                                                                                                            02/12/2020
                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                               Assigned on Briefs January 2, 2020

                                        IN RE NATHAN C.

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

                                 No. E2019-01197-COA-R3-PT
                            ___________________________________

This is the second appeal of this termination of parental rights case. Appellants appeal
the trial court’s termination of their parental rights on the grounds of: (1) abandonment by
willful failure to support, Tenn. Code Ann. § 36-1-113(g)(1); and (2) persistence of the
conditions that led to the children’s removal, Tenn. Code Ann. § 36-1-113(g)(3).
Because it does not appear that the trial court exercised its independent judgment in
reaching its decision, we vacate the judgment and remand for entry of findings of fact and
conclusions of law in compliance with Tennessee Code Annotated § 36-1-113(k) (2017).
Such findings and conclusions must also be a product of the trial court’s own independent
judgment.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Cynthia Fields Davis, Crossville, Tennessee, for the appellant, Allison T.1

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

Jeremy D. Trapp, Smithville, Tennessee, for the appellees, Patricia T. and Robert T.

                                                OPINION

      Allison T. (“Mother”) and Cody C. are the biological parents of Mason C. (d.o.b.
Dec. 2009).2 Mother and Jeffrey M. (“Father,” and together with Mother, “Appellants”)

        1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
are the biological parents of Nathan C. (d.o.b. Feb. 2014) (together with Mason C., the
“Children”). Allison T. and Jeffrey M. are married, but at the time of the most recent
hearing, Allison T. had an order of protection against Jeffrey M.

       For consistency, we restate the relevant background facts from the first appeal, In
re Mason C., No. E2018-01378-COA-R3-PT, 2018 WL 6600249 (Tenn. Ct. App. Dec.
14, 2018) (hereinafter “Mason C. I”). On December 21, 2015, the Cumberland County
Chancery Court granted immediate emergency custody of the Children to Patricia T. and
Appellee Robert T,3 the Children’s maternal grandparents. Following a preliminary
hearing, the chancery court found that

        there 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.

Mason C. I, at *1. The chancery court then transferred the dependency and neglect case
to the Cumberland County Juvenile Court (“trial court”). On May 27, 2016, the trial
court entered an ex parte order suspending Appellants’ visitation. Id.

       On November 14, 2016, Appellee filed a petition to terminate Appellants’ parental
rights. The petition alleged the following statutory grounds as to both Appellants: (1)
severe child abuse of Mason C.; (2) abandonment by willful failure to support 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 that led to removal
of the Children from the parents. Id.

      Following a bench trial conducted on June 5, 2018, the trial court terminated
Appellants’ parental rights by order of July 24, 2018. Id. In its entirety, the July 24,
2018 order states:

        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 [. . .]. 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

        2
            Cody C. is deceased.
        3
          Patricia T. died during the pendency of this case. No suggestion of death or substitution of party
was filed. However, for purposes of this appeal, we will consider Robert T. to be the sole Appellee.
                                                   -2-
      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.

      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED THAT
      THE TERMINATION AS PRAYED FOR IN THE PETITION OF
      [GRANDPARENTS], IS HEREBY GRANTED [. . .].

       The trial court’s June 5, 2018 oral findings of fact and conclusions of law, as
referenced in its order and attached thereto as Appendix A, provide:

      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.
                                          -3-
       Following the June 5, 2018 hearing, Appellee requested that the trial court make
more specific findings concerning best interests. To this end, the trial court reconvened
the matter on July 3, 2018. The trial court incorporated its oral statements from the July
3, 2018 hearing into its July 24, 2018 order and attached the following portion of the
transcript as Appendix B thereto:

       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.

       [Appellee’s Counsel]: Does Your Honor want to say anything about the
       standard of proof?

       Court: It was very convincing.

       [Appellee’s Counsel]: Thank you, Your Honor.

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

       In Mason C. I, this Court vacated the trial court’s order and remanded the case for
entry of sufficient findings of fact and conclusions of law in compliance with Tennessee
Code Annotated section 36-1-113(k), which states that, in termination of parental rights
cases, “[t]he court shall enter an order that makes specific findings of fact and
conclusions of law.” (emphasis added). In Mason C. I, we specifically held 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.

Id., at *5. We then identified and enumerated several specific deficiencies in the trial
court’s order, including: (1) “[t]he 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;” (2) “[a]lthough 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;” (3) 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); and (4) “the trial court’s oral findings appear to
                                              -4-
combine the statutory ground of persistence of conditions, which had been pled in the
petition, with the best interest analysis.” Id.

       On remand, the trial court held a hearing on June 11, 2019. By order of June 11,
2019, the trial court terminated Appellants’ parental rights on the grounds of: (1)
abandonment by willful failure to support; and (2) persistence of the conditions that led to
the removal of the Children. The trial court also found that termination of Appellants’
respective parental rights was in the Children’s best interests. Appellants appeal.

       The dispositive issues are as follows:

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

   2. If so, whether there is clear and convincing evidence to support the trial court’s
      determination that termination of either Appellants’ respective parental rights is in
      the Child(ren)’s best interest?

   3. Whether there is clear and convincing evidence to support either of the grounds
      relied upon by the trial court in terminating Appellants’ respective parental rights.

       We begin our review with the sufficiency of the trial court’s findings. As
discussed above, the basis of our remand in Mason C. I was our conclusion that the trial
court “fail[ed] to perform its judicial duty as required by Tennessee Code Annotated §
36-1-113(k).” Mason C. I, at *6. The court’s statutory duty “to enter an order that
makes specific findings of fact and conclusions of law,” Tenn. Code Ann. § 36-1-
1223(k), requires more than a rote adoption of an order prepared by the prevailing party’s
counsel. As stated in Tennessee Rule of Civil Procedure 52.01, “[i]n 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.”
(emphases added). So, in addition to entering an order containing sufficient findings and
conclusions, the findings and conclusions stated in such order must be the product of the
court’s “independent judgment.” Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316
(Tenn. 2014). As explained by the Tennessee Supreme Court,

       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.

                                           -5-
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:

      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, 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.
                                  -6-
Smith, 439 S.W.3d at 312-13, 315-16 (footnote and other internal citations omitted)
(emphases added). While Smith involved a motion for summary judgment, this Court
has applied the reasoning in Smith to proceedings involving the termination of parental
rights. See, e.g., In re Marneasha D., No. W2017-02240-COA-R3-PT, 2018 WL
4847108, at *5 (Tenn. Ct. App. Oct. 4, 2018) (“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.’” (quoting Smith, 439 S.W.3d at 316)); 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, 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)).

       Turning to the record, at the July 11, 2019 remand hearing, Appellee’s counsel
presented the trial court with a proposed order and then proceeded to discuss the contents
of the order that he prepared in advance of the hearing. In doing so, Appellee’s counsel
appears to dictate the court’s findings, as opposed to the court making those findings on
its own (as required). For example:

              Well, Your Honor, had found that there was[sic] not grounds for
       termination due to physical abuse. And you indicated, Your Honor, that
       there was some evidence of physical abuse, but did not find that that abuse
       rose to the level of severe or aggravated abuse, so that’s what we put in this
       proposed order.

              The Court likewise did not find grounds for termination pursuant to
       abandonment for failure to visit with the children. The Court’s reasoning
       there was that due to the restraining order entered in May of 2016, that the
       parents could not visit due to that order, so the Court did not find
       abandonment for willful failure to visit due to that restraining order in that
       case.

                                           -7-
              Your Honor did find by clear and convincing evidence that the
      mother, Allison T[.], abandoned both minor children, [. . .] pursuant to
      Tennessee 36-1-102(1)(a)(i) due to the fact that for a period of more than
      four consecutive months immediately preceding the filing of the
      termination petition that they willfully failed to support and/or willfully
      failed to make reasonable payments for the support of the children for more
      than four months. Your Honor did find that ground by clear and
      convincing evidence.

Without taxing the length of this opinion, there are numerous other examples, in the
transcript, where Appellee’s counsel ostensibly tells the trial court what it found in
Mason C. I. However, as discussed above, on appeal in Mason C. I, this Court
determined that the trial court’s findings in Mason C. I were insufficient.

      Also troubling are Appellee’s counsel’s admissions that certain facts and legal
conclusions are disputed. For example, Appellee’s counsel states:

            One issue that I had found that was a little complicated was the four
      month period. There was one day of incarceration there within that four
      month period and the question becomes does that include, would it be
      considered an incarcerated parent if they were arrested that day and made
      bond the same day.

             Our proposal, You Honor, or what we’d ask you to find regardless of
      whether or not it was four months immediately preceding the filing of the
      petition, from July 13th to November 13th, or if it was from July the 6th to
      November 6th up to the date of that incarceration, that both of those apply.
      And that Your Honor would find abandonment under both grounds, for
      willfully failing to support and willfully failing to make reasonable
      payments for support for more than four months.

             So in the event it’s incarcerated, we’d have that time period covered.
      In the event the Court finds that there was no incarceration during the four
      month period, we would move the Court to find that there is abandonment
      under both scenarios, that both areas are covered in that matter.

      Furthermore, concerning the best interests analysis, it appears that Appellee’s
counsel weighs the statutory factors himself. For example, he states:

             Number seven, whether the physical environment of the parents
      regarding the home is healthy and safe. Any criminal activity, use of
      alcohol or controlled substances has made either the parent or guardian
      consistently unable to care for the child in a safe and stable environment.
                                           -8-
             We think this factor weighs heavily in favor of termination. There
      has been no support for two and a half years. No help with these children
      for two and a half years. Substantial evidence of neglect. Continued to
      have a criminal history throughout these proceedings. Have spent time in
      jail. Both of them did. I think it was eight months at some point in 2017,
      so we’re talking about serious jail time.

                                            ***

      Number eight is whether the parents’ or guardians’ mental or emotional
      status would be detrimental to prevent the child or parent from effectively
      providing safe and stable supervision for the child.

             We think this factor also weighs heavily in favor of termination. As
      with the other factors, it would be devastating for these children to return to
      the parents at any time or even have any contact with them.

                                            ***

              So we feel by all of these statements in this order as to the clear
      best interest factors, we would ask the court to find everything as proposed
      in the order by clear and convincing evidence that termination for the
      [Appellants’] parental rights are in the children’s best interest and that their
      rights should be terminated so that the petitioner may adopt these children.

(emphases added).

      Following Appellee’s counsel’s recitation of his prepared findings and
conclusions, Mother’s counsel objected, to-wit:

             Your Honor, obviously I object to the order prepared by the
      petitioner’s attorney and approved by the guardian ad litem. Number one
      for timeliness. I received a couple of drafts yesterday. And then a draft this
      morning. There has not been ample time to review, but I’m going to
      suppose he just read exactly what was written to you. That’s the first time
      I’ve had any type of review.

             For the second reason, the Court must make its own determination of
      facts presented at court. Not what the petitioners prepared. You’d have to
      look at the transcript and the evidence that was presented before you and
      only during that period of time.

                                           -9-
               The petitioner did not establish proof of the determinative time
       period during the trial regarding the mother or the respondent mother’s
       ability to pay child support. It wasn’t her burden to prove. It was the
       petitioner’s. And we established that. That was not proven during the trial
       of this matter.

             There was not sufficient proof entered in the record to establish any
       ground of termination of parental rights. And if you don’t establish a
       ground, you never get to the analysis of best interest.

              We submit that there was proof in the trial that both children drew
       disability checks that supported the children. And we submit that the case
       should be dismissed upon the facts presented at trial as insufficient to
       sustain termination of the mother’s parental rights.

Father’s attorney also objected, to-wit:

               Your Honor, I represent [Father] in this action. We agree with the
       mother’s counsel, Ms. Davis, that at this time petitioner’s counsel is trying
       to introduce facts and evidence that weren’t presented at the time of the
       trial. This case was remanded for you to consider the record and evidence
       at the time of trial.

               Even the appellate order states that there were no facts brought into
       evidence that supported persistent conditions. There was no determination
       for the period relevant, for the four month time frame. And the Court was
       silent about [Father’s] ability to pay. And again, I agree with Ms. Davis.
       That’s their burden to prove. It’s not our clients’ burden to prove

       Despite the foregoing objections and disputes, the trial court stated only the
following before adopting, Appellee’s order, in toto:

       Under [Appellee’s] proposed order, it reflects what I actually found. I just
       didn’t say it. And that’s it in a nutshell. I just didn’t say it. But it’s exactly
       what I found. Therefore, I will adopt your order.

       Based on the trial court’s statement and the timing of the entry of the final order,
we suspect that the trial court did not actually read through the proposed order before
entering it as its own. The June 11, 2019 hearing transcript indicates that the hearing
started at “the approximate hour of 11:15 A.M.,” and the trial court’s order is stamped
entered on June 11, 2019 at 11:47 A.M. Our suspicion is heightened by the fact that the
order leaves certain necessary issues undecided. For example, the trial court’s order does
not definitively answer the question of the relevant four-month time period for
                                          - 10 -
abandonment. Rather, it adopts an “and/or” approach as it appears in Appellee’s
proposed order:

       The Court is aware of a brief incarceration period of both respondents
       which occurred on November 7, 2016, both of which made bond on the
       same day as their arrest. For the purposes of this Order, the relevant 4-
       month period includes both July 13, 2016 to November 13, 2016 and/or
       from July 6, 2016 to November 6, 2016 (if the 1-day incarceration is
       considered on November 7, 2016). This Court further finds by clear and
       convincing evidence that both respondents have abandoned the minor
       children as indicated herein for any 4-month period they were not
       incarcerated prior to the filing of the petition for termination of parental
       rights.

(emphasis added). As discussed above, at the hearing, Appellee’s counsel specifically
asked the trial court to make the requisite finding concerning the relevant time period
pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i) (describing the relevant
time period as “a period of four (4) consecutive months immediately preceding the filing
of a proceeding or pleading to terminate the parental rights of the parent or parents”).
The trial court failed to do so. In addition, the order incorrectly states that “the petitioner
may proceed with the step-parent adoption ex parte.” (emphasis added). Appellee is the
minor Children’s maternal grandparent. Perhaps this error is merely typographical, but
coupled with the other issues surrounding the trial court’s adoption of Appellee’s order, it
leads us to conclude that the trial court disregarded our mandate in Mason C. I.

        In Mason C. I, we specifically held that the original order was deficient, inter alia,
because the trial court did not determine the relevant time period for abandonment and
failed to make a determination on the willfulness criterion because the trial court was
silent “regarding the parents’ ability to pay.” Not only did the trial court fail to remedy
these deficiencies on remand, it again failed to independently weigh the best interests
factors. Rather than engaging in the required independent analysis, the trial court simply
adopted Appellee’s findings and conclusions over Appellants’ objections. Such practice
does not satisfy the findings and conclusions requirements of Tennessee Code Annotated
section 36-1-113(k) and Tennessee Rule of Civil Procedure 52.01.
        As stated by the Tennessee Supreme Court,

       [a] trial court’s verbatim adoption of verbiage submitted by the prevailing
       party detracts from the appearance of a hardworking, independent judge
       and does little to enhance the reputation of the judiciary. At the very least,
       it gives rise to the impression that the trial judge either has not considered
       the losing party’s arguments, or has done little more than choose between
       two provided options rather than fashioning a considered, independent
       ruling based on the evidence, the filings, argument of counsel, and
                                            - 11 -
       applicable legal principles. At worst, it risks creating an appearance of bias
       or the impression that the trial court ceded its decision-making
       responsibility to one of the parties.

Smith, 439 S.W.3d at 315 (footnotes omitted). Although, after Smith, this Court held
that, in a termination proceeding, 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), such is not the case here.

        The deficiencies that required remand in Mason C. I have not been cured.
Furthermore, the trial court again failed to conduct any independent analysis to support
its termination of Appellants’ parental rights. Rather, it appears that the trial court “ceded
its decision-making responsibilities” to Appellee’s counsel. Smith, 439 S.W.3d at 315.
Accordingly, we again vacate the order of termination and remand the case for the trial
court’s independent analysis and independent resolution of the disputed issues. Our
holding does not preclude the trial court from reopening proof in the case.

                                        Conclusion

       For the foregoing reasons, we vacate the trial court’s judgment and remand for
further proceedings consistent with this opinion. Costs of the appeal are assessed to the
Appellee, Robert T., for all of which execution may issue if necessary.


                                                     _________________________________
                                                     KENNY ARMSTRONG, JUDGE




                                            - 12 -
