                                                                                                       12/22/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs November 1, 2017

                                       IN RE COLTON B.

                   Appeal from the Juvenile Court for Overton County
                      No. 16-JV-122      Diana F. Monroe, Judge
                       ___________________________________

                              No. M2017-00997-COA-R3-PT
                          ___________________________________


Mother appeals the termination of her parental rights. Because the trial court failed to
provide a rationale for its decision and the final order entered by the trial court is nearly a
verbatim recitation of the termination petition, we vacate the order of the trial court and
remand for the entry of an order that reflects that it is the product of the trial court’s
individualized decision-making and independent judgment.


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

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C, J., and ANDY D. BENNETT, J., joined.

William A. Camerson, Cookeville, Tennessee, for the appellant, Miranda B.

Herbert H. Slatery, III, Attorney General and Reporter; W. Derek Green, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

                                              OPINION

                                            Background

       In July 2015, the child was born to Respondent/Appellant Miranda B. H.
(“Mother”).1 The child’s birth was premature and he was in severe distress following the
birth. Drug tests performed on the child tested positive for morphine, buprenorphine,2

        1
          In termination of parental rights cases, it is this Court’s policy to remove the full names of
children and other parties to protect their identities.
        2
          Buprenorphine is “a . . . mood-elevating drug used to treat some types of depression[.]”Mosby’s
meperidine,3 opioids, and benzodiazepines.4 As a result, the Petitioner/Appellee
Tennessee Department of Children’s Services (“DCS”) received a referral that the child
was drug exposed. During the initial investigation, Mother admitted that prior to her
pregnancy she was a habitual drug user, that she had not sought prenatal care during her
pregnancy, and that she “shot up morphine” the day before the child’s birth.

       The child remained in the hospital for a period of thirty days, receiving treatment
for respiratory distress, meconium aspiration, and possible HIV status. The child also
experienced symptoms consistent with drug withdrawal. As such, the child was
administered morphine to ease his withdrawal symptoms.

       While the child remained in the hospital, Mother was arrested for violating
probation. Based upon these facts, DCS determined that it was in the child’s best interest
to be removed from Mother’s care. When the child left the hospital, he was immediately
placed in the care of a foster home, where he remained at the time of trial.

        While the child was in the hospital, DCS filed a petition to declare the child
dependent and neglected in juvenile court. Eventually, on April 5, 2016, the juvenile
court entered a single order following the adjudicatory and dispositional hearings. In this
order, the juvenile court found the child to be dependent and neglected and the victim of
severe abuse. On December 15, 2016, DCS filed a petition to terminate Mother’s parental
rights on grounds of (1) substantial non-compliance with permanency plans; (2)
persistence of conditions; (3) failure to manifest an ability and willingness to assume
custody; and (4) severe abuse.5 The petition further alleged that it was in the child’s best
interest for Mother’s parental rights to be terminated. Mother filed an answer to the
petition on February 22, 2017, denying that grounds existed to terminate her parental
rights or that termination was in the child’s best interest.

       A trial was held on April 18, 2017. Five witnesses testified, including Mother,
Foster Mother, and two DCS workers. DCS also entered several exhibits, including the
deposition testimony of the detective who investigated Mother’s alleged child abuse and
the child’s treating physician while hospitalized. At the conclusion of the hearing, the
trial court orally found clear and convincing evidence to support all of the grounds
alleged and that termination was in the child’s best interest. The trial court entered an
order on April 19, 2017, likewise finding that all of the grounds alleged in the petition


Dictionary of Medicine, Nursing, & Health Professions 258 (9th ed 2013). Buprenorphine may also be
used “to treat opioid dependence.” Id.
          3
            Merperidine is “an opioid analgesic.” Mosby’s Dictionary, at 1123.
          4
            A benzodiazepine derivative is “one of a group of psychotropic agents, including [] tranquilizers
. . . prescribed to alleviate anxiety.” Mosby’s Dictionary, at 196.
          5
            The child’s father is unknown and was not a party to the termination petition either in the trial
court or in this appeal.
                                                   -2-
had been shown by clear and convincing evidence and that termination of Mother’s
parental rights was in the child’s best interest. From this order, Mother now appeals.

                                   Standard of Review

       As explained by the Tennessee Supreme Court:

              A parent’s right to the care and custody of her child is among the
       oldest of the judicially recognized fundamental liberty interests protected
       by the Due Process Clauses of the federal and state constitutions. Troxel v.
       Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651
       (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re
       Adoption of Female child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v.
       Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights, although
       fundamental and constitutionally protected, are not absolute. In re Angela
       E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty
       to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority
       as parens patriae when interference with parenting is necessary to prevent
       serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re
       Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
       v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).

       Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,
2005)). A person seeking to terminate parental rights must prove both the existence of
one of the statutory grounds for termination and that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

       Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the
grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at
546. As opined by the Tennessee Supreme Court:

       The trial court’s ruling that the evidence sufficiently supports termination
       of parental rights is a conclusion of law, which appellate courts review de
                                            -3-
        novo with no presumption of correctness. In re M.L.P., 281 S.W.3d [387,]
        393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215
        S.W.3d [793], 810 [(Tenn. 2007)]). Additionally, all other questions of law
        in parental termination appeals, as in other appeals, are reviewed de novo
        with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 2016 WL 819593, at *12.

                                               Discussion

        Mother raises several issues on appeal, arguing that the trial court erred in finding
any grounds for termination of her parental rights and that the child’s best interest is not
served by termination.6 As an initial matter, however, we must discuss the state of the
trial court’s order. It is well-settled that the trial court must make “specific findings of
fact and conclusions of law” when entering an order in a termination of parental rights
proceeding. See Tenn. Code Ann. §36-1-113(k) (“The court shall enter an order that
makes specific findings of fact and conclusions of law[.]”); see also Tenn. R. Civ. P.
52.01 (“In all actions tried upon the facts without a jury, the court shall find the facts
specially and shall state separately its conclusions of law and direct the entry of the
appropriate judgment.”).

        The trial court speaks through its written order, not through the transcript. See
Green v. Moore, 101 S.W.3d 415, 420 (Tenn. 2003). As such, this Court typically does
not measure the appropriateness of a written order by whether it is identical to the trial
court’s oral ruling. In Smith v. UHS of Lakeside, 439 S.W.3d 303 (Tenn. 2014),
however, the Tennessee Supreme Court held that the trial court’s judgment, in the context
of granting or denying a motion for summary judgment, must be “adequately explained
and [] the product of the trial court’s independent judgment[,]” whether through an order
prepared by the trial court or an oral ruling later memorialized by a party-prepared order.
Id. at 314. In Smith, the trial court orally granted summary judgment without providing
any basis for its decision, directing counsel for one party to draft the trial court’s order
and provide the “rationale for the [c]ourt’s ruling.” Id. at 317. The Tennessee Supreme
Court held that the trial court had abrogated its “high judicial function” to provide the
basis for its ruling and that the basis provided by the party-prepared order would not be
imputed to the trial court. Id. at 317–18. In reaching this result, the Smith court relied on
cases involving not only summary judgment, but also concerning bench trials and other

        6
          DCS also asserts that this Court lacks jurisdiction to consider this appeal because a timely notice
of appeal was not filed in accordance with Tennessee Code Annotated section 36-1-124(d). Specifically,
DCS asserts that section 36-1-124(d) requires that the litigant-appellant, rather than merely his or her
counsel, sign a notice of appeal. In In re Bentley D., --- S.W.3d ---, No. E2016-02299-SC-RDO-PT, 2017
WL 5623577 (Tenn. Nov. 22, 2017), however, the Tennessee Supreme Court held that the ambiguous
language of Tennessee Code Annotated section 36-1-124(d) should not be read to require the personal
signature of the litigant-appellant. The notice of appeal filed in this case was therefore sufficient.
                                                   -4-
types of hearings. See id. at 316–17 (citing DiLeo v. Ernst & Young, 901 F.2d 624, 626
(7th Cir. 1990) (involving the dismissal of a complaint); Aiken Cty. v. BSP Div. of
Envirotech Corp., 866 F.2d 661, 677 (4th Cir. 1989) (involving a bench trial); Clady v.
Los Angeles Cty., 770 F.2d 1421, 1427 (9th Cir. 1985) (same); State v. King, 432 S.W.3d
316, 321 (Tenn. 2014) (involving a sentencing hearing); Madden Phillips Const., Inc. v.
GGAT Dev. Corp., 315 S.W.3d 800, 810 (Tenn. Ct. App. 2009) (involving a bench trial);
Airline Const. Inc. v. Barr, 807 S.W.2d 247, 254 (Tenn. Ct. App. 1990) (same)). Indeed,
the court held that prior courts “have declined to accept findings, conclusions, or orders
when the record provides no insight into the trial court’s decision-making process, . . . 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[.]’” Smith, 439 S.W.3d at
316 (quoting Bright v. Westmoreland Cty., 380 F.3d 729, 732 (3d Cir. 2004)) (emphasis
added). Thus, it appears that the holding in Smith is equally applicable in other cases
where trial courts are required to make findings of fact and conclusions of law, such as
following bench trials in termination proceedings. C.f. Bridgeforth v. Jones, No. M2013-
01500-COA-R3-CV, 2015 WL 336376, at *6 (Tenn. Ct. App. Jan. 26, 2015) (indicating
the trial court’s responsibility is greater when required to make findings of fact and
conclusions of law following a bench trial than when ruling on a motion for summary
judgment).

       Indeed, in at least one case, this Court has applied the holding in Smith in a
termination of parental rights case. See In re Matthew T., No. M2015-00486-COA-R3-
PT, 2016 WL 1621076, at *5–6 (Tenn. Ct. App. Apr. 20, 2016). In Matthew T., the
appealing parent argued that the trial court’s written order was not sufficient because it
did not exactly match the trial court’s oral ruling and had been prepared by counsel for
DCS. Id. at *5. Citing Smith, we noted that while judge-prepared orders are preferable,
party-prepared orders are permitted when two conditions are met: (1) “‘the findings and
conclusions must accurately reflect the decision of the trial court’”; and (2) “‘the record
must not create doubt that the decision represents the trial court's own deliberations and
decision.’” Id. (quoting Smith, 439 S.W.3d at 316). Ultimately, we noted that the
touchstone of this inquiry is “‘the fairness and independence of the trial court's
judgment.’” Matthew T., 2016 WL 1621076, at *5 (quoting Smith, 439 S.W.3d at 316).
In Matthew T., the trial court reviewed the petition prior to making its oral ruling and
made oral findings that several of the grounds alleged in the petition had been proven by
clear and convincing evidence. Matthew T., 2016 WL 1621076, at *6. Finally, we noted
that the differences between the trial court’s oral ruling and written order were “minor
and no basis for reversal.” Id. As such, we concluded that the trial court complied with its
statutory duties.

        Unfortunately, the same is not true in this case. Here, following the conclusion of
the trial, the entirety of the trial court’s oral ruling proceeded as follows:


                                           -5-
        THE COURT: It is the finding of this court by clear and convincing
        evidence that the grounds for termination of the parental rights of [Mother]
        in th[is] matter . . . , I find that the evidence is there for the parental rights
        to be terminated. I further find that the termination of the parental rights of
        [Mother] in th[is] matter . . . , I find that the termination of her rights are in
        the best interest of the child. Anything else?
        [Attorney for Mother]: No, Your Honor.
        [Attorney for DCS]: Your Honor, if you could specify as to which grounds?
        The state has alleged four grounds. Are you finding that all four grounds
        have been proven by clear and convincing evidence?
        COURT: Yes.
        [Attorney for DCS]: And are you finding that the state’s witnesses are
        credible in what’s been heard today?
        COURT: Yes.
        [Attorney for DCS]: Do you find the testimony as to the mother is not
        credible?
        COURT: Yes. Anything else?
        [Attorney for Mother]: No, Your Honor, thank you.
        COURT: Thank you all, very much.

The following day, the trial court entered a fifteen page order detailing the four grounds
for termination and facts supporting each ground and citing the applicable factors in
determining the child’s best interest as well as facts supporting each factor.

       From our review, the trial court’s oral ruling and written order have far more than
“minor” differences, given that the trial court’s oral ruling contains no factual findings
whatsoever. See Matthew T., 2016 WL 1621076, at *6; see also In re K.N.R., No.
M2003-01301-COA-R3-PT, 2003 WL 22999427, at *4 (Tenn. Ct. App. Dec. 23, 2003)
(noting that a recitation that a ground has been proven is a conclusion of law rather than a
finding of fact). Instead, in the face of the trial court’s skeletal oral ruling, it appears that
DCS was required to draft an order providing the “rationale” for the trial court’s ruling,
much like in Smith.7 See Smith, 439 S.W.3d at 317; see also Delevan-Delta Corp. v.
Roberts, 611 S.W.2d 51, 53 (Tenn. 1981) (“[I]t is improper for the trial court to require
counsel to prepare findings[.]”) (cited with approval in Smith).
       The trial court’s written order, however, does not alleviate our concerns. C.f. In re
B.L.R., No. W2004-02636-COA-R3-PT, 2005 WL 1842502, at *11 (Tenn. Ct. App. Aug.
4, 2005) (“[W]hen 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
        7
           In its oral ruling, the trial court does not expressly direct counsel for DCS to prepare the final
order in this case, unlike in Smith. The circumstances surrounding the order, however, including the fact
that it was approved for entry by DCS’s counsel, entered the day following the termination hearing, and
tracks the language of DCS’s termination petition, discussed in detail, infra, leads this Court to conclude
that the order was most likely drafted by counsel for DCS.
                                                   -6-
parties, satisfies the statute.”) (decided prior to Smith). Rather, after a thorough review of
the order, it appears that the final judgment is virtually identical to DCS’s termination
petition. Indeed, of the sixty factual allegations contained in DCS’s termination petition,
fifty-three appear to have been both identically numbered and recited in the final order.8
Only the introductions and conclusions of the two documents contain any material
differences.9 Our conclusion that the final order was largely lifted from DCS’s petition is
buttressed by the fact that the final order contains not a single mention of any of the proof
presented at the termination hearing, such as the testimony of the witnesses or the
depositions submitted as exhibits.10 In Smith, the Tennessee Supreme Court cited
favorably a federal case that took issue with the practice of trial courts adopting briefs
prepared by parties. See DiLeo v. Ernst & Young, 901 F.2d 624, 626 (7th Cir. 1990).
Therein, the United States Court of Appeals for the Seventh Circuit stated:

        A district judge could not photocopy a lawyer’s brief and issue it as an
        opinion. Briefs are argumentative, partisan submissions. Judges should
        evaluate briefs and produce a neutral conclusion, not repeat an advocate's
        oratory. From time to time district judges extract portions of briefs and use
        them as the basis of opinions. We have disapproved this practice because it
        disguises the judge’s reasons and portrays the court as an advocate’s tool,
        even when the judge adds some words of his own. . . . Judicial adoption of
        an entire brief is worse. It withholds information about what arguments, in
        particular, the court found persuasive, and why it rejected contrary views.
        Unvarnished incorporation of a brief is a practice we hope to see no more.

Id. at 626 (7th Cir. 1990) (citations omitted). While the language at issue in this case was
taken from DCS’s termination petition rather than a pre-trial brief, we find the discussion
by the Seventh Circuit helpful in this case, especially given the gravity of termination of
parental rights cases. See In re Jaylah W., 486 S.W.3d 537, 546 (Tenn. Ct. App. 2015),
perm. app. denied (Tenn. 2016) (noting that because of the gravity of the consequences
of termination of parental rights proceedings, specific procedures must be followed).
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.

        8
          The remaining seven allegations are identical in the final order but renumbered.
        9
           Of the sixty allegations of fact or proposed conclusions of law in the petition, however
numbered, only four are not identical to the final order. The differences are not in any way material but
rather change allegations to findings and/or conclusions. For example, the petition contains the following
proposed conclusion: “41. Therefore, [DCS] avers that the parental rights of [Mother] should be
terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(3).” The final order provides: “41. Therefore, the
parental rights of [Mother] should be terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(3).”
        10
          The final order does recite the requirements of the permanency plans at issue in this
case. Of course, these recitations are identical to the recitations contained in the termination
petition.
                                                  -7-
Smith, 439 S.W.3d at 316. Thus, like the Tennessee Supreme Court in Smith, we decline
to impute the rationale provided by the final written order to the trial court. As noted by
our supreme court, the duty to make decisions is a “high judicial function” requiring
judges to use their own independent judgment to resolve the parties’ disputes, rather than
delegating this task to parties. Id. at 313.

        In Smith, the Tennessee Supreme Court determined that the appropriate remedy
for the trial court’s failure to provide the rationale for its ruling was to remand to the trial
court for reconsideration. See Smith, 439 S.W.3d at 316. Likewise, this Court has held
that the proper remedy when the trial court fails to make specific findings of fact and
conclusions of law in a termination proceeding is to vacate the judgment and remand for
further proceedings. See In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005)
(citing In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003)). We understand the hardship
that may result to two families as a result of delaying a final decision in this matter.
Because of the heightened protections afforded in termination of parental rights cases and
the concomitant need for “individualized decision making”, Audrey S., 182 S.W.3d at
861, however, we cannot excuse the trial court from its obligation to render a decision
that is “the product of the trial court’s independent judgment.” Smith, 439 S.W.3d at
315. Here, the record causes this Court grave concern and substantial doubt as to whether
the trial court properly preformed its high judicial function. Id. at 313. As such, we must
vacate and remand with instructions for the trial court to enter an order that is the product
of its own judgment.

                                         Conclusion

       The judgment of the Overton County Juvenile Court is vacated and this cause is
remanded for further proceedings consistent with this Opinion. Costs of this appeal are
taxed to Appellee the Tennessee Department of Children’s Services, for which execution
may issue if necessary.




                                                   _________________________________
                                                   J. STEVEN STAFFORD, JUDGE




                                             -8-
