Summary
noting that a recitation that a ground has been proven is a conclusion of law rather than a finding of fact
Summary of this case from In re Colton B.Opinion
No. M2003-01301-COA-R3-PT.
Assigned on Briefs December 4, 2003.
Filed December 23, 2003.
Appeal from the Juvenile Court for Robertson County; No. D20072; Max D. Fagan, Judge Judgment of the Juvenile Court Reversed and Remanded
Linda S. Fizer, Springfield, Tennessee, for the appellant, David Justin Rice and Rebekah Diane Pitt Rice.
Paul G. Summers, Attorney General and Reporter; and Juan G. Villasenor, Assistant Attorney General for the appellee, State of Tennessee, Department of Children's Services.
Frank G. Clement, Jr., J., delivered the opinion of the court, in which William C. Koch, P.J., M.S., joined. William B. Cain, J., filed a concurring opinion.
OPINION
Father of two minor children appeals the termination of his parental rights by the Robertson County Juvenile Court. Father generally alleges that there was insufficient evidence to terminate his parental rights. In the Final Decree of Guardianship the trial court set forth the following conclusions of law, holding (1) that the father abandoned his children; (2) that he was substantially noncompliant with the permanency plan; and (3) that the conditions which led to the child's removal still persist, there is little likelihood that these conditions will be remedied, and the continuation of the parent and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home. The final order failed to set forth findings of fact as required by Tenn. Code Ann. § 36-1-113(k). As a result, we are unable to review the case. Therefore, we vacate the final order and remand the matter to the trial court for entry of an order that sets forth findings of fact and conclusions of law.
Appellant, D.J.R., father of two minors appeals the termination of his parental rights by the Robertson County Juvenile Court. The rights of the mother, R.D.P.R, were also terminated; however, she did not appeal the termination of her rights. As with all termination cases, the facts are convoluted, complex and hotly contested. Following some three years of proceedings and two occasions when the State took custody of both children, a trial was held following which the parental rights of both parents were terminated.
Pursuant to the practice of the Middle Section of this Court, the names of the parents and children have been replaced with their respective initials.
The only issue presented on appeal reads: "The trial court committed reversible error by terminating the rights of D.J.R."
Standard of Review in Termination Cases
Proceedings to terminate parental rights are statutory. Parties seeking to terminate a parent's rights with regard to his or her child must prove two things. They must prove the existence of at least one statutory ground for termination. Tenn. Code Ann. § 36-1-113(c)(1); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Additionally, they must prove that terminating the parent's rights is in the child's best interests. Tenn. Code Ann. § 36-1-113(c)(2); In re A.W., 114 S.W.3d 541, 545 (Tenn.Ct.App. 2003); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). The factors to be considered in a "best interests" analysis are set forth in Tenn. Code Ann. § 36-1-113(i).
The statutory grounds for terminating parental rights are found in Tenn. Code Ann. § 36-1-113(g).
Persons seeking to terminate these rights must prove the elements of their case by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re A.W., 114 S.W.3d at 545. Evidence that satisfies 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 C.D.B., 37 S.W.3d 925, 927 (Tenn.Ct.App. 2000). It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the propositions sought to be established. 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 467, 474 (Tenn.Ct.App. 2000).
As a consequence of the clear and convincing burden of proof standard, this Court found it necessary to adapt Tenn. R. App. P. 13(d). In Re Adoption of Muir, No. 2002-02963-COA-R3-CV, 2003 WL 22794524, *2 (Tenn.Ct.App. Nov. 25, 2003) explained the adaptation in detail.
Because of the heightened burden of proof required by Tenn. Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s customary standard of review for cases of this sort. First, we must review the trial court's specific findings of fact de novo in accordance with Tenn. R. App. P. 13(d). Thus, each of the trial court's specific factual findings will be presumed to be correct unless the evidence preponderates otherwise. Second, we must determine whether the facts, either as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the grounds for terminating the biological parent's parental rights. Jones v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; Ray v. Ray, 83 S.W.3d at 733; In re L.S.W., No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn.Ct.App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).
These decisions draw a distinction between specific facts and the combined weight of these facts. Tenn. R. App. P. 13(d) requires us to defer to the trial court's specific findings of fact as long as they are supported by a preponderance of the evidence. However, we must then determine whether the combined weight of these facts provides clear and convincing evidence supporting the trial court's ultimate factual conclusion. The Tennessee Supreme Court used this approach in In Re Valentine when it recognized the difference between the conclusion that a biological parent had not complied substantially with her obligations in a permanency plan and the facts relied upon by the trial court in support of this conclusion. In Re Valentine, 79 S.W.3d at 548-49; see also Jones v. Garrett, 92 S.W.3d at 838.
In Re Adoption of Muir, at *2 .
Findings of Fact and Conclusions of Law in Termination Cases
Over the past couple of years, this Court has presided over a number of important termination cases that present a myriad of procedural difficulties. A recurrent problem, which impedes this Court in proceeding with its appellate duties and unnecessarily delays the resolution of the rights of all concerned, pertains to the failure of trial courts (and counsel who prepare and present final orders to the trial judges) to follow the express wording of Tenn. Code Ann. § 36-1-113(k) which explicitly requires trial courts to "enter an order which makes specific findings of factand conclusions of law" in termination cases. (emphasis added) This Court succinctly analyzed this mandatory step in a most recent case, In Re Adoption of Muir. The pertinent part of the opinion reads:
A trial court's responsibility to make findings of fact and conclusions of law in termination cases differs materially from its responsibility in other civil cases. Generally, trial courts, sitting without juries, are not required to make findings of fact or conclusions of law unless requested in accordance with Tenn. R. Civ. P. 52.01. Termination cases, however, are another matter. Tenn. Code Ann. § 36-1-113(k) explicitly requires trial courts to "enter an order which makes specific findings of fact and conclusions of law" in termination cases. Thus, trial courts must prepare and file written findings of fact and conclusions of law with regard to every disposition of a petition to terminate parental rights, whether they have been requested or not.
Tenn. Code Ann. § 36-1-113(k) reflects the Tennessee General Assembly's recognition of the necessity of individualized decisions in these cases. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999) (holding that termination cases require" individualized decision making"). 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. Bruce v. Bruce, 801 S.W.2d 102, 104 (Tenn.Ct.App. 1990). 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.
When a trial court has not complied with Tenn. Code Ann. § 36-1-113(k), we cannot simply review the record de novo and determine for ourselves where the preponderance of the evidence lies as we would in other civil, non-jury cases. In accordance with In re D.L.B., 118 S.W.3d at ___, 2003 WL 22383609, at *6, we must remand the case for the preparation of appropriate written findings of fact and conclusions of law. In this case, the trial court made no specific findings of fact to support its conclusion that Mr. Dalton had not willfully abandoned William Drew Muir. Therefore, we must vacate the December 2, 2002 order and remand the case to the trial court for preparation of the findings of fact and conclusions of law required by Tenn. Code Ann. § 36-1-113(k).
In Re Adoption of Muir, at *3.
The Juvenile Court entered a Final Decree of Guardianship and an Amended Final Decree of Guardianship, the content of which is critical to this court's review. Accordingly, the entirety of the later of the two final orders is restated below:
AMENDED FINAL DECREE OF GUARDIANSHIP
This cause came on to be heard on Wednesday, April 9, 2003, before the Honorable Max D. Fagan, Judge of the Juvenile Court of Robertson County, Tennessee at Springfield, upon the sworn Petition of the State of Tennessee, Department of Children's Services; with all parties properly before the Court, including the Defendant, R.D.P.R., her counsel, Mark Walker, the Defendant, D.J.R., his counsel, Linda S. Fizer, the Guardian ad Litem, Lisa S. Richter, counsel for the Department of Children's Services, William C. Lebo, Jr., and representative of said agency, Claude Williams. Upon proof introduced at the hearing and the entire record, from all of which the Court finds, based upon clear and convincing evidence, as follows:
Pursuant to the practice of the Middle Section of this Court, the names of the parents and children have been replaced with their respective initials throughout the Final Decree.
That the Petition filed by the State of Tennessee, Department of Children's Services, is well taken and should be sustained and relief granted thereunder for the causes as therein stated in that the Defendants, R.D.P.R. and D.J.R., have abandoned the children, K.N.R. and H.A.R., pursuant to T.C.A. § 36-1-113(g)(3)(A) et.seq., in that said children have been removed from the custody of the Defendants, R.D.P.R. and D.J.R., for more than six (6) months, and that the conditions which led to the removal of said children or other conditions which in all reasonable probability would cause said children to be subjected to further abuse or neglect and which, therefore, prevent said children's safe return to the care of said Defendants, still persist; that there is little likelihood that these conditions will be remedied at an early date so that said children can be safely returned to said Defendants in the near future; and, that said children are of such an age that the continuation of the legal parent and child relationship greatly diminishes said children's chances of early integration into a stable and permanent home; and, that pursuant to T.C.A. § 36-1-113(g)(2), the Defendants, R.D.P.R. and D.J.R., have failed to substantially comply with the Statement of Responsibilities as provided in the Permanency Plan entered into by said Defendants with the State of Tennessee, Department of Children's Services; and further, that following the removal of the children, K.N.R. and H.A.R., from the Defendants, R.D.P.R. and D.J.R., the State of Tennessee, Department of Children's Services, made reasonable efforts to assist the Defendants, R.D.P.R. and D.J.R., in establishing a suitable home for the children, K.N.R. and H.A.R., for a period of four (4) months, but the Defendants, R.D.P.R. and D.J.R., have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for said children to such a degree that it appears unlikely that they will be able to provide a suitable home for said children at an early date.
The Court further finds that termination of the parental rights of the Defendants, R.D.P.R. and D.J.R., to the children, K.N.R. and H.A.R., is in the best interest of said children, who have spent the majority of their lives in custody. Moreover, while not alleged, the Defendants, R.D.P.R. and D.J.R., have further abandoned the children, K.N.R. and H.A.R., in that neither parent has made an effort to support said children while in custody.
This Decree shall have the effect of terminating all the rights and obligations of said Defendants to said children and of said children to said Defendants arising from the parental relationship, and said Defendants are not hereafter entitled to notice of any proceedings for the adoptions of said children by another nor have they any right to object to such adoptions or otherwise to participate in such proceedings.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:
That pursuant to T.C.A. § 36-1-113(g)(1), the Defendants, R.D.P.R. and D.J.R., have willfully abandoned the children, K.N.R. and H.A.R., for more than four (4) consecutive months next preceding the filing of this Petition in that the Defendants, R.D.P.R. and D.J.R., have willfully failed to support or make reasonable [sic] toward the support of said children; and, that the Defendants, R.D.P.R. and D.J.R., have abandoned the children, K.N.R. and H.A.R., pursuant to T.C.A. § 36-1-113(g)(3)(A) et.seq.; and that pursuant to T.C.A. § 36-1-113(g)(2), the Defendants, R.D.P.R. and D.J.R., have failed to substantially comply with the Statement of Responsibilities as provided in the Permanency Plan entered into by said Defendants with the State of Tennessee, Department of Children's Services; and further, that the State of Tennessee, Department of Children's Services, has made reasonable efforts to assist the Defendants, R.D.P.R. and D.J.R., in establishing a suitable home for the children, K.N.R. and H.A.R. That all of said Defendants' parental rights to said children be and the same are hereby forever terminated and that the complete custody, control and guardianship of said children be and the same are hereby awarded to the State of Tennessee, Department of Children's Services, with the right to place said children for adoption and to consent to such adoptions in loco parentis.
WILLIAM C. LEBO, JR. Attorney for the State of Tennessee, Department of Children's Services See Technical Record, Volume II, pp. 193-197.
An examination of the final order reveals the repetitious restatement of conclusions of law and the repetitious recitations of the statutory grounds; however, there are no findings of fact in the final order, as required by to Tenn. Code Ann. § 36-1-113(k), for our review. It must be understood that a recitation in a final order that a parent has "abandoned the child" is a conclusion of law, not a finding of fact. Moreover, placing the statement (abandoned the child) following the popular phrase "the Court therefore finds" does not transform a conclusion of law into a finding of fact.
Since the Final Decree of Guardianship and the Amended Final Decree of Guardianship fail to set forth the findings of fact that underlie the conclusions of law, we are unable to proceed with our review for the reasons set forth in In Re Adoption of Muir. Accordingly, we vacate the Final Decree of Guardianship and the Amended Final Decree of Guardianship and remand the matter to the trial court to enter an order pursuant to Tenn. Code Ann. § 36-1-113(k) which recites specific findings of fact in addition to conclusions of law.
We tax costs to the Appellee, State of Tennessee Department of Children's Services, for it was the prevailing party at trial and its counsel prepared the final order; therefore, it had the opportunity to assure that the order contained the mandatory provisions.
For reasons articulated in Estate of Acuff v. O'Linger, 56 S.W.3d 527 (Tenn.Ct.App. 2001), perm.app.denied (Oct. 1, 2001), and in In re Z.J.S. and M.J.P., No. M2002-02235-COA-R3-JV, 2003 WL 21266854 (Tenn.Ct.App. June 3, 2003) (no Rule 11 application filed) (Cain, J., concurring) and in State v. R.S. and K.S., No. M2002-00919-COA-R3-CV, 2003 WL 22098035 (Tenn.Ct.App. Sept. 11, 2003) (Cain, J., concurring), I cannot agree that the standard of appellate review is correctly stated. I adhere to my view that the standard of review stated in Ray v. Ray, 83 S.W.3d 726 (Tenn.Ct.App. 2001) perm.app.denied (July 15, 2002), and the standard of review stated in Acuff, 56 S.W.3d 527, are incompatible one with the other. I believe Acuff provides the correct standard of review and that the Ray standard is incorrect. Ray held:
Because this heightened burden of proof differs from the customary burden of proof in civil cases, we must adjust the usual standard of review of factual findings found in Tenn. R. App. P. 13(d). In cases such as the one before us, we will review the trial courts specific findings of fact in accordance with Tenn. R. App. P. 13(d). Accordingly, the trial court's findings of fact will be presumed to be correct unless the evidence preponderates otherwise. Then we will determine whether the facts, as found by the trial court, clearly and convincingly establish that a child will be exposed to a risk of substantial harm if he or she is placed in a biological parent's custody. In re L.S.W., 2001 WL 1013079, at *5; In re T.L.P., No. W1999-01940-COA-R3-CV, 2001 WL 987152, at *2 (Tenn.Ct.App. Aug. 22, 2001) perm. app. denied (Tenn. Jan. 14, 2002).
Ray, 83 S.W.3d at 733. Such a standard contravenes the standard stated in Acuff, along with contravening the standard stated by the United States Supreme Court in Colorado v. New Mexico, 467 U.S. 310, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984) and the standard correctly stated by the Supreme Court of Maine in Taylor v. Comm'r of Mental Health, 481 A.2d 139, 153-54 (Me. 1984).
In Acuff we held, as the Supreme Court of Oregon had held in Riley Hill Gen. Contractor, Inc. v. Tandy Corp., 737 P.2d 595, 604 (Or. 1987), that a "clear, cogent and convincing evidence" standard cannot co-exist with a "preponderance of the evidence" standard on the issue of the burden of persuasion. See Acuff, 56 S.W.3d at 535. In Acuff we adopted the United States Supreme Court standard, which provided: "In contrast to the ordinary civil case, which typically is judged by a `preponderance of the evidence' standard, we thought a diversion of interstate water should be allowed only if Colorado could place, in the ultimate fact finder, an abiding conviction that the proof of its factual allegations are `highly probable.'" Colorado v. New Mexico, 467 U.S. at 315, 104 S.Ct. at 2437-38, and 81 L.Ed.2d 247.
Tennessee has long recognized that the "clear, cogent and convincing evidence" standard, while it defies precise description, is in fact an intermediate standard more exacting than the preponderance of evidence standard, while at the same time not requiring the kind of certainty inherent from the criminal standard of proof beyond a reasonable doubt. See O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.Ct.App. 1995).
The difficulty with applying the Ray standard instead of the Acuff standard is persuasively articulated by Justice Traynor in his dissent in Beeler v. American Trust Co., 147 P.2d 583 (Cal. 1944).
This is not an ordinary civil case, however, for, as the majority opinion concedes, it was incumbent upon plaintiff to support his contention by evidence, "clear, satisfactory and convincing; explicit, unequivocal and indisputable." Wehle v. Price, 202 Cal. 394, 397, 260 P. 878, 879; Goodfellow v. Goodfellow, 219 Cal. 548, 554, 27 P.2d 898. While it rests primarily with the trial court to determine whether the evidence is clear and convincing, its finding is not necessarily conclusive, for in cases governed by the rule requiring such evidence "the sufficiency of the evidence to support the finding should be considered by the appellate court in the light of that rule." Sheenan v. Sullivan, 126 Cal. 189, 193, 58 P. 543, 544; see, also Moultrie v. Wright, 154 Cal. 520, 98 P. 257. In such cases it is the duty of the appellate court in reviewing the evidence to determine, not whether the trier of facts could reasonably conclude that it is more probable that the fact to be proved exists than that it does not, as in the ordinary civil case where only a preponderance of the evidence is required, but whether the trier of facts could reasonably conclude that it is highly probable that the fact exists. When it holds that the trial court's finding must be governed by the same test with relation to substantial evidence as ordinarily applies in other civil cases, the rule that the evidence must be clear and convincing becomes meaningless. There is a contradiction in thus destroying the vitality of the rule while affirming its soundness.
Beeler, 147 P.2d at 600. (Traynor, J., dissenting).
Since, in the case at bar, regardless of our dispute over the correct standard of review, the court correctly vacates the trial court order for failure to comply with the findings of fact requirements of Tennessee Code Annotated section 36-1-113(k). I concur in the judgment.