July of 2003 which tested positive for methamphetamine. He testified that this indicated
that Father had used methamphetamine on multiple occasions between April of 2003 and July of
2003. Then, he evaluated a urine sample taken from Father in August of 2003 which tested positive
for methamphetamine, indicating Father used the drug within that month. Finally, Dr. Meeker
evaluated the test results from another hair sample taken from Father in December 2003 which also
tested positive for methamphetamine. This indicated to him that Father had used methamphetamine,
again on multiple occasions, between September 2003 and December 2003.

        DCS also presented testimony related to Father’s mental health. John Burroughs (“Mr.
Burroughs”) and Carolyn Burroughs (“Mrs. Burroughs”) have been B.L.R.’s foster parents since she
came into DCS custody in December 2002. Mrs. Burroughs is also Father’s cousin. Mrs. Burroughs
has interacted with B.L.R. since she was born, and she and Mr. Burroughs expressed their desire to
adopt B.L.R. At trial, Mr. Burroughs testified concerning a previous suicide attempt by Father which
he witnessed. Mr. Burroughs stated that Father had a .22 caliber rifle and asked Mr. Burroughs to
shoot him, but he refused Father’s request. Later that same night, Father, in the presence of Mr.
Burroughs, took the rifle and shot himself in the shoulder. He stated that Father told him “he wanted
to know what it felt like to shoot hisself in case he did commit suicide.” Mrs. Burroughs testified
that Father has a bad temper, but she admitted that she has not been inside Father’s house within the
year prior to the trial.

       On April 4, 2004, Dr. Charles Viar (“Dr. Viar”), a licensed senior psychological examiner
with Pathways, evaluated Father and prepared a report setting forth his findings. During the initial
evaluation, Dr. Viar reported that Father “approached evaluation with anger, sarcasm, made crude


       7
           Dr. Meeker testified that every half-inch of hair typically represents a thirty-day period of detection.

                                                           -5-
attempts throughout the evaluation to manipulate the procedure in his favor and continually blamed
[DCS] for his problems.” He described Father’s disposition during their initial meeting as “quite
hostile.” Dr. Viar recommended that Father undergo individual psychotherapy and drug treatment.
He diagnosed Father as having major depression, amphetamine dependence, alcohol dependency,
and antisocial personality disorder. Dr. Viar recommended that Father initially go through such
therapy over a six month period. Dr. Viar testified that, if Father had not been attending therapy
sessions, he would question returning custody of B.L.R. to Father. He also admitted that, at the time
he made his diagnosis, he only had access to four drug screens conducted on Father, all of which
were positive for methamphetamine use. When asked if knowledge that some of Father’s drug
screens were negative would change his diagnosis, Dr. Viar stated that he would have reached the
same diagnosis, but the chances of Father successfully completing therapy would have improved.
Other than their initial meeting, Dr. Viar had no further contact with Father.

        Kelly Green (“Ms. Green”) served as the case manager for B.L.R.’s case on behalf of DCS.
She testified that Father consistently refused to provide DCS with proof of his income, despite
adding the requirement that he obtain employment to the permanency plan. Ms. Green testified that
Father’s employment has been sporadic, and she would call Father’s employer after he worked at a
particular job for a while only to learn that he had either been fired or quit. Ms. Green stated that
Father has never paid child support for B.L.R., and he is currently in arrears in the amount of
$5,000.00. However, Father was able to pay his fines in the thousands of dollars, and he even paid
between $1,500.00 and $2,000.00 to secure a new driver’s license. Ms. Green stated that, at the time
he obtained his new license, Father did not have a job. Regarding his present home, Ms. Green
admitted that Father keeps it clean and appropriate. She also stated that the psychological evaluation
performed on Father revealed two prior suicide attempts, in addition to the one witnessed by Mr.
Burroughs.

        Ms. Green stated that, in her opinion, Father’s drug use was the biggest obstacle to reuniting
him with B.L.R. She conveyed how Father would become “very aggressive” and curse her when he
was asked to submit to a drug screen. After a hearing in August of 2003, Ms. Green randomly tested
Father and found him to be positive for methamphetamine. They then took Father to a hospital to
submit to a urine test which also indicated Father had used methamphetamine. When she confronted
him with the results, Ms. Green stated that Father became angry and told her that he submitted a six-
year old’s urine at the hospital as his own sample, therefore, the test was wrong. Ms. Green relayed
that, during one of B.L.R.’s supervised visits with Father, he stated that some individuals had come
by his house to buy drugs. He told Ms. Green that he sent them away, however, she became
concerned about how they knew to come to Father to buy drugs. Ms. Green also expressed her
concerns that some of Father’s family members also use illegal drugs. She stated that DCS stopped
giving Father drug screens in 2004 after DCS refused to provide more funding for testing. In March
of 2004, Ms. Green gave Father the last test performed by DCS which came back positive for
methamphetamine use.

      In response to the proof presented by DCS, Father called several of his own witnesses to
demonstrate the improvement he made in his life since DCS filed the petition to terminate his


                                                 -6-
parental rights to B.L.R. Bobby Doyer (“Ms. Doyer”), an employee of Outback Victims Assistance
Program and Father’s neighbor, testified that, at the time of trial, she believed Father was no longer
taking drugs. She stated that Father keeps an “immaculately clean home.” Ms. Doyer stated that
Father came to her for help, but she admitted that she is not a licensed counselor. She also admitted
that she did not keep records of her interactions with Father because their relationship was not
conducted pursuant to her employment. Starla Roney, Father’s sister, reiterated that Father made
improvements in his life in the months before trial, but she stated that, while she had never seen
Father use methamphetamine, she did know that he had tested positive for the drug in the past. Eury
Smith, Father’s pastor, testified that, while he did not know the specifics of Father’s prior drug use,
he believed Father was sincere about reuniting with his daughter.

        Father also testified at trial. When asked about the money he used to pay his fines, he stated
that he paid the fines by doing “side jobs.” He also stated that he could not remember when he last
filed an income tax return. When asked about his drug use, Father admitted that he had previously
engaged in manufacturing methamphetamine about eight years prior. He also stated that he last used
methamphetamine about six months prior to the hearing. When he did use methamphetamine, Father
stated that he would use it approximately once a week. When asked about the present state of his
methamphetamine use, Father testified as follows:

               Q.      Do you feel like you have a methamphetamine problem?
               A.      Yes, I’ve had a problem with it.
               Q.      But you say you don’t have a problem now?
               A.      I’m not going to say that. I mean, its not no — just get over
                       it, overnight thing.

Father also stated that he has family members who have problems with methamphetamine as well.
Father testified that he substituted a six year old child’s urine for his own during one of his drug
screens which produced a positive result.

        Father also testified that, as of the date of the hearing, he had resolved all of his criminal
matters that were previously pending. While he secured a valid license by the time of the hearing,
Father admitted that he drove without a valid license for several months. Father acknowledged his
obligation under the permanency plans to seek counseling, but he stated that he did not attend
because he had to work. He also acknowledged that he is partially to blame for missing his
counseling sessions. Father acknowledged that he has not paid child support, but he has paid his
fines and other bills.

        Father’s position at the hearing was that, in the months leading up to the trial, he has
improved his station in life. According to Father, he has started attending church, and he argues that,
as the most recent drug screens indicate, he remained drug free for several months prior to the
hearing. Father asserted that, if the trial court were to give him six more months to go through
counseling as Dr. Viar suggested, he would change. In fact, Father stated that if he did not remain
drug free for an additional six-month period, he would voluntarily sign over his rights to B.L.R.


                                                 -7-
        At the conclusion of the hearing, the trial court addressed the parties on the record. The
juvenile court, after discussing certain aspects of the proof, determined that DCS proved the grounds
for termination alleged in the petition by clear and convincing evidence and that terminating Father’s
parental rights was in B.L.R.’s best interest. On September 27, 2004, the trial court entered a written
order setting forth its specific factual findings, in relevant part, as follows:

               11.     That the initial permanency plan was entered into with the
                       parents on January 14, 2003 requiring Respondent Larry
                       Roney would complete an alcohol and drug assessment,
                       maintain a stable home, complete a mental health intake, and
                       cooperate and resolve all pending legal matters.
               12.     That services were put into place, including alcohol and drug
                       assessment through Terry Winbush, counseling with
                       Elizabeth Shanklin, a psychological by Dr. Charlie Biar [sic],
                       random drug screens, and therapeutic visitation was set up
                       with Respondent Larry Roney.
               13.     That Respondent Larry Roney has tested positive for
                       methamphetamine on numerous occasions over the past two
                       (2) years; and that he states he has been drug-free for the past
                       five (5) months. On September 2, 2003, Mr. Roney tested
                       positive for methamphetamine, but stated that there was no
                       way he could test positive because he took urine from a six-
                       year old child to the test. This Court additionally found that
                       there were concerns as to sexual abuse of a stepdaughter in
                       June of 2003.
               14.     That the Court finds the witnesses for the Department of
                       Children’s Services are more credible than Mr. Roney.
               15.     That based upon the testimony of the expert witness, James E.
                       Meeker, that Respondent Larry Roney has had a substantial
                       history of methamphetamine usage and that he has been less
                       than forthright about his usage of same.
               ....
               17.     That Elizabeth Shanklin, LCSW testified as an expert
                       witness; that Terry Winbush testified as an expert witness;
                       and that Dr. Charlie Viar testified that Respondent Larry
                       Roney did in fact have a dependence upon methamphetamine;
                       that he would require a long-term period of stability and
                       counseling; and that he had been noncompliant with
                       counseling in the past. Elizabeth Shanklin testified that Mr.




                                                 -8-
                           Roney would have cycles of stability and then instability.8
                           His prognosis was poor.

The juvenile court also made the following conclusions of law in its final order:

                  18.      The child was found to be dependent and neglected by this
                           Court and was placed in the custody of the Department of
                           Children’s Services; the Department made reasonable efforts
                           to prevent removal or the child’s situation prevented
                           reasonable efforts from being made prior to removal; the
                           Department has made reasonable efforts to assist the parent,
                           Larry Roney to establish a suitable home for the child for a
                           period of four (4) months following the removal, but
                           Respondent, Larry Roney, has made no reasonable efforts to
                           find a suitable home and has demonstrated a lack of concern
                           for the child to such a degree that it appears unlikely that he
                           will be able to provide a suitable home for the child at an
                           early date.
                  19.      The child has been removed by order of this Court for a
                           period of six (6) months; the conditions which led to her
                           removal still persist; other conditions persist which in all
                           probability would cause the child to be subjected to further
                           abuse and neglect and which, therefore, prevent the child’s
                           return to the care of the Respondent, Larry Roney; there is
                           little likelihood that these conditions will be remedied at an
                           early date so that this child can be returned to Respondent,
                           Larry Roney, in the near future; and the continuation of the
                           legal parent and child relationship greatly diminishes the
                           child’s chances of early integration into a stable and
                           permanent home.
                  20.      Despite frequent explanations of the Statement of
                           Responsibilities set out in the periodic foster care plans
                           prepared for and signed by Respondent, Larry Roney, has
                           failed to comply in a substantial manner with those reasonable
                           responsibilities related to remedying the conditions that
                           necessitated foster care placement.
                  21.      Awarding legal and physical [sic] of the child to said
                           Respondent would pose a risk of substantial harm to the
                           physical and psychological welfare of the child.


         8
           After reviewing every page of the transcript of the testimony presented to the trial court on August 19,
2004, we find no testimony provided by Elizabeth Shanklin. The only reference to Mr. Shanklin contained in the
record is found in a letter she co-authored along with Mr. W inbush which DCS introduced as an exhibit at trial.

                                                         -9-
               22.     That it is by clear and convincing evidence that it is in the
                       best interest of the child, [B.L.R.], that the parental rights of
                       Respondent Larry Roney to the child be forever terminated
                       and that the complete custody, control, and guardianship of
                       the child be awarded to the State of Tennessee, Department of
                       Children’s Services, with the right to place to [sic] the child
                       for adoption and to consent to such adoption in loco parentis.
               23.     That the Department of Children’s Services has exercised
                       reasonable efforts to prevent removal and reunify the family,
                       including intensive family preservation, payment of rent,
                       counseling, alcohol and drug assessment counseling,
                       psychological evaluation, random drug testing, therapeutic
                       visitation, and case management.

        Father filed an appeal to this Court presenting, as we perceive them, the following issues for
our review:

(1)    Whether DCS established, by clear and convincing evidence, one of the grounds for
       terminating Father’s parental rights; and
(2)    Whether terminating Father’s parental rights is in the best interest of his daughter.

For the reasons set forth more fully herein, we affirm in part, reverse in part, and remand this case
to the trial court for further proceedings.

                                                  II.
                                      STANDARD OF REVIEW

         “A biological parent’s interest in the care, custody, and control of his or her child is among
the oldest of the judicially recognized fundamental liberty interests.” Ray v. Ray, 83 S.W.3d 726,
732 (Tenn. Ct. App. 2001) (citing Troxel v. Granville, 530 U.S. 57, 65 (2000)). Both the United
States and Tennessee Constitutions recognize that parents have a fundamental right to the care,
custody, and control of their children. Santosky v. Kramer, 455 U.S. 745, 754 (1982); Stanley v.
Illinois, 405 U.S. 645, 651 (1972); Keisling v. Keisling, 92 S.W.3d 374, 378 (Tenn. 2002); In re
Swanson, 2 S.W.3d 180, 187 (Tenn. 1999); Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn. 1993); Ray,
83 S.W.3d at 732. However, this is not a right which is entirely immune from state involvement.
In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). A biological parent’s rights regarding the
custody of a minor child will continue so long as the parents have not voluntarily relinquished their
rights, abandoned their rights, or engaged in conduct requiring the limitation or termination of their
rights. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); Stokes v. Arnold, 27 S.W.3d 516, 520
(Tenn. Ct. App. 2000).

        Proceedings in Tennessee to terminate the parental rights of a biological parent are governed
by statute. See Tenn. Code Ann. § 36-1-113 (2003); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.


                                                 -10-
2002); In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at *14 (Tenn.
Ct. App. Mar. 9, 2004); In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 Tenn. App. LEXIS 415,
at *31 (Tenn. Ct. App. June 3, 2003). A party seeking to terminate a biological parent’s parental
rights must prove two things: (1) the existence of one of the statutory grounds justifying termination
by clear and convincing evidence, Tenn. Code Ann. § 36-1-113(c)(1) (2003); In re D.L.B., 118
S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re C.W.W., 37
S.W.3d 467, 475 (Tenn. Ct. App. 2000); and (2) terminating the biological parent’s parental rights
is in the child’s best interest, Tenn. Code Ann. § 36-1-113(c)(2) (2003); In re A.W., 114 S.W.3d 541,
545 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d at 475-76.

        Terminating a biological parent’s parental rights is a harsh result, Tenn. Code Ann. § 36-1-
113(l)(1) (2003), therefore, in order to prevent the unwarranted termination of parental rights, the
legislature requires that a statutory ground for termination be proven by clear and convincing
evidence. Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
This Court has previously described the clear and convincing evidence standard in the following
terms:

               Evidence that satisfies this heightened burden of proof eliminates any
               serious or substantial doubt concerning the correctness of the
               conclusion to be drawn from the evidence, Walton v. Young, 950
               S.W.2d 956, 960 (Tenn. 1997); Hodges v. S.C. Toof & Co., 833
               S.W.2d 896, 901 n.3 (Tenn. 1992); In re C.D.B., 37 S.W.3d 925, 927
               (Tenn. Ct. App. 2000). It should produce in the fact-finder’s mind a
               firm belief or conviction regarding the truth of the allegations sought
               to be established. O'Daniel v. Messier, 905 S.W.2d [182, 188 (Tenn.
               1995)].

Ray, 83 S.W.3d at 733. “In contrast to the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth of the facts asserted is ‘highly probably’ as
opposed to merely ‘more probable’ than not. In re C.W.W., 37 S.W.3d at 474 (citing Lettner v.
Plummer, 559 S. W.2d 785, 787 (Tenn. 1977); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct.
App. 1992); Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn. Ct. App. 1981)).

       Parental termination proceedings, due to their complexity and the gravity of their
consequences, require individualized decision making. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
1999); In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004); In re S.M., 149 S.W.3d 632, 639
(Tenn. Ct. App. 2004). When reviewing a lower court’s decision to terminate a biological parent’s
parental rights, we utilize the following standard of review:

               Because of the heightened burden of proof required by Tenn. Code
               Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s
               customary standard of review for cases of this sort. First, we must
               review the trial court’s specific findings of fact de novo in accordance


                                                -11-
               with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific
               factual findings will be presumed to be correct unless the evidence
               preponderates otherwise. 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.

In re M.J.B., 140 S.W.3d at 654 (citations omitted); see also Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002); Ray, 83 S.W.3d at 733.

       We are also mindful that, in cases of this nature, a significant portion, if not all, of the
evidence is testimonial in nature. Thus, when reviewing a parental termination case on appeal, we
are bound by the following principle of appellate jurisprudence:

               Unlike appellate courts, trial courts are able to observe witnesses as
               they testify and to assess their demeanor, which best situates trial
               judges to evaluate witness credibility. See State v. Pruett, 788
               S.W.2d 559, 561 (Tenn. 1990); Bowman v. Bowman, 836 S.W.2d
               563, 566 (Tenn. Ct. App. 1991). Thus, trial courts are in the most
               favorable position to resolve factual disputes hinging on credibility
               determinations. See Tenn-Tex Properties v. Brownell-Electro, Inc.,
               778 S.W.2d 423, 425-26 (Tenn. 1989); Mitchell v. Archibald, 971
               S.W.2d 25, 29 (Tenn. Ct. App. 1998). Accordingly, appellate courts
               will not re-evaluate a trial judge’s assessment of witness credibility
               absent clear and convincing evidence to the contrary. See Humphrey
               v. David Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987);
               Bingham v. Dyersburg Fabrics. Co., Inc., 567 S.W.2d 169, 170
               (Tenn. 1978).

Wells v. Tenn. Bd. Of Regents, 9 S.W.3d 779, 783 (Tenn. 1999) (emphasis added); see also In re
R.L.H., No. M2002-01179-COA-R3-JV, 2003 Tenn. App. LEXIS 414, at *20 (Tenn. Ct. App. June
3, 2003); Powell v. Powell, 124 S.W.3d 100, 104-05 (Tenn. Ct. App. 2003); In re Petition of
Weatherford, No. W1999-01014-COA-R3-CV, 2000 Tenn. App. LEXIS 837, at *11-12 (Tenn. Ct.
App. Dec. 29, 2000); In re M.C.G., No. 01A01-9809-JV-00461, 1999 Tenn. App. LEXIS 327, at
*21-22 (Tenn. Ct. App. May 26, 1999).




                                               -12-
                                                    III.
                                               DISCUSSION

                                                 A.
                                       Grounds for Termination


       In its petition to terminate Father’s parental rights, DCS alleged the following grounds: (1)
abandonment pursuant to section 36-1-113(g)(1) of the Tennessee Code, (2) substantial
noncompliance with the permanency plans pursuant to section 36-1-113(g)(2) of the Tennessee
Code, and (3) persistent conditions pursuant to section 36-1-113(g)(3) of the Tennessee Code. Clear
and convincing evidence of any one of these grounds is sufficient to support terminating Father’s
parental rights to B.L.R. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

         Turning to the first issue presented for review on appeal, Father makes two arguments. First,
Father asserts that the trial court did not make specific findings of fact regarding each ground alleged
by DCS when issuing its oral order following the hearing. Although he cites to section 36-1-113(k)
of the Tennessee Code in support of this position, Father has misconstrued the statute. Section 36-1-
113(k) provides: “The court shall enter an order which makes specific findings of fact and
conclusions of law within thirty (30) days of the conclusion of the hearing.” Tenn. Code Ann. § 36-
1-113(k) (2003) (emphasis added). It is a well-established principle of law in this state that a court
speaks only through its written judgments, duly entered upon its minutes. Green v. Moore, 101
S.W.3d 415, 420 (Tenn. 2003); Evans v. Perkey, 647 S.W.2d 636, 641 (Tenn. Ct. App. 1982). Thus,
when this Court undertakes a review of a parental termination case, we are concerned with whether
the trial court’s final written order, not its oral statements to the parties, satisfies the statute. See In
re Muir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831, at *8-10 (Tenn. Ct. App.
Nov. 25, 2003). Upon reviewing the trial court’s order, we have determined that it satisfies the
statutory requirement so far as the grounds for termination are concerned.

        Next, Father argues that the evidence presented by DCS at trial does not rise to the level of
clear and convincing evidence. Father devotes the entire argument section of his brief to addressing
section 36-1-113(g)(2) of the Tennessee Code, the substantial noncompliance ground for
termination. Accordingly, we will first examine whether DCS carried its burden at trial of proving,
by clear and convincing evidence, that Father was substantially noncompliant with the permanency
plans implemented by DCS in this case.

        Section 36-1-113(g)(2) provides that a ground for terminating a biological parent’s parental
rights exists when “[t]here has been substantial noncompliance by the parent. . .with the statement
of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37,
chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2) (2003). DCS is required, within thirty (30)
days of a child entering foster care, to prepare a plan setting forth the goals (i.e. return to the parent,
placement with a relative, adoption, or other planned permanent living arrangement) for the child.
Tenn. Code Ann. § 37-2-403(a)(1) (2003). “The permanency plan for any child in foster care shall


                                                   -13-
include a statement of responsibilities between the parents, the agency and the caseworker of such
agency.” Tenn. Code Ann. § 37-2-403(a)(2) (2003). In addressing the substantial noncompliance
ground for termination, our supreme court has stated:

                        Substantial noncompliance is a question of law which we
                review de novo with no presumption of correctness. Substantial
                noncompliance is not defined in the termination statute. The statute
                is clear, however, that noncompliance is not enough to justify
                termination of parental rights; the noncompliance must be substantial.
                Black’s Law Dictionary defines “substantial” as “of real worth and
                importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the
                context of the requirements of a permanency plan, the real worth and
                importance of noncompliance should be measured by both the degree
                of noncompliance and the weight assigned to that requirement. Terms
                which are not reasonable and related are irrelevant, and substantial
                noncompliance with such terms is irrelevant.

In re Valentine, 79 S.W.3d 539, 548-49 (Tenn. 2002) (emphasis added). “Trivial, minor, or
technical deviations from a permanency plan’s requirements will not be deemed to amount to
substantial noncompliance.” In re M.J.B., 140 S.W.3d 643, 657 (Tenn. Ct. App. 2004). In
conjunction with making a determination as to whether there has been substantial noncompliance
with the requirements in a permanency plan, the trial court must also determine that the permanency
plan’s requirements “are reasonable and are related to remedying the conditions which necessitate
foster care placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C) (2003); In re Valentine, 79 S.W.3d
at 547.

         In the instant case, the permanency plans implemented by DCS required Father to do the
following: (1) complete an alcohol and drug assessment, follow treatment recommendations, and
submit to random screens; (2) maintain a safe and stable home for at least four months; (3) complete
a mental health evaluation, follow treatment recommendations, and continue with any counseling
until released by the counselor; (4) resolve all pending legal issues; (5) avoid associating with known
drug users and/or dealers; (6) maintain employment; and (7) obtain a driver’s license. DCS
explained these requirements to Father, and he signed each plan agreeing to comply with the terms.
The trial court found these requirements to be reasonably related to remedying the conditions which
led to B.L.R.’s placement in foster care, and we agree with that assessment.

        The evidence in the record established that Father obtained a valid driver’s license and
established a safe, stable home for at least four months by the time of trial. While Father had
resolved a significant portion of his legal issues by the time of trial, he testified that, at the time of
the hearing, he was out of jail on bond pending resolution of a contempt charge. Regarding Father’s
employment, Ms. Green testified that Father never provided her with proof of his income. Father
did provide her with a letter showing he was working at an automotive garage, and she verified this
to be true. At trial, Father stated that, since the birth of his daughter, he had worked “off and on.”


                                                  -14-
However, Ms. Green stated that Father did not stay employed anywhere continuously, and he
“jumped from job to job.” After Father worked at a particular job for a couple of weeks, Ms. Green
called to verify his employment only to learn that he had either quit or been fired.

        While Father’s steps toward satisfying each of the aforementioned requirements sheds light
on his level of compliance, or lack thereof, with the permanency plans, we must turn our attention
to the most important requirements. See In re Valentine, 79 S.W.3d at 548-49. At trial, Ms. Green
readily admitted that Father’s drug use was the biggest obstacle to reunification with his daughter.
As such, the permanency plans required Father to submit to random drug testing and attend drug and
mental health counseling in an effort to ensure that he remained drug free.

         Between January of 2003, when the first permanency plan was implemented, and November
2003, when DCS filed the petition to terminate Father’s parental rights, Father tested positive for
methamphetamine use five times. Father tested positive twice for methamphetamine use in February
2003, and he tested positive in May, July, and August of 2003. Dr. Meeker testified concerning the
extent of Father’s drug use as gleaned from the various samples taken from Father. Based on the hair
samples which tested positive, Dr. Meeker was able to surmise that Father used methamphetamine
on multiple occasions between April and July 2003, as well as between September and December
2003. After DCS filed the petition in this case, Father continued to test positive for
methamphetamine use in December of 2003 and March of 2004. The March 2004 test was the last
test to show that Father was positive for methamphetamine use. At trial, Father stated that he has
remained drug free since that test was given, and he relies on subsequent tests showing negative
results to support his position. Father, relying on the testimony of Dr. Viar, asserted that, if he is
given another six month period to work on his drug habit, he could remain drug free.

         Despite Father’s assurances, the record indicates that DCS has clearly and convincingly
established that Father has been substantially noncompliant with the permanency plan in this case.
First, the trial court expressly found that Father was not a credible witness, and the court even
discussed Father’s demeanor during the proceedings when addressing the parties at the conclusion
of the hearing. The trial court referred to Father’s “chuckling” and displaying a “cavalier” attitude
during the trial. Furthermore, not only was Father to remain drug free, but the permanency plans also
required that Father attend counseling to address his addiction and mental health issues. Between
January and November of 2003, Father’s attendance at counseling was sporadic. In a report filed
in August of 2003, Mr. Winbush described Father’s progress up to that point as “superficial” and
determined Father had a “poor prognosis.” The record demonstrates that little has changed since that
time. According to Mr. Winbush, Father stopped attending counseling altogether in March 2004
without being released by his counselors. When Father went to see Dr. Viar in April of 2004, Dr.
Viar reported that Father was “quite hostile” and uncooperative. Dr. Viar also testified that, if
Father were not attending his therapy sessions, he would question returning custody of B.L.R. to
Father. At trial, Father freely admitted that he continued to have a problem with his
methamphetamine addiction, however, the record indicates that Father has not returned to therapy




                                                -15-
since March of 2004.9 Finally, Father has not addressed the mental health issues raised by the
counselors during their sessions. The evidence revealed three previous suicide attempts by Father,
and Dr. Viar diagnosed Father as having major depression and antisocial personality disorder. The
record reveals that Father has not made an effort to remedy these concerns either. In fact, Father
acknowledged at trial that he is partially to blame for missing his counseling sessions.

        Father’s assurances at trial that, if he is given six more months to address his drug problem,
he will change are “too little, too late.” Compare In re A.R.G., No. M2004-00894-COA-R3-PT,
2005 Tenn. App. LEXIS 122, at *16 (Tenn. Ct. App. Feb. 25, 2005); State v. B.L.K., No. E2002-
01724-COA-R3-JV, 2003 Tenn. App. LEXIS 360, at *24 (Tenn. Ct. App. May 20, 2003); In re A.W.,
114 S.W.3d 541, 546 (Tenn. Ct. App. 2003); In re C.A.T., No. 01-A-01-9510-JV-00474, 1996 Tenn.
App. LEXIS 291, at *15-16 (Tenn. Ct. App. May 17, 1996), with In re M.J.M., No. M2004-02377-
COA-R3-PT, 2005 Tenn. App. LEXIS 221, at *33-36 (Tenn. Ct. App. Apr. 14, 2005) (noting that
a Mother’s efforts were not “too little, too late” when she demonstrated that, after the petition to
terminate her parental rights was filed, she continued to work diligently toward addressing her
methamphetamine addiction by seeking out counseling on her own.) Since we have determined that
DCS clearly and convincingly proved the ground for termination found in section 36-1-113(g)(2) of
the Tennessee Code, we need not address the remaining grounds for termination. See In re N.P., No.
W2004-00345-COA-R3-PT, 2004 Tenn. App. LEXIS 879, at *13 (Dec. 23, 2004); In re J.S., No.
W2004-00509-COA-R3-PT, 2004 Tenn. App. LEXIS 739, at *16 (Tenn. Ct. App. Nov. 8, 2004),
cert. denied, 2005 Tenn. LEXIS 88 (Tenn. 2005); In re K.M., No. W2003-02156-COA-R3-PT, 2004
Tenn. App. LEXIS 300, at *11 (Tenn. Ct. App. Apr. 30, 2004); State v. Darr, No. 03A01-9706-JV-
00213, 1998 Tenn. App. LEXIS 202, at *9 (Tenn. Ct. App. Mar. 24, 1998); State v. Manier, No.
01A01-9703-JV-00116, 1997 Tenn. App. LEXIS 755, at *18-19 (Tenn. Ct. App. Oct. 31, 1997).

                                                        B.
                                                   Best Interest

        Prior to terminating the parental rights of a parent to a minor child, the trial court must also
find that doing so is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(2) (2003). On
appeal, Father argues that the trial court failed to articulate any specific findings of fact regarding
the best interest analysis required by section 36-1-113(c)(2) of the Tennessee Code. The trial court’s
order provides, in relevant part, as follows:

                  That it is by clear and convincing evidence that it is in the best
                  interest of the child, [B.L.R.], that the parental rights of Respondent
                  Larry Roney to the child be forever terminated and that the complete
                  custody, control, and guardianship of the child be awarded to the


         9
          Father cannot rely on his interactions with Ms. Doyer to prove otherwise. As Ms. Doyer stated at trial, she
did not keep records of her interactions with Father because he did not seek her help in a professional capacity.
According to Ms. Doyer, their relationship was not conducted pursuant to her employment but as friends.
Furthermore, Ms. Doyer admitted that she is not a licensed counselor.

                                                        -16-
               State of Tennessee, Department of Children’s Services, with the right
               to place to [sic] the child for adoption and to consent to such adoption
               in loco parentis.

        In In re Muir, No. M2002-02963-COA-R3-CV, 2003 Tenn. App. LEXIS 831 (Tenn. Ct. App.
Nov. 25, 2003), this Court addressed a trial court’s statutory duty to make specific findings of fact
in parental termination cases, stating:

                       A trial court’s responsibility to make findings of fact and
               conclusions of law in termination cases differs materially from its
               responsibility in other civil cases. Generally, trial courts, sitting
               without juries, are not required to make findings of fact or
               conclusions of law unless requested in accordance with Tenn. R. Civ.
               P. 52.01. Termination cases, however, are another matter. 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. Thus, trial courts must prepare and file written
               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.
                       Tenn. Code Ann. § 36-1-113(k) reflects the Tennessee
               General Assembly’s recognition of the necessity of individualized
               decisions in these cases. In re Swanson, 2 S.W.3d 180, 188 (Tenn.
               1999) (holding that termination cases require “individualized decision
               making”). It also 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. Bruce v. Bruce,
               801 S.W.2d 102, 104 (Tenn. Ct. App. 1990). 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.
                       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 accordance with In re
               D.L.B., 118 S.W.3d at 365, 2003 Tenn. LEXIS 983, 2003 WL
               22383609, at *6, we must remand the case for the preparation of
               appropriate written findings of fact and conclusions of law.

In re Muir, 2003 Tenn. App. LEXIS 831, at *8-10 (emphasis added); see also D.L.B., 118 S.W.3d
360, 367 (Tenn. 2003).




                                                -17-
         In subsequent decisions, this Court, recognizing the mandatory nature of the language found
in section 36-1-113(k) of the Tennessee Code, has firmly established that, when a trial court fails to
perform its statutorily required duty in parental termination cases, this Court must remand the case
to the trial court for the entry of written findings of fact and conclusions of law. See In re M.J.M.,
No. M2004-02377-COA-R3-PT, 2005 Tenn. App. LEXIS 221, at *18-19 (Tenn. Ct. App. Apr. 14,
2005); In re F.R.R., No. M2004-02208-COA-R3-PT, 2005 Tenn. App. LEXIS 130, at *8-9 (Tenn.
Ct. App. Mar. 1, 2005); In re M.O., No. M2004-01602-COA-R3-PT, 2005 Tenn. App. LEXIS 125,
at *14-15 (Tenn. Ct. App. Feb. 25, 2005); State v. C.H.K., 154 S.W.3d 586, 590-91 (Tenn. Ct. App.
2004); In re R.C.P., No. M2003-01143-COA-R3-PT, 2004 Tenn. App. LEXIS 449, at *18-19 (Tenn.
Ct. App. July 13, 2004); In re M.J.B., 140 S.W.3d 643, 653-54 (Tenn. Ct. App. 2004); In re C.M.M.,
No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS 160, at *16-17 (Tenn. Ct. App. Mar. 9,
2004); State v. McBee, No. M2003-01326-COA-R3-PT, 2004 Tenn. App. LEXIS 85, at *14-16
(Tenn. Ct. App. Feb. 9, 2004); In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re CNR,
No. M2003-01301-COA-R3-PT, 2003 Tenn. App. LEXIS 915, at *6-8 (Tenn. Ct. App. Dec. 23,
2003). We have also noted that the statutory requirement to prepare written findings of fact and
conclusions of law applies with equal force to the best interest component of parental termination
cases. See White v. Moody, M2004-01295-COA-R3-PT, 2004 Tenn. App. LEXIS 890, at *8 (Tenn.
Ct. App. Dec. 30, 2004) (noting that, when handling a parental termination case for the third time
on appeal, this Court had previously remanded the case to the trial court due to its failure to enter
written findings of fact and conclusions of law on the best interest factors); In re C.D.B., No.
M2003-00345-COA-R3-JV, 2003 Tenn. App. LEXIS 804, at *12 (Tenn. Ct. App. Nov. 13, 2003)
(“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.”).

        The trial court’s order in this case contains a perfunctory statement that terminating Father’s
parental rights is in B.L.R.’s best interest. The order does not include an analysis of the factors set
forth in section 36-1-113(i) of the Tennessee Code and their applicability to the facts of this case.
In White v. Moody, No. M2004-01295-COA-R3-PT, 2004 Tenn. App. LEXIS 890 (Tenn. Ct. App.
Dec. 30, 2004), cert. denied, 2005 Tenn. LEXIS 265 (Tenn. 2005), this Court had before it a parental
termination case for the third time on appeal. White, 2004 Tenn. App. LEXIS 890, at *1. In the
original appeal, this Court affirmed the trial court’s findings regarding the grounds for termination,
but, regarding the best interest analysis, we stated:

               We noted that the trial court had failed to make a specific finding that
               terminating Mr. Moody's parental rights was in Nicole’s best
               interests. Accordingly, we remanded the case to the trial court with
               directions to conduct a hearing regarding whether terminating Mr.
               Moody's parental rights was in Nicole’s best interests.


Id. at *8 (emphasis added). No only did this Court remand so that the trial court could comply with
the requirements of section 36-1-113(k) of the Tennessee Code, but we directed the trial court to
conduct a new hearing on remand. Id.


                                                 -18-
        Regarding the actions taken by the trial court on remand, this Court stated:
                        The trial court conducted two days of hearings in November
               2001 and March 2002 to determine whether terminating Mr. Moody’s
               parental rights was in Nicole’s best interests. During this hearing, the
               trial court limited its consideration to the original record and declined
               to permit the parties to introduce new evidence regarding events
               occurring after March 2000. Ultimately, in April 2002, the trial court
               entered a second order concluding that terminating Mr. Moody’s
               parental rights was in Nicole’s best interests. Mr. Moody appealed
               again. On July 25, 2003, we again vacated the judgment terminating
               Mr. Moody’s parental rights after concluding that the parties should
               have been permitted to present evidence regarding Nicole’s best
               interest.
Id. at *9 (emphasis added). After the trial court conducted another hearing involving new evidence
and entered its third order, the case came before this Court for the third time on appeal. Id. at *10-
11. After recognizing a trial court’s duty to enter written findings of fact and conclusions of law in
parental termination cases, this court “determined that this case should not be remanded for the entry
of written findings of fact and conclusions of law because of the inordinate delay that has already
occurred in the final disposition of this case.” Id. at *11.


       In addressing the most recent order issued by the trial court in White, this Court noted:
                       In this case, the trial court made oral findings from the bench
              at the conclusion of the February 12, 2004 hearing. However, it did not
              enter a final order until April 7, 2004, and this order contained neither
              findings of fact nor conclusions of law. It simply recites that “it is in
              the best interest and welfare of the minor child for the Respondent’s
              parental rights [to] be terminated and that the step-father be allowed
              to adopt the minor child.” Accordingly, no conclusion can be drawn
              other than the trial court has not complied with Tenn. Code Ann. §
              36-1-113(k).


Id. at *12-13 (emphasis added). However, in choosing not to remand the case once more to the trial
court, we stated:


                      In most circumstances, the appropriate remedy for the trial
              court’s oversight would be to vacate the judgment terminating Mr.
              Moody’s parental rights and granting Mr. White’s adoption petition
              and remand the case to the trial court with directions to file written
              findings of fact and conclusions of law in accordance with Tenn. Code
              Ann. § 36-1-113(k). However, we have already been required to


                                                -19-
                remand this case twice. These remands have delayed the final
                resolution of this case by approximately three years. Incurring further
                delay by remanding this case a third time will not serve the interests
                of any of the persons who have been enmeshed in this litigation for
                seven long years. Accordingly, rather than remanding the case as we
                would customarily do, we will address the substantive merits of the
                trial court’s conclusion that terminating Mr. Moody’s parental rights
                at this time is in Nicole’s best interests using the trial court’s oral
                findings of fact.


Id. at *13-14 (emphasis added).


        Remanding this case to the trial court will not result in the undue delay contemplated by
White. The trial court in this case has failed to comply with the requirements of section 36-1-113(k)
of the Tennessee Code in the first instance. Since the trial court reached a decision on the best
interest component of this parental termination case but failed to enter specific findings of fact when
doing so, we must, in accordance with In re Muir and its progeny, vacate the trial court’s order and
remand this case to the trial court for further proceedings. On remand, the trial court is instructed to
enter a new order setting forth its specific findings of fact as they relate to the statutory best interest
factors. If the trial court is unable to do so based on the present record, the trial court may conduct
a new hearing to entertain evidence on whether termination is in B.L.R.’s best interest.


                                                    IV.
                                              CONCLUSION


        For the foregoing reasons, we affirm the trial court’s finding that one of the grounds for
terminating Father’s parental rights has been established by clear and convincing evidence. However,
we vacate the trial court’s order due to the trial court’s failure to enter the statutorily required findings
of fact and conclusions of law on the issue of whether terminating Father’s parental rights is in
B.L.R.’s best interest. As a result, we must remand this case to the trial court for the entry of findings
of fact and conclusions of law on the best interest prong. Costs of this appeal are taxed to the
Appellant, Larry Roney, for which execution may issue if necessary.




                                                           ___________________________________
                                                           ALAN E. HIGHERS, JUDGE



                                                    -20-
