                                                                                                                08/23/2018
                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                          August 8, 2018 Session

                                   IN RE ATRIVIUM K., ET AL.1

                       Appeal from the Juvenile Court for Jackson County
                        No. 2016-JV-100 Tiffany Gentry Gipson, Judge
                            ___________________________________

                                   No. M2017-01046-COA-R3-PT
                               ___________________________________


Mother appeals the termination of her parental rights to her two children. Upon our
review, we conclude that the order of termination fails to comply with Tennessee Code
Annotated section 36-1-113(k)’s requirement that the court make specific factual
findings, which precludes our meaningful review. We vacate the order and remand for
entry of an order that complies with subsection 113(k).

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and ARNOLD B. GOLDIN, J., joined.

Kayla Collins Cantrell, Gainesboro, Tennessee, for the appellant, Danielle J. K.

Herbert H. Slatery, II, Attorney General and Reporter; and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

                                                   OPINION

           I.      FACTUAL AND PROCEDURAL HISTORY

       Danielle K. and Cory A. are the parents of the two children at issue in this
proceeding: Atrivium, born February 2012, and Ametria, born April 2013. Though the
parents are not married, Cory A. is listed as the father on both birth certificates, and he
signed a Voluntary Acknowledgement of Paternity with respect to both children.2 The

1
    This Court has a policy of protecting the identity of children by initializing the last names of the parties.
2
    However, a DNA Test Report entered at trial shows that Father is not the biological father of Atrivium.
Department of Children’s Services (DCS) became involved with the family when it
received a referral of dependency and neglect in May 2015, based on allegations of
unsanitary living conditions and the children’s exposure to drugs. A DCS investigator
went to the home on May 8; both parents submitted to a drug screen and tested positive
for Suboxone and marijuana. The children were left in the custody of the parents while
DCS continued its investigation. On May 15, DCS filed a petition to have the children
declared dependent and neglected and requested that the court order the children into
protective supervision or grant DCS temporary legal custody. A hearing on the petition
was scheduled for May 19. The parents did not attend the hearing, so a DCS case worker
went to the home and found the two children, along with two other children not at issue
in this appeal, unsupervised while Father slept. Father submitted to a drug screen at the
time and again tested positive for Suboxone and marijuana.

       DCS filed a petition on May 21 seeking a protective custody order that would
place the children with their great-grandparents. A kinship protective custody order was
entered the same day, and the children were removed from the parents’ home and placed
in the home of their maternal great-grandmother. At some point during the pendency of
the dependent and neglect proceedings, Mother was arrested and placed in the Jackson
County jail, because her positive drug screens were a violation of her probation.

        The parents waived the preliminary hearing on the dependency and neglect
petition, and an adjudicatory hearing was held on November 3, 2015; the court entered an
order adjudicating the children dependent and neglected due to the children’s “abuse
and/or neglect” and ordered them to remain with the maternal great-grandparents. Due to
a roach and bedbug infestation at the great-grandparent’s home as well as the threats
made by the children’s grandfather,3 a new proceeding was initiated on May 24, 2016;
the children were placed in the custody of DCS and placed in a foster home. They were
again adjudicated dependent and neglected on July 5, 2016. The children were moved to
a different foster home in November 2016, where they have remained.

       Permanency plans were created in June 2016 and October 2016; both were ratified
by the court. The plans called for Mother to primarily address her drug abuse and mental
health issues. Mother attempted therapy and drug rehabilitation but was unsuccessful.
Mother and Father have continued to test positive for drugs throughout DCS’s
involvement with this family; on December 7, 2016, Mother tested positive for
amphetamine, Suboxone, and methamphetamine.



3
 The adjudicatory order found that “the paternal [sic] grandfather to the children, Archie K[.], has been
making threats of attempting to get these children removed from the custody of the temporary placement,
and has a volatile relationship with many family members. In addition, he lives very nearby to this
placement.”

                                                   2
       DCS filed a petition to terminate both parents’ parental rights on December 13,
2016, on the grounds of abandonment by failure to provide a suitable home; substantial
noncompliance with the permanency plan; persistence of conditions; failure to manifest
an ability and willingness to assume legal and physical custody of the children. The
petition also alleged that termination was in the children’s best interest. Counsel was
appointed for the parents, and a guardian ad litem was appointed for the children.

      A hearing on the petition was held on April 24, 2017, at which the following
persons testified: Pamela Ramsey, the DCS investigator; Lori Looper, the case worker
from September 2015 through May 2016; Stephanie Stack, the case worker since May
2016; Lora Walrath, the regional director of Bradford Health Services, where Mother
attempted intensive outpatient treatment for her drug issues; Keri L., the children’s foster
mother; Father; and Mother.

      The court entered an order terminating the parents’ rights to the two children on
the grounds of the abandonment by failure to provide a suitable home, substantial
noncompliance with the permanency plans, persistence of conditions, and failure to
manifest a willingness and ability to assume legal and physical custody of the children.
The court also found that termination was in the children’s best interest.

       Mother appeals, challenging whether DCS has proven the grounds for termination
by clear and convincing evidence, and whether the court’s best interest determination was
supported by clear and convincing evidence.

       II.    STANDARD OF REVIEW

        Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

       Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
                                             3
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).

       III.   ANALYSIS

       As this is a termination of parental rights case, this court is obliged to consider
whether the evidence clearly and convincingly established that grounds existed to
terminate Mother’s rights and that termination was in the children’s best interest. In re
Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) cert. denied sub. nom. Vanessa G. v.
Tenn. Dep’t of Children’s Servs., 137 S. Ct. 44 (2016) (“[I]n an appeal from an order
terminating parental rights[,] the Court of Appeals must review the trial court’s findings
as to each ground for termination and as to whether termination is in the child’s best
interests, regardless of whether the parent challenges these findings on appeal.”).

       Tennessee Code Annotated section 36-1-113(k) requires the trial court to 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). In In re Navada N., this Court
observed:

       It is not the role of this Court to parse the record in search of clear and
       convincing evidence to support DCS’s case or to make factual findings
       where the trial court fails to do so. See also State v. McBee, No. M2003-
       01326-COA-R3-PT, 2004 WL 239759 at *6 (Tenn. Ct. App. Feb. 9, 2004)
       (noting that when a trial court fails to make findings of fact on an issue “we
       cannot simply review the record de novo and determine for ourselves where
       the preponderance of the evidence lies”). The role of this Court is an error-
       correcting court, and our review is limited to the trial court’s written
       findings and conclusions. Smith v. Gore, 728 S.W.2d 738, 746–47 (Tenn.
       1987). This is especially true in light of Tennessee Code Annotated Section
                                               4
        36-1-113(k)’s requirement that trial courts enter written orders containing
        specific findings of fact and conclusions of law in termination cases. A trial
        court’s failure to comply with subsection (k) “fatally undermines the
        validity of a termination order.” In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct.
        App. 2004).

498 S.W.3d 579, 594 (Tenn. Ct. App. 2016).

        Our review is limited to the trial court’s written findings and conclusions. In re
Navada N., 498 S.W.3d at 594. The order terminating Mother’s rights, however, does
not satisfy the court’s responsibility imposed by Tennessee Code Annotated section 36-1-
113(k). The order, entered the same day as the hearing, is largely a verbatim recitation of
the allegations contained in the petition for termination; the order’s “findings” relative to
both the grounds for termination and the best interest determination appear to have been
cut and pasted from the petition and contain no discussion or elaboration beyond the
allegations of the petition. The hearing transcript shows that the court rendered its
decision immediately after declaring the proof closed and hearing summation from
counsel; the oral ruling consisted of conclusory statements that the various grounds for
termination had been established and that termination was in the best interest of the
children. Indeed, counsel for the Department announced at the conclusion of the oral
ruling that an order terminating Mother’s rights had already been prepared; it was entered
that day.

       In form and substance, the order does not comply with the applicable law and the
high burden that is before the court in deciding to terminate a parent’s rights. We are not
convinced that the order was the result of the court’s “‘own considered conclusions.’”
Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 315 (Tenn. 2014) (quoting Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)).4 Accordingly, we vacate the
judgment terminating Mother’s parental rights and remand the case for the court to make
specific findings of fact and conclusions of law in compliance with Tennessee Code
Annotated section 36-1-113(k).




                                                         RICHARD H. DINKINS, JUDGE

4
  We are constrained to comment on the inadequacy of the order terminating Mother’s rights which was
prepared by DCS’s trial counsel; it merely copied the allegations of the petition as findings of fact, and
was submitted to the court for entry immediately after the ruling. We caution against this practice in the
future. In addition, had we not resolved this case in the manner in which we have, our review of the
termination of this Mother’s rights would have been hampered by the deficiencies of Mother’s brief,
which does not contain any citations to the record in its argument section, in contravention of Rule
27(a)(7)(A) of the Tennessee Rules of Appellate Procedure.
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