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In re B.B.

Court of Appeals of Tennessee, Nashville

February 28, 2017

In re B.B., et al.

          Session January 18, 2017

         Appeal from the Juvenile Court for Cheatham County No. 2015-532 Phillip A. Maxey, Special Judge

         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

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

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

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which Andy D. Bennett and W. Neal McBrayer, JJ., joined.

          OPINION

          CHARLES D. SUSANO, JR., JUDGE

         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:
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.

         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 ...

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