IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 5, 2005

IN THE MATTER OF: A.L.N. AND B.T.N.

 Appeal from the Juvenile Court for Davidson County

No. 2119-62114 & 2119-62116 Betty Adams Green, Judge

No. M2004-02830-COA-R3-PT - Filed August 24, 2005

Father appeals the termination of his parental rights to his two minor children, arguing that

Petitioner, the children’s maternal grandmother, did not show by clear and convincing evidence that

Father had abandoned his children. Father also asserts that because there is no transcript or audio

recording of the trial court’s hearing this court is unable to conduct an adequate appellate review.

We agree with Father and find that due to the lack of a transcript or audiotape of the evidence

presented at the termination hearing, we are unable to determine whether clear and convincing

evidence supported the termination of his parental rights. Consequently, Father has been deprived

of an effective review on appeal. We therefore vacate the judgment of the trial court terminating

Father’s parental rights and remand for further proceedings. 

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

Vacated and Remanded

FRANK G. CLEMENT, JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN and

PATRICIA J. COTTRELL, JJ., joined.

J. Stephen Mills, Nashville, Tennessee, for the appellant, J.N.

Larry L. Crain, Brentwood, Tennessee, for the appellee, M.I.

Nick Perenich, Nashville, Tennessee, guardian ad litem.

OPINION

Petitioner, the maternal grandmother of two minor children, A.L.N. and B.T.N., filed a

petition on May 25, 2004 seeking to terminate the parental rights of the minor children’s father on

the ground of abandonment, as defined by Tenn. Code Ann. § 36-1-102. The children’s mother,

Father’s ex-wife and Petitioner’s daughter, died on October 6, 2002. The children are in Petitioner’s

custody pursuant to a prior order of the trial court.
Father is incarcerated on four felony convictions – burglary, reckless aggravated assault, attempted aggravated 1

robbery and aggravated robbery. 

Throughout its Final Decree of Guardianship, the trial court repeatedly characterized Father’s testimony as

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“not credible.” However, the trial court also found that, “One of the few instances of credible testimony from the father

was his admission of having a drinking problem and being out of control prior to his incarceration.” 

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Father, currently incarcerated and not expected to be released until 2010, filed a response

contesting the termination of his parental rights. Thereafter, the trial court declared Father to be 1

indigent and appointed an attorney to represent him. The court also appointed a guardian ad litem

to represent the interests of the minor children. 

Father and Petitioner were the only witnesses at the October 1, 2004 termination hearing.

Although A.L.N. and B.T.N. did not testify, the trial court made written findings that are attributable

to their testimony. For the most part, the trial court deemed Father’s testimony to be not credible.2

It also found:

The mother and father separated in 1999 and were divorced at the time of

mother’s death in 2002. The mother had sole custody of the children. Prior to the

separation in 1999, the mother and father lived with petitioner (the maternal

grandmother) for periods of time. The father had a drinking problem, and would

become violent and abuse the mother, and on at least one occasion, the petitioner.

The police were called several times. Often, these actions happened in front of

[A.L.N.]. [A.L.N.] has exhibited fear and other problems due to witnessing the

father’s violence. [A.L.N.’s] only memories of her father are bad memories.

After the mother and father separated, the mother and [A.L.N.] lived with the

petitioner. In 2000, [B.T.N.] was born. The father only saw [B.T.N.] once or twice,

and [B.T.N.] does not remember the father at all. The mother lived with the

grandmother for a period, then on her own in a house the grandmother purchased for

her. In 2002, the mother, her boyfriend, and the children moved back in with the

grandmother where she resided until her death. (Footnote omitted.)

The father has not seen the children in approximately four years. Although

he was under a child support order, he did not pay any child support during 2002,

prior to being incarcerated. The father knew of his obligation to pay support, he was

employed at a number of jobs during 2002. However, he did not bother to pay

support. 

Nothing changed after the mother died. The father did not visit the children

and did not pay support. He never sent a card or letter. He never made a phone call.

The father was soon incarcerated and is not expected to be released until 2010, when

[A.L.N.] is 13 years old and [B.T.N.] is 10. 
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The trial court held that Father had abandoned the minor children pursuant to Tenn. Code Ann. § 36-

1-102(1)(A)(iv), finding that Father willfully failed to visit the children and willfully failed to

support the children for the four-month period prior to his incarceration. The trial court also held

that prior to his incarceration, Father engaged in conduct which exhibited a wanton disregard for the

welfare of his children and that termination of Father’s parental rights was in the best interests of the

children as set forth in Tenn. Code Ann. § 36-1-113(i). Petitioner was awarded complete custody,

control and guardianship and was given the right to adopt the children. Father appealed.

On appeal, Father argues that the evidence did not support the trial court’s termination of his

parental rights. He contends that the trial court “flipped the burden of proof” so as to require Father

to prove that he paid support and visited his children rather than requiring Petitioner to prove that

he did not. Furthermore, Father asserts that the lack of a transcript or audiotape of the evidence

presented at the termination hearing, prevents this court from conducting a review of the evidence.

Parents have a fundamental right to the care, custody and control of their children. Stanley

v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). This right

is superior to the claims of other persons and the government, yet it is not absolute. A court may

terminate a parent’s parental rights if it finds by clear and convincing evidence that one of the

statutory grounds for termination of parental rights has been established and that the termination of

such rights is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c); Jones v. Garrett, 92

S.W.3d 835, 838 (Tenn. 2002); In re A.W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003); In re

C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000).

The clear and convincing evidence standard is a heightened burden of proof which serves

to minimize the risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; Matter of M.W.A., Jr.,

980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Evidence satisfying this high standard produces a firm

belief or conviction regarding the truth of facts sought to be established. In re C.W.W., 37 S.W.3d

at 474. It has been explained by this court as follows: 

The "clear and convincing evidence" standard defies precise definition.

Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App. 1989). While it is more

exacting than the preponderance of the evidence standard, Santosky v. Kramer, 455

U.S. at 766, 102 S. Ct. at 1401; Rentenbach Eng'g Co. v. General Realty Ltd., 707

S.W.2d 524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as the

beyond a reasonable doubt standard. Brandon v. Wright, 838 S.W.2d 532, 536

(Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d 843, 846 (Tenn. Crim.

App.1987).

Clear and convincing evidence eliminates any serious or substantial doubt

concerning the correctness of the conclusions to be drawn from the evidence. See

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). It should

produce in the fact-finder's mind a firm belief or conviction with regard to the truth

of the allegations sought to be established. In re Estate of Armstrong, 859 S.W.2d
Davidson County Juvenile Court Local Rule of Court 12 places the responsibility on the clerk of the juvenile 3

court to “provide for the recording of proceedings in all hearings.” Why this was not done is not explained.

The Guardian ad Litem asserts that the Statement of the Evidence filed by him was certified, but we see no

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indication of that in the record. 

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323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838 S.W.2d at 536; Wiltcher v.

Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).

O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). It is under this heightened

standard of review that we must review the trial court’s findings. 

The record on appeal in this matter is significant only for the lack of a record of the evidence

presented at trial. There is no official transcript of the evidence because no court reporter was

present for the October 1, 2004 termination hearing. There is also no tape recording of the

proceedings, from which a transcript could be produced. While the record contains two competing 3

proposed statements of the evidence, one filed by Father and one filed by the Guardian ad litem,

neither statement is certified by the trial judge. 

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As a consequence, we are faced with a record that is not ofsufficient completeness to permit

proper appellate review of the parent’s claims. Unfortunately, this is not the first occasion this court

has faced such a deficiency in a termination proceeding. We considered a similar situation in In re

Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628 (Tenn. Ct. App. Aug. 16,

2000). In J.D.W. the father’s parental rights were terminated yet no court reporter was present at the

hearing, thus no verbatim transcript of the evidence was produced. The father appealed contending

that the evidence was not sufficient to support a finding of willful abandonment. Finding the

incomplete record prevented this court from determining whether the evidence supported or

preponderated against the trial court’s findings, the orderterminating the father’s parental rights was

vacated. As we explained:

The lack of such a record prevents our review of the evidence to determine whether

it supports or preponderates against the trial court’s findings and prevents our

application of the clear and convincing evidence standard. While in other types of

civil cases we would be required to conduct our review using the Statement of the

Evidence, see Tenn. R. App. P. 24(c), or to accept as conclusive the trial court’s

findings, see King v. King, 986 S.W.2d 216, 220 (Tenn. Ct. App. 1998), such

procedures do not satisfy the constitutional requirements applicable to an appeal from

an order terminating parental rights. 

J.D.W. at *3. See also In re J.M.C.H., No. M2002-01097-COA-R3-CV, 2002 WL 31662347, at *4

(Tenn. Ct. App. Nov. 26, 2002) (holding that the constitutional implications of a termination

proceeding require a record of sufficient completeness to permit proper appellate review of the
In re Adoption of J.D.W. and In re J.M.C.H. both relied on the United States Supreme Court opinion in M.L.B. 5

v. S.L.J., 519 U.S.102 (1996), in which an indigent mother whose parental rights had been terminated was denied an

appeal due to her inability to pay the record preparation fees. The Court emphasized that termination decrees are “among

the most severe forms of state action.” M.L.B. 519 U.S. at 128. The Court concluded that the state could not withhold

“a ‘record of sufficient completeness’ to permit proper [appellate] consideration of . . . claims” from an indigent parent

seeking review of a termination of parental rights action. Id. at 128. 

The Order Appointing Counsel for Indigent Party in Dependant/Neglect or Termination of Parental Rights

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Proceeding makes reference to Father’s affidavit of indigency filed in this matter, however that affidavit is not a part of

the record. 

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parent’s claims). J.D.W. also explained the importance of making a record for appeal available to 5

an indigent parent. The court opined that, “If the parent whose rights are to be terminated is indigent,

then the trial court must ensure that such a record is created and made available to a parent who

seeks to appeal.” Id. at *4.

Father was declared indigent and was appointed counsel to represent him in the termination

proceedings. The determination of Father’s indigencynot onlyentitled Father to appointed counsel, 6

it also entitled him to a sufficient record on appeal. See J.D.W. at *4 (holding if the parent whose

parental rights are terminated is indigent, the trial court must ensure that such a record of sufficient

completeness is created and made available to ensure an effective appeal was preserved). The record

before us does not meet this standard. As a consequence, Father has been deprived of an effective

review by this court on appeal. 

Therefore, the judgment of the trial court is vacated and this matter is remanded for further

proceedings consistent with this opinion. Costs of appeal are assessed against Appellee/Petitioner,

M.I.

___________________________________ 

FRANK G. CLEMENT, JR., JUDGE