IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 1, 2022

IN RE SKYLAR M.

Appeal from the Chancery Court for Cumberland County

No. 2020-CH-1884 Ronald Thurman, Chancellor

___________________________________

No. E2022-00119-COA-R3-PT

___________________________________

The trial court terminated the parental rights of the father upon concluding that the 

petitioners had proven by clear and convincing evidence the following statutory grounds 

of termination: (1) abandonment by failure to visit the child, (2) abandonment by failure 

to support the child, (3) persistence of the conditions that led to the child’s removal from 

the father’s custody, (4) failure to manifest an ability and willingness to assume legal and 

physical custody of the child as a putative father, and (5) risk of substantial harm to the 

child’s physical or psychological welfare if returned to the putative father’s legal and 

physical custody. The father timely appealed. Upon review of the final order, we conclude 

that the trial court did not comply with Tennessee Code Annotated § 36-1-113(k) due to its 

failure to include sufficient findings of fact in its written order. We therefore vacate the 

trial court’s judgment and remand this matter to the trial court for the expedited entry of 

sufficient written findings of fact. We deny the petitioners’ request for attorney’s fees on 

appeal.

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

Vacated; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL 

SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Cynthia S. Lyons, Cookeville, Tennessee, for the appellant, Thomas M.

Patricia Moore, Crossville, Tennessee, for the appellees, Stacy M. and Donald M., II.

OPINION

I. Factual and Procedural Background

08/04/2022
- 2 -

On October 14, 2020, the petitioners and maternal grandparents of Skylar M. (“the 

Child”), Donald M., II, and Stacy M. (collectively, “Grandparents”), filed a “Petition for 

Termination of Parental Rights and Adoption of a Related Child” (“Petition”). 

Grandparents relayed in their Petition that they had been awarded temporary legal custody 

of the Child in August 2019 and permanent legal custody in January 2020 by the 

Cumberland County Juvenile Court (“juvenile court”) upon Grandparents’ filing of a 

“Petition for Emergency Custody.” Grandparents alleged statutory grounds supporting

termination of the parental rights of the Child’s parents, Addison W. (“Mother”) and 

Thomas M. (“Father”) (collectively, “Parents”). Mother voluntarily surrendered her 

parental rights to the Child on December 7, 2021, and is not a party to this appeal; thus, we 

will focus solely on the grounds and best interest analysis applicable to termination of 

Father’s parental rights. 

With respect to Father, Grandparents asserted four grounds for termination: (1) 

abandonment by failure to support the Child for a period of four consecutive months 

immediately preceding the filing of the Petition, (2) abandonment by failure to visit the 

Child for a period of four consecutive months immediately preceding the filing of the 

Petition; (3) persistence of the conditions that led to the removal of the Child; and (4) failure 

to manifest an ability and willingness to assume legal and physical custody of or financial 

responsibility for the Child.

After conducting a bench trial concerning the Petition on December 7, 2021, the 

trial court entered an order on January 5, 2022, in which it terminated Father’s parental 

rights to the Child, concluding that Grandparents had presented clear and convincing 

evidence to support a finding of the following statutory grounds: (1) abandonment by 

failure to visit, (2) abandonment by failure to support, (3) persistence of the conditions that 

led to removal of the Child, (4) failure to manifest an ability and willingness to assume 

legal and physical custody of the Child as a putative father, and (5) risk of substantial harm 

to the Child’s physical or psychological welfare if returned to the putative father’s legal 

and physical custody.1In addition, the court concluded that clear and convincing evidence 

 

1 Although Grandparents alleged that Father had failed to manifest an ability and willingness to assume 

legal and physical custody of or financial responsibility for the Child, pursuant to Tennessee Code 

Annotated § 36-1-113(g)(14) (2021), the trial court instead concluded that clear and convincing evidence 

supported grounds of a putative father’s failure to manifest an ability and willingness to assume legal and 

physical custody of the child, pursuant to Tennessee Code Annotated § 36-1-113(g)(9)(A)(iv) (Supp. 2020), 

and risk of substantial harm to the child’s physical or psychological welfare if returned to the putative

father’s legal and physical custody pursuant to Tennessee Code Annotated § 36-1-113(g)(9)(A)(v) (Supp. 

2020). These two grounds applicable to putative fathers were not alleged in the Petition. We note that a 

trial court may only find a ground for termination that is not alleged in the termination petition if the record 

clearly demonstrates that the unpled ground was tried by implied consent. See In re Johnny K.F., No. 

E2012-02700-COA-R3-PT, 2013 WL 4679269, at *8 (Tenn. Ct. App. Aug. 27, 2013) (“The strict 

application of procedural requirements in cases involving the termination of parental rights requires that 

before there can be a finding that a ground for termination not alleged in the petition was tried by implied 

consent, the record must be clear that such ground indeed was tried by implied consent.”). “To make such 
- 3 -

supported a determination that it was in the Child’s best interest that Father’s parental rights 

be terminated. Father timely appealed.

II. Issues Presented

Father raises the following issues for this Court’s review, which we have restated 

slightly as follows: 

1. Whether the trial court erred by finding clear and convincing evidence 

of statutory grounds for the termination of Father’s parental rights.

2. Whether the trial court erred by finding clear and convincing evidence 

that termination of Father’s parental rights was in the Child’s best 

interest.

Grandparents have raised the following additional issue, which we have restated 

slightly as follows:

3. Whether this Court should award attorney’s fees to Grandparents due 

to the purportedly frivolous nature of Father’s appeal.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine “whether 

the trial court’s findings, made under a clear and convincing standard, are supported by a 

preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The 

trial court’s findings of fact are reviewed de novo upon the record, accompanied by a 

presumption of correctness unless the evidence preponderates against those findings. See 

Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 

2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de 

novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524 

(citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations 

regarding witness credibility are entitled to great weight on appeal and shall not be 

disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92 

S.W.3d 835, 838 (Tenn. 2002).

 

a finding, it must be clear from the record that the evidence presented that is relevant to the unpled ground 

had no relevance to any other issue being presented to the Trial Court.” Id. Inasmuch as we are vacating

the trial court’s order and remanding for sufficient findings of fact, we decline to determine whether the 

record clearly demonstrates that these two putative father grounds were tried by implied consent. 
- 4 -

“Parents have a fundamental constitutional interest in the care and custody of their 

children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 

92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not 

absolute and parental rights may be terminated if there is clear and convincing evidence 

justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 

97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our 

Supreme Court has explained:

The parental rights at stake are “far more precious than any property right.”

Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of 

parental rights has the legal effect of reducing the parent to the role of a 

complete stranger and of [“]severing forever all legal rights and obligations 

of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); 

see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating 

parental rights is “final and irrevocable”). In light of the interests and 

consequences at stake, parents are constitutionally entitled to “fundamentally 

fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see 

also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27 

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated “fundamentally fair 

procedures” is a heightened standard of proof—clear and convincing 

evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of 

unnecessary or erroneous governmental interference with fundamental 

parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010). 

“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 at 596 (citations omitted). The clear-andconvincing-evidence standard ensures that the facts are established as highly 

probable, rather than as simply more probable than not. In re Audrey S., 182 

S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660 

(Tenn. Ct. App. 2005).

* * *

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. In re Bernard T., 319 S.W.3d at 596-

97.
- 5 -

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental] 

rights must prove all the elements of their case by clear and convincing evidence,” 

including statutory grounds and the best interest of the child. See In re Bernard T., 319 

S.W.3d 586, 596 (Tenn. 2010).

IV. Statutory Grounds for Termination of Father’s Parental Rights

Tennessee Code Annotated § 36-1-113 (2021) lists the statutory requirements for 

termination of parental rights, providing in relevant part:

(a) The chancery and circuit courts shall have concurrent jurisdiction with 

the juvenile court to terminate parental or guardianship rights to a 

child in a separate proceeding, or as a part of the adoption proceeding 

by utilizing any grounds for termination of parental or guardianship 

rights permitted in this part or in title 37, chapter 1, part 1 and title 37, 

chapter 2, part 4.

* * *

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that 

the grounds for termination of parental or guardianship rights 

have been established; and

(2) That termination of the parent’s or guardian’s rights is in the 

best interests of the child.

Tennessee Code Annotated § 36-1-113(k) (2021) requires trial courts to “enter an order 

that makes specific findings of fact and conclusions of law” with respect to the statutory 

grounds and best interest of the Child. 

In its final order, the trial court concluded that clear and convincing evidence 

supported a finding of five statutory grounds to terminate Father’s parental rights: (1) 

abandonment by failure to visit pursuant to Tennessee Code Annotated §§ 36-1-113(g)(1) 

and -102(1)(A)(i) (2021); (2) abandonment by failure to support pursuant to Tennessee 

Code Annotated §§ 36-1-113(g)(1) and -102(1)(A)(i) (2021); (3) persistence of the 

conditions that led to removal of the Child pursuant to Tennessee Code Annotated § 36-1-

113(g)(3) (2021); (4) failure to manifest an ability and willingness to assume legal and 

physical custody of the Child, as applied to a putative father, pursuant to Tennessee Code 

Annotated § 36-1-113(g)(9)(A)(iv) (Supp. 2020); and (5) risk of substantial harm to the 

Child’s physical or psychological welfare if returned to the legal and physical custody of 
- 6 -

the Father, as a putative father, pursuant to Tennessee Code Annotated § 36-1-

113(g)(9)(A)(v) (Supp. 2020). Although Father contests only the trial court’s finding as to 

the statutory grounds of abandonment by failure to visit and failure to support, we must 

review every statutory ground found in the trial court’s order. See In re Carrington H., 

483 S.W.3d at 525-26 (holding that this Court “must review the trial court’s findings as to 

each ground for termination and as to whether termination is in the child’s best interests, 

regardless of whether the parent challenges these findings on appeal”).

Father specifically contends that Grandparents failed to present evidence that Father 

had the ability to visit or support the Child. However, we cannot properly assess Father’s 

arguments or otherwise determine whether the evidence at trial preponderates against the 

trial court’s findings of fact due to the dearth of factual findings in the trial court’s final 

order, specifically with reference to statutory grounds. Although Father has not challenged 

the sufficiency of the court’s findings of fact, we must address the absence of findings

because a trial court’s failure to comply with Tennessee Code Annotated § 36-1-113(k) 

“affects the viability of the appeal.” See In re C.R.B., No. M2003-00345-COA-R3-JV, 

2003 WL 22680911, at *4 (Tenn. Ct. App. Nov. 13, 2003). Inasmuch as the court’s written 

order does not include any factual findings in support of its legal conclusions that grounds 

for termination exist, we must vacate and remand for the court to make sufficient findings 

of fact for each statutory ground for termination. Id.

In so ruling, we note that courts in Tennessee speak through their written orders, 

rather than oral rulings, see City of Oak Ridge v. Levitt, 493 S.W.3d 492, 503 (Tenn. Ct. 

App. 2015), and that Tennessee Code Annotated § 36-1-113(k) requires that a court’s

factual findings and legal conclusions be dictated in a written order. “Thus, when this 

Court undertakes a review of a parental termination case, we are concerned with whether 

the trial court’s final written order, not its oral statements to the parties, satisfies the 

statute.” In re B.L.R., No. W2004-02636-COA-R3-PT, 2005 WL 1842502, at *11 (Tenn. 

Ct. App. Aug. 4, 2005). We therefore confine our review of the trial court’s findings of 

fact and conclusions of law to its written order, rather than any oral statements made at 

trial.

Tennessee Code Annotated § 36-1-113(k) requires trial courts to “enter an order that 

makes specific findings of fact and conclusions of law.” “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.” In re 

Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *3 (Tenn. Ct. 

App. Nov. 25, 2003). This Court has previously underscored the importance of this 

statutory provision, stating that we “strictly construe” this provision, “require meticulous 

compliance with its mandates,” and regard this requirement “with great seriousness” rather 

than as a “trivial technicality.” In re Adoption of T.L.H., No. M2008-01408-COA-R3-PT, 

2009 WL 152475, at *5 (Tenn. Ct. App. Jan. 21, 2009) (quoting White v. Moody, 171 

S.W.3d 187, 191 (Tenn. Ct. App. 2004)). Findings of fact recited in a written order 
- 7 -

demonstrate that an “individualized decision” has been made by the trial court, “facilitate 

appellate review,” and “promote the just and speedy resolution of appeals.” Muir, 2003 

WL 22794524, at *3. 

Without such findings of fact, this Court is “left to wonder on what basis the court 

reached its ultimate decision.” In re M.E.W., No. M2003-01739-COA-R3-PT, 2004 WL 

865840, at *19 (Tenn. Ct. App. Apr. 21, 2004). Therefore, if a trial court does not comply 

with Tennessee Code Annotated § 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.” Muir, 2003 WL 22794524, at *3. Rather, we must 

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

of law.” Id.

In the present case, the trial court stated in its order in pertinent part:

This Court has established by clear and convincing evidence as to the 

termination of parental rights:

That [Father] has willfully and voluntarily abandoned 

the child pursuant to T.C.A. § 36-1-102(1)(A)(i), in that he has 

willfully and voluntarily failed to visit and make reasonable 

payments of support for the child for a period exceeding the 

statutory requirement of four (4) consecutive months 

immediately preceding the filing of this Petition;

That [Father] has failed to seek reasonable visitation 

with the child, and if visitation has been granted, ha[s] failed 

to visit altogether, or has engaged in only token visitation as 

defined in T.C.A. § 36-1-10[2](1)(C);

That [Father] failed to manifest an ability and

willingness to assume legal and physical custody of the child 

pursuant to T.C.A. § 36-1-113(g)(9)(A)(iv);

That [Father] ha[s] willfully abandoned the child

pursuant to T.C.A. § 36-1-113(g)(1);

That placing the minor child in [Father’s] care and 

physical custody would pose a risk of substantial harm to the 

physical or psychological welfare of the child pursuant to 

T.C.A. § 36-1-113(g)(9)(A)(v);
- 8 -

That pursuant to T.C.A. § 36-1-113(g)(3), the child has 

been removed from the home(s) of the parents by order of a 

court for a period of six (6) months and:

The conditions surrounding [Father] in all 

reasonable probability would cause the child to 

be subjected to further abuse or neglect and 

which, therefore, prevent the child’s safe return 

to the care of the parents or guardians still persist.

There is little likelihood that these 

conditions will be remedied at an early date so 

that the child can be safely returned to the parents

or guardians in the near future; and

The continuation of the parent or guardian 

and child relationship greatly diminishes the 

child’s chances of early integration into a safe, 

stable and permanent home.

(Paragraph numbering and lettering omitted.) These determinations, however, merely 

mirror the statutory language and constitute conclusions of law without respective

supporting findings of fact.

This Court has previously concluded that purported findings of fact that merely 

reiterate the statutory language and conclude that the parent has abandoned the child do 

not constitute findings of fact but rather conclusions of law. See In re Navada N., 498 

S.W.3d 579, 594 (Tenn. Ct. App. 2016) (“[W]e decline to conclude that mere legal 

conclusions fulfill the trial court’s obligations or are sufficient to satisfy the directive of

Tennessee Code Annotated Section 36-1-113(k).”); In re K.N.R., No. M2003-01301-COAR3-PT, 2003 WL 22999427, at *4 (Tenn. Ct. App. Dec. 23, 2003) (concluding that “a 

recitation in a final order that a parent has ‘abandoned the child’ is a conclusion of law, not 

a finding of fact” and that “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”). Instead, the court’s order “must set forth the findings of fact that underlie 

the conclusions of law.” In re Adoption of T.L.H., 2009 WL 152475, at *5. Specifically, 

courts terminating a respondent’s parental rights must include sufficient factual findings to 

establish each element of the statutory ground for termination. See In re Dominic B., No. 

E2020-01102-COA-R3-PT, 2021 WL 774185, at *8 (Tenn. Ct. App. Mar. 1, 2021) (“Being 

an element of the statutory ground, it is a factor that must be established and found.”). In 

the case at bar, the trial court provided only conclusions of law without any supporting 

factual findings with respect to statutory grounds. 
- 9 -

We note that the trial court’s order appears to provide certain factual findings in its 

analysis of the best interest factors enumerated in Tennessee Code Annotated § 36-1-

113(i). However, we decline to parse through the court’s best interest analysis for factual 

findings, which we could only speculate served as a foundation for the court’s legal 

conclusions that grounds for termination existed. As the reviewing court, it is not within 

our purview to discern a trial court’s reasoning by associating factual findings within the 

best interest analysis to specific grounds for termination. See In re Navada N., 498 S.W.3d 

at 594 (“It is not the role of this Court to parse the record in search of clear and convincing

evidence to support DCS’s case or to make factual findings where the trial court fails to do 

so.”).

Furthermore, as our Supreme Court has previously explained: “The best interests 

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

convincing evidence of grounds for termination.” In re Angela E., 303 S.W.3d 240, 254 

(Tenn. 2010) (emphasis added) (rejecting the petitioners’ attempt to “leapfrog” to the best 

interests analysis without addressing “the trial court’s fatal omission of findings and 

conclusions relative to the grounds for termination”); see In re Zoey L., No. E2019-01702-

COA-R3-PT, 2020 WL 2950549, at *2 (Tenn. Ct. App. June 3, 2020) (“The statutory 

requirement to prepare written findings of fact and conclusions of law also applies with 

equal force to both the grounds and the best interest components of parental termination 

cases.”); In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. 

Ct. App. June 26, 2006) (“While the parent’s rights are the focus in the grounds stage, the 

best interest of the child becomes the paramount consideration after the court has 

determined that at least one ground has been proved by clear and convincing evidence.”) 

(emphasis added). Thus, without sufficient factual findings to support statutory grounds 

for termination, we decline to review the court’s best interest analysis and determination. 

See Angela E., 303 S.W.3d at 255.

In light of Tennessee Code Annotated § 36-1-113(k), as well as our High Court’s 

and this Court’s repeated emphasis on the importance of a trial court’s written recitation of 

factual findings in parental termination actions, we must vacate the trial court’s termination 

judgment by reason of insufficient findings of fact. We echo our Supreme Court’s 

reluctance to “prolong the uncertainty” for both the Child, Father, and Grandparents and 

“do not relish the thought of causing further discord”; however, the “requirements of the 

termination statute” and “the constitutional implications involved in the termination of 

‘perhaps the oldest of the fundamental liberty interests,’ leave us with no other choice.” 

See Angela E., 303 S.W.3d at 255. (internal citations omitted). We therefore vacate the 

trial court’s order, remand for the preparation of sufficient written findings of fact for 

statutory grounds, and direct that the trial court expedite the disposition of this case on 

remand. We emphasize that this decision does not affect the physical custody of the Child 

in Grandparents’ care during the pendency of this matter.
- 10 -

V. Attorney’s Fees on Appeal

Grandparents contend that they should be awarded attorney’s fees, pursuant to 

Tennessee Code Annotated § 27-1-122, given the purportedly frivolous nature of Father’s 

appeal. Tennessee Code Annotated § 27-1-122 (2017) provides:

When it appears to any reviewing court that the appeal from any court 

of record was frivolous or taken solely for delay, the court may, either upon 

motion of a party or of its own motion, award just damages against the 

appellant, which may include, but need not be limited to, costs, interest on 

the judgment, and expenses incurred by the appellee as a result of the appeal.

We do not find Father’s appeal to be frivolous, particularly considering the outcome of the

appeal. We therefore deny Grandparents’ request for attorney’s fees.

VI. Conclusion

For the foregoing reasons, the trial court’s judgment terminating Father’s parental 

rights to the Child is vacated. This case is remanded to the trial court, pursuant to 

applicable law, for the expedited preparation of sufficient written findings of fact. 

Grandparents’ requests for an award of fees on appeal is denied. Costs on appeal are taxed 

to the appellees, Stacy M. and Donald M., II.

s/ Thomas R. Frierson, II _____________

THOMAS R. FRIERSON, II, JUDGE