                                                                                          10/29/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                          Assigned on Briefs September 17, 2019

        TAKESHA CURTISS NELVIS v. LAFAYETTE BAPTIST, JR.

                  Appeal from the Juvenile Court for Shelby County
                   No. AA9057     Harold W. Horne, Special Judge
                       ___________________________________

                              No. W2018-01763-COA-R3-JV
                          ___________________________________


Father appeals the juvenile court’s decision to deny him equal parenting time. Because
the trial court’s order does not contain sufficient findings of fact and conclusions of law
as to the statutory best interest factors contained in Tennessee Code Annotated section
36-6-106(a), we vacate the judgment of the trial court and remand for the entry of a
proper order.
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 W. NEAL
MCBRAYER, and CARMA DENNIS MCGEE, JJ., joined.

Princess Woodard, Memphis, Tennessee, for the appellant, LaFayette Baptist, Jr.

                                        OPINION

                     I.       FACTS AND PROCEDURAL HISTORY

       On October 21, 2014, the State of Tennessee, along with Petitioner Takesha
Curtiss Nelvis (“Mother”), filed an action to recover child support against
Defendant/Appellant LaFayette Baptist, Jr. (“Father”). The petition alleged that Father
owed back child support for the parties’ nonmarital child, born in March 2012.
Eventually, on June 16, 2015, a juvenile court magistrate entered an order requiring
Father to pay ongoing support for the child, retroactive support, and a portion of the
child’s medical expenses. The order stated that it was a final order but did not include any
direction as to parenting time with the child.
        Eventually, on April 30, 2018, Father filed a petition in juvenile court for joint
custody and visitation of the child. Father sought alternating week parenting time. The
trial court ordered a temporary visitation schedule after a hearing in June 2018.1

        A final hearing was held in August 2018 before a special judge.2 According to a
statement of the evidence filed by Father, Father presented evidence of Mother’s
unsatisfactory living conditions, while Mother was unable to provide a rationale for
limiting Father’s parenting time with the child.3 Father also testified that his work
schedule, relationship with the child, and home environment supported equal time with
the child. According to the statement of the evidence, at the conclusion of the hearing, the
trial court declined to provide an oral ruling as to the best interest factors supporting its
decision.

       On September 4, 2018, the trial court entered a written order granting Father
parenting time on the first, third, and fifth weekends of the month, as well as some
holiday visitation. The order lists all fifteen factors under consideration in Tennessee
Code Annotated section 36-6-106(a) and provides a place for the trial court to check
whether each factor favors one parent or the other, in the following manner:

  ❑ both equally;[V'mother over father; ❑           father over mother; ❑ That the parties failed to
  present proof regarding this, or these, factors.


Likewise, the trial court’s final best interest finding is made in a similar manner:

  16.       That from the proof the Court finds that it appears to be in the best interest of said child to
  be placed in the ❑ custody of the father ❑ custody of the mother             joint custody of the mother
  and father, with the ❑ father         mother being the primary residential parent.


        1
           The record contains an order confirming the temporary parenting schedule that was signed on
November 29, 2018, but filed on January 11, 2019. According to the trial court’s final order, Father’s
counsel was the source of this delay.
         2
           Once again, no order appears in the record to show that the magistrate was appointed special
judge by the juvenile judge. Rather, the final order in this cause states that such an order “has been filed
as a separate order and is incorporated herein by reference and has been filed in this cause.” This order is
not included in our record. Although we continue to have serious misgivings about this practice, it has not
been raised as an issue in this appeal.
         3
           The statement of the evidence does not take the form generally approved by Rule 24 of the
Tennessee Rules of Appellate Procedure, as it contains significant argument. However, Mother did not
object to the statement of evidence and the trial court took no action following its filing. See Tenn. R.
App. P. 24(f) (stating that when the trial court does not act “as soon as practicable after the filing thereof
or after the expiration of the 15-day period for objections by appellee . . . the transcript or statement of the
evidence . . . shall be deemed to have been approved except in cases where such approval did not occur
by reason of the death or inability to act of the judge”)
                                                     -2-
From this order, Father appeals.

                               II.      ISSUES PRESENTED

        Father raises three issues, which are taken, and slightly restated, from his brief:

   1.      Did the trial court properly apply Tennessee Code Annotated section
           36-6-106 to its ruling.
   2.      Did the trial court err in its creation of the parties’ parenting schedule.
   3.      Does the trial court’s ruling support the public policy of Tennessee.

Mother has chosen not to participate in this appeal and did not file a brief to this Court.

                                     III.   DISCUSSION

        Decisions involving the custody of a child are among the most important
decisions faced by the courts. Steen v. Steen, 61 S.W.3d 324, 327 (Tenn. Ct. App. 2001).
Indeed, “[b]y statute as well as case law, the welfare and best interests of the child are the
paramount concern in custody, visitation, and residential placement determinations, and
the goal of any such decision is to place the child in an environment that will best serve
his or her needs.” Burden v. Burden, 250 S.W.3d 899, 908 (Tenn. Ct. App.
2007) (quoting Cummings v. Cummings, No. M2003-00086-COA-R3-CV, 2004 WL
2346000, at *5 (Tenn. Ct. App. Oct. 15, 2004)). As such, “[t]rial courts have broad
discretion to fashion custody and visitation arrangements that best suit the unique
circumstances of each case, and the appellate courts are reluctant to second-guess a trial
court’s determination regarding custody and visitation.” Reeder, 375 S.W.3d at 278
(citing Parker v. Parker, 986 S.W.2d 557, 563 (Tenn. 1999)); see also C.W.H. v. L.A.S.,
538 S.W.3d 488, 495 (Tenn. 2017) (quoting Armbrister v. Armbrister, 414 S.W.3d 685,
693 (Tenn. 2013)) (“[D]etermining the details of parenting plans is peculiarly within the
broad discretion of the trial judge.”).

        While trial courts are afforded broad discretion in this area, “they still must base
their decisions on the proof and upon the appropriate application of the applicable
principles of law.” Gaskill v. Gaskill, 936 S.W.2d 626, 631 (Tenn. Ct. App. 1996) (citing
D. v. K., 917 S.W.2d 682, 685 (Tenn. Ct. App. 1995)). Thus, a trial court’s decision
regarding custody will be set aside if it “falls outside the spectrum of rulings that might
reasonably result from an application of the correct legal standards to the evidence found
in the record.” In re Adoption of A.M.H., 215 S.W.3d at 809.

       Here, Father raises several issues with the trial court’s ruling, both procedural and
substantive. We conclude, however, that Father’s concerns regarding the trial court’s
written order are dispositive of this appeal. Tennessee Code Annotated section 36-6-
106(a) provides that “in any. . . proceeding requiring the court to make a custody
                                           -3-
determination regarding a minor child, the determination shall be made on the basis of
the best interest of the child.” To determine a child’s best interest, section 36-6-106(a)
provides that the trial court “shall consider all relevant factors, [listed in the statute]
where applicable[.]” Id. (emphasis added). These factors include:

       (1) The strength, nature, and stability of the child’s relationship with each
       parent, including whether one (1) parent has performed the majority of
       parenting responsibilities relating to the daily needs of the child;
       (2) Each parent’s or caregiver’s past and potential for future performance of
       parenting responsibilities, including the willingness and ability of each of
       the parents and caregivers to facilitate and encourage a close and continuing
       parent-child relationship between the child and both of the child’s parents,
       consistent with the best interest of the child. In determining the willingness
       of each of the parents and caregivers to facilitate and encourage a close and
       continuing parent-child relationship between the child and both of the
       child’s parents, the court shall consider the likelihood of each parent and
       caregiver to honor and facilitate court ordered parenting arrangements and
       rights, and the court shall further consider any history of either parent or
       any caregiver denying parenting time to either parent in violation of a court
       order;
       (3) Refusal to attend a court ordered parent education seminar may be
       considered by the court as a lack of good faith effort in these proceedings;
       (4) The disposition of each parent to provide the child with food, clothing,
       medical care, education and other necessary care;
       (5) The degree to which a parent has been the primary caregiver, defined as
       the parent who has taken the greater responsibility for performing parental
       responsibilities;
       (6) The love, affection, and emotional ties existing between each parent and
       the child;
       (7) The emotional needs and developmental level of the child;
       (8) The moral, physical, mental and emotional fitness of each parent as it
       relates to their ability to parent the child. The court may order an
       examination of a party under Rule 35 of the Tennessee Rules of Civil
       Procedure and, if necessary for the conduct of the proceedings, order the
       disclosure of confidential mental health information of a party under § 33-
       3-105(3). The court order required by § 33-3-105(3) must contain a
       qualified protective order that limits the dissemination of confidential
       protected mental health information to the purpose of the litigation pending
       before the court and provides for the return or destruction of the
       confidential protected mental health information at the conclusion of the
       proceedings;
       (9) The child’s interaction and interrelationships with siblings, other
       relatives and step-relatives, and mentors, as well as the child’s involvement
                                             -4-
      with the child’s physical surroundings, school, or other significant
      activities;
      (10) The importance of continuity in the child’s life and the length of time
      the child has lived in a stable, satisfactory environment;
      (11) Evidence of physical or emotional abuse to the child, to the other
      parent or to any other person. The court shall, where appropriate, refer any
      issues of abuse to juvenile court for further proceedings;
      (12) The character and behavior of any other person who resides in or
      frequents the home of a parent and such person’s interactions with the
      child;
      (13) The reasonable preference of the child if twelve (12) years of age or
      older. The court may hear the preference of a younger child upon request.
      The preference of older children should normally be given greater weight
      than those of younger children;
      (14) Each parent’s employment schedule, and the court may make
      accommodations consistent with those schedules; and
      (15) Any other factors deemed relevant by the court.

Although the trial court is not required to “list every applicable factor along with its
conclusion as to how that particular factor impacted the overall custody determination,”
consideration of these factors to determine best interest is mandatory. Murray v. Murray,
No. M2009-01576-COA-R3-CV, 2010 WL 3852218, at *8 (Tenn. Ct. App. Sept. 28,
2010); see also Broderick D. v. Murray, No. M2018-00146-COA-R3-CV, 2019 WL
4702622, at *2 (Tenn. Ct. App. Sept. 25, 2019); Grissom v. Grissom, --- S.W.3d ---, 2019
WL 2158343, at *4 (Tenn. Ct. App. May 17, 2019).

      Concomitant with the duties imposed by section 36-1-106, Rule 52.01 of the
Tennessee Rules of Civil Procedure requires that trial courts make findings of fact in
bench trials. Specifically, Rule 52.01 states as follows:

      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 findings of a master, to the
      extent that the court adopts them, shall be considered as the findings of the
      court. If an opinion or memorandum of decision is filed, it will be sufficient
      if the findings of fact and conclusions of law appear therein.

An order meets the requirements of Rule 52.01 only when the order “‘disclose[s] to the
reviewing court the steps by which the trial court reached its ultimate conclusion on each
factual issue.’” Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C Federal
Practice and Procedure § 2579, at 328). Although this matter was tried in juvenile court,
the Tennessee Rules of Civil Procedure are applicable in child custody proceedings under
section 36-6-106 even if tried in juvenile court. Tenn. R. Juv. Prac. & Proc. 101(c)(3)
                                           -5-
(“The Tennessee Rules of Civil Procedure shall govern the following proceedings: . . .
child custody proceedings under T.C.A. §§ 36-6-101, et seq. . . .”).

        Based on the requirements of section 36-1-106(a) and Rule 52.01, this court has
frequently concluded that a trial court’s order was deficient where it failed to make
specific factual findings to support the above best interest factors. These cases included
where the trial court’s order contained only a single paragraph on the best interest of the
child with no supporting factual findings, see Renken v. Renken, No. M2017-00861-
COA-R3-CV, 2019 WL 719179, at *5 (Tenn. Ct. App. Feb. 20, 2019), or where the trial
court merely stated which factor favored which parent without any factual basis to show
how the court came to that conclusion. See Grissom, 2019 WL 2158343, at *6. In
particular, in Grissom, we recently concluded that meaningful appellate review is not
possible unless the trial court “puts forth some explanation as to how it reaches its
decision in a best interest analysis.” Id. (citing cases). In order to comply with its
statutory duty, the trial court therefore is required to enter an order that “‘demonstrate[s]
consideration of the relevant factors’” in more than a conclusory fashion. Grissom, 2019
WL 2158343, at *5 (quoting Renken, 2019 WL 719179, at *5). Moreover, we held that
based on Tennessee Supreme Court precedent concerning the high judicial function
required of judicial decision-making, the appropriate remedy for the trial court’s failure
in that case was to vacate and remand to the trial court for more specific findings. Id. at
*7 (citing Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 312 (Tenn. 2014)).

        On appeal, Father contends that the trial court’s ruling does not meet the above
requirements. From our review, we agree. Although the trial court’s order mentions each
statutory factor, the bulk of the trial court’s consideration consists of a form-type
document that allows the trial court to check a box as to each factor to allocate the factor
either to the mother, the father, neither parent, or both parents equally. For example, the
findings as to the first two factors are as follows:

  1.        That as to T.C.A. 36-6-106(a)(1)"The strength, nature, and stability of the child's
  relationship with each parent, including whether one(1) parent has performed the majority of
  parenting responsibilities relating to the daily needs of the child;" the court finds that the evidence
  favors:
                1 4other over father;0 father over mother;
 0both equally; -                                                    [7 That the parties failed to
  present proof regarding this, or these, factors.




                                                     -6-
 2.     That as to T.C.A. 36-6-106 (a)(2): "Each parent's or caregiver's past and potential for future
 performance of parenting responsibilities, including the willingness and ability of each of the
 parents and caregivers to facilitate and encourage a close and continuing parent-child relationship
 between the child and both ofthe child's parents, consistent with the best interest of the child. In
 determining the willingness of each ofthe parents and caregivers to facilitate and encourage a close
 and continuing parent-child relationship between the child and both of the child's parents. the court
 shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered
 parenting arrangements and rights, and the court shall further consider any history of either parent
 or any caregiver denying parenting time to either parent in violation of a court order;" the court
 finds that the evidence favors: ❑ both equally; amother over father; ri father over mother: ❑
 That the parties failed to present proof regarding this, or these, factors.

With the exception of factor fifteen, discussed infra, all other factors are treated in the
same manner, with a total of eight factors favoring Mother, zero factors favoring Father,
and seven factors weighing equally or in favor of neither parent.

        In our view, the trial court’s consideration of the best interest factors is
substantially similar to that found lacking in Grissom, where the trial court also noted
each statutory factor and the other findings given by the trial court were which parent the
factor favored. Grissom, 2019 WL 2158343, at *7. As we explained in Grissom,

       Although the trial court has indicated which section 36-6-106 factors favor
       Mother and Father respectively, there are no factual findings whatsoever to
       underpin this allocation. As such, we are left to wonder as to the trial
       court’s reasoning for its allocation of each factor. Such a scenario clearly
       defeats the purpose of mandatory factual findings under Rule 52.01.

Id. (citing Gooding v. Gooding, 477 S.W.3d 774, 778 (Tenn. Ct. App. 2015) (“When the
trial court does not find the facts specially or state separately its conclusions of law, we
are left to wonder as to the factors employed in crafting the parenting schedule, and it
inevitably leads to decisions delaying the resolution of issues on appeal and prolonging
the uncertainty of the children’s residency.”)).

       Unlike the trial court’s order in Grissom, however, the trial court here did make
additional findings of fact with regard to factor fifteen: “[a]ny other factors deemed
relevant by the court.” Tenn. Code Ann. § 36-6-106(a)(15). Specifically, the trial court
found the following:



                                                   -7-
       Putting the unrefuted testimony of each party together, the Court
finds the following facts. The minor child . . . was born . . . to these two
parties who were not, and never have been, married to each other. Said
child resided at birth with her mother who, pursuant to Tennessee Code
Annotated, Section 36-2-303, had custody. No mention was made by either
parent to there being any visitation prior to August, 2017. The father began
frequent visitation with said child August, 2017, and produced a calendar,
exhibit 1, to support his testimony. He says that this visitation was
disrupted December, 2017 through February, 2018, as the mother was upset
with him over his unilateral decision to pull said child’s front teeth.
       It appears that the father decided to take his child to the dentist
without consulting or discussing the matter with the mother. He then sent
the mother a text to inform her that a tooth (may have been both front teeth,
the Court’s notes leave this open for doubt) was going to be pulled and she
could come if she wished, for support. The mother testified that she was at
work and unable to get to the dentist. The father testified that if the mother
wasn’t going to take care of his child’s needs that he had to step in and take
matters into his own hands.
       This incident aside, the mother testified that she did not know why
the father limited his visitation in December, January, and February, as she
had never placed limits on him, he just failed to show. She further testified
that she had to block the father’s phone number on her phone and her other
daughter’s phone (said child’s older sister) as the father would call over and
over at any time of the day to the point that he was a nuisance. Moreover,
the mother felt that the visitation was more with the father’s mother than
the father as the paternal grandmother did much of the pickup and return of
said child. The mother testified that that she had agreed to the paternal
grandmother participating in the visitation and she believed it was
necessary because the father worked 7 days a week according to text
messages she had received from him (the text was not offered into
evidence). It appears from the mother’s testimony that the calls may have
had something to do with child support issues and the father’s wish for her
to accept $300.00 monthly rather than the amount ordered. The father’s
testimony, unrefuted, is that he is current on his obligation and pays his
support by wage assignment, which includes a payment to reduce the
retroactive support award of $23,532.00.
       The mother complained that the father did not follow the visitation
as set by the Court. Apparently a temporary visitation schedule was
established at a court hearing June 21, 2018, and the father’s counsel was
directed to prepare an order which has never been filed with the court.
       The Court finds from this testimony that joint parenting is not in said
child’s best interest due to the poor judgment of the father, his lack of

                                    -8-
       parenting and communication skills, and the relatively short duration of his
       contact with his daughter over the term of her life.

Clearly then, the trial court in this case made a more significant effort to make factual
findings that the trial court in Grissom. The question, however, is whether the trial
court’s effort to explicate on what it deems a single statutory factor excuses the trial
court’s failure to make specific findings addressing the statutory factors actually specified
in section 36-6-106(a). We must conclude that it does not.

       Here, the trial court’s order gives lip service to analyzing the mandatory factors
contained in section 36-1-106(a). However, the trial court chose to provide a factual
analysis with regard to only one of the fifteen factors contained in the statute. See
Grissom, 2019 WL 2158343, at *9 (holding that it is not sufficient for the trial court to
“cursorily mention[] each factor” without providing a factual basis for its decision).
Providing rationales for legal and factual rulings are integral parts of judicial-decision
making. See generally Smith, 439 S.W.3d at 312. Indeed, the Tennessee Supreme Court
has opined that one of the essential purposes of a judge is to adjudicate disputes; as such,
judges are expected “to explain why a particular result is correct based on the applicable
legal principles[.]” Id. Section 36-6-106(a) contains the applicable legal principles at
issue in this case and mandates that the trial court consider specific factors in making best
interest determinations. Rule 52.01 further directs the trial court to enter a written order
containing findings of fact and conclusions of law to support its decision. Respectfully,
we cannot conclude that the use a standardized, almost form-like document in which the
only judicial analysis as to the vast majority of factors includes checking a box in favor of
one parent or the other fulfills either the letter or the spirit of these requirements.

       We recognize that the trial court’s order does contain some factual findings that
could be used to determine the basis for the trial court’s decision. From our review,
however, the trial court’s findings are somewhat inconsistent. First, the trial court states
that these findings are a compilation of the “unrefuted testimony of each party.” The trial
court confirms this finding earlier in the order with the statement that “[t]here was no
material conflict in the testimony of either parent.” The findings of the trial court,
however, detail several points of contention regarding the facts of this case, particularly
why Father’s visitation was curtailed, which occurred either at Mother’s insistence or due
to Father’s apathy. The order thereafter largely recounts the testimony of the parties
without specifically resolving this dispute.

       Ultimately, the trial court finds in favor of Mother as to this factor and the overall
best interest of the child. Typically, from this ultimate ruling in favor of Mother, we
would infer that the trial court generally credited Mother’s testimony. See Edmunds v.
Delta Partners, L.L.C., 403 S.W.3d 812, 824–25 (Tenn. Ct. App. 2012) (citing Richards
v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 733 (Tenn. 2002)) (“[A] trial court's finding on
credibility may be implied from the manner in which the trial court decided the case.”).
                                             -9-
The issue in this case, however, is that the trial court does not state which testimony it
credited and some of the recounted testimony conflicts with the Statement of the
Evidence and exhibits filed in this appeal. For example, while the trial court may have
credited Mother’s testimony that it was Father’s choice not to exercise his parenting time,
the Statement of the Evidence provides that Father submitted evidence to show equal
parenting time was being exercised and that Mother “was unable to provide a rational
[sic] nor definite reason for limiting [Father’s] parenting time.” Again, although the
Statement of the Evidence is not in the typical form, the trial court, by its inaction,
approved it. See Tenn. R. App. P. 24(f). Moreover, the trial court’s apparent decision to
credit Mother’s testimony about Father’s work schedule directly conflicts with a letter
from Father’s employer that was made an exhibit at trial showing that Father works a
typical full-time schedule. Finally, although the trial court finds that Father lacks
parenting skills and has poor judgment, the trial court’s order provides little illumination
as to what facts or testimony led the trial court to these conclusions.

        In sum, the trial court failed to make specific factual findings to support fourteen
of the fifteen statutory factors contained in section 36-6-106(a). Instead, the bulk of the
trial court’s decision making is represented by check-marks. Although the trial court did
make some factual findings to support a single factor and therefore the trial court’s
ultimate ruling, we simply cannot countenance this practice. “Determining a child’s best
interest is a fact-sensitive inquiry, and, depending upon the significance of certain facts, a
single factor can control the outcome of this determination.” Solima v. Solima, No.
M2014-01452-COA-R3-CV, 2015 WL 4594134, at *4 (Tenn. Ct. App. July 30, 2015).
Respectfully, the parties to a case involving the custody of their child deserve more
attention from their fact-finder to the mandatory, statutory factors than a series of check
marks. By choosing to issue its order in this manner, the trial court did not substantially
comply with its high judicial function to independently review the facts of this case and
provide a sufficient rationale for its ruling so as to facilitate meaningful appellate review.
As such, the appropriate remedy is to vacate the judgment of the trial court and remand
for the entry of an order in accordance with this opinion. See Grissom, 2019 WL
2158343, at *9.

                                     IV.     CONCLUSION

       The judgment of the Shelby County Juvenile Court is vacated, and this cause is
remanded for further proceedings consistent with this Opinion. Costs of this appeal are
taxed to Takesha Curtiss Nelvis, for which execution will issue if necessary.



                                                     _________________________________
                                                     J. STEVEN STAFFORD, JUDGE

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