Opinion
No. W2006-01437-COA-R3-PT.
Filed December 13, 2006.
Direct Appeal from the Juvenile Court for Madison County, No. 43-38,217, Christy R. Little, Judge.
Judgment of the Juvenile Court Vacated and Remanded.
Carl E. Seely, Jackson, TN, and Jeremy B. Epperson, Pinson, TN, for Appellants.
Steven W. Maroney, Matthew R. West, Jackson, TN, for Appellees.
ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.
OPINION
This appeal involves the termination of the parental rights of the mother and father of a child under the age of six. At the time of the petition for termination of parental rights, both parents were incarcerated. Both parents have a history of drug abuse. The state had taken custody of the child in 2004 after the father was arrested on charges of manufacturing methamphetamine in a trailer behind the home of the child's maternal grandmother, with whom the child and father had been living. Children's clothing and toys were found in the trailer. At the time of the father's arrest, the mother was incarcerated on shoplifting charges. In February of 2005, the juvenile court granted custody to the child's paternal aunt and uncle, with whom the child's parents have a turbulent relationship. In March of 2006, the aunt and uncle filed a petition for termination of parental rights in the juvenile court. In May of 2006, the juvenile court held a hearing and determined that the parents had abandoned their child and that termination of their parental rights was in the child's best interests. The juvenile court entered a final order within thirty days that incorporated by reference its oral factual determinations and legal conclusions from the proceedings. Because the trial court failed to comply with the statutory requirements set forth in Tenn. Code Ann. § 36 — 1 — 113(k) in its final order, we remand the decision to the juvenile court for the preparation of findings of fact and conclusions of law.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This appeal was brought by a mother and father whose parental rights were terminated by the Madison County Juvenile Court by a final order entered on June 14, 2006. On October 12, 2004, the Department of Children's Services ("DCS") filed a petition to adjudicate dependency and neglect regarding a child ("G.N.S.") born on October 9, 2003. The petition was filed after the child's biological father ("Father") was arrested on October 10, 2004, when a Drug Task Force responded to an alleged "meth lab" in a trailer located behind the home of the child's maternal great — grandmother. Police found several chemical ingredients for manufacturing "meth" within the trailer, as well as some items belonging to the family, including diapers, formula, toys, and clothing. Father disclaimed any knowledge of the chemicals, and he stated that he and G.N.S. had been living in the house next door with the child's great — grandmother. The child's biological mother ("Mother") had been in rehab prior to being arrested and incarcerated on shoplifting charges on September 9, 2004.
The child was placed in a foster home for approximately three days. A preliminary hearing was held in Madison County Juvenile Court on October 12 to which Mother, Father, and Mother's grandmother were summoned. On the date of the hearing, Father submitted to a drug test, and he tested positive for cocaine and had "iffy" results for methamphetamines or amphetamines. A guardian ad litem was appointed by court order on October 14, 2004. The court found that the child was dependent and neglected under Tenn. Code Ann. §§ 37 — 1 — 102(b)(12)(F) — (G), and that there was no less drastic alternative than to place G.N.S. in the custody of DCS. On November 16, 2004, the court held a hearing that Mother and Father attended with their appointed counsel, and at which the court ratified a proposed permanency plan granting temporary custody of the child to DCS. The court's order expressed approval of DCS's decision to place G.N.S. with Father's sister and brother — in — law ("Aunt" and "Uncle" or, collectively, "Appellees"). In March of 2005, after a hearing held on February 15, 2005, the court ordered that DCS be relieved of custody of G.N.S., and it granted legal custody of the child to Aunt and Uncle.
Appellees filed a petition for termination of Mother and Father's parental rights on March 2, 2006. Aunt and Uncle alleged the grounds of abandonment by the incarcerated parents and failure to remedy conditions that led to removal. Aunt and Uncle alleged that Father was still incarcerated and that he had not had any communication with the child. They alleged that Mother was back in prison, that she had only contacted the child once while briefly out of prison, and also that she had missed a scheduled visit with the child during that time period.
Father filed a pro se response to the petition by Aunt and Uncle in which he claimed that he had never been allowed the opportunity to visit or support the child, that the petitioners had prevented his communication with the child, and he asked that G.N.S. be placed in custody of the child's maternal aunt and uncle. The court entered an order appointing counsel for Mother and Father, appointed a guardian ad litem, and set a hearing date for May 16, 2006. At the time of the hearing, both parents were still in the process of serving respective sentences in prison. At the hearing, the juvenile court heard testimony from Appellees and both Appellants, as well as from G.N.S.'s maternal grandmother and G.N.S.'s maternal great-grandmother.
At the termination hearing Father testified that Uncle had appeared at his parole hearing and informally protested Father's release, after which his parole was denied. Uncle admitted to these actions in his testimony at the termination hearing. ).
At the conclusion of the May 16 termination hearing, the trial court commented on its findings regarding the statutory grounds for termination and the best interest analysis. The transcript reflects that these oral findings included the following:
I'm going to make the finding that obviously it's pretty clear that, mom, you had the chance. Your record the four months you were out, or less than that, you tried for a short time, but you just couldn't do it. You've been on drugs so long. You have an opportunity now. This is your opportunity.
So, I'm going to make the finding mother abandoned the child based on the fact that she didn't even bother to come back the second time on the abandonment. Father has — you know, $38 a month, you could have at least — you know, I'd have foregone a bath just to see that my child had something.
Dad, you got mad at your sister and your anger allowed the Court to make a finding that you abandoned your child because you got mad and your anger kept you from contacting them in any way, even prior to four months prior. Then prior to the removal, the mother abandoned because you were incarcerated. Dad was around, but it's kind of iffy on all this stuff about the trailer.
So abandonment has been met by clear and convincing. In regard to the failure to remedy that led to the removal, mom got out and back again on the drug thing. Dad, I'm still not certain he accepts that he has a drug problem. He said "binges," but I did get him to admit it so that's a start.
You know, you can bear a child and you can be a parent. This child's parents are [Appellees]. The best interest of the child is that the child didn't even know her mother, and I'm sad to say that. I doubt that she would even know you right now, dad, because she hasn't had an opportunity. But, you know, that's not her fault. Children are bonded to who they're with and the people that love them. You haven't been able to bond with her, but that's your own fault. You haven't had any contact. Your drug problem is there. You're always going to be an addict, but you don't always have to be a user. I can't give you any more chances because your child deserves better than that.
I'm going to make a finding it's in the best interest of the child, based on the fact that she's bonded with [Appellees]. She's been with them for longer than she's been with her parents. I'd ask for counsel to draw the order. I'll grant you partial guardianship. Obviously, I'll keep all this for the appeal, and we'll see what happens. I do hope you get out, and I do hope it works out. I do believe you can do it if you'll try.
The court entered a final order on June 14, 2006, which stated:
3. This court has determined by clear and convincing evidence that Respondents . . . have abandoned their child, [G.N.S.].
4. Termination of Respondent's [sic] parental rights to this child is in the best interest of the child.
5. The following evidence supporting this finding cumulatively constitutes clear and convincing evidence of grounds and determination of the child's best interest (list evidence supporting all grounds and finding of best interest): The entire court record, including all the testimony elicited at the hearing of this matter and Exhibits 1 through 10 introduced at the hearing.
6. This court further adopts and incorporates by reference as a part of this Order the attached Ruling of the Court, dated May 16, 2006.
7. Respondents are not hereafter entitled to notice of proceedings for the adoption of this child nor have they any rights to object to such adoption or otherwise participate in such proceeding.
The court thereby terminated all parental rights and responsibilities of Mother and Father. Father filed a timely notice of appeal, which Mother joined.
II. ISSUES PRESENTED
On appeal, Mother and Father present the following issues for review:
(1) Whether the juvenile court erred by not including specific findings of fact and conclusions of law in its final order pursuant to § 36 — 1 — 113(k).
(2) Whether the juvenile court erred when it terminated parental rights based upon a clear and convincing finding of abandonment of G.N.S. pursuant to Tenn. Code Ann. § 36-1-102, and more specifically:
(i) whether the court's decision to terminate parental rights regardless of the parents' compliance with the permanency plan negated the willfulness requirement for a finding of abandonment; and
(ii) whether Appellees' appearance at Father's parole hearing and subsequent "interference" negated the willfulness requirement for a finding of abandonment.
(3) Whether the juvenile court erred when it determined that termination of parental rights was in the best interests of G.N.S.
(4)Whether the juvenile court's decision to terminate parental rights violated Father's rights under Article 1, Section 8 of the Tennessee Constitution.
Because the trial court did not prepare written findings of fact and conclusions of law in its final order, we vacate the portion of the juvenile court's June 14, 2006 order terminating Mother and Father's parental rights and remand the case to the trial court.
III. ANALYSIS
A biological parent's right to care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions. In re S.M. , 149 S.W.3d 632, 638 (Tenn.Ct.App. 2004) (citing Troxel v. Granville , 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000); Hawk v. Hawk , 855 S.W.2d 573, 578 — 79 (Tenn. 1993); Ray v. Ray , 83 S.W.3d 726, 731 (Tenn.Ct.App. 2001)). While this right is fundamental and superior to the claims of other persons and the government, it is not absolute. Id. at 638. It continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Id. at 638 — 39 (citing Blair v. Badenhope , 77 S.W.3d 137, 141 (Tenn. 2002); Stokes v. Arnold , 27 S.W.3d 516, 520 (Tenn.Ct.App. 2000); O'Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn.Ct.App. 1995).
In Tennessee, termination proceedings are governed by statute. In re M.J.B. M.W.S. , Jr. , 140 S.W.3d 643, 653 (Tenn.Ct.App. 2004). Parties who have standing to seek the termination of a biological parent's parental rights must prove two things. Id. First, they must prove the existence of at least one of the statutory grounds for termination. Tenn. Code Ann. § 36 — 1 — 113(c)(1) (2003); In re D.L.B. , 118 S.W.3d 360, 367 (Tenn. 2003); Jones v. Garrett , 92 S.W.3d 835, 838 (Tenn. 2002); In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653. Second, they must prove that terminating the parent's parental rights is in the child's best interests. Tenn. Code Ann. § 36 — 1 — 113(c)(2) (2003); In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653; In re A.W. , 114 S.W.3d 541, 545 (Tenn.Ct.App. 2003); In re C.W.W. , 37 S.W.3d 467, 475 — 76 (Tenn.Ct.App. 2000); In re M.W.A. , Jr. , 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). The enumerated statutory grounds for the initiation of termination of parental rights include "abandonment by the parent or guardian, as defined in § 36 — 1 — 102 . . . [.]" Tenn. Code Ann. § 36 — 1 — 113(g)(1) (2003). The cross — referenced section defines "abandonment" as occurring in five different scenarios, only two of which are apparently relevant in the case sub judice:
'Abandonment' means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child; . . .
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child . . . [.]
§ 36-1-102(1)(A)(i) — (v) (2003).
Because no civil action carries with it graver consequences than a petition to terminate parental rights, Tenn. Code Ann. § 36 — 1 — 113(c)(1) requires that the statutory grounds for termination be proven by clear and convincing evidence. In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653. This heightened burden of proof, which is placed upon the party seeking termination of parental rights, is intended to minimize the risk of erroneous decisions. Id. If a termination petition is predicated on more than one statutory ground, clear and convincing evidence establishing any single ground will support a termination order. In re Valentine , 79 S.W.3d 539, 546 (Tenn. 2002); In re C.R.B. and A.L.B. , No. M2003 — 00345 — COA — R3 — JV, 2003 Tenn. App. LEXIS 804, at *12 (Tenn.Ct.App. Nov. 13, 2003). Evidence satisfying the clear and convincing evidence standard eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine , 79 S.W.3d at 546; Walton v. Young , 950 S.W.2d 956, 960 (Tenn. 1997); In re S.M. , 149 S.W.3d at 639; In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653; In re C.D.B. , 37 S.W.3d 925, 927 (Tenn.Ct.App. 2000). It produces in the fact — finder's mind a firm belief or conviction regarding the truth of the propositions sought to be established. In re S.M. , 149 S.W.3d at 639 — 40; In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653; In re A.D.A. , 84 S.W.3d 592, 596 (Tenn.Ct.App. 2002); Ray v. Ray , 83 S.W.3d 726, 733 (Tenn.Ct.App. 2001); In re C.W.W. , 37 S.W.3d at 474.
Tenn. Code Ann. § 36 — 1 — 113(k) (2003) provides that the "court shall enter an order which makes specific findings of fact and conclusions of law" within thirty days of the conclusion of a termination of parental rights hearing. This statutory requirement reflects the Tennessee General Assembly's recognition of the necessity of individualized decisions in termination cases. State v. McBee , No. M2003 — 01326 — COA — R3 — PT, 2004 Tenn. App. LEXIS 85, at *15 (Tenn.Ct.App. Feb. 9, 2004) (citing In re Swanson , 2 S.W.3d 180, 188 (Tenn. 1999)). 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. Id. (citing Bruce v. Bruce , 801 S.W.2d 102, 104 (Tenn.Ct.App. 1990)).
We find that because the trial court did not include findings of fact and conclusions of law in its final order, we are prevented from reaching the other issues raised on appeal by Appellants. Because the trial court failed to comply with the statutory requirements of Tenn. Code Ann. § 36 — 1 — 113(k) in its final order, we remand with directions that the court make specific findings of fact and conclusions of law as to the statutory grounds for termination of parental rights and the best interests of the child.
Because of the gravity of their consequences, proceedings to terminate parental rights require individualized decision making. In re Swanson , 2 S.W.3d at 188. Tenn. Code Ann. § 36 — 1 — 113(k) explicitly requires courts terminating parental rights to enter an order which makes specific findings of fact and conclusions of law whether they have been requested to do so or not. In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 653 — 54; In re Muir , No. M2002 — 02963 — COA — R3 — CV, 2003 Tenn. App. LEXIS 831, at *8 (Tenn.Ct.App. Nov. 25, 2003). As the Middle Section of this Court stated in In re C.R.B. , 2003 Tenn. App. LEXIS 804, at *13:
A trial court's failure to comply with Tenn. Code Ann. § 36 — 1 — 113(k) affects more than the standard of appellate review. . . It affects the viability of the appeal. When a trial court fails to enter an order containing adequate findings of fact and conclusions of law with regard to all alleged grounds for termination, the Tennessee Supreme Court has instructed the appellate courts to remand the case to the trial court for the preparation of appropriate written findings of fact and conclusions of law. In re D.L.B. , 118 S.W.3d 360, 2003 Tenn. LEXIS 983, 2003 WL 22383609, at *6 (Tenn. 2003).
The June 14, 2006 final order does not satisfy Tenn. Code Ann. § 36 — 1 — 113(k). Rather than articulating individualized findings of fact and conclusions of law, the order relies upon "the entire court record" and it incorporates by reference the bench ruling of the trial court at the May 16, 2006 hearing to support its decision that the statutory ground of abandonment had been satisfied and termination of Appellants' parental rights was in the best interests of G.N.S. (R. Vol. 1, Ex. 28). Because of Tenn. Code Ann. § 36 — 1 — 113(k), trial courts cannot follow the customary practice of making oral findings from the bench and later adopting them by reference in their final order. In re S.M. , 149 S.W.3d at 639; In re C.R.B. , 2003 Tenn. App. LEXIS 804, at *11.
In State v. McBee , No. M2003 — 01326 — COA — R3 — PT, 2004 Tenn. App. LEXIS 85, at *22 (Tenn.Ct.App. Feb. 9, 2004), the Middle Section of this Court remanded after the trial court had failed to make the required findings of fact when it terminated parental rights, and it quoted the Tennessee Supreme Court in In re D.L.B. , 118 S.W.3d at 367:
The trial court is required to find only one statutory ground for termination of parental rights. . . However, given the importance of establishing the permanent placement of a child who is the subject of a termination of parental rights proceeding, the trial court should include in its final order findings of fact and conclusions of law with regard to each ground presented. If the trial court addresses each ground that is raised in a termination proceeding, the child's permanent placement will not be unnecessarily delayed due to a remand for findings on alternate grounds. Unfortunately, the trial court made no findings of fact with regard to Mr. Moore's conduct toward Ms. Bady in the four months immediately preceding D.L.B.'s birth. Consequently, we remand this case to the trial court to consider abandonment under [Tenn. Code Ann. § 36 — 1 — 101(1)(A)(iii)] and all other grounds for termination of parental rights asserted in the Nicklesons' petition.
State v. McBee , 2004 Tenn. App. LEXIS 85, at *13 — 14 (citations omitted). The statutory requirement to prepare written findings of fact and conclusions of law applies with equal force to the best interest component of parental termination cases. Kleshinski v. Kleshinksi , No. M2004-00986-COA-R3-CV, 2005 Tenn. App. LEXIS 275, at *78 — 79 (Tenn.Ct.App. May 4, 2005) (Highers, J., concurring) (citing White v. Moody , No. M2004-01295-COA-R3-PT, 2004 Tenn. App. LEXIS 890, at *8 (Tenn.Ct.App. Dec. 30, 2004); In re C.R.B. , 2003 Tenn. App. LEXIS 804, at *12).
When a lower court has failed to comply with Tenn. Code Ann. § 36 — 1 — 113(k), the appellate courts must remand the case with directions to prepare the required findings of fact and conclusions of law. In re M.J.B. M.W.S. , Jr. , 140 S.W.3d at 654 (citing In re D.L.B. , 118 S.W.3d at 367; In re K.N.R. , No. M2003-01301-COA-R3-PT, 2003 Tenn. App. LEXIS 915, 2003 WL 22999427, at *5 (Tenn.Ct.App. Dec. 23, 2003) (No Tenn. R. App. P. 11 application filed)). Because the trial court did not make specific findings of fact and conclusions of law in its final order, with regard to statutory grounds for termination or its best interest analysis, the order is vacated and the case is remanded to the juvenile court. The juvenile court is instructed to prepare written findings of fact and conclusions of law in accordance with Tenn. Code Ann. § 36 — 1-113(k).
IV. CONCLUSION
We vacate the order of the trial court and remand this case with instructions that the trial court prepare findings of fact and conclusions of law as required by Tenn. Code Ann. § 36-1-113(k). Costs of this appeal are assessed against Appellees, for which execution may issue if necessary.