In Re O.W., Jr. ( 2020 )

01/09/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 1, 2019
IN RE O.W., JR. ET AL.
Appeal from the Juvenile Court for Shelby County
No. DD4263 Harold W. Horne, Special Judge
___________________________________
No. W2019-01127-COA-R3-PT
___________________________________
Father appeals the termination of his parental rights, arguing that one ground for
termination was not proven and that the trial court’s ruling as to that ground did not
reflect its independent judgment and did not include sufficient findings of fact and
conclusions of law. After a thorough review of the record, we affirm five grounds for
termination and vacate the ground of failure to manifest an ability and willingness to
parent the children. We also affirm the trial court’s finding that termination is in the
child’s best interest. As such, we affirm the termination of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part; and Vacated in Part
J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the court, in which CHARLES
D. SUSANO, JR., and ANDY D. BENNETT, JJ., joined.
Brandi L. Heiden, Memphis, Tennessee, for the appellant, O.W., Sr.
Herbert H. Slatery, III, Attorney General and Reporter; and Kathryn A. Baker, Senior
Assistant Attorney General; for the appellee, Tennessee Department of Children’s
Services.
OPINION
I. BACKGROUND
This case involves the termination of the parent rights of Respondent/Appellant
O.W., Sr., (“Father”) to his two children, O.W., Jr., (“O.W.”), born in 2013, and O.G.,
born in 2015.1 The children were placed in the emergency custody of Petitioner/Appellee
1
In cases involving termination of parental rights, it is this Court’s policy to remove the full
names of children and other parties to protect their identities.
Tennessee Department of Children’s Services (“DCS”) on December 3, 2015 after two of
their half-siblings told authorities that Father had sexually abused them. Father was
incarcerated in December 2015 after being charged with rape of a child.
On December 9, 2015, a pending petition to find another child of April G.
(“Mother”) dependent and neglected was amended to include O.W. and O.G.; the petition
asked that temporary custody of the children be awarded to DCS. On the same day, a
magistrate in the Shelby County Juvenile Court (“the trial court”) entered a protective
custody order that placed O.W. and O.G. in the temporary custody of DCS. A subsequent
order from the trial court prevented Father from contacting both children. The children
were declared dependent and neglected by the magistrate on April 15, 2016. While
making that finding, the trial court also found that the two half-siblings were sexually
assaulted, but did not determine whether Father perpetrated the abuse. The magistrate
further recommended that O.W. and O.G. remain in DCS custody. A petition to rehear
the matter was filed, and the children were again adjudicated as dependent and neglected
by a special judge with the trial court on November 20, 2017. The children remained in
DCS custody, and Father remained incarcerated at that time.
While Father was incarcerated, two permanency plans were created in 2015 and
2016. In the first plan, Father was tasked with providing financial support and completing
a parenting capacity assessment and a psychosexual analysis. In the second plan, Father
was instructed to provide good-faith payments, clothes and gifts to his children. Father
was not allowed to contact his children under either plan. Father signed DCS’s Criteria
and Procedures for Termination of Parental Rights form on April 14, 2016.
Father was convicted on one count of rape of a child on April 19, 2018, for the
rape of the half-sibling of O.W. and O.G. Father was later sentenced to serve thirty-five
years in prison at 100% on June 29, 2018. A second count of rape of a child remained
pending when the petition to terminate Father’s parental rights was heard.
DCS filed a petition to terminate the parental rights of Father and Mother on May
30, 2018.2 As grounds for termination against Father, DCS initially alleged abandonment
under Tennessee Code Annotated section 36-1-113(g)(1), severe child abuse under
section 36-1-113(g)(4), failure to establish parentage under section 36-1-
113(g)(9)(A)(vi), conviction of rape of a child under section 36-1-113(g)(10), severe
child sexual abuse under section 36-1-113(g)(11), and failure to manifest an ability and
willingness to assume custody under section 36-1-113(g)(14). An amended petition
added two grounds tied to Father’s 35-year prison sentence, specifically that Father was
sentenced to prison for more than two years for conduct against a child’s half-sibling,
which is a termination ground under section 36-1-113(g)(5), and that Father was
2
The petition against Mother was dismissed without prejudice when the matter went to trial in
2019.
-2-
sentenced to ten or more years in prison and a child is less than eight years old when the
sentence was entered, which is a ground for termination under section 36-1-113(g)(6).
A hearing on the petition to terminate Father’s parental rights occurred on April
25, 2019. Father was contacted telephonically from prison, but he declined to participate
after an off-the-record discussion with his attorney. After the attorney-client
conversation, the following discussion occurred on the record:
THE COURT: Anybody wish to start opening statements?
[Counsel for Father]: Yes, Your Honor. In light of the new information that
was brought to my attention, my client has decided he does not want to
participate this morning.
THE COURT: He does not have to.
[Counsel for Father]: Okay.
[Counsel for DCS]: The Department will request that he’s the Department’s
first witness, and while he’s definitely free to Plead the Fifth, we would
request that he stay through that, Your Honor.
[Counsel for Father]: My client doesn’t wish to participate, period. So, he’s
going to sign off.
THE COURT: Okay. [Father]?
[Father]: Yes, sir.
THE COURT: It’s your wish not to participate in the proceedings at all or
to give any testimony?
[Father]: Do what, sir?
THE COURT: You do not wish to be part of this trial?
[Father]: Yes, sir.
THE COURT: Okay. Then you’re free to go. You have a good day, sir.
[Father]: You, too.
Following this discussion, DCS announced it would drop the failure to establish
parentage ground from its case against Father.
Subsequently, DCS called its only witness, Starnisha Shelton, a DCS family
service worker who testified about DCS’s interactions with Father, O.W., and O.G., as
well as Father’s arrest and conviction on one count of rape of a child. In particular, Ms.
Shelton testified that the children have never talked about Father in front of her and that
the children had not interacted with him since December 2015. She believed the children
had no attachment to Father. Ms. Shelton further testified that the children were
“thriving” in their foster home and that their foster parent was willing to adopt them. On
cross-examination, Ms. Shelton said that she had not spoken with Father and could not
say whether he desired to parent or support his children.
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In an oral ruling, the trial court found that the record showed clear and convincing
evidence that Father was found guilty of rape of a child, which was sufficient evidence of
the grounds of severe abuse against a child and severe child sex abuse. The trial court
also found Father’s thirty-five year prison sentence established clear and convincing
evidence that Father would be incarcerated for more than two years for severe child abuse
against a half-sibling and evidence that Father was sentenced to serve more than 10 years
in prison while both children were under eight years of age. Additionally, the trial court
found clear and convincing evidence that Father had abandoned both children and shown
a wanton disregard for their welfare.
In conducting a best interests analysis, the trial court found Father made no
adjustment in circumstances, failed to visit his children, and had no regular or meaningful
relationship with his children. Additionally, the effect of removing children from their
caretaker of three years would be harmful and unsafe for the children. Further, the trial
court indicated that “the record should show as well on the front end that the father was
contacted in prison, given an opportunity to participate in the proceedings and declined to
participate or give any testimony.” DCS offered to prepare a written order reflecting the
trial court’s finding.
A written order terminating parental rights was entered by the trial court on May
28, 2019. The written order stated that the trial court found clear and convincing evidence
of all the alleged grounds save one—“rape of child . . . from which crime the child was
conceived” pursuant to section 36-1-113(g)(10). Father’s counsel declined to sign the
party-prepared order, which terminated Father’s parental rights and gave partial
guardianship of O.W. and O.G. to DCS. Father timely filed this appeal.3
II. ISSUES PRESENTED
Father presents the following issues for review:
1. Whether the [DCS] failed to prove by clear and convincing
evidence the required statutory element of the first prong of [Tennessee
Code Annotated section] 36-1-113(g).
2. Whether the trial court’s finding of facts and conclusions of
law in its final order reflect its independent judgment.
3. Whether the trial court failed to make specific findings of
facts and conclusions of law as to the statutory ground for termination of
parental rights pursuant to [Tennessee Code Annotated section] 36-1-
113(g).
3
Father’s trial counsel withdrew following the termination hearing, and substitute counsel filed
the present appeal.
-4-
III. STANDARD OF REVIEW
The Tennessee Supreme Court has previously explained that
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that state’s interest in the welfare of a child justifies interference
with a parent’s constitutional rights by setting forth grounds on which termination
proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1)
existence of one of the statutory grounds and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interests by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W. 3d at 546. Clear
and convincing evidence “establishes that the truth of the facts asserted is highly probable
. . . and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).
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In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). Our supreme court further explains:
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. In re M.L.P., 281 S.W.3d at
393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
all other questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of correctness. In re
Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d at 524.
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
IV. DISCUSSION
A. Grounds for Termination
While Father only appealed a single ground of termination, we are required to
evaluate the findings for each ground of termination found by the trial court, whether the
ground was contested on appeal or not.4 In re Carrington H., 483 S.W.3d at 52526.
Therefore, we will consider each of the six grounds that the trial court found to terminate
Father’s parental rights.
4
The Carrington rule does not extend to grounds that were not sustained by the trial court and
not challenged on appeal. In re Sydney B., 537 S.W.3d 452, 456 n.8 (Tenn. Ct. App. 2017), perm. app.
denied (Tenn. Aug. 1, 2017). As such, this Court is not required to consider the trial court’s ruling
dismissing the ground under section 36-1-113(g)(10).
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1. Abandonment
The first ground found by the trial court was abandonment through wanton
disregard as outlined in Tennessee Code Annotated sections 36-1-113(g)(1) and 36-1-
102. A ground for termination exists through “[a]bandonment by the parent or guardian,
as defined in § 36-1-102[.]” When the petition was filed, the relevant definition of
abandonment provided as follows:
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 that exhibits a wanton disregard for the
welfare of the child.. . .
Tenn. Code Ann. § 36-1-102(a)(iv) (2017).5 On its own, incarceration cannot
independently establish a ground for termination. In re Audrey S., 182 S.W.3d 838, 866
(Tenn. Ct. App. 2005). Instead, “[a]n incarcerated or recently incarcerated parent can be
found [to have committed] abandonment only if the court finds, by clear and convincing
evidence, that the parent’s pre-incarceration conduct displayed a wanton disregard for the
welfare of the child.” Id. Therefore, a parent’s incarceration acts as a “triggering
mechanism” that allows the court to examine more closely the child’s situation “to
determine whether the parental behavior that resulted in incarceration is part of a broader
pattern of conduct that renders the parent unfit or poses a risk of substantial harm to the
welfare of the child.” Id. That parental behavior is not limited in scope to the four-month
period before the parent’s incarceration. State of Tenn., Dep’t of Children’s Servs v.
Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009). A parent’s poor judgment and bad
acts affecting the children can establish a wanton disregard for the welfare of the
children. Id. (citing State v. Harville, No. E2008-00475-COA-R3-PT, 2009 WL 961782at *7) (Tenn. Ct. App. Apr. 9, 2009). Specifically, “probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
86768.
5
This definition was amended in 2018 to remove the terms willful and willfully wherever they
appear. See 2018 Tenn. Laws Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018. The amended statute is
inapplicable and irrelevant in this case, as the abandonment alleged in this case is based on Father’s
alleged “wanton disregard” for the child.
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Here, Father was incarcerated from December 2015 to the date of the termination
hearing. Because Father was in custody for the four months prior to the filing of the
termination petition in May 2018, this definition of abandonment was clearly applicable.
See Tenn. Code Ann. § 36-1-102(a)(iv) (requiring that the parent be “incarcerated at the
time of the institution of an action or proceeding” or “incarcerated during all or part of
the four (4) months immediately preceding the institution of such action or proceeding”).
At the time of the hearing, Father was criminally charged with two counts of rape of a
child and convicted on one of those counts. After examining the evidence, the trial court
found that Father had raped a young child and found clear and convincing evidence that
his criminal behavior, conviction, and 35-year prison sentence showed a wanton
disregard for the welfare of O.W. and O.G. This court has explained that the term wanton
is often defined as “‘[u]nreasonably or maliciously risking harm while being utterly
indifferent to the consequences.’” In re Chandler M., No. M2013-02455-COA-R3-PT,
2014 WL 3586499, at *4 (Tenn. Ct. App. July 21, 2014) (quoting Black’s Law
Dictionary 1719–20 (9th ed. 2009)). While a single conviction in some cases may not be
sufficient to reach this level of conduct, the heinous nature of the crime that Father was
found to have committed, coupled with the resulting extended incarceration period,
shows that Father engaged in conduct with a wanton disregard for the welfare of his
children. Therefore, we affirm the trial court’s decision to find clear and convincing
evidence on this ground.
2. Severe Child Abuse
The second termination ground found by the trial court was severe child abuse
under Tennessee Code Annotated section 36-1-113(g)(4), which provides a ground for
termination where “[t]he parent or guardian has been found to have committed severe
child abuse, as defined in § 37-1-102, under any prior order of a court or is found by the
court hearing the petition to terminate parental rights[.]” Severe child abuse has various
definitions. See generally Tenn. Code Ann. § 37-1-102(b)(27). Relevant to this case,
severe child abuse is defined as “[t]he commission of any act towards the child prohibited
by § 39-13-309, §§ 39-13-502 -- 39-13-504, § 39-13-515, § 39-13-522, § 39-13-527, §
39-13-531, § 39-13-532, § 39-15-302, § 39-15-402, or § 39-17-1005 or the knowing
failure to protect the child from the commission of any such act towards the child[.]”
Tenn. Code Ann. § 37-1-102(b)(27)(C).
In the present case, DCS requested termination on the ground of severe child
abuse after Father’s conviction for rape of a child on April 19, 2018 in Shelby County
Criminal Court. A certified copy of Father’s conviction under Tennessee Code Annotated
section 39-13-522 was entered into evidence at trial. Based on this conviction, the trial
court found clear and convincing evidence that Father had committed severe child abuse
through Tennessee Code Annotated section 36-1-113(g)(4). Upon review of the certified
copy of the conviction in the record, we agree. Here, the evidence at trial clearly and
convincingly established that Father was convicted of a crime that qualifies as severe
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child abuse under section 37-1-102(b)(27)(C). We therefore affirm the trial court’s
finding that clear and convincing evidence exists to terminate Father’s parental rights
through severe child abuse.
3. Sentence of more than two years for conduct against a child
The trial court found a third ground to terminate Father’s parental rights under
Tennessee Code Annotated section 36-1-113(g)(5). Under that section of the statute,
parental rights can be terminated when:
[t]he parent or guardian has been sentenced to more than two (2) years’
imprisonment for conduct against the child who is the subject of the
petition, or for conduct against any sibling or half-sibling of the child or
any other child residing temporarily or permanently in the home of such
parent or guardian, that has been found under any prior order of a court or
that is found by the court hearing the petition to be severe child abuse, as
defined in § 37-1-102. Unless otherwise stated, for purposes of this
subdivision (g)(5), “sentenced” shall not be construed to mean that the
parent or guardian must have actually served more than two (2) years in
confinement, but shall only be construed to mean that the court had
imposed a sentence of two (2) or more years upon the parent or guardian. . .
Tenn. Code Ann. § 36-1-113(g)(5).
Here, DCS argued for Father’s parental rights to be terminated after he was
sentenced to serve 35 years in prison at 100% for his conviction for raping the half-
sibling of the children.6 Testimony at trial established that the victim lived in the same
home as O.W. and O.G. at the time of the assault. Following the termination hearing, the
trial court found that the Father’s conviction of child rape constituted severe child abuse
as defined by Tennessee Code Annotated section 37-1-102. As such, the trial court found
clear and convincing evidence that Father had been sentenced to more than two years in
prison for conduct against a child living in the home of his children. After reviewing the
sentencing documents and evidence establishing that the rape victim lived with Father’s
children, we affirm the trial court’s finding on this ground.
4. Sentence of ten or more years when the children are eight (8) years old
5.
The fourth ground found by the trial court to terminate Father’s parental rights was
outlined in Tennessee Code Annotated section 36-1-113(g)(6). As stated, a parent’s rights
can be terminated when
6
The petition to terminate parental rights was amended to include this ground following Father’s
sentencing on June 29, 2018.
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[t]he parent has been confined in a correctional or detention facility of any
type, by order of the court as a result of a criminal act, under a sentence of
ten (10) or more years, and the child is under eight (8) years of age at the
time the sentence is entered by the court[.]
Tenn. Code Ann. § 36-1-113(g)(6).
In the case-at-bar, Father was sentenced in June 2018 to serve a full thirty-five
years in prison after his conviction for rape of a child. O.W. was born in March 2013 and
was five years old when Father was sentenced. O.G. was born in August 2015 and was
two years old when her father was sentenced. Based on these facts, the trial court found
clear and convincing evidence to terminate Father’s parental rights under Tennessee
Code Annotated section 36-1-113(g)(6). After reviewing Father’s sentence and the
children’s birth certificates, we agree with the trial court’s finding that Father was
sentenced to more than ten years’ incarceration when the children were under the age of
eight.
6. Severe Child Sexual Abuse
The trial court found a fifth ground to terminate Father’s parental rights under
Tennessee Code Annotated section 36-1-113(g)(11). The statute establishes a ground to
terminate parental rights when:
(i) The parent has been found to have committed severe child sexual abuse
under any prior order of a criminal court;
(ii) For the purposes of this section, “severe child sexual abuse” means the
parent is convicted of any of the following offenses towards a child:
(a) Aggravated rape, pursuant to § 39-13-502;
(b) Aggravated sexual battery, pursuant to § 39-13-504;
(c) Aggravated sexual exploitation of a minor, pursuant to § 39-17-
1004;
(d) Especially aggravated sexual exploitation of a minor, pursuant
to § 39-17-1005;
(e) Incest, pursuant to § 39-15-302;
(f) Rape, pursuant to § 39-13-503; or
(g) Rape of a child, pursuant to § 39-13-522; . . .
Tenn. Code Ann. § 36-1-113(g)(11)(A).
Here, as stated supra, Father was convicted in April 2018 of one count of rape of a
child under Tennessee Code Annotated section 39-13-522. The trial court found that this
conviction qualified as severe child sexual abuse and established clear and convincing
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evidence as required to terminate parental rights under this statute. Consistent with our
analysis supra, we affirm the trial court’s decision to terminate parental rights on this
ground.
7. Willingness and Ability
Finally, the trial court found clear and convincing evidence to terminate Father’s
parental rights by the Father’s failure to “manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the child, and placing 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.” Tenn.
Code Ann. § 36-1-113(g)(14). On appeal, Father argues that DCS failed to prove this
statutory ground by clear and convincing evidence, that the party-prepared findings of
fact and conclusions of law pertaining to this ground failed to reflect the independent
judgment of the trial court, and that the trial court failed to make specific findings of fact
and conclusions of law pertaining to this ground for termination. For purposes of this
appeal, we will first consider Father’s procedural arguments concerning this ground.
Tennessee courts may adopt party-prepared findings and legal conclusions when
they accurately reflect the trial court’s previous decisions and do not create doubt that the
ruling represents the trial court’s own deliberations and decisions. Smith v. UHS of
Lakeside, Inc., 439 S.W.3d 303, 31516 (Tenn. 2014) (citations omitted). As the
Tennessee Supreme Court stated:
In the almost thirty years since Anderson [v. City of Bessemer City,
N.C.] was decided, most 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, 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[.]”
Id. (citations omitted). Although Smith involved summary judgment, this Court has
applied its rule in the termination of parental rights context. See, e.g., In re Marneasha
D., No. W2017-02240-COA-R3-PT, 2018 WL 4847108, at *3 (Tenn. Ct. App. Oct. 4,
2018); In re Colton B., No. M2017-00997-COA-R3-PT, 2017 WL 6550620, at *3 (Tenn.
Ct. App. Dec. 22, 2017); In re Matthew T., No. M2015-00486-COA-R3-PT, 2016 WL
1621076, at *56 (Tenn. Ct. App. Apr. 20, 2016). A “notably sparse” oral ruling was
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present in In re Marneasha D., when the court ostensibly recited the statutory grounds
for each ground for parental termination and found that those grounds were proven by
clear and convincing evidence. In re Marneasha D., 2018 WL 4847108, at *56. This
court found the difference between the oral ruling and a 33-page written order were
“significant rather than minor,” vacated the trial court’s judgment, and remanded the
matter back to the trial court. Id. at *5. As shown through In re Colton B., a 15-page
written order detailing four grounds of termination and the facts that support them did not
reflect the independent judgment of a trial court when that court failed to provide any
findings of fact in its oral ruling and the written order was nearly a verbatim recitation of
the termination petition. In re Colton B., 2017 WL 6550620, at *4. On the other hand,
minor differences between an oral ruling and a subsequent written order prepared by a
party do not establish a basis for reversal. In re Matthew T., 2016 WL 1621076, at *56.
In the present case, Father contends that the findings of fact in the written order on
this particular ground were not the product of the trial court’s independent judgment.
Father further argues that considering only the findings that are the product of the trial
court’s independent judgment, the trial court’s findings are deficient. To analyze this
issue, we compare the trial court’s oral ruling with its subsequent written order. In the
oral ruling, the ground of failure to manifest an ability and willingness to assume custody
was addressed as follows:
[Counsel for DCS]: Again, Your Honor, I didn’t mention this ground one
way or another, and I do apologize, but I went through my list and you can
rule in it however you see fit based on the proof. I did allege Failure to
Manifest an Ability and Willingness to Assume Custody as to [O.W.] based
on when the file was petitioned, but I forgot to mention that in my opening.
THE COURT: 36-1-113(g)(14), a Failure to Manifest by Act or Omission
and Ability and Willingness to Personally Assume Legal and Physical
Custody or Financial Responsibility of the Child Placing 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 was grounds of being
shown by clear and convincing proof as well. Now, is there anything else
that the Guardian, State or father’s attorney wish to have the Court address?
The written order, however, stated the following when analyzing this ground:
Pursuant to Tennessee Code Annotated § 36-1-113(g)(14), Respondent
[Father] has failed to manifest, by act or omission, an ability or willingness
to personally assume legal and physical custody or financial responsibility
of the children, and placing the children in his legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the children. [Father] has been incarcerated since the children
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entered foster care in 2015 at ages three months and age two and he
currently remains incarcerated. Therefore, he has no ability to provide a
home for the children at this time. Further, [Father] has been sentenced to
thirty five years for raping the children’s half-sister and he is still awaiting
trial in regards to his rape of their other half sister. [Father] has no ability to
provide a home for these children at any point turning [sic] their minority
due to his conviction. [Father] showed his lack of willingness to care for his
children by his sudden decision not to participate in the termination of
parental rights trial today despite being afforded an opportunity to do so.
[Father] has had no contact or communication with his children since they
entered into foster care in December 2015. Ms. Shelton testified that they
never ask about him. Further, both children have been residing in a pre-
adoptive home with [the foster parent], since they entered into foster care.
[The foster parent] is the only parent that [O.G.] can remember due to her
young age when she entered into foster care. Further, [the foster parent] is
familiar with and capable of dealing with O.W.’s mood disorder. Therefore,
placement outside the current foster home would pose a risk of substantial
harm to the children’s physical and psychological welfare.
The findings of fact in the written order were clearly not present in the trial court’s oral
ruling.7 The discrepancies between the two rulings are substantial, as they essentially
reflect the whole of the factual basis for the trial court’s determination on this ground.
Indeed, in light of the overwhelming evidence in support of the other grounds for
termination, this ground was apparently nearly forgotten by both DCS and the trial court.
Given these discrepancies, we cannot conclude that the trial court’s findings of fact in
support of this particular ground for termination were the product of the trial court’s
independent judgment. Smith, 439 S.W.3d at 31516.
Moreover, considering only the findings that were the product of the trial court’s
independent judgment, we conclude that they were deficient. Tennessee law is clear that
trial courts must make findings of fact and conclusions of law in bench trials. See Tenn.
Code Ann. § 36-1-113(k) (“The court shall enter an order that makes specific findings of
7
The written order also states that the trial court disconnected the call that allowed Father to
participate in the termination hearing “after questioning him to make sure he understood the consequences
of his actions.” A review of the transcript indicates that the trial court did not speak with Father about the
consequences of not participating. Father raises this discrepancy, which DCS does not dispute, only with
regard to the trial court’s finding that Father failed to manifest an ability and willingness to parent his
children. Although we admonish DCS from preparing orders that do not accurately reflect trial court
proceedings and caution trial courts to ensure that orders are correct before entry, we cannot conclude that
this admitted discrepancy has any effect on the other five grounds found by the trial court and affirmed by
this Court. See Tenn. R. App. P. 36(b) (“A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole record, error involving a substantial right
more probably than not affected the judgment or would result in prejudice to the judicial process.”).
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fact and conclusions of law [following termination of parental rights trials].”); Tenn. R.
Civ. P. 52.01 (requiring findings of fact and conclusions of law in bench trials). “There is
no bright-line test by which to assess the sufficiency of factual findings, but ‘the findings
of fact must include as much of the subsidiary facts as is necessary to disclose 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). The trial court’s oral ruling as to this ground was
limited to the statutory language in section 36-1-113(g)(14) and does not include the
necessary findings of fact that would establish clear and convincing evidence.
In sum, we have significant doubt that the detailed findings contained in the trial
court’s written order as to this ground are the product of the trial court’s independent
judgment. Considering only those findings that were clearly made by the trial court, we
conclude that insufficient findings of fact were made to support this ground for
termination. Consequently, we vacate the trial court’s finding that a ground to terminate
Father’s parental rights exists based on Father’s failure to manifest a willingness or
ability to assume custody or financial responsibility for the children.
While we vacate the trial court’s determination regarding willingness and ability,
we decline to remand the issue for reconsideration. This Court has previously declined to
remand a parental termination case when “remanding for reconsideration of these
grounds would only further prolong these proceedings without altering the outcome.” In
re Abbigail C., No E2015-00964-COA-R3-PT, 2015 WL 6164956, at *14 (Tenn. Ct.
App. Oct. 21, 2015). Here, as we have discussed supra, five grounds to terminate
Father’s parental rights were established by clear and convincing evidence. As discussed
infra, we affirm the trial court’s determination that termination is in the best interests of
the children. Clear and convincing evidence to support the ground of failure to manifest a
willingness and ability to parent the child is therefore not necessary to uphold the
termination of Father’s parental rights. As such, we decline to remand this issue to the
trial court for reconsideration.8
B. Best Interests
After establishing at least one ground for termination by clear and convincing
evidence, we further consider whether the trial court correctly determined that
termination of Father’s parental rights was in the best interests of the children involved.
While Father did not raise best interests as an issue on appeal, we are again required to
consider the best interests of the child whether a parent argued the issue or not. In re
Carrington H., 483 S.W.3d at 52526. After establishment of a ground for termination,
“the interests of the child and parent diverge, and the court’s focus shifts to consider the
8
Father’s argument that clear and convincing evidence was not presented on this ground is
pretermitted by our ruling.
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child’s best interest.” In re Audrey S., 182 S.W.3d at 877. The best interests of the
children may not always lead to termination, even if a parent is deemed unfit by a court.
Id. To determine whether termination of parental rights is in a child’s best interests, we
shall consider, but are not limited to, the following factors:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
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Tenn. Code Ann. § 36-1-113(i). Further, the Tennessee Supreme Court has explained
that:
Facts considered in the best interests analysis must be proven by a
preponderance of the evidence, not by clear and convincing evidence. After
making the underlying factual findings, the trial court should then consider
the combined weight of those facts to determine whether they amount to
clear and convincing evidence that termination is in the child’s best
interests. When considering these statutory factors, courts must remember
that the child’s best interests are viewed from the child’s, rather than the
parent’s, perspective. Indeed, a focus on the perspective of the child is the
common theme evident in all of the statutory factors. When the best
interests of the child and those of the adults are in conflict, such conflict
shall always be resolved to favor the rights and the best interests of the
child.
In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted).
More than a rote examination or simple counting of the statutory factors is required to
determine the best interests of a child. Id. at 682. Each analysis must remain “factually
intensive,” and consideration of the factors should be rooted in each case’s unique facts
and circumstances. Id. Courts must examine each statutory factor with any relevant proof
presented by the parties. Id.
In the present case, we agree with the trial court’s conclusion that termination of
Father’s parental rights was in the best interests of O.W. and O.G. When the hearing on
the termination petition occurred, Father was incarcerated on a lengthy sentence; he
therefore could not make an adjustment of circumstances so as to provide a safe home for
the children that would support their best interests. See Tenn. Code Ann. § 36-1-
113(i)(1). While DCS created permanency plans for the children, Father did not broadly
participate in its recommendations or act in a way that would make lasting adjustments
appear possible. See Tenn. Code Ann. § 36-1-113(i)(2). Father’s no-contact order made
it impossible to visit his children, and he made no effort to lift the no-contact order before
the parental termination hearing occurred. Moreover, Father’s inability to visit the
children was the result of his decision to engage in heinous criminal conduct. See Tenn.
Code Ann. § 36-1-113(i)(3). The lack of interactions, combined with the apparent lack of
communication between Father and his children, show that Father has little to no
meaningful relationship with the children. See Tenn. Code Ann. § 36-1-113(i)(4). A
change of caretakers and physical home would have a profoundly negative effect on the
children, as both O.W. and O.G. are well-adjusted to their foster home, where they have
lived longer than they lived with a father whom they never interacted since his arrest. See
Tenn. Code Ann. § 36-1-113(i)(5). Father’s conviction of child rape against the
children’s half-sibling establishes that Father sexually abused at least one other child who
lived in the same household as O.W. and O.G. See Tenn. Code Ann. § 36-1-113(i)(6).
Further, Father’s incarceration would make it impossible for him to provide a healthy,
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stable and safe physical home for the children. See Tenn. Code Ann. § 36-1-113(i)(7).
The record does not indicate whether Father has received any mental or emotional
treatment since his incarceration began in 2015. See Tenn. Code Ann. § 36-1-113(i)(8).
As Father has been incarcerated since the children were placed in foster care, he has not
paid child support during that time. See Tenn. Code Ann. § 36-1-113(i)(9).
Upon review of these factors, we agree with the trial court’s conclusion that the
best interests of O.W. and O.G. are served by terminating Father’s parental rights. The
children currently live with a stable foster family that wishes to adopt them. In contrast,
Father has no contact with the children due to his own criminal conduct and therefore no
relationship with them. According to Ms. Shelton, the children do not even mention
Father. Further, Father was convicted of a heinous sex crime that will keep him in prison
for 35 years, long after O.W. and O.G. reach adulthood. With that in mind, the trial court
did not err in finding clear and convincing evidence that parental termination was in the
children’s best interests. As multiple grounds for termination also exist, we affirm the
termination of Father’s parental rights.
V. CONCLUSION
The judgment of the Shelby County Juvenile Court is affirmed in part and vacated
in part. The termination of O.W. Sr.’s parental rights is affirmed. Costs of this appeal are
taxed to Appellant O.W. Sr., for all of which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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