                                                                                                              02/28/2017




                      IN THE COURT OF APPEALS OF TENNESSEE
                                  AT NASHVILLE
                                           January 18, 2017 Session

                                                IN RE B.B., ET AL.

                      Appeal from the Juvenile Court for Cheatham County
                        No. 2015-532 Phillip A. Maxey, Special Judge


                                     No. M2016-00953-COA-R3-PT
                                 _________________________________


The grandparents of three minor children brought this action to terminate the parental
rights of the children’s mother.1 Following a trial, the court found clear and convincing
evidence of grounds to terminate mother’s parental rights pursuant to Tenn. Code Ann.
§§ 36-1-113(g)(8)(B)(i), (ii) and -(9)(A)(iv), (v) (2015).2 By the same quantum of proof,
the trial court also found that termination is in the children’s best interest. Mother
appeals. We hold that Tenn. Code Ann. § 36-1-113(g)(9)(A) is not applicable to this
case. Accordingly, we vacate the trial court’s holding with respect to that ground. As for
the remaining grounds, we hold that the trial court’s final order failed to include the
requisite findings of fact and conclusions of law required under Tenn. Code Ann. § 36-1-
113(k). As a result, we vacate the final order of termination and remand to the trial court
with instructions.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT and W. NEAL MCBRAYER, JJ., joined.

Michele Hodges, Nashville, Tennessee, for the appellant, T.B.

Mark C. Scruggs, Nashville, Tennessee, for the appellees, C.S. and W.S.




        1
            The parental rights of each child’s putative father are not at issue on this appeal.
        2
            This statute and others cited in this chapter have been updated. However, we apply the version of the
statute in effect on the date the petition to terminate Mother’s parental rights was filed, Sept. 16, 2015.
                                       OPINION

                                           I.

       T.B. (Mother) and C.S. (Grandmother) have had a difficult relationship, which, at
times, has been contentious. Mother has a history of mental illness. She has been
diagnosed with bi-polar disorder, personality affective disorder, post-traumatic stress
disorder, and general anxiety. She has been in some form of therapy since the age of
five. She has attempted suicide on a number of occasions, at times requiring
hospitalization.

       Mother has four children, the oldest of which was previously adopted by
Grandmother. In 2010, the Department of Children’s Services filed a petition alleging
Mother’s three youngest children – B.B., D.B., and H.B. (collectively the children) –
were dependent and neglected. They were placed in protective custody. In March 2011,
at Mother’s request, Grandmother was given temporary custody of the children. The
court later declared the children dependent and neglected due to Mother’s drug use.

       From 2011 to 2014, Mother lived off-and-on with Grandmother and W.S.
(Stepgrandfather) (collectively the Grandparents). She moved out of their home to live
with the father of D.B. Following a disagreement with the Grandparents in July 2015,
Mother filed a petition to regain custody of the children. The Grandparents responded by
filing a counterclaim to terminate Mother’s parental rights. They sought termination
pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and -(9)(A)(ii), (iii), and (v). They later
amended their counterclaim to add as a ground for termination Tenn. Code Ann. § 36-1-
113(g)(8)(A) and (B).

        The trial court permitted Mother to visit the children, but Grandfather was to be
present at all times to supervise the visits. The Grandparents describe these visits as a
“disaster.” On February 4, 2016, Mother filed an emergency motion to modify the terms
of her visitation. On February 12, 2016, the Grandparents filed a petition against Mother
for termination of visits and criminal contempt. A trial occurred on April 8, 2016. The
trial court entered a written order on April 11, 2016, stating:

             . . . Prior to the trial, the Grandparents moved to strike the
             claims against the putative fathers listed herein, and thus,
             their rights are not affected by this proceeding. After
             presentation of all the evidence as well as the argument of
             Counsel, the Court finds as follows:



                                           2
1. The pleadings are amended to conform to the
proof.

2. The Court has considered all of the factors set
out in T[enn]. C[ode] A[nn]. §36-1-113(i)(1)-
(9);

3. The Grandparents have proven by clear and
convincing evidence that the parental rights of
the Mother should be terminated pursuant to
T[enn]. C[ode] A[nn]. § 36-1-113(g)(8)(B)(i)
and (ii) in as much as based on extensive proof
presented through Dr. Jan[ie] Berryman and
other witnesses herein, the Mother’s mental
condition is such that it is so impaired and is
likely to remain impaired such that she will not
be able to assume or resume the care and
responsibility for the children herein in the near
future and termination of her rights are in the
best interests of the children;

4. Further, pursuant to T[enn]. C[ode] A[nn]. §
36-1-113(g)(9)(A)(iv) and (v), the Grandparents
have proven by clear and convincing evidence
that the Mother has failed to manifest an ability
and willingness to assume legal and physical
custody of the children and placing the children
in her custody would pose a risk of substantial
harm to the physical and psychological welfare
of the children;

5. The Grandparents are awarded full custody
and guardianship of the minor children listed
herein;

6. The Petition for Contempt filed by the
Grandparents is denied.

7. The Petition for Custody filed by the Mother
is denied.

                        3
             THEREFORE, based upon the foregoing, IT IS HEREBY
             ORDERED:

                    1. The parental rights of the Mother to the
                    children listed herein are hereby terminated;

                    2 The Grandparents are awarded full custody
                    and guardianship of the minor children listed
                    herein;

                    3. The Petition for Contempt filed by the
                    Grandparents is denied.

                    4. The Petition for Custody filed by the Mother
                    is denied.

                    5. All costs associated with this action are
                    hereby taxed to the Mother for which execution
                    may issue, if necessary.

(Capitalization in original.) The final order did not make a finding as to persistence of
conditions, Tenn. Code Ann. § 36-1-113(g)(3). The court, however, stated from the
bench at trial that it had not found cause for termination on that ground.

                                           II.

      Mother raises the following issues, which we quote verbatim from her brief:

             Whether the absence of findings of fact and conclusions of
             law by the trial court necessitates a new trial in this matter?

             Whether despite the absence of findings of fact and
             conclusions of law, there was clear and convincing evidence
             to establish grounds for termination of mother’s parental
             rights?

             Whether termination of parental rights is in the best interest
             of the children?




                                           4
              Whether deficiencies in the petition and final order render the
              trial court’s verdict void?

(Paragraph numbering in original omitted.)

                                             III.

        A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least 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
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).




                                              5
       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in 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 interest[ ], regardless of whether the parent challenges
these findings on appeal.”)

      The Supreme Court has delineated our standard of review:

             An appellate court reviews a trial court’s findings of fact in
             termination proceedings using the standard of review in Tenn.
             R. App. P. 13(d). Under Rule 13(d), appellate courts review
             factual findings de novo on the record and accord these
             findings a presumption of correctness unless the evidence
             preponderates otherwise. In light of the heightened burden of
             proof in termination proceedings, however, the reviewing
             court must make its own determination as to whether the
             facts, either as found by the trial court or as supported by a
             preponderance of the evidence, amount to clear and
             convincing evidence of the elements necessary to terminate
             parental rights. The trial court’s ruling that the evidence
             sufficiently supports termination of parental rights is a
             conclusion of law, which appellate courts review de novo
             with no presumption of correctness. Additionally, all other
             questions of law in parental termination appeals, as in other
             appeals, are reviewed de novo with no presumption of
             correctness.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                           IV.




                                            6
                                             A.

      We first address the trial court’s conclusion that the Grandparents established that
Mother’s parental rights should be terminated pursuant to grounds included in Tenn.
Code Ann. § 36-1-113(g)(9)(A). This statute provides:

              The parental rights of any person who, at the time of the
              filing of a petition to terminate the parental rights of such
              person or, if no such petition is filed, at the time of the filing
              of a petition to adopt a child, is not the legal parent or
              guardian of such child or who is described in § 36-1-117(b)
              or (c) may also be terminated based upon any one (1) or
              more of the following additional grounds:

                                      *       *      *

                     (iv) The person has failed to manifest an ability
                     and willingness to assume legal and physical
                     custody of the child;

                     (v) Placing custody of the child in the person’s
                     legal and physical custody would pose a risk of
                     substantial harm to the physical or
                     psychological welfare of the child[.]

(Emphasis added.) A biological mother is included in the definition of a child’s “legal
parent.” Tenn. Code Ann. § 36-1-102(28)(A)(i) (2014). Based upon the plain language
of the statute, the grounds contained in Tenn. Code Ann. § 36-1-113(g)(9)(A) do not
apply to a child’s biological mother. In the current case, Mother’s biological relationship
to the children is undisputed. Therefore, the above statute does not apply to Mother. The
Grandparents’ counsel conceded as much at oral argument before this Court. Because
subsection (9)(A) is not applicable to the current case, we vacate the trial court’s holding
that the Grandparents established, by clear and convincing evidence, this ground to
terminate Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv),
(v).

                                             B.

      The trial court also found cause to terminate Mother’s parental rights pursuant to
Tenn. Code Ann. § 36-1-113(g)(8), which provides in relevant part:

                                              7
             (B) The court may terminate the parental . . . rights of that
             person if it determines on the basis of clear and convincing
             evidence that:

                    (i) The parent . . . of the child is incompetent to
                    adequately provide for the further care and
                    supervision of the child because the parent’s . . .
                    mental condition is presently so impaired and is
                    so likely to remain so that it is unlikely that the
                    parent . . . will be able to assume or resume the
                    care of and responsibility for the child in the
                    near future; and

                    (ii) That termination of parental . . . rights is in
                    the best interest of the child;

       Previously, we have upheld a trial court’s finding that this ground was proven by
clear and convincing evidence when the parent at issue was found to have “a ‘lifelong
condition’ ” and to “function[] in such a low range that no amount of training, education,
or counseling ‘could bring him [or her] up to the level where he [or she] could parent
these children.’ ” State, Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449
(Tenn. Ct. App. 2008). Alternatively, we have reversed a trial court’s finding on this
ground when a parent has been diagnosed with a mental impairment if that diagnosis is
outweighed by other factors. State Dep’t of Children’s Servs. v. Whaley, No. E2001-
00765-COA-R3-CV, 2002 WL 1116430, at *14 (Tenn. Ct. App., filed May 30, 2002).
These factors may include the parent’s ability to live alone, regularly attend visitation
with the child, complete vocational training, obtain employment, use transportation, and
maintain compliance with medications, as well as what level of assistance from other
adults would be available to help the parent care for the child. Id.

        At the trial in the current matter, the court heard expert testimony on Mother’s
mental condition, as well as related lay testimony from Mother and others. In its order,
the trial court addressed this ground as follows:

             The Grandparents have proven by clear and convincing
             evidence that the parental rights of the Mother should be
             terminated pursuant to T[enn]. Code A[nn]. § 36-1-
             113(g)(8)(B)(i) and (ii) in as much as based on extensive
             proof presented through Dr. Jan[ie] Berryman and other
             witnesses herein, the Mother’s mental condition is such that it

                                             8
              is so impaired and is likely to remain impaired such that she
              will not be able to assume or resume the care and
              responsibility for the children herein in the near future[.]

        Mother argues the trial court’s final order failed to make the written findings of
fact and conclusions of law required by Tenn. Code Ann. § 36-1-113(k). “The
termination statute clearly and unequivocally requires the trial court to make the
statutorily required findings and conclusions of law before granting a petition to
terminate parental rights[.]” In re Angela E., 303 S.W.3d at 254. This statute serves to
protect a parent’s rights to due process and a “parent[’s] fundamental right to the care and
custody of [the parent’s] children, which we deny through the termination of parental
rights ‘only upon a determination of [a] parent’s unfitness to be a parent.’ ” Id. (quoting
In re D.A.H., 142 S.W.3d 267, 274 (Tenn. 2004)). As we have previously explained:

              A trial court’s responsibility to make findings of fact and
              conclusions of law in termination cases differs materially
              from its responsibility in other civil cases. Generally, trial
              courts, sitting without juries, are not required to make
              findings of fact or conclusions of law unless requested in
              accordance with Tenn. R. Civ. P. 52.01. Termination cases,
              however, are another matter. Tenn. Code Ann. § 36-1-113(k)
              explicitly requires trial courts to “enter an order which makes
              specific findings of fact and conclusions of law” in
              termination cases. Thus, trial courts must prepare and file
              written findings of fact and conclusions law with regard to
              every disposition of a petition to terminate parental rights,
              whether they have been requested or not.

              Tenn. Code Ann. § 36-1-113(k) reflects the Tennessee
              General Assembly’s recognition of the necessity of
              individualized decisions in these cases. In re Swanson, 2
              S.W.3d 180, 188 (Tenn. 1999) (holding that termination cases
              require “individualized decision making”). It also reflects the
              General Assembly’s understanding that findings of fact and
              conclusions of law facilitate appellate review and promote the
              just and speedy resolution of appeals. Bruce v. Bruce, 801
              S.W.2d 102, 104 (Tenn. Ct. App. 1990). . . .

              When a trial court has not complied with Tenn. Code Ann. §
              36-1-113(k), we cannot simply review the record de novo and

                                             9
              determine for ourselves where the preponderance of the
              evidence lies as we would in other civil, non-jury cases.

In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3
(Tenn. Ct. App., filed Nov. 25, 2003) (internal citations omitted).

       In the current case, the final order provides only a conclusory statement regarding
the ground of mental incompetence. The order offers little explanation as to how the
lower court arrived at its determination that the ground had been proven by clear and
convincing evidence. Namely, the order failed to explain or identify Mother’s diagnoses,
Dr. Berryman’s qualifications as an expert on this issue, Dr. Berryman’s assessment of
Mother, the effect of Mother’s diagnoses or behavior on the children, and whether any
amount “of training, education, or counseling could bring [Mother] up to the level where
[s]he could parent these children.” Mims, 285 S.W.3d at 499 (internal quotation marks
omitted). In light of these omissions, we find that the trial court fell short of the
requirements in Tenn. Code Ann. § 36-1-113(k). As we held in In re Adoption of Muir,
“we must remand the case for the preparation of appropriate written findings of fact and
conclusions of law.” 2003 WL 22794524, at *3 (citing In re D.L.B., 118 S.W.3d 360,
368 (Tenn. 2003)). “[W]e are mindful that our decision will unfortunately prolong the
uncertainty for the child and parties; however, the termination statute and the
constitutional implications require remand.” In re Kadean T., No. M2013-02684-COA-
R3-PT, 2014 WL 5511984, *11 (Tenn. Ct. App., filed Oct. 31, 2014) (citing In re Angela
E., 303 S.W.3d at 255).

       We note that the requirements of Tenn. Code Ann. § 36-1-113(k) also apply to the
best interest determination. In re Kadean T., 2014 WL 5511984, *11. However, where
a “trial court failed to make the findings and conclusions relative to grounds for
termination, we are unable to reach the trial court’s determination that termination of [the
parent’s] parental rights was in the children’s best interest.” In re Angela E., 303 S.W.3d
at 255 (citing In re D.L.B., 118 S.W.3d at 368).

                                            V.

       Finally, Mother argues that the Grandparents’ counterclaim to terminate her
parental rights is deficient under Tenn. Code Ann. § 36-1-113(d)(3), and that, as a result,
the court’s decision should be deemed void. Tenn. Code Ann. § 36-1-113(d)(3) requires:

              (A) The petition, or allegations in the adoption petition, shall
              contain a verified statement that:



                                            10
      (i) The putative father registry maintained by
      the department has been consulted within ten
      (10) working days of the filing of the petition
      and shall state whether there exists any claim on
      the registry to the paternity of the child who is
      the subject of the termination or adoption
      petition;

      (ii) Indicates if there exists any other claim or
      potential claim to the paternity of the child;

      (iii) Describes whether any other parental or
      guardianship rights have been terminated by
      surrender, parental consent, or otherwise, and
      whether any other such rights must be
      terminated before the child can be made
      available for adoption;

      (iv) Any notice required pursuant to subdivision
      (d)(4) has been given; and

      (v) The medical and social history of the child
      and the child’s biological family has been
      completed to the extent possible on the form
      promulgated by the department pursuant to §
      36-1-111(k); provided, however, the absence of
      such completed information shall not be a
      barrier to termination of parental rights.

(B) Any person or persons entitled to notice pursuant to § 36-
1-117 shall be named as defendants in the petition to
terminate parental rights or in the adoption petition and shall
be served with a copy of the petition as provided by law.

(C) The petition to terminate, or the adoption petition that
seeks to terminate parental rights, shall state that:

      (i) The petition or request for termination in the
      adoption petition shall have the effect of forever
      severing all of the rights, responsibilities, and

                              11
                    obligations of the parent or parents or the
                    guardian or guardians to the child who is the
                    subject of the order, and of the child to the
                    parent or parents or the guardian or guardians;

                    (ii) The child will be placed in the guardianship
                    of other person, persons or public or private
                    agencies who, or that, as the case may be, shall
                    have the right to adopt the child, or to place the
                    child for adoption and to consent to the child's
                    adoption; and

                    (iii) The parent or guardian shall have no further
                    right to notice of proceedings for the adoption
                    of the child by other persons and that the parent
                    or guardian shall have no right to object to the
                    child's adoption or thereafter, at any time, to
                    have any relationship, legal or otherwise, with
                    the child.

        Mother argues the counterclaim is deficient because it lacks mandatory statutory
language concerning the effect of the termination as provided in subsection (d)(3)(C).
She asserts that use of the word “shall” in Tenn. Code Ann. § 36-1-113(d)(3) evidences
that “[t]hese are not matters that can be waived[.]” However, previously, we held that a
termination petition that did not specifically quote the language from Tenn. Code Ann. §
36-1-113(d)(3)(C) or “explicitly cit[e] the statute” was “not defective.” State v. Whited,
No. M2000-03213-COA-R3-JV, 2001 WL 1386095, *7 (Tenn. Ct. App., filed Nov. 8,
2001). Similarly, in In re Levi D., this Court declined to find a petition deficient that
“sufficiently put Mother on notice of the effect of the proceedings to terminate her
parental rights.” In re Levi D., No. W2012-00005-COA-R3-PT, 2013 WL 1850791, at
*5 (Tenn. Ct. App., filed May 1, 2013). In In re Levi D., we stated

             [a]lthough the termination petition does not mirror the exact
             language of Tennessee Code Annotated section 36-1-
             113(d)(3)(C), it clearly provides that, if granted, Mother’s
             parental rights would be terminated, that [the child]’s current
             custodians wanted to adopt him upon conclusion of the
             termination proceedings, and that [the child] would be placed
             in the legal and physical custody of someone other than
             Mother.

                                           12
Id. (citing Whited, 2001 WL 1386095, at *7). Here, the counterclaim states that
“Pursuant to T.C.A.§ 36-1-113(d)(3)( C ), please note that this petition will forever sever
all of the rights, responsibilities and obligations of the parents who are the subject of this
order and that the Counter[claimants] shall have the right to adopt said children.”
Elsewhere in the petition, the Grandparents asked that the they “be declared the sole
permanent guardians of the minor children[.]” As in In re Levi D., we find that the
counterclaim “sufficiently put Mother on notice of the effect of the proceedings” and
“clearly provides that, if granted, Mother’s parental rights would be terminated, that [the
child]’s current custodians wanted to adopt him upon conclusion of the termination
proceedings, and that [the child] would be placed in the legal and physical custody of
someone other than Mother.” 2013 WL 1850791, at *5. We find the counterclaim
satisfies the requirements of Tenn. Code Ann. § 36-1-113(d)(3)(C).

       Mother argues that the counterclaim is also deficient because it lacks verification
that the putative father registry was consulted, statements related to whether any other
claims to paternity exist, or information on whether any other parental rights have been
terminated through surrender. The counterclaim initially named as parties the three
putative biological fathers of the children. Regarding the putative fathers, the
counterclaim made clear that “this is not an action to terminate their parental rights.”
Mother’s parental rights were the only ones before the court. Termination proceedings
require that each parent receive an “individualized determination” regarding his or her
parental rights. In re Angela E., 303 S.W.3d at 250 (quoting Swanson, 2 S.W.3d at
188). It is clear that any omission of language regarding the putative father registry or
other claims to paternity is not a fatal deficiency to the current matter in which Mother’s
parental rights are the only ones at issue.

                                             VI.

        We vacate the trial court’s holding that a ground for termination as to Mother was
established pursuant to Tenn. Code Ann. § 36-1-113(g)(9). We further vacate the trial
court’s holding as to Mother related to Tenn. Code Ann. § 36-1-113(g)(8) because of the
trial court’s failure to make written findings of fact and conclusions of law in its final
order sufficient to meet the requirements of Tenn. Code Ann. § 36-1-113(k). This case is
remanded to the trial court for it to make findings of fact and conclusions of law in a
manner consistent with Tenn. Code Ann. § 36-1-113(k). The costs on appeal are
assessed to the appellees, C.S. and W.S.

                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE

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