                                                                                                        06/14/2018
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs March 1, 2018

                                            IN RE K.O. ET AL.

                       Appeal from the Juvenile Court for Smith County
                          No. 2017JV46       Michael Collins, Judge
                                 ___________________________________

                                   No. M2017-01736-COA-R3-PT
                                 ___________________________________

The trial court terminated the parental rights of A.D.G.1 to her children, K.O. and K.G.
Because the court did not “make[] specific findings of fact and conclusions of law,”
Tenn. Code Ann. § 36-1-113(k) (2017), we remand the case to the trial court for the entry
of an appropriate order.

      Tenn. R. App. P. 3 Appeal as of Right; Case Remanded with Instructions

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and KENNY W. ARMSTRONG, JJ., joined.

Jacquelyn M. Scott, Carthage, Tennessee, for the appellant, A.D.G.

Herbert H. Slatery III, Attorney General and Reporter, and Alexander S. Rieger,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.

                                                 OPINION

                                                      I.

        On appeal, mother raises four issues. We reach only her first issue. The resolution
of that issue is dispositive of the other issues. Mother’s first issue is as follows:




       1
           The court also terminated the parental rights of the children’s father. He did not appeal.

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             Did the trial court err in failing to make specific findings of
             fact to support its ruling that the [Department of Children’s
             Services] had proven the grounds for termination by clear and
             convincing evidence?

We agree with mother that the trial court erred in failing to perform its statutory duty
under Tenn. Code Ann. § 36-1-113(k). To its credit, the Department of Children’s
Services (DCS) acknowledges the trial court’s error.

       At the conclusion of the trial, the court made the following statements as taken
verbatim from the trial transcript:

             [The trial court]: All right. I’ll find by clear and convincing
             evidence abandonment by failure to support with the ability to
             do so against the father. I find by clear and convincing
             evidence abandonment, failure to establish a home, a suitable
             home, by, for both parents.

             I find by clear and convincing evidence substantial
             noncompliance with the plan against both parents. I find by
             clear and convincing evidence persistence of the conditions
             evidenced by the proof today. I find by clear and convincing
             evidence severe abuse finding against both parents in the
             prior dependent and neglect case. And further, I find by clear
             and convincing evidence failure to manifest willingness or an
             ability to assume custody against both parents.

             I also find by clear and convincing evidence that it is in the
             best interest of the children to remain where they’re at, for the
             termination to take place, for the children to remain where
             they’re at.

             The children are currently with the father’s family. The
             father’s family has shown a willingness to assume the care
             and control of the children, and treat them as their own, and
             all the while include the parents as much as they’re willing or
             able to do so. There’s an ongoing willingness, or testimony of

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              an ongoing willingness, to allow Mother and Father to be part
              of these children’s lives once they, they deal with their issues
              and in protection of the children.

              So, with all that being said, I, I’ve listed the grounds, I’ve
              listed my findings, I do find it’s in the best interest. Is there
              any, anything else I need to add --

              [Attorney for DCS]: No.

This language was not incorporated by reference into the trial court’s final judgment
terminating mother’s parental rights. However, as will be shown later in this opinion,
there is a more serious error in this case.

                                              II.

        Under Tenn. Code Ann. § 36-1-113(c), “[t]ermination of parental or guardianship
rights must be based upon: (1) [a] finding by the court by clear and convincing evidence
that the grounds for termination of parental or guardianship rights have been established;
and (2) [t]hat termination of the parent’s or guardian’s rights is in the best interests of the
child.” Further, Tenn. Code Ann. § 36-1-113(k) states “[t]he court shall enter an order
that makes specific findings of fact and conclusions of law within thirty (30) days of the
conclusion of the hearing.” This portion of that statute outlines the requirement of the
trial court to “make ‘findings of fact and conclusions of law as to whether clear and
convincing evidence establishes the existence of each of the grounds asserted for
terminating [parental] rights.’” In re Carrington H. et al, 483 S.W.3d 507, 523 (Tenn.
2016) (citing In re Angela E., 303 S.W.3d 240, 255 (Tenn. 2010).

       Should the trial court fail to enter an order that makes specific findings of fact
and/or conclusions of law, “the Tennessee Supreme Court has instructed the appellate
courts to remand the case to the trial court for the preparation of appropriate written
findings of fact and conclusions of law.” In re C.R.B., 2003 WL 22680911, *4 (Tenn. Ct.
App. 2003). (citing In the Matter of D.L.B., a Minor, 118 S.W.3d 360, 367 (Tenn.
2003). See also In re Angela E., 303 S.W.3d 240, 251 (Tenn. 2010), (“The Court of
Appeals, therefore, has routinely remanded contested termination cases to the trial court
for failure to make findings of fact and/or conclusions of law, whether related to the
grounds for termination or the child's best interests.); The Adoption Place, Inc. v. John

                                              -3-
Doe, 273 S.W.3d 142, 151 (Tenn. Ct. App. 2007) (citing In re Adoption of Muir, 2003
WL 22794524 *3 (Tenn. Ct. App. Nov. 25, 2003), (“When a trial court has not complied
with this statute, this Court cannot review the record de novo. [] It must vacate and
remand for the preparation of written findings of fact and conclusions of law.”); State
Dept. of Children’s Services v. A.M.H., 198 S.W.3d 757, 762 (Tenn. Ct. App. 2006)
(citing In re D.L.B., 118 S.W.3d. 360, 367 (Tenn. 2003)) (“When a lower court has failed
to comply with T.C.A. § 36–1–113(k), the appellate courts must remand the case with
directions to prepare the required findings of fact and conclusions of law.”).

                                             III.

        In this case, DCS filed a twenty-nine page complaint. As pertinent to the issue
now before us, the trial court “cut” the language in the twenty-nine page complaint
regarding grounds and best interest and “pasted” it as the court’s findings of fact and
conclusions of law. We stress that the trial court adopted the allegations of the complaint
as its own findings and legal conclusions. There is no substantial difference in the two
documents. Both are twenty-nine pages long. The font is the same. The only major
difference is that the complaint is signed by counsel for DCS and the judgment is signed
by the trial court. There is no other significant difference.

       The statute anticipates that the trial court will state what facts it has found, rather
than simply relying upon the allegations of another. This case is remanded to the court
with instructions to make findings of fact and conclusions of law as found by the trial
court.


                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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