                                                                                                        10/04/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                   September 11, 2018 Session

                                IN RE MARNEASHA D. ET AL.

                    Appeal from the Juvenile Court for Shelby County
                    No. CC6419        Harold W. Horne, Special Judge
                         ___________________________________

                               No. W2017-02240-COA-R3-PT
                           ___________________________________


This is a termination of parental rights case involving the parental rights of two fathers to
their respective children who were born to the same mother.1 On March 21, 2017, the
Tennessee Department of Children’s Services (“DCS”) and the children’s guardian ad
litem jointly filed a petition to terminate the parental rights of the children’s mother and
the two fathers. Following a bench trial, the trial court terminated the parents’ parental
rights to the children on multiple statutory grounds and upon a determination that
termination of their parental rights was in the best interest of the children. Because we
are unable to ascertain whether the trial court’s judgment is an independent judgment of
the trial court, we vacate the trial court’s judgment and remand for sufficient findings of
facts and conclusions of law in compliance with Tennessee Code Annotated § 36-1-
113(k) (2017).

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.

John R. McCabe, Memphis, Tennessee, for the appellants, Lamarcus G. and Dedrick B.2


1
  The trial court also terminated the mother’s parental rights to the children. The mother did not appeal
the decision of the trial court and is not participating in this appeal. We will therefore confine our
analysis to those facts relevant to the fathers.
2
 Following the hearing in this matter but prior to oral arguments before this Court, Mr. McCabe accepted
new employment, which led to the State of Tennessee becoming one of his clients. Mr. McCabe filed a
motion with this Court suggesting a conflict of interest may have arisen. During oral arguments, the
attorney for the State of Tennessee Department of Children’s Services waived any conflict of interest that
may exist in this matter.
Herbert H. Slatery, III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

Taylor R. Oyaas, Memphis, Tennessee, Guardian Ad Litem.


                                        OPINION

                      I. Factual Background and Procedural History

        The four children at issue in this appeal are Joshua B., Devunta D., D’Anna D.,
and Marneasha D. Dedrick B. was listed as Joshua’s father on the child’s birth
certificate. No father was listed on the birth certificates of the other children. However,
the mother of the children, Ieasha D. (“Mother”), had provided “a sworn statement or
other credible and reliable statement” that Dedrick B. was the biological father of
Devunta and D’Anna and that Lamarcus G. was the biological father of Marneasha.
Dedrick B. testified that he had undergone a DNA test that had proven he was the father
of Devunta and D’Anna. According to the trial court, Dedrick B. had known since the
DNA test in September 2015 that Devunta and D’Anna were his biological children, but
he had not filed a petition to establish paternity. Lamarcus G. filed a petition to establish
paternity of Marneasha on October 13, 2014. Although paternity had not been
established when the termination petition was filed in March 2017, Lamarcus G. was
subsequently established by court order as Marneasha’s father on May 12, 2017.

       The Shelby County Juvenile Court (“trial court”) removed Devunta and Joshua
from Mother’s custody and placed them into DCS custody on January 23, 2015. The trial
court found these children to be dependent and neglected on June 19, 2015, and placed
the other two children, D’Anna and Marneasha, into DCS custody at that time upon a
finding that those children were also dependent and neglected. The trial court found by
clear and convincing evidence that Joshua and Devunta had been physically abused and
that D’Anna and Marneasha had been the victims of environmental neglect. The trial
court also determined that Mother had severely abused Devunta and Joshua because she
had failed to protect them from physical abuse.

       During the dependency and neglect proceedings, the trial court appointed attorney
Taylor R. Oyaas as a guardian ad litem (“GAL”) to represent all four children during that
action as well as any subsequently filed termination proceedings. DCS and the GAL
filed a petition on March 21, 2017, seeking to terminate the parental rights of Mother,
Lamarcus G., and Dedrick B. concerning their respective children. The trial court
conducted a trial during two nonconsecutive days on September 14, 2017, and September
28, 2017.


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        At the conclusion of trial, the trial court orally announced its ruling that it found
clear and convincing evidence to terminate both fathers’ parental rights to their respective
children. Subsequently, the trial court entered an order terminating Dedrick B.’s parental
rights to Devunta D., Joshua B., and D’Anna D. after finding by clear and convincing
evidence the existence of the following statutory grounds for termination of his parental
rights: (1) abandonment by willful failure to visit the children, (2) abandonment by
willful failure to support the children, and (3) substantial noncompliance with the
permanency plans. The trial court found an additional ground for termination of Dedrick
B.’s parental rights concerning Joshua due to his failure to manifest an ability and
willingness to personally assume legal and physical custody and financial responsibility
of Joshua. Furthermore, the trial court found that Dedrick B. was not the legal father of
Devunta and D’Anna and that the following grounds for termination existed, pursuant to
Tennessee Code Annotated § 36-1-113(g)(9) (2017), to terminate his parental rights to
these two children: (1) failure, without good cause or excuse, to make reasonable and
consistent payments of child support; (2) failure, without good cause, to seek reasonable
visitation with the children or engagement in only token visitation; (3) failure to manifest
an ability and willingness to assume legal and physical custody of the children; (4) risk of
substantial harm to the physical or psychological welfare of the children from placement
in Dedrick B.’s custody; and (5) failure to file a petition to establish paternity within
thirty days of notice of alleged paternity. Upon finding by clear and convincing evidence
that termination of Dedrick B.’s parental rights was in the best interest of Devunta,
Joshua, and D’Anna, the trial court terminated his parental rights to those three children.

        The trial court also terminated Lamarcus G.’s parental rights to Marneasha upon a
determination by clear and convincing evidence that Lamarcus G. had abandoned the
child by his actions exhibiting wanton disregard for the child’s welfare, willful failure to
financially support the child, and willful failure to visit her. Additionally, the trial court
found that Lamarcus G. was not the legal father of Marneasha and that the following
termination grounds existed pursuant to Tennessee Code Annotated § 36-1-113(g)(9):
(1) failure, without good cause or excuse, to make reasonable and consistent payments of
child support; (2) failure, without good cause, to seek reasonable visitation with the child
or engagement in only token visitation; (3) failure to manifest an ability and willingness
to assume legal and physical custody of the child; (4) risk of substantial harm to the
physical or psychological welfare of the child from placement in Lamarcus G.’s custody;
and (5) failure to file a petition to establish paternity within thirty days of notice of
alleged paternity. The trial court further found by clear and convincing evidence that
termination of Lamarcus G.’s parental rights was in Marneasha’s best interest. Both
fathers have timely appealed.

                                    II. Issues Presented

       Lamarcus G. and Dedrick B. have jointly presented two issues for review, which

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we have restated slightly as follows:

       1.     Whether the trial court erred by terminating Lamarcus G.’s and
              Dedrick B.’s parental rights pursuant to grounds provided in
              Tennessee Code Annotated § 36-1-113(g)(9).

       2.     Whether the trial court made sufficient findings of fact and
              conclusions of law.

Lamarcus G. has also presented the following issue, which we have similarly restated
slightly:

       3.     Whether the trial court erred by finding clear and convincing
              evidence of the statutory ground of Lamarcus G.’s abandonment of
              Marneasha based on Lamarcus G.’s conduct exhibiting wanton
              disregard for the child’s welfare prior to his incarceration.

DCS presented two additional issues for our review, which we have restated as follows:

       4.     Whether the trial court correctly determined that statutory grounds
              existed to terminate Lamarcus G.’s and Dedrick B.’s respective
              parental rights.

       5.     Whether the termination of Lamarcus G.’s and Dedrick B.’s parental
              rights was in the best interest of their respective children.

                                 III. Standard of Review

       In a termination of parental rights case, this Court has a duty to determine
“whether the trial court’s findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530
(Tenn. 2006). The trial court’s findings of fact are reviewed de novo upon the record,
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).



                                          -4-
        “Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:

               The parental rights at stake are “far more precious than any property
       right.”    Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)].
       Termination of parental rights has the legal effect of reducing the parent to
       the role of a complete stranger and of [“]severing forever all legal rights
       and obligations of the parent or guardian of the child.” Tenn. Code Ann. §
       36-1-113(l)(1); see also Santosky, 455 U.S. at 759 (recognizing that a
       decison terminating parental rights is “final and irrevocable”). In light of
       the interests and consequences at stake, parents are constitutionally entitled
       to “fundamentally fair procedures” in termination proceedings. Santosky,
       455 U.S. at 754; see also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty,
       N.C., 452 U.S. 18, 27 (1981) (discussing the due process right of parents to
       fundamentally fair procedures).

              Among the constitutionally mandated “fundamentally fair
       procedures” is a heightened standard of proof—clear and convincing
       evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
       unnecessary or erroneous governmental interference with fundamental
       parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
       “Clear and convincing evidence enables the fact-finder to form a firm belief
       or conviction regarding the truth of the facts, and eliminates any serious or
       substantial doubt about the correctness of these factual findings.” In re
       Bernard T., 319 S.W.3d at 596 (citations omitted). The clear-and-
       convincing-evidence standard ensures that the facts are established as
       highly probable, rather than as simply more probable than not. In re
       Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
       S.W.3d 652, 660 (Tenn. Ct. App. 2005).

       ***

             In light of the heightened burden of proof in termination
       proceedings, however, the reviewing court must make its own
       determination as to whether the facts, either as found by the trial court or as
       supported by a preponderance of the evidence, amount to clear and


                                            -5-
      convincing evidence of the elements necessary to terminate parental rights.
      In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

                     IV. Tennessee Code Annotated § 36-1-113(k)

       As a threshold issue, we first address whether the trial court made sufficient
findings of fact and conclusions of law pursuant to Tennessee Code Annotated § 36-1-
113(k), which provides in pertinent part:

      The 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.

A trial court speaks through its written orders, Williams v. City of Burns, 465 S.W.3d 96,
119 (Tenn. 2015), and the judgment entered by the trial court must be the independent
judgment of the trial court, Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316 (Tenn.
2014). In Smith, our Supreme Court explained the importance of the trial court’s
providing legal reasoning for its decision:

              The essential purposes of courts and judges are to afford litigants a
      public forum to air their disputes, and to adjudicate and resolve the disputes
      between the contending parties. To carry out these purposes, judges must
      arrive at their decisions by applying the relevant law to the facts of the case.
      Because making these decisions is a “high judicial function,” a court’s
      decisions must be, and must appear to be, the result of the exercise of the
      trial court’s own judgment.

              The manner in which judges arrive at their decisions “gives formal
      and institutional expression to the influence of reasoned argument in human
      affairs.” In addition to expecting judges to be “fair, impartial, and
      engaged,” the litigants, the bench and bar, and the public expect them to
      explain why a particular result is correct based on the applicable legal
      principles.

             Providing reasons for a decision reinforces the legitimacy of the
      legal process which, in turn, promotes respect for the judicial system. As
      Judge Richard Nygaard has noted with regard to judicial opinions:


                                           -6-
              Judicial opinions are the core work-product of judges. They
              are much more than findings of fact and conclusions of law;
              they constitute the logical and analytical explanations of why
              a judge arrived at a specific decision. They are tangible proof
              to the litigants that the judge actively wrestled with their
              claims and arguments and made a scholarly decision based on
              his or her own reason and logic.

       Bright v. Westmoreland Cnty., 380 F.3d 729, 732 (3d Cir. 2004).

       ***

       [M]ost courts have approved, but not recommended, the practice of trial
       courts receiving and using party-prepared findings of fact, conclusions of
       law, and orders as long as two conditions are satisfied. First, the findings
       and conclusions must accurately reflect the decision of the trial court.
       Second, the record must not create doubt that the decision represents the
       trial court’s own deliberations and decision. Accordingly, reviewing courts
       have declined to accept findings, conclusions, or orders when the record
       provides no insight into the trial court’s decision-making process,
       Trieschmann v. Trieschmann, 178 Wis.2d 538, 504 N.W.2d 433, 435 (Ct.
       App. 1993), or when the record “casts doubt” on whether the trial court
       “conducted its own independent review, or that the opinion is the product
       of its own judgment,” Bright v. Westmoreland Cnty., 380 F.3d at 732.

              There are, to be sure, acceptable reasons for permitting trial courts to
       request the preparation of proposed findings of fact, conclusions of law,
       and orders. They can promote the expeditious disposition of cases, and
       they may, when used properly, assist the trial court in placing the litigants’
       factual and legal disputes in sharper focus. In the final analysis, the
       ultimate concern is the fairness and independence of the trial court’s
       judgment.

Smith, 439 S.W.3d at 312-13, 315-16 (footnote and other internal citations omitted)
(emphasis added).

        Although Smith involved a summary judgment case, this Court has previously
applied the reasoning in Smith to proceedings involving the termination of parental rights.
See, e.g., In re Dakota M., No. E2017-01855-COA-R3-PT, 2018 WL 3022682, at *6
(Tenn. Ct. App. June 18, 2018) (“The order terminating Father’s rights does not comply
with Tennessee Code Annotated section 36-1-113(k) and does not allow us to conclude
that the order was the result of the court’s ‘own considered conclusions.’” (quoting Smith,

                                            -7-
439 S.W.3d at 315)) (other internal citations omitted); In re Colton B., No. M2017-
00997-COA-R3-PT, 2017 WL 6550620, at *5 (Tenn. Ct. App. Dec. 22, 2017) (“Given
the nearly identical recitation of facts contained in the petition and the final order,
coupled with the trial court’s sparse oral ruling, we must conclude that the record ‘casts
doubt’ as to whether the trial court exercised its independent judgment in this case.”
(citing Smith, 439 S.W.3d at 316)); In re Alleyanna S., No. M2015-00544-COA-R3-PT,
2016 WL 697359, at *5 (Tenn. Ct. App. Feb. 19, 2016) (“A trial court may adopt
submitted findings of fact and conclusions of law as long as the adopted order reflects its
own independent and deliberate decision making.” (citing Smith, 439 S.W.3d at 315-16)).

        In the present case, we note that the trial court’s oral ruling was notably sparse
while the trial court’s written judgment was extremely detailed. Following the trial, the
trial court orally ruled as follows regarding the statutory grounds and best interest:

       Trial Court:         The ground of abandonment by failure to support or
                            visit has been proved by clear and convincing proof as
                            to the parents, all three parents, abandonment by
                            incarcerated parent as to Mr. Lamarcus G[.],
                            substantial noncompliance with the Permanency Plan
                            has been proved. The conditions which led to the
                            removal of the children clearly still exist[]. The
                            ground[] of severe abuse as to the mother has been
                            proved. The [mental] incompetence of the mother has
                            been proved. Failure to establish parentage on behalf
                            of the father and failure to manifest an ability or
                            willingness to assume custody of the children. It is
                            clearly in the best interest of the children that
                            termination be granted. There was one issue that was
                            raised as to the mother’s understanding on the way that
                            the Termination of Parental Rights was read to her. In
                            light of the proof showing her diminished capacity to
                            understand, the Court finds that had the State read
                            verbatim the words in the Termination form to her that
                            it would have been meaningless to her and that the
                            attempt to paraphrase it and give her the gist of what
                            she needed to do; basically stay in touch, follow the
                            requirements of the plan was an appropriate course.
                            I’ll see if the Court of Appeals agrees or not with that.
                            I’ll let the State draw your order, reasonable fee
                            included in there to appointed counsel in each of the
                            cases. Anything that –


                                           -8-
       DCS Counsel:          Your Honor, just for clarification on the Order, are you
                             finding that [Lamarcus G.] failed to establish paternity
                             prior to the filing of the Termination Petition as far as
                             putative father grounds against him?

       Trial Court:          Both. If I recall, both parents -- both dads failed to
                             establish prior to the filing.

No further findings of fact or other guidance from the trial court is contained within the
appellate record that would reflect the rationale for its decision. Counsel for DCS
subsequently prepared an order, which was signed and approved by the GAL and counsel
for both fathers, on October 26, 2016. The trial court entered the order on the same date.

        The trial court’s oral ruling ostensibly is a recitation of the statutory grounds found
by the trial court for termination of the parents’ rights and a finding that termination was
in the best interest of the children. The trial court articulated that those grounds were
found by clear and convincing evidence but identified no further findings of fact in
support when announcing its oral ruling. Subsequently, the trial court entered its
comprehensive thirty-three-page termination judgment, including the signature lines and
certificate-of-service page. The written judgment, prepared and submitted by counsel for
DCS, contained a detailed analysis, including several findings of fact regarding each
ground and the best interest analysis.

        The trial court may adopt findings of fact and conclusions of law prepared by a
party litigant so long as (1) those findings of fact and conclusions of law accurately
reflect the trial court’s decision and (2) the record does not create doubt as to whether the
findings and conclusions in the written order represent “the trial court’s own deliberations
and decision.” Smith, 439 S.W.3d at 315-16. This Court has previously determined that
a written order prepared by a party is sufficient when the differences between the written
order and oral ruling are minor and “the record indicates that the trial court deliberated
and made its own decision.” In re Matthew T., No. M2015-00486-COA-R3-PT, 2016
WL 1621076, at *6 (Tenn. Ct. App. Apr. 20, 2016).

       In the present case, the differences between the trial court’s oral ruling and the
subsequent written order are significant rather than minor. Based upon the record before
us, we cannot make a determination that the written order entered by the trial court
terminating the parents’ rights represents the trial court’s own independent analysis and
judgment and not that of counsel for DCS. Ergo, we vacate the trial court’s judgment and
remand for entry of findings of fact and conclusions of law in compliance with Tennessee
Code Annotated § 36-1-113(k) that reflect the trial court’s independent “deliberations and
decision.” See Smith, 439 S.W.3d at 316. As such, all remaining issues on appeal are
pretermitted as moot.

                                             -9-
                                   V. Conclusion

       For the foregoing reasons, we vacate the trial court’s judgment and remand this
matter to the trial court for further proceedings consistent with this opinion and for
collection of costs assessed below. Costs on appeal are taxed to the appellee, the
Tennessee Department of Children’s Services.

                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE




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