                                                                                               12/14/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs December 3, 2018

                                 IN RE MASON C. ET AL.

               Appeal from the Juvenile Court for Cumberland County
                   No. 2018-JV-6875      Larry M. Warner, Judge
                      ___________________________________

                             No. E2018-01378-COA-R3-PT
                        ___________________________________


This is a termination of parental rights case involving the parental rights of Allison T.
(“Mother”) to the children, Mason C. and Nathan C. (“the Children”), and the parental
rights of Jeffrey M. (“Father”) to Nathan C.1 On November 14, 2016, the maternal
grandparents, Patricia T. and Robert T. (“Grandparents”), filed a petition to terminate the
parental rights of Mother and Father to their respective Children. Following a bench trial,
the trial court terminated Mother’s parental rights to the Children and Father’s parental
rights to Nathan upon its determination that the parents had abandoned the Children by
willfully failing to support them and that termination of their parental rights was in the
best interest of the Children. Because the trial court failed to enter sufficient findings of
fact and conclusions of law, we vacate the trial court’s judgment and remand for entry of
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 ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Allison T.

Patricia A. Moore, Crossville, Tennessee, for the appellant, Jeffrey M.

James S. Smith, Jr., Rockwood, Tennessee, for the appellees, Patricia T. and Robert T.



1
 The record reflects that Mason’s father was deceased prior to commencement of the termination of
parental rights action.
                                       OPINION

                         I. Factual and Procedural Background

       On December 21, 2015, the Cumberland County Chancery Court (“chancery
court”) granted immediate emergency custody of the Children to Grandparents.
Following a preliminary hearing, the chancery court found as follows:

       [T]here is a prima facie case of dependency and neglect with regard to the
       two minor children, based primarily on the fact that all of the parties admit
       that there was a shooting, apparently a drive-by shooting, at the residence
       of [Mother and Father], but also to some extent on the fact that both of the
       [parents] have criminal records and drug issues.

The chancery court then transferred the dependency and neglect action to the Cumberland
County Juvenile Court (“trial court”). On May 27, 2016, the trial court entered an ex
parte order suspending the parents’ visitation.

       On November 14, 2016, Grandparents filed a petition, seeking to terminate “any
rights which [Mother] and/or [Father] have with respect to the [Children].” The petition
alleged the following as statutory grounds for termination of the parents’ rights: (1)
severe child abuse of Mason, (2) abandonment by failure to provide financial support for
the Children, (3) “fail[ure] to manifest an ability and willingness to maintain a proper
environment for the children,” and (4) persistence of the conditions leading to removal of
the Children from the parents.

       Following a bench trial conducted on June 5, 2018, the trial court terminated
Mother’s parental rights to the Children and Father’s parental rights to Nathan in an order
entered July 24, 2018. The court found by clear and convincing evidence that the parents
had abandoned the Children by willfully failing to financially support them and that
termination of Mother’s and Father’s parental rights was in the best interest of the
Children. Mother and Father timely appealed.

                                   II. Issues Presented

       Mother has raised three issues for our review, which we have restated slightly:

       1.     Whether the trial court made sufficient findings of fact and
              conclusions of law pursuant to Tennessee Code Annotated § 36-1-
              113(k).



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      2.     Whether the trial court erred by finding clear and convincing
             evidence to support the statutory ground of abandonment by willful
             failure to financially support the Children.

      3.     Whether the trial court erred by finding clear and convincing
             evidence that termination of Mother’s parental rights was in the best
             interest of the Children.

Father has also presented the following issues, which we have similarly restated:

      4.     Whether the trial court erred by entering an order terminating
             Father’s parental rights more than thirty days following the hearing.

      5.     Whether the trial court erred by finding clear and convincing
             evidence that termination of Father’s parental rights was in Nathan’s
             best interest.

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

      6.     Whether the trial court erred when it declined to terminate Mother’s
             and Father’s parental rights on the statutory ground of severe child
             abuse.

      7.     Whether the trial court erred when it declined to terminate Mother’s
             and Father’s parental rights on the statutory ground of persistence of
             the conditions leading to the removal of the Children from the
             parents’ home.

                                 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. See Tenn. R. App. P. 13(d); see also 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


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shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

        “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
       decision 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

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       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
       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. Entry of Final Judgment

       As a threshold issue, Father contends that the trial court erred by entering an order
terminating his parental rights over thirty days following the termination hearing. See
Tenn. Code Ann. § 36-1-113(k) (“The court shall enter an order . . . within thirty (30)
days of the conclusion of the hearing.”). Based on the trial court’s delay concerning the
entry of its order, Father argues that this Court should “reverse the Trial Court’s ruling.”
We disagree.

       Tennessee Code Annotated § 36-1-113(k) undisputedly requires the trial court to
enter an order within thirty days of the conclusion of the termination hearing. The trial
court conducted the bench trial concerning the termination petition on June 5, 2018. We
note, however, that Grandparents subsequently filed a “Motion for Further (Specific)
Findings by the Court,” on June 13, 2018, which the trial court heard on July 3, 2018.
The trial court’s final judgment was subsequently entered on July 24, 2018. During the
time period spanning June 5, 2018, through July 24, 2018, neither Mother nor Father filed
a motion requesting that the trial court expediate the entry of its order. See In re Jackson
G., No. M2013-02577-COA-R3-PT, 2014 WL 3844793, at *4 (Tenn. Ct. App. Aug. 4,
2014) (“[A] remedy is provided in the statute [Tennessee Code Annotated § 36-1-
113(k)], that being a request to expedite the proceedings[.]”).

       This Court has previously determined that failure to comply with the thirty-day
requirement of Tennessee Code Annotated § 36-1-113(k) “does not require nor
contemplate vacating a trial court’s judgment based merely on the untimely filing of the
trial court’s findings of fact and conclusions of law.” In re Jackson G., 2014 WL
3844793, at *4. Additionally, this Court has determined that the trial court does not lose
jurisdiction over a termination case if it fails to enter an order within thirty days of the
hearing pursuant to Tennessee Code Annotated § 36-1-113(k). See id. As such, we
determine Father’s argument in this regard to be without merit.




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               V. Sufficiency of Findings of Fact and Conclusions of Law

        Additionally, both Mother and Father contend that the trial court failed to make
sufficient findings of fact and conclusions of law as required by 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.

(Emphasis added.) Upon careful review, we agree.

        In the case at bar, the trial court made oral findings of fact and conclusions of law
following the hearing on June 5, 2018, and following a motion hearing on July 3, 2018.
Those oral findings and conclusions were subsequently transcribed. In its judgment
terminating parental rights, the trial court found by clear and convincing evidence that
Mother and Father had abandoned the Children by willfully failing to support them and
that termination of Mother’s and Father’s parental rights was in the best interest of the
Children. In its judgment, the trial court adopted its oral findings of fact and conclusions
of law from the hearings on June 5, 2018, and July 3, 2018, without making any further
findings to support its judgment.

       The trial court’s judgment reads as follows in its entirety:

               This Cause came on to be heard on the 5th day of June, 2018, and
       further upon the 3rd day of July, 2018 upon Petitioners’ Motion for Further
       Findings by the Court, all before the Honorable Larry Warner, Judge,
       holding the Juvenile Court for Cumberland County, Tennessee, at
       Crossville. Upon the pleadings, the testimony of the parties and witnesses
       in Open Court, argument and remarks of counsel for all of the parties and
       the Guardian Ad Litem, all of the evidence introduced and upon the Entire
       File, the Court finds, as per Its oral pronouncement from the Bench at the
       conclusion of the first hearing in this matter, attached hereto as Collective
       Appendix A (4 pages) and upon Its further pronouncement at the July 3,
       2018 hearing pursuant to the Motion for Further Findings, as per Its oral
       pronouncement from the Bench at the conclusion of that hearing, attached
       hereto as Collective Appendix B (4 pages), both of which (Appendices A
       and B) the Court hereby adopts and confirms, that the Petition for
       Termination is well taken in that [the Children] have been abandoned by
       the [Mother] and [Father] by willful failure to support as defined by T.C.A.
       § 36-1-102(1)(A)(i) as proven by clear and convincing evidence and further
       that the termination as prayed for is in the children’s best interest, also as
       proven by clear and convincing evidence.

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      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT
      THE TERMINATION AS PRAYED FOR IN THE PETITION OF
      [GRANDPARENTS], IS HEREBY GRANTED AND ALL OF THE
      RIGHTS AND RESPONSIBILITIES WHICH [MOTHER] AND
      [FATHER] MAY HAVE WITH RESPECT TO THE [CHILDREN], AND
      LIKEWISE ALL THE RIGHTS AND RESPONSIBILITIES WHICH THE
      [CHILDREN] MAY HAVE TO THE RESPONDENTS, ARE HEREBY
      FOREVER TERMINATED AND FOR NOTHING HELD.

        This Court has previously held that “[b]ecause 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.” In re Adoption of Muir, No.
M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn. Ct. App. Nov. 25, 2003)
(internal footnote omitted). Moreover, this Court has followed the logic set forth in In re
Adoption of Muir in subsequent cases, vacating the trial court’s judgment for failure to
make written findings of fact and conclusions of law in actions involving termination of
parental rights in which the trial court had adopted oral findings and conclusions. See,
e.g., In re K.J.G., No. E2015-00087-COA-R3-PT, 2016 WL 1203800, at *3-4 (Tenn. Ct.
App. Mar. 28, 2016); In re G.N.S., No. W2006-01437-COA-R3-PT, 2006 WL 3626322,
at *6-7 (Tenn. Ct. App. Dec. 13, 2006). However, we also recognize the dissenting
opinion filed in In re K.J.G., 2016 WL 1203800, at *5 (Swiney, J., dissenting). In his
dissenting opinion, Chief Judge Swiney questioned the continued application of “the
apparent Muir rule” and indicated that transcribed oral findings of fact and conclusions of
law could comply with Tennessee Code Annotated § 36-1-113(k) if the findings and
conclusions were “sufficiently detailed.” Id.

        In this case, however, we do not find it necessary to address whether transcribed
oral findings of fact and conclusions of law adopted by the trial court can satisfy the
requirement of Tennessee Code Annotated § 36-1-113(k). Significantly, we note that the
trial court’s written order contains a dearth of findings of fact to support its conclusion
that Mother and Father had abandoned the Children and that termination of the parents’
rights was in the Children’s best interest. Even assuming, arguendo, that the statutory
authority allows adoption of oral findings of fact and conclusions of law in termination
cases, we determine that the trial court’s oral findings here would be insufficient to
support termination of the parents’ rights by clear and convincing evidence.

      The trial court’s oral findings of fact and conclusions of law following the
termination hearing on June 5, 2018, were as follows:




                                           -7-
              In talking with Mason, there was some physical abuse alluded to. I
       don’t think, though, that it rose to a level of severe or aggravated abuse. It
       did not. Therefore, I do not find that ground[].

             Now, regarding the abandonment by failure to visit, these people
       have been under a court order since May of 20[1]6 that they cannot see [the
       Children]. So I can’t find that ground[].

               However, by clear and convincing proof, you have established that
       there is a willful failure to support. One Christmas basket . . . I mean Easter
       basket in two and a half years is not support. There’s no doubt there was a
       failure to support.

             Now, getting to the best interest . . . And this condition still exists
       obviously. They haven’t done it since this lawsuit has been going on,
       which was November of 2016. So the condition still exists.

             Now, you go to the best interest question. Nathan has been with his
       grandparents two and a half years. He’s only four. It’s the only home he
       knows. It’s the only home he knows. Now, Mason is very happy where he
       is. So I find clearly that the best interest is that they stay with the
       grandparents. So I do grant the termination on that one ground. Thank
       you. Prepare me an order to that effect.

       Grandparents’ counsel subsequently filed a “Motion for Further (Specific)
Findings by the Court,” requesting that the trial court make a specific finding that
termination of the parents’ rights was in the best interest of the Children instead of its oral
finding that it was in the Children’s best interest to remain with the Grandparents.
During the motion hearing, the trial court made the following oral findings of fact, which
were subsequently adopted by the trial court in its order:

       The Court:                   In addition to the grounds that have been found
                                    and what I said on that date – I think it was June
                                    the 5th – I do find that the termination is in the
                                    best interest of the child.

       Grandparents’ Counsel:       Does Your Honor want to say anything about
                                    the standard of proof?

       The Court:                   It was very convincing.

       Grandparents’ Counsel:       Thank you, Your Honor.

                                             -8-
       The Court:                   Just prepare an order consistent with that. And
                                    I appreciate you catching that.

        The trial court’s findings of fact and conclusions of law do not identify the
determinative time period relevant to the parents’ willful failure to support. Although the
trial court found orally that “there [was] a willful failure to support,” the court’s findings
were silent regarding the parents’ ability to pay support during the determinative period.
Furthermore, the trial court’s judgment and oral ruling are unclear as to whether the trial
court considered the best interest factors set forth in Tennessee Code Annotated § 36-1-
113(i) (2017). The Tennessee Supreme Court has elucidated that “the court must
consider all of the statutory [best interest] factors, as well as any other relevant proof any
party offers.” In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017). Additionally, the
trial court’s oral findings appear to combine the statutory ground of persistence of
conditions, which had been pled in the petition, with the best interest analysis. The trial
court, however, did not make the required findings to support the ground of persistence of
conditions, see Tenn. Code Ann. § 36-1-113(g)(3) (2017), nor did it address this statutory
ground in its written order.

       Due to the foregoing, we determine that the trial court’s findings of fact and
conclusions of law were not sufficient to comply with Tennessee Code Annotated § 36-1-
113(k). When a trial court fails to perform its judicial duty as required by Tennessee
Code Annotated § 36-1-113(k), this Court must remand the case to the trial court for
entry of sufficient findings of fact and conclusions of law. See In re B.L.R., No. W2004-
02636-COA-R3-PT, 2005 WL 1842502, at *15 (Tenn. Ct. App. Aug. 4, 2005). We
therefore 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). As
such, all remaining issues on appeal are pretermitted as moot.

                                      VI. 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 appellees, Patricia T.
and Robert T.



                                                  _________________________________
                                                  THOMAS R. FRIERSON, II, JUDGE



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