In Re: Kaiden T.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 2, 2014
IN RE KAIDEN T.
Appeal from the Chancery Court for Overton County
No. 13-CV-4 Ronald Thurman, Chancellor
No. M2014-00423-COA-R3-PT - Filed December 15, 2014
Mother appeals the termination of her parental rights contending the evidence was
insufficient to prove any ground or that it was in the child’s best interest to terminate her
parental rights. The trial court found that the petitioners, the father and step-mother, proved
two grounds of abandonment, failure to support and failure to visit the child, pursuant to
Tenn. Code Ann. § 36-1-102(1)(A)(i), and that termination of Mother’s rights was in the best
interest of the child, pursuant to Tenn. Code Ann. §§ 36-1-113(c)(2) and (i). We have
determined the evidence is sufficient to prove both grounds of abandonment; therefore, we
affirm the trial court’s findings on both of these issues. However, we must remand the issue
of the child’s best interest, due to the lack of specific findings of fact as mandated by Tenn.
Code Ann. § 36-1-113(k). Therefore, we reverse and remand with instructions for the trial
court to provide specific findings of fact concerning whether termination of Mother’s
parental rights is in the best interest of the child and to enter judgment consistent with its
findings.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
Part, Reversed in Part, and Remanded
F RANK G. C LEMENT, J R., P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, JJ., joined.
Andrea McLerran Ayers, Livingston, Tennessee, for the appellant, Nicole W.1
Michael Savage, Livingston, Tennessee, for the appellees, Brandon and Valerie T.
1
This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
OPINION
Brandon T. (“Father”) and Nicole W. (“Mother”) are the biological parents of one
child, Kaiden T., born in November 2005. Following the child’s birth, Mother had primary
custody and Father had visitation every other weekend and Thursdays on his off weeks.
When the child was a year old, Mother and Father agreed to joint custody, alternating weekly
visitation, which arrangement remained in effect until March 2010, when Mother was
arrested for selling drugs. Soon thereafter, the parents entered an agreed order whereby
Father was granted custody and Mother’s contact with the child was restricted to supervised
visitation, to be coordinated by the parents; she was also allowed visitation at the child’s
sporting events and two weekly telephone calls at 7:00 p.m. on Tuesdays and Thursdays.
Because Mother was unemployed, the issue of child support was reserved for further
hearing.2
Since March 2010, the child has resided with Father and Valerie T. (“Step-mother”),
who have been married for eight years, in Livingston, Tennessee. Mother has resided with
her fiancé, Ricky Jones, at his home in Pleasant Shade, Tennessee, since 2012.
On January 30, 2013, Father and Step-mother filed the instant petition to terminate
Mother’s parental rights and for step-parent adoption, based on abandonment for willful
failure to visit and for willful failure to support.3 Petitioners alleged that Mother had either
failed to visit the child altogether or engaged in only token visitation and that Mother had
never paid child support. They further asserted that it was in the child’s best interest to
terminate Mother’s parental rights and to allow Step-mother to adopt the child “and legally
become said minor child’s mother with all the duties and responsibilities attached to said
relationship.” The trial court appointed counsel to represent Mother and a Guardian Ad Litem
to represent the interest of the child.
A one-day trial was conducted on January 27, 2014, with Mother, Father, and Step-
mother testifying. Also testifying, was a friend of Mother’s and the child’s teachers and
karate instructor. The testimony regarding Mother’s relationship with the child and her
visitation with the child pursuant to the 2010 order revealed that she was entitled to visit the
2
At a later date, not identified in this record, but prior to June 2013, Mother was ordered to pay child
support to Father; the amount and other details are not provided.
3
As we noted in In re Adoption of Z.J.D., No. M2012-01596-COA-R3-PT, 2013 WL 870654 (Tenn.
Ct. App. Mar.7, 2013), a parent has no standing to petition for the termination of the other parent’s parental
rights but is a necessary party to the petition for adoption by a step-parent. Id. at *1, n.1 (citing Tenn. Code
Ann. § 36-1-113(b); Tenn. Code Ann. § 36-1-115(c); Osborn v. Marr, 127 S.W.3d 737, 739-40 (Tenn.
2004)).
-2-
child at the child’s sporting events and other supervised visitation that could be arranged at
the convenience of the parents; however, Mother attended less than ten sporting events since
2010, even though the child consistently attended karate lessons on Tuesday afternoons at
the same time and location. Father testified that Mother missed “hundreds” of the child’s
sporting events, and the last time she attended a karate lesson, pre-petition, was in early 2011.
Mother’s last “scheduled” visitation was Christmas 2010. Father and Step-mother testified
that they arranged for Christmas visitation in December 2011 at a local McDonald’s but
Mother failed to attend. Mother, for her part, testified that she does not remember scheduling
visitation with the child in December 2011.
Mother testified that every time she told Father or Step-mother that she planned to
visit the child at karate, they would not be there. Step-mother testified that there had indeed
been times when the child missed his karate class and she did not notify Mother, but Step-
mother denied that she had ever intentionally discouraged a relationship between Mother and
the child. Mother described two specific requests for visitation with the child, which never
transpired. One was in September 2011 when her mother came to visit and arranged for
breakfast with the child, but Father and Step-mother canceled at the last minute. The second
was a request in November 2013, when her father was coming to visit. Mother claimed she
texted Step-mother a request, but did not receive a response. Notably, however, neither of
these requests were during the four months preceding the petition, and Mother provided no
other instances of being denied visitation requests either during or before the relevant four-
month period.
The 2010 custody order also allowed two telephone calls per week with her child on
Tuesdays and Thursdays at 7:00 p.m., and Mother was to initiate the calls. Mother testified
that she called her son regularly, and also set her phone alarm to remind her to call. Mother
testified that she initiated “several calls” during the four months preceding the petition, but
that the majority of the time, her calls would go unanswered and unreturned. Step-mother and
Father both testified that, in the beginning, they were cooperative with the telephone call
schedule, but that Mother’s calls to the child were sporadic at best. Over time, Father and
Step-mother became concerned when Mother spoke with the child and promised visitation,
but would then “no-show,” and when she promised gifts to the child, but never followed
through. Both Father and Step-mother testified that they felt Mother’s empty promises were
taking a toll on the child. Step-mother testified that after the child spoke with his mother, he
was very emotional, nervous, bit his nails, fidgeted, and had sleeping problems. Father
testified that to protect his son, he gave Mother an ultimatum. He told Mother that if she did
not stop making promises upon which she did not deliver, he would end the scheduled calls.
Mother, conversely, denied promising her son gifts or that she would be at visitation and then
not appear. After Mother failed to appear for Christmas visitation in 2011, Father and Step-
mother decided it was necessary to avoid Mother’s court-ordered telephone calls, and they
-3-
did not allow Mother to converse with the child via telephone, until after the petition was
filed.
With respect to child support, it was undisputed that Mother has never paid support
and that she is not disabled. Mother testified that she never received notice of the child
support hearing, did not attend or have representation at the hearing, and was not even aware
that child support had been ordered until June of 2013. Mother further testified that she has
no income and that she has not worked since she left her position at a gas station in 2011,
other than helping her fiancé, Mr. Jones, with his chickens. Mother testified that she is
supported by Mr. Jones, that they share one vehicle, and that they are living on a shoestring
budget, earning just enough money to cover their living expenses.
Mother stated she is unemployed because she does not have a driver’s license. Mother
lost her license after she received a $5,000 fine in 2008; her license remains suspended until
the fine is paid in full. Mother testified that her father and Mr. Jones have helped her pay the
fine, and that the balance owing as of trial was $500. She further testified that she intends to
pay child support for the child once she regains her license and is able to work.
In the trial court’s ruling from the bench, the court stated:
Well, when we look at the statute, Section 36-1-213, and whether or not there
has been abandonment by [Mother], . . . the relevant time frame is what
transpired in the four months preceding the filing of the petition, which was
[January] 30 th , 2013.
What the statute requires is a showing by a standard of clear and convincing
evidence that at that time the parent did not willfully visit or provide support.
. . . By her own testimony, she hasn’t provided support. She has not provided
any support. She is not disabled and works for her boyfriend and fiancé. There
is no evidence in the record that she couldn’t have. Really, I don’t think she
tried to get a job. I know she has a problem with not having a driver’s license,
but there is no substantial evidence to show she has made any effort to get a
job and pay the child support.
I know she has testified she wasn’t aware of the court date setting child
support. I believe she was aware. She had been placed on notice by her
attorney, Mr. Randolph, at the time, even though she testified she didn’t tell
her attorney at the time where she changed addresses, but for this court to set
child support, be that as it may, under the state law of the State of Tennessee,
the parents are obligated to take care of a minor child.
-4-
It is not fair for anybody to carry the whole load. Both [Father] and [Mother]
brought the child into the world. They both have an obligation to take care of
the child. It is clear that [Mother] hasn’t provided that support. I find, based on
the testimony, that [Mother] works with her boyfriend raising chickens, and if
they earn income that way and have survived, she has not met her obligation
to pay child support.
As far as visitation, that has been somewhat sporadic. I think, as far as the cut-
off phone calls by [Father and Step-mother], they don’t have the right to
modify court orders. The only person that has a right to modify a court order
would be myself or the appellate court. They testified they did so in the child’s
best interest.
I find that [Mother] has not visited the child during that period of four months
preceding the filing of the petition to terminate her parental rights. I really
can’t say that she made an effort to try to visit. The fact is that [Mother] did
not come to court to tell me about the cut-off phone calls. If I found out anyone
had violated a court order, I would put them in jail, if that was brought before
me, but that was not brought before me.
I know she testified about being in front of me and saying “I couldn’t make
phone calls and visit a lot of times.” [Mother] has had issues, I guess, with her
ex-husband being in jail, having gotten arrested on drug charges, but the court
finds clear and convincing evidence that she has not visited her child in the
four months preceding the filing of the petition for termination of her parental
rights.
Now, it is one of the hardest things I have to do in my job, but my obligation
is to look out for the best interests of the child in this case, Kaiden L.T., and
the court finds that [Father and Step-mother] have been providing all of the
support and have been acting as parents to the child, and the child has bonded
well with his stepmother. The court finds clear and convincing evidence that
it is in the best interest of Kaiden L.T. for termination to occur.
...
In its written order, the trial court found that Father and Step-mother had proven by
clear and convincing evidence, pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(i), that
Mother willfully failed to support her child or make reasonable payments toward support in
-5-
the four months preceding the petition, and that she had willfully failed to visit her child in
the four months preceding the petition. The trial court also expressly found Mother’s
testimony “was less than credible” concerning her contact with the child.4 Based on this and
other evidence, the court concluded that Mother had abandoned her child. The trial court
additionally concluded that Father and Step-mother had proven by clear and convincing
evidence that it was in the child’s best interest that Mother’s parental rights be terminated.
Based upon the foregoing, the court granted the petition to terminate the parental rights of
Mother. This appeal followed.
A NALYSIS
I. A BANDONMENT
Parental rights may be terminated for abandonment, pursuant to Tenn. Code Ann. §
36-1-102(1)(A)(i), where a parent “willfully” fails to visit or support their child or “willfully”
fails to make reasonable payments toward the support of the child for the four months
preceding the filing of the petition to terminate that parent’s rights. A parent’s willful
conduct is an essential element of the statutory definition of abandonment. See In re C.T.B.,
No. M2009-00316-COA-R3-PT, 2009 WL 1939826, at *4 (Tenn. Ct. App. July 6, 2009); In
re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005). Willful conduct, as used in the
statute, consists of acts or failures to act that are intentional or voluntary rather than
accidental or inadvertent. In re Audrey S., 182 S.W.3d at 863 (citations omitted). “Conduct
is ‘willful’ if it is the product of free will rather than coercion.” Id. A parent’s failure to visit
or support a child is “willful” when a parent “is aware of his or her duty to visit or support,
has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not
doing so.” Id. at 864 (citing In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004)); In
re M.L.D., 182 S.W.3d 890, 896 (Tenn. Ct. App. 2005) (citing In re Adoption of T.A.M., No.
M2003-02247-COA-R3-PT, 2004 WL 1085228, at *4 (Tenn. Ct. App. May 12, 2004)).
Whether a parent failed to visit or support a child is a question of fact. In re Adoption
of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013) (citing In re Adoption of A.M.H., 215
S.W.3d 793, 810 (Tenn. 2007)). Whether a parent’s failure to visit or support constitutes
willful abandonment, however, is a question of law. Id. We review questions of law de novo
with no presumption of correctness. Id.
4
The trial court’s credibility determination was based upon discrepancies it found in Mother’s
testimony. With respect to the phone calls Mother asserted she made to the child, the trial court stated from
the bench, “She said she made all of those phone calls, but she was in jail part of this time.” The trial court
also noted Mother’s testimony that she did not know the where the child went to school was contradicted by
her own witness, Ms. Meyer, who testified that “she felt [Mother] knew where the [child’s] school was[.]”
-6-
As noted above, the termination of Mother’s parental rights was premised on both
abandonment for willful failure to support, as well as abandonment for willful failure to visit.
We will examine each of these statutory grounds in turn, beginning with the trial court’s
finding of abandonment for willful failure to support. For the purposes of this analysis, the
relevant four-month period preceding the petition to terminate Mother’s parental rights spans
September 29, 2012, to January 29, 2013.
A. W ILLFUL F AILURE TO S UPPORT THE C HILD
To find Mother abandoned her child by failing to support him financially, it must be
established that the failure to support was “willful.” In re R.L.F., 278 S.W.3d 305, 320 (Tenn.
Ct. App. 2008). Failure to pay support is “willful” if the parent “is aware of his or her duty
to support, has the capacity to provide the support, makes no attempt to provide support, and
has no justifiable excuse for not providing the support.” In Re J.J.C., 148 S.W.3d 919, 926
(Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV,
2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). The fact the parent was not
under an order to pay support is not dispositive of the question of whether the failure is
willful; the obligation to pay support exists in the absence of a specific order. Tenn. Dep’t
of Children’s Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004). The
foregoing notwithstanding, a parent cannot be said to have abandoned a child when his
failure to visit or support is due to circumstances outside his control. In re Adoption of
Angela E., 402 S.W.3d at 639 (citing In re Adoption of A.M.H., 215 S.W.3d at 810 (holding
that the evidence did not support a finding that the parents “intentionally abandoned” their
child)).
Mother admitted that she did not pay any child support for the child during the
relevant four-month period. Mother contends, however, that her failure to support was not
willful because she lacked the financial means to pay support and could not get a job because
she did not have a driver’s license.
The element of “willfulness” of a parent’s actions hinges on his or her intent, which
is usually incapable of direct proof. In re B.P.C., No. M2006-02084-COAR3-PT, 2007 WL
1159199, at *10 (Tenn. Ct. App. April 18, 2007) (citing In re Audrey S., 182 S.W.3d at 864).
Thus, intent must often be inferred from circumstantial evidence drawn from the parent’s
actions or conduct. Id.
With regard to Mother’s willful failure to support, the trial court specifically found
that Mother had an affirmative duty to support her child regardless of an order to that effect,
and, although Mother did not receive wages from her fiancé, they jointly earned income from
which she could have paid some support, yet she never paid any support. Finally, the trial
-7-
court found that Mother had exerted no effort to find work that paid her a wage in order to
provide support for her child; instead, Mother chose to help her fiancé raise his chickens, for
which she received no compensation other than room and board.
In support of the trial court’s determination, Mother testified she worked on her
fiancé’s farm taking care of 600 chickens; however, when asked how much money she made,
Mother replied, “I don’t make nothing personally, but I have a roof over my head and
everything I need.” In regards to Mother’s ability to obtain employment that paid her a wage,
she testified she could not get a job because she did not have a driver’s license; however, the
record reveals that Mother’s driver’s license was suspended in 2008, and Mother was able
to maintain employment at a gas station without a driver’s license until 2011. Moreover,
Mother provided no support for the child prior to leaving that job. These facts, along with
others, justifiably caused the trial court to question Mother’s credibility.
Based upon the foregoing and other evidence in the record, including the trial court’s
adverse credibility finding concerning Mother, it has been established by clear and
convincing evidence that Mother’s failure to pay any support during the relevant period was
willful. Accordingly, we affirm the trial court’s finding that Mother abandoned the child by
failing to support him. We shall now address whether the evidence established by the
requisite standard that Mother abandoned the child by willfully failing to visit.
B. W ILLFUL F AILURE TO V ISIT T HE C HILD
The trial court found that Mother willfully failed to visit the child during the four-
month period preceding the filing of the petition, that being September 29, 2012 to January
29, 2013, and that she had not made any real effort to visit the child during that period.
Mother does not dispute the finding that she failed to visit during the relevant time
period; however, she challenges the trial court’s finding that her failure to visit was
“willful,” arguing that Father and Step-mother thwarted her efforts by repeatedly ignoring
and/or denying her scheduled weekly telephone calls with the child.
Mother correctly notes that when a parent attempts to visit his child, but is “thwarted
by the acts of others,” the failure to visit is not willful.” In re M.L.P., 281 S.W.3d 387, 392
(Tenn. 2009) (quoting In re Adoption of A.M.H., 215 S.W.3d at 810); see also In re F.R.R.,
III, 193 S.W.3d 528, 530 (Tenn. 2006). However, “[a] parent’s failure to visit may be
excused by the acts of another only if those acts actually prevent the parent from visiting the
child or constitute a significant restraint or interference with the parent’s attempts to visit the
child.” In re M.L.P., 281 S.W.3d at 393 (emphasis added) (citing In re Audrey S., 182 S.W.3d
at 864); see also In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). Examples of conduct
-8-
that amounts to a significant restraint or interference include blocking access to the child,
keeping the child’s whereabouts unknown, and/or vigorously resisting a parent’s efforts to
support or to visit the child. In re Audrey S., 182 S.W.3d at 864 n.34.
Although blocking calls, under certain circumstances, may constitute “blocking access
to the child,” telephone calls are not generally a substitute for in-person visitation for the
purposes of determining whether a parent has willfully abandoned a child. See In re Adoption
of Marissa O.R., No. W2013-01733-COA-R3-PT, 2014 WL 2475574, at *14-15 (Tenn. Ct.
App. May 30, 2014) (citing In re Keri C., 384 S.W.3d 731, 747-52 (Tenn. Ct. App. 2010)).
Nevertheless, under certain circumstances, e.g., when the parent must travel an extensive
distance to visit the child, telephone calls may be material in determining whether the failure
to visit was willful. See In re Caira D., No. M2014-01229-COA-R3-PT, 2014 WL 6680696,
(Tenn. Ct. App. Nov. 25, 2014).5 We must also emphasize that Father and Step-mother’s
unilateral attempt to modify the court order by ignoring or avoiding Mother’s telephone calls
to the child is not to be condoned. Indeed, the trial court acknowledged that this behavior
may have warranted a finding of contempt if Mother had brought that to the court’s attention;
however, it was not.
With respect to visitation, Mother had approximately fifteen court-authorized
opportunities to visit the child in the four months preceding the petition, specifically during
the child’s sporting activities. It was undisputed that Mother made one attempt, albeit
unsuccessful, to visit the child during the four-month period when she appeared at the child’s
karate lesson on November 20, 2012, only to discover that the child had not attended that
day. Although Mother made this one effort, there was no evidence that her failure to see her
child on this one day was the result of an intentional act by Father or Step-mother to interfere
with Mother’s visitation, and there was no testimony that Father and Step-mother even knew
that Mother was planning to attend this particular karate lesson. To the contrary, this was
5
In Caira D., it was a seven-hour one-way trip for the father to visit his children. Id., 2014 WL
6680696, *7. Moreover, the father had very modest financial means, he had no driver’s license, and there
was no evidence that anyone was willing to provide transportation or to drive him to visit his children. Id.
Considering these facts, the court found it significant that although the father had not visited his children
in-person during the relevant period, he spoke with them by phone for approximately twenty minutes at least
every other week. Id. After considering the unusual circumstances of that case, the court found the evidence
insufficient to establish by clear and convincing evidence that the father had willfully failed to visit his
children. Id. Similarly, in In re B. D., No. M2008-01174-COA-R3-PT, 2009 WL 528922 (Tenn. Ct. App.
Mar. 2, 2009), although the mother only visited the children three or four times during the relevant
four-month period, the court found that her distance from the children - the mother lived in Illinois and the
children in Tennessee - made visitations difficult; however, the mother maintained regular contact with the
children by telephone and letters, circumstances which did not support a finding that the mother abandoned
her children by willfully failing to visit them. In re B. D., 2009 WL 528922, at *9.
-9-
Mother’s only attempt to visit her child in over a year and a half. More significantly, this one
instance does not excuse Mother from failing to make any other efforts to visit her child
during the relevant four-month period. Furthermore, it is consistent with a continuous pattern
of Mother not exercising her visitation rights over the three years prior to the filing of the
petition.
Mother testified to only two specific requests for visitation with the child which were
denied by Father or Step-mother, neither of which were during the relevant time period.
Mother’s first request was in September 2011 when the child’s grandmother came to visit
and they arranged for breakfast with the child, but Father and Step-Mother canceled. Another
was, post-petition, in November 2013, when the child’s grandfather was coming to visit.
Mother testified she texted Step-mother a request to visit, but she never received a response.
The evidence in this record falls far short of establishing that Father or Step-Mother
“actually prevented” or “significantly interfered” with Mother’s attempts to visit her child
during the relevant four-month period. Even assuming arguendo that the September 2011,
November 2012, and November 2013 visits had occurred, the evidence clearly and
convincingly supports the conclusion that these visits would amount to “token visitation.” 6
Based on the foregoing, we affirm the trial court’s ruling that Mother willfully failed
to visit her child during the determinative four months. See Tenn. Code Ann. § 36-1-
102(1)(C) and (E).
II. B EST INTEREST OF THE C HILD
When at least one statutory ground for termination has been found, the trial court is
to engage in a best interest analysis using the statutory factors set forth at Tenn. Code Ann.
§ 36-1-113(c)(2) and § 36-1-113(i). See In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.
2005); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004). The trial court
concluded that Step-mother and Father had proven by clear and convincing evidence that
termination of Mother’s parental rights was in the child’s best interest; however, as Mother
correctly notes, neither the written order nor the trial court’s ruling from the bench, which
is transcribed, identify sufficient findings of fact to form a proper basis for this conclusion.
6
“‘[T]oken visitation’ means that the visitation, under the circumstances of the individual case,
constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short
duration as to merely establish minimal or insubstantial contact with the child[.]” Tenn. Code Ann. §
36-1-102(1)(C).
-10-
A trial court’s responsibility to make findings of fact and conclusions of law in
termination cases is mandated by Tenn. Code Ann. § 36-1-113(k). See In re Adoption of
Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn. Ct. App. Nov. 25,
2003) (discussing Tenn. Code Ann. § 36-1-113(k)). The necessity of a trial court to identify
the specific findings of fact upon which its conclusions of law are based is explained by our
Supreme Court in a recent decision:
The termination statute clearly and unequivocally requires the trial court to
make the statutorily required findings and conclusions before granting a
petition to terminate parental rights, regardless of whether that petition is
opposed. Tenn. Code Ann. § 3-1-113. In two places, subsections (c) and (k),
the statute uses mandatory language to describe the trial court’s responsibility
to make findings of fact and conclusions of law before terminating parental
rights. . . . We must adhere to the statute’s plain language. Otherwise, we risk
infringing on parents’ fundamental right to the care and custody of their
children, which we deny through the termination of parental rights “only upon
a determination of [a] parent’s unfitness to be a parent.” In re D.A.H., 142
S.W.3d 267, 274 (Tenn.2004). Explicitly reaching those determinations by
clear and convincing evidence is also necessary to protect a parent’s due
process rights. See Santosky, 455 U.S. at 747-48, 102 S.C. 1388.
In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010).
When the mother and step-father in Angela E. attempted to distinguish the facts and
unique circumstances of their case to avoid the consequence of there being no written
findings of fact and conclusions of law concerning each ground for termination and the best
interest analysis, the Supreme Court rejected their argument, leaving few, if any, exceptions
to the requirement. Id. at 254-55. As the court explained:
Having determined that the required findings regarding grounds for
termination were not made in this case, we are constrained to remand it to the
trial court for further expedited proceedings. We may not conduct de novo
review of the termination decision in the absence of such findings.
Id. at 255 (emphasis added). Thus, specific findings of fact and conclusions of law
concerning each ground for termination and whether termination is in the child’s best interest
are required. See id.
In the instant case, when ruling from the bench, the findings identified by the trial
court concerning the child’s best interest reads as follows:
-11-
Now, it is one of the hardest things I have to do in my job, but my obligation
is to look out for the best interests of the child in this case, Kaiden L.T., and
the court finds that [Father and Step-mother] have been providing all of the
support and have been acting as parents to the child, and the child has bonded
well with his stepmother. The court finds clear and convincing evidence that
it is in the best interest of Kaiden L.T. for termination to occur.
The only statement in the final order that pertains to the child’s best interest reads as follows:
[T]his court finds by clear and convincing evidence that Respondent has, for
a period of four consecutive months immediately preceding the filing of the
Petition, willfully failed to visit with the minor child and has willfully failed
to support or make reasonable payments toward support of the minor child, all
resulting in abandonment as defined by Tenn. Code Ann. § 36-1-102, and that
the termination of Respondent’s parental rights to this child is in the best
interest of the child.
Having reviewed both of the trial court’s rulings, the only “findings of fact” that
pertain to the issue of best interest are “that [Father and Step-mother] have been providing
all of the support and have been acting as parents to the child, and the child has bonded well
with his stepmother.” Considering the brevity of these findings, we have concluded that they
do not satisfy the mandatory requirements of Tenn. Code Ann. § 36-1-113(k). Our
determination is based, in part, on a comparison of these findings with those by other trial
courts. One excellent example appears in In re Travion B., No. E2012-01673-COA-R3-PT,
2013 WL 4461903 (Tenn. Ct. App. Aug. 19, 2013).7 In that matter, the trial court engaged
in a thorough analysis of the relevant statutory factors to be considered in Tennessee Code
Annotated § 36-1-113(i) when deciding what is in the best interest of a child:
1. The mother has not made any significant adjustment in her circumstances
since the children came into the custody of the Department of Children’s
Services so as to make the children safe in her home. Mother has not addressed
her own issues so that she can attend to the needs of the children. Mother has
not acknowledged her role in causing the injury to Davion, and absent that she
7
Other excellent examples of specific findings of fact by trial judges in termination cases appear in
State, Dep’t of Children’s Servs. v. Estes (In re Q.E.), 284 S.W.3d 790, 797-99 (Tenn. Ct. App. 2008); In re
Candice S., No. M2013-01750-COA-R3-PT, 2014 WL 576022 , at *8, n.6 (Tenn. Ct. App. Feb. 12, 2014);
In the Matter of Dakota M. S., No. M2012-01043-COA-R3-PT, 2013 WL 458184, at *11-12 (Tenn. Ct. App.
Feb. 5, 2013); and Jamie T. v. Crystal G., No. M2012- 02225-COA-R3-PT, 2013 WL 1804263, at *5-6
(Tenn. Ct. App. Apr. 29, 2013).
-12-
cannot prove any adjustment in her circumstances to make it safe to place her
children with her.
2. Mother has not effected any significant adjustment, much less a lasting
adjustment after appropriate and timely services put in place by the
Department of Children’s Services to address the mother’s parenting. Mother
lost control and injured her child. She has not cooperated with mental health
services to attempt to address the issues which led to her loss of control and
[to] try to ensure that such loss of control does not happen again. Given the
time these children have been in custody and the time devoted to attempting
to resolve the various family issues, it does not reasonably appear that such an
adjustment is possible.
3. Mother has continued to visit the children with regularity and respond to
their needs during visits, and appears to love her children.
4. Mother clearly has a meaningful relationship with these children.
5. Changing caretakers at this point, after about one-half of Travion’s life and
nearly all of Davion’s life would be detrimental to the children’s emotional,
psychological and medical conditions, especially Davion.
6. Based on the Court’s finding that [Mother] severely abuse[d] Davion [B.],
factor 6 weighs against [Mother].
7. Although the mother’s home is physically safe for the children, the Court’s
concern is mother’s continued drug use during the time that she had these
children, up to the day before the incident in question. Of further concern is
[Mother’s] attempts to have [D.B.] lie to DCS and law enforcement regarding
[Mother’s] drug usage.
8. Mother’s emotional/mental status weighs against the mother as she failed
to meaningfully participate in counseling, even to address the trauma
associated with losing children to the custody of the Department of Children’s
Services. Her prognosis for change is poor given her resistance to any sort of
disclosure during counseling. Mr. Ownby’s testimony makes clear that
[Mother] continues to minimize her involvement in causing Davion’s injuries
and continues to deny responsibility. Her emotional/mental inability to
acknowledge her role in causing the injuries prevents her from making
progress to provide a safe home for the children.
-13-
9. Mother has paid support for these children while in the custody of the
Department of Children’s Services.
10. Ending the parent-child relationship will benefit the children as they will
now be able to move on with their lives knowing that their mother will not be
in their lives and they can unreservedly attach to appropriate [sic].
In re Travion B., 2013 WL 4461903, at *9-11. Based on the above findings, the trial court
concluded that it was in the children’s best interests to terminate the mother’s parental rights,
which ruling we affirmed on appeal. Id. at *11.
For the foregoing reasons and following the protocol set forth in Angela E., we are
constrained to remand the issue of the child’s best interest to the trial court for “we may not
conduct a de novo review of the termination decision in the absence of such findings.” In re
Angela E., 303 S.W.3d at 255 (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App.2007)). As a final note, and consistent with our Supreme Court’s
acknowledgment in Angela E., we are mindful that our decision will unfortunately prolong
the uncertainty for the child and parties; however, the termination statute and the
constitutional implications require remand. See id. (citing Troxel v. Granville, 530 U.S. 57,
65 (2000)).
I N C ONCLUSION
We affirm the trial court’s rulings that Mother abandoned her child by failing to
support the child and by failing to visit the child pursuant to Tenn. Code Ann. § 36-1-
113(g)(1); however, because the trial court failed to make specific findings of fact and
conclusions of law as mandated by Tenn. Code Ann. § 36-1-113(k), we reverse the
termination of Mother’s parental rights and remand with instructions for the trial court to
provide written findings of fact concerning whether termination of Mother’s parental rights
is in the best interest of the child and to enter judgment consistent with its findings.
Costs of appeal are assessed as follows: one-half to Mother, and one-half to Father
and Step-mother.
______________________________
FRANK G. CLEMENT, JR., JUDGE
-14-