In re K.J.G. - Dissenting

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 21, 2015 Session
IN RE: K.J.G.
Appeal from the Circuit Court for Greene County
No. 12A027 Douglas T. Jenkins, Judge
No. E2015-00087-COA-R3-PT – Filed March 28, 2016
D. MICHAEL SWINEY, C.J., dissenting.
I respectfully dissent from the majority’s decision in this case. I cannot
agree with the majority as to the issue of what constitutes written findings of fact and
conclusions of law sufficient to satisfy the requirements of Tenn. Code Ann. § 36-1-
113(k) (2014), which provides:
(k) The court shall ensure that the hearing on the petition takes place within
six (6) months of the date that the petition is filed, unless the court
determines an extension is in the best interests of the child. The court shall
enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing. If such a case has
not been completed within six (6) months from the date the petition was
served, the petitioner or respondent shall have grounds to request that the
court of appeals grant an order expediting the case at the trial level.
Our Supreme Court stated the following with regard to the statutory
necessity of entering written findings of fact and conclusions of law in parental
rights cases:
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. Ct. 1388. Because Rainey makes optional the requirements of the statute
and potentially runs afoul of federal and state constitutional protections, we
reject its reasoning that the trial court need not always make the written
findings and conclusions of sections 36-1-113(c) and (k) before terminating
parental rights.
In re: Angela E., 303 S.W.3d 240, 254 (Tenn. 2010).
The majority vacates and remands this case because the trial court attached
to its final order a transcript of its oral findings rendered from the bench at the close of
trial, which, the majority concludes, is insufficient under the statute as “an order that
makes specific findings of fact . . . .” The majority correctly cites the language of In re:
Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn. Ct.
App. Nov. 25, 2003), no appl. perm. appeal filed, wherein this Court stated: “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.” This Court has invoked this language many times over the years, and I have
joined in some of these opinions.
However, upon due consideration, I now question applying the apparent
Muir rule that oral findings and conclusions, no matter how thorough or detailed, as
transcribed and incorporated into a final order by reference, somehow do not comply with
Tenn. Code Ann. § 36-1-113(k). Why is this so? Provided the findings and conclusions
are sufficiently detailed, a separate question, what difference does it make under the
statute whether the trial court has its oral findings transcribed and incorporated by
reference in its final order, or instead later types them out or has them typed out by an
assistant? In each of these scenarios, we have what we need for appellate review as
required by statute, an order that makes specific findings of fact and conclusions of law.
I recognize and adhere fully to Tenn. Code Ann. § 36-1-113(k)’s
requirement that courts issue specific findings of fact and conclusions of law in parental
rights termination cases, as well as our Supreme Court’s instruction that those findings of
fact and conclusions of law must be reduced to writing. I question only whether
Tennessee Appellate courts should continue to follow Muir and balk at transcribed oral
findings and conclusions in parental rights termination cases simply because they initially
were uttered aloud, no matter how very detailed and thorough they are.
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For these reasons, I dissent from the majority’s decision to vacate the
judgment of the trial court. I instead would proceed to address the substantive issues on
appeal, including whether the trial court’s findings and conclusions are sufficiently
detailed.
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D. MICHAEL SWINEY, CHIEF JUDGE
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