IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

January 18, 2017 Session

IN RE B.B., ET AL.

Appeal from the Juvenile Court for Cheatham County

No. 2015-532 Phillip A. Maxey, Special Judge

No. M2016-00953-COA-R3-PT

 _________________________________

The grandparents of three minor children brought this action to terminate the parental 

rights of the children’s mother.

1

 Following a trial, the court found clear and convincing 

evidence of grounds to terminate mother’s parental rights pursuant to Tenn. Code Ann. 

§§ 36-1-113(g)(8)(B)(i), (ii) and -(9)(A)(iv), (v) (2015).

2

 By the same quantum of proof, 

the trial court also found that termination is in the children’s best interest. Mother 

appeals. We hold that Tenn. Code Ann. § 36-1-113(g)(9)(A) is not applicable to this 

case. Accordingly, we vacate the trial court’s holding with respect to that ground. As for 

the remaining grounds, we hold that the trial court’s final order failed to include the

requisite findings of fact and conclusions of law required under Tenn. Code Ann. § 36-1-

113(k). As a result, we vacate the final order of termination and remand to the trial court 

with instructions. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court 

Vacated; Case Remanded with Instructions

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.

BENNETT and W. NEAL MCBRAYER, JJ., joined.

Michele Hodges, Nashville, Tennessee, for the appellant, T.B.

Mark C. Scruggs, Nashville, Tennessee, for the appellees, C.S. and W.S. 

 

1 The parental rights of each child’s putative father are not at issue on this appeal. 

2 This statute and others cited in this chapter have been updated. However, we apply the version of the 

statute in effect on the date the petition to terminate Mother’s parental rights was filed, Sept. 16, 2015. 

02/28/2017
2

OPINION

I.

T.B. (Mother) and C.S. (Grandmother) have had a difficult relationship, which, at 

times, has been contentious. Mother has a history of mental illness. She has been 

diagnosed with bi-polar disorder, personality affective disorder, post-traumatic stress 

disorder, and general anxiety. She has been in some form of therapy since the age of 

five. She has attempted suicide on a number of occasions, at times requiring 

hospitalization. 

Mother has four children, the oldest of which was previously adopted by 

Grandmother. In 2010, the Department of Children’s Services filed a petition alleging 

Mother’s three youngest children – B.B., D.B., and H.B. (collectively the children) –

were dependent and neglected. They were placed in protective custody. In March 2011, 

at Mother’s request, Grandmother was given temporary custody of the children. The 

court later declared the children dependent and neglected due to Mother’s drug use. 

From 2011 to 2014, Mother lived off-and-on with Grandmother and W.S. 

(Stepgrandfather) (collectively the Grandparents). She moved out of their home to live 

with the father of D.B. Following a disagreement with the Grandparents in July 2015, 

Mother filed a petition to regain custody of the children. The Grandparents responded by

filing a counterclaim to terminate Mother’s parental rights. They sought termination 

pursuant to Tenn. Code Ann. § 36-1-113(g)(3) and -(9)(A)(ii), (iii), and (v). They later 

amended their counterclaim to add as a ground for termination Tenn. Code Ann. § 36-1-

113(g)(8)(A) and (B).

The trial court permitted Mother to visit the children, but Grandfather was to be

present at all times to supervise the visits. The Grandparents describe these visits as a 

“disaster.” On February 4, 2016, Mother filed an emergency motion to modify the terms 

of her visitation. On February 12, 2016, the Grandparents filed a petition against Mother 

for termination of visits and criminal contempt. A trial occurred on April 8, 2016. The 

trial court entered a written order on April 11, 2016, stating:

. . . Prior to the trial, the Grandparents moved to strike the 

claims against the putative fathers listed herein, and thus, 

their rights are not affected by this proceeding. After 

presentation of all the evidence as well as the argument of 

Counsel, the Court finds as follows:
3

1. The pleadings are amended to conform to the 

proof.

2. The Court has considered all of the factors set 

out in T[enn]. C[ode] A[nn]. §36-1-113(i)(1)-

(9);

3. The Grandparents have proven by clear and 

convincing evidence that the parental rights of 

the Mother should be terminated pursuant to 

T[enn]. C[ode] A[nn]. § 36-1-113(g)(8)(B)(i) 

and (ii) in as much as based on extensive proof 

presented through Dr. Jan[ie] Berryman and 

other witnesses herein, the Mother’s mental 

condition is such that it is so impaired and is 

likely to remain impaired such that she will not 

be able to assume or resume the care and 

responsibility for the children herein in the near 

future and termination of her rights are in the 

best interests of the children;

4. Further, pursuant to T[enn]. C[ode] A[nn]. §

36-1-113(g)(9)(A)(iv) and (v), the Grandparents 

have proven by clear and convincing evidence 

that the Mother has failed to manifest an ability 

and willingness to assume legal and physical

custody of the children and placing the children 

in her custody would pose a risk of substantial 

harm to the physical and psychological welfare 

of the children;

5. The Grandparents are awarded full custody 

and guardianship of the minor children listed 

herein;

6. The Petition for Contempt filed by the 

Grandparents is denied.

7. The Petition for Custody filed by the Mother 

is denied.
4

THEREFORE, based upon the foregoing, IT IS HEREBY 

ORDERED:

1. The parental rights of the Mother to the 

children listed herein are hereby terminated;

2 The Grandparents are awarded full custody 

and guardianship of the minor children listed 

herein;

3. The Petition for Contempt filed by the 

Grandparents is denied.

4. The Petition for Custody filed by the Mother 

is denied.

5. All costs associated with this action are 

hereby taxed to the Mother for which execution 

may issue, if necessary.

(Capitalization in original.) The final order did not make a finding as to persistence of 

conditions, Tenn. Code Ann. § 36-1-113(g)(3). The court, however, stated from the 

bench at trial that it had not found cause for termination on that ground.

II.

Mother raises the following issues, which we quote verbatim from her brief: 

Whether the absence of findings of fact and conclusions of 

law by the trial court necessitates a new trial in this matter?

Whether despite the absence of findings of fact and 

conclusions of law, there was clear and convincing evidence 

to establish grounds for termination of mother’s parental 

rights?

Whether termination of parental rights is in the best interest 

of the children?
5

Whether deficiencies in the petition and final order render the 

trial court’s verdict void?

(Paragraph numbering in original omitted.) 

III.

A parent has a fundamental right, based on both the federal and state constitutions, 

to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651 

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 

921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute. 

The State may interfere with a parent’s rights in certain circumstances. In re Angela E., 

303 S.W.3d at 250. Our legislature has listed the grounds upon which termination 

proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings 

are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 

(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists. 

Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980 

S.W.2d 620, 622 (Tenn. Ct. App. 1998).

To terminate parental rights, a court must determine by clear and convincing 

evidence the existence of at least one of the statutory grounds for termination and that 

termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables 

the fact-finder to form a firm belief or conviction regarding the truth of the facts, and 

eliminates any serious or substantial doubt about the correctness of these factual 

findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted). 

Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and 

convincing standard establishes that the truth of the facts asserted is highly probable.” In 

re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

Once a ground for termination is established by clear and convincing evidence, the 

trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing 

In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis 

is separate from and subsequent to the determination that there is clear and convincing 

evidence of grounds for termination.” Id. at 254. The existence of a ground for 

termination “does not inexorably lead to the conclusion that termination of a parent’s 

rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT, 

2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).
6

We are required to review all of the trial court’s findings with respect to grounds 

and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold 

that in an appeal from an order terminating parental rights the Court of Appeals must 

review the trial court’s findings as to each ground for termination and as to whether 

termination is in the child’s best interest[ ], regardless of whether the parent challenges 

these findings on appeal.”)

The Supreme Court has delineated our standard of review:

An appellate court reviews a trial court’s findings of fact in 

termination proceedings using the standard of review in Tenn. 

R. App. P. 13(d). Under Rule 13(d), appellate courts review 

factual findings de novo on the record and accord these 

findings a presumption of correctness unless the evidence 

preponderates otherwise. In light of the heightened burden of 

proof in termination proceedings, however, the reviewing 

court must make its own determination as to whether the 

facts, either as found by the trial court or as supported by a 

preponderance of the evidence, amount to clear and 

convincing evidence of the elements necessary to terminate 

parental rights. 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. Additionally, all other 

questions of law in parental termination appeals, as in other 

appeals, are reviewed de novo with no presumption of 

correctness. 

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard 

witnesses, especially where issues of credibility and weight of oral testimony are 

involved, considerable deference must be accorded to . . . the trial court’s factual 

findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, 

at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery 

Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)). 

IV.
7

A.

We first address the trial court’s conclusion that the Grandparents established that 

Mother’s parental rights should be terminated pursuant to grounds included in Tenn. 

Code Ann. § 36-1-113(g)(9)(A). This statute provides: 

The parental rights of any person who, at the time of the 

filing of a petition to terminate the parental rights of such 

person or, if no such petition is filed, at the time of the filing 

of a petition to adopt a child, is not the legal parent or 

guardian of such child or who is described in § 36-1-117(b) 

or (c) may also be terminated based upon any one (1) or 

more of the following additional grounds:

* * *

(iv) The person has failed to manifest an ability 

and willingness to assume legal and physical 

custody of the child;

(v) Placing custody of 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[.]

(Emphasis added.) A biological mother is included in the definition of a child’s “legal 

parent.” Tenn. Code Ann. § 36-1-102(28)(A)(i) (2014). Based upon the plain language

of the statute, the grounds contained in Tenn. Code Ann. § 36-1-113(g)(9)(A) do not 

apply to a child’s biological mother. In the current case, Mother’s biological relationship 

to the children is undisputed. Therefore, the above statute does not apply to Mother. The

Grandparents’ counsel conceded as much at oral argument before this Court. Because 

subsection (9)(A) is not applicable to the current case, we vacate the trial court’s holding 

that the Grandparents established, by clear and convincing evidence, this ground to 

terminate Mother’s parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(9)(A)(iv),

(v). 

B.

The trial court also found cause to terminate Mother’s parental rights pursuant to 

Tenn. Code Ann. § 36-1-113(g)(8), which provides in relevant part: 
8

(B) The court may terminate the parental . . . rights of that 

person if it determines on the basis of clear and convincing 

evidence that:

(i) The parent . . . of the child is incompetent to 

adequately provide for the further care and 

supervision of the child because the parent’s . . . 

mental condition is presently so impaired and is 

so likely to remain so that it is unlikely that the 

parent . . . will be able to assume or resume the 

care of and responsibility for the child in the 

near future; and

(ii) That termination of parental . . . rights is in 

the best interest of the child;

Previously, we have upheld a trial court’s finding that this ground was proven by

clear and convincing evidence when the parent at issue was found to have “a ‘lifelong 

condition’ ” and to “function[] in such a low range that no amount of training, education, 

or counseling ‘could bring him [or her] up to the level where he [or she] could parent 

these children.’ ” State, Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 

(Tenn. Ct. App. 2008). Alternatively, we have reversed a trial court’s finding on this 

ground when a parent has been diagnosed with a mental impairment if that diagnosis is 

outweighed by other factors. State Dep’t of Children’s Servs. v. Whaley, No. E2001-

00765-COA-R3-CV, 2002 WL 1116430, at *14 (Tenn. Ct. App., filed May 30, 2002). 

These factors may include the parent’s ability to live alone, regularly attend visitation 

with the child, complete vocational training, obtain employment, use transportation, and 

maintain compliance with medications, as well as what level of assistance from other 

adults would be available to help the parent care for the child. Id. 

At the trial in the current matter, the court heard expert testimony on Mother’s 

mental condition, as well as related lay testimony from Mother and others. In its order, 

the trial court addressed this ground as follows: 

The Grandparents have proven by clear and convincing 

evidence that the parental rights of the Mother should be 

terminated pursuant to T[enn]. Code A[nn]. § 36-1-

113(g)(8)(B)(i) and (ii) in as much as based on extensive 

proof presented through Dr. Jan[ie] Berryman and other 

witnesses herein, the Mother’s mental condition is such that it 
9

is so impaired and is likely to remain impaired such that she 

will not be able to assume or resume the care and 

responsibility for the children herein in the near future[.]

Mother argues the trial court’s final order failed to make the written findings of 

fact and conclusions of law required by Tenn. Code Ann. § 36-1-113(k). “The 

termination statute clearly and unequivocally requires the trial court to make the 

statutorily required findings and conclusions of law before granting a petition to 

terminate parental rights[.]” In re Angela E., 303 S.W.3d at 254. This statute serves to 

protect a parent’s rights to due process and a “parent[’s] fundamental right to the care and 

custody of [the parent’s] children, which we deny through the termination of parental 

rights ‘only upon a determination of [a] parent’s unfitness to be a parent.’ ” Id. (quoting

In re D.A.H., 142 S.W.3d 267, 274 (Tenn. 2004)). As we have previously explained:

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 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). . . . 

When a trial court has not complied with Tenn. Code Ann. § 

36-1-113(k), we cannot simply review the record de novo and 
10

determine for ourselves where the preponderance of the 

evidence lies as we would in other civil, non-jury cases.

In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 

(Tenn. Ct. App., filed Nov. 25, 2003) (internal citations omitted). 

In the current case, the final order provides only a conclusory statement regarding

the ground of mental incompetence. The order offers little explanation as to how the 

lower court arrived at its determination that the ground had been proven by clear and 

convincing evidence. Namely, the order failed to explain or identify Mother’s diagnoses, 

Dr. Berryman’s qualifications as an expert on this issue, Dr. Berryman’s assessment of 

Mother, the effect of Mother’s diagnoses or behavior on the children, and whether any 

amount “of training, education, or counseling could bring [Mother] up to the level where 

[s]he could parent these children.” Mims, 285 S.W.3d at 499 (internal quotation marks 

omitted). In light of these omissions, we find that the trial court fell short of the 

requirements in Tenn. Code Ann. § 36-1-113(k). As we held in In re Adoption of Muir, 

“we must remand the case for the preparation of appropriate written findings of fact and 

conclusions of law.” 2003 WL 22794524, at *3 (citing In re D.L.B., 118 S.W.3d 360, 

368 (Tenn. 2003)). “[W]e 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.” In re Kadean T., No. M2013-02684-COAR3-PT, 2014 WL 5511984, *11 (Tenn. Ct. App., filed Oct. 31, 2014) (citing In re Angela 

E., 303 S.W.3d at 255). 

We note that the requirements of Tenn. Code Ann. § 36-1-113(k) also apply to the 

best interest determination. In re Kadean T., 2014 WL 5511984, *11. However, where 

a “trial court failed to make the findings and conclusions relative to grounds for 

termination, we are unable to reach the trial court’s determination that termination of [the 

parent’s] parental rights was in the children’s best interest.” In re Angela E., 303 S.W.3d 

at 255 (citing In re D.L.B., 118 S.W.3d at 368). 

V.

Finally, Mother argues that the Grandparents’ counterclaim to terminate her 

parental rights is deficient under Tenn. Code Ann. § 36-1-113(d)(3), and that, as a result,

the court’s decision should be deemed void. Tenn. Code Ann. § 36-1-113(d)(3) requires: 

(A) The petition, or allegations in the adoption petition, shall 

contain a verified statement that:
11

(i) The putative father registry maintained by 

the department has been consulted within ten 

(10) working days of the filing of the petition 

and shall state whether there exists any claim on 

the registry to the paternity of the child who is 

the subject of the termination or adoption 

petition;

(ii) Indicates if there exists any other claim or 

potential claim to the paternity of the child;

(iii) Describes whether any other parental or 

guardianship rights have been terminated by 

surrender, parental consent, or otherwise, and 

whether any other such rights must be 

terminated before the child can be made 

available for adoption;

(iv) Any notice required pursuant to subdivision 

(d)(4) has been given; and

(v) The medical and social history of the child 

and the child’s biological family has been 

completed to the extent possible on the form 

promulgated by the department pursuant to § 

36-1-111(k); provided, however, the absence of 

such completed information shall not be a 

barrier to termination of parental rights.

(B) Any person or persons entitled to notice pursuant to § 36-

1-117 shall be named as defendants in the petition to 

terminate parental rights or in the adoption petition and shall 

be served with a copy of the petition as provided by law.

(C) The petition to terminate, or the adoption petition that 

seeks to terminate parental rights, shall state that:

(i) The petition or request for termination in the 

adoption petition shall have the effect of forever 

severing all of the rights, responsibilities, and 
12

obligations of the parent or parents or the 

guardian or guardians to the child who is the 

subject of the order, and of the child to the 

parent or parents or the guardian or guardians;

(ii) The child will be placed in the guardianship 

of other person, persons or public or private 

agencies who, or that, as the case may be, shall 

have the right to adopt the child, or to place the 

child for adoption and to consent to the child's 

adoption; and

(iii) The parent or guardian shall have no further 

right to notice of proceedings for the adoption 

of the child by other persons and that the parent 

or guardian shall have no right to object to the 

child's adoption or thereafter, at any time, to 

have any relationship, legal or otherwise, with 

the child.

Mother argues the counterclaim is deficient because it lacks mandatory statutory 

language concerning the effect of the termination as provided in subsection (d)(3)(C). 

She asserts that use of the word “shall” in Tenn. Code Ann. § 36-1-113(d)(3) evidences 

that “[t]hese are not matters that can be waived[.]” However, previously, we held that a 

termination petition that did not specifically quote the language from Tenn. Code Ann. § 

36-1-113(d)(3)(C) or “explicitly cit[e] the statute” was “not defective.” State v. Whited, 

No. M2000-03213-COA-R3-JV, 2001 WL 1386095, *7 (Tenn. Ct. App., filed Nov. 8, 

2001). Similarly, in In re Levi D., this Court declined to find a petition deficient that

“sufficiently put Mother on notice of the effect of the proceedings to terminate her 

parental rights.” In re Levi D., No. W2012-00005-COA-R3-PT, 2013 WL 1850791, at 

*5 (Tenn. Ct. App., filed May 1, 2013). In In re Levi D., we stated 

[a]lthough the termination petition does not mirror the exact 

language of Tennessee Code Annotated section 36-1-

113(d)(3)(C), it clearly provides that, if granted, Mother’s 

parental rights would be terminated, that [the child]’s current 

custodians wanted to adopt him upon conclusion of the 

termination proceedings, and that [the child] would be placed 

in the legal and physical custody of someone other than 

Mother.
13

Id. (citing Whited, 2001 WL 1386095, at *7). Here, the counterclaim states that 

“Pursuant to T.C.A.§ 36-1-113(d)(3)( C ), please note that this petition will forever sever 

all of the rights, responsibilities and obligations of the parents who are the subject of this 

order and that the Counter[claimants] shall have the right to adopt said children.” 

Elsewhere in the petition, the Grandparents asked that the they “be declared the sole 

permanent guardians of the minor children[.]” As in In re Levi D., we find that the 

counterclaim “sufficiently put Mother on notice of the effect of the proceedings” and 

“clearly provides that, if granted, Mother’s parental rights would be terminated, that [the 

child]’s current custodians wanted to adopt him upon conclusion of the termination 

proceedings, and that [the child] would be placed in the legal and physical custody of 

someone other than Mother.” 2013 WL 1850791, at *5. We find the counterclaim

satisfies the requirements of Tenn. Code Ann. § 36-1-113(d)(3)(C). 

Mother argues that the counterclaim is also deficient because it lacks verification 

that the putative father registry was consulted, statements related to whether any other 

claims to paternity exist, or information on whether any other parental rights have been 

terminated through surrender. The counterclaim initially named as parties the three 

putative biological fathers of the children. Regarding the putative fathers, the 

counterclaim made clear that “this is not an action to terminate their parental rights.” 

Mother’s parental rights were the only ones before the court. Termination proceedings 

require that each parent receive an “individualized determination” regarding his or her 

parental rights. In re Angela E., 303 S.W.3d at 250 (quoting Swanson, 2 S.W.3d at 

188). It is clear that any omission of language regarding the putative father registry or 

other claims to paternity is not a fatal deficiency to the current matter in which Mother’s 

parental rights are the only ones at issue. 

VI.

We vacate the trial court’s holding that a ground for termination as to Mother was 

established pursuant to Tenn. Code Ann. § 36-1-113(g)(9). We further vacate the trial 

court’s holding as to Mother related to Tenn. Code Ann. § 36-1-113(g)(8) because of the 

trial court’s failure to make written findings of fact and conclusions of law in its final 

order sufficient to meet the requirements of Tenn. Code Ann. § 36-1-113(k). This case is 

remanded to the trial court for it to make findings of fact and conclusions of law in a 

manner consistent with Tenn. Code Ann. § 36-1-113(k). The costs on appeal are 

assessed to the appellees, C.S. and W.S.

 _______________________________

 CHARLES D. SUSANO, JR., JUDGE