In re Angela E.

• Decision Date: 16 February 2010
• Docket Number: No. W2008-00120-SC-R11-PT.,W2008-00120-SC-R11-PT.
• Citation: 303 S.W.3d 240
• Parties: In re ANGELA E. et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Tennessee Supreme Court

303 S.W.3d 240

In re ANGELA E. et al.¹

No. W2008-00120-SC-R11-PT.

Supreme Court of Tennessee, at Jackson.

November 5, 2009 Session.

February 16, 2010.

David Sandy, Memphis, Tennessee, for the appellant, Ifeatu E.

Michael A. Carter, Milan, Tennessee, for the appellees, Vernessa T. and Siegfried T.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

We granted this appeal to resolve a conflict within our Court of Appeals regarding the required contents of a trial court's written order following a proceeding to terminate parental rights where the parent losing the rights does not oppose the termination. In this case, the trial court's written order omitted findings of fact and conclusions of law concerning the grounds for termination. After rejecting the father's contention that his rights were surrendered rather than terminated, the Court of Appeals held that the findings and conclusions required by statute were unnecessary because the father had consented to the petition to terminate. We agree with the Court of Appeals' conclusion that the trial court terminated the father's parental rights. Nonetheless, we hold that the trial court's written order of termination must contain the findings and conclusions set forth in Tennessee Code Annotated sections 36-1-113(c) and (k), even where the parent consents to the termination of parental rights. Because the trial court's order does not comport with the statute, we must reverse the judgment of the Court of Appeals and remand to the trial court for a new hearing and the preparation of a written order that complies with the statutory requirements based on the evidence introduced.

Factual and Procedural Background

Prior to their divorce on November 30, 2001, Vernessa T. ("Mother") and Ifeatu E. ("Father") had three children: Angela E., Ekene E., and Ember E. The eldest child was twelve years old at the time of the hearing on the termination of Father's rights. After the divorce, Mother married Siegfried T. ("Stepfather") on June 15, 2002. Mother testified that, during the entirety of her second marriage, the children lived with her and Stepfather.

Since the divorce, Mother and Father, both physicians, have contentiously litigated their rights and obligations relative to the children. On July 15, 2002, Mother filed a petition for contempt, alleging that Father had not met various court-ordered financial obligations—including child support, insurance premiums, and medical expenses—set forth in the Supplemental Final Decree entered in conjunction with the divorce. On August 16, 2002, the trial court found Father in civil contempt, which Father purged the following month by paying $10,900. In its contempt order, the trial court also suspended Father's visitations with the children based on Mother's testimony "that the children might suffer irreparable harm when they are in the custody and control of [Father]." After being evicted from his medical office, Father moved in November 2002 to reduce his support obligation to the minimum allowed under state law while he was unemployed. Mother filed a motion to dismiss Father's motion to modify the child support amount. In July 2003, Father filed a petition to reinstate his visitation rights. The record does not reflect whether the trial court heard Father's motions.²

Mother filed another petition for civil contempt on July 5, 2005, alleging that Father had once again fallen into arrears on his obligations to pay child support and a portion of the children's health insurance premiums. Among other remedies, Mother requested Father's incarceration until Father purged the contempt. The same day, Mother filed a petition to terminate Father's parental rights ("original petition"). The original petition was superseded by a September 7, 2005 filing captioned as an "Amended Petition for Termination of Parental Rights and Petition for Adoption by a Step Parent" ("amended petition"). Mother and Stepfather were jointly named as petitioners. As grounds for termination, the amended petition alleged that Father had abandoned the children by a willful failure to visit for four consecutive months prior to the filing of the original petition. Noting the prior suspension of Father's visitation rights, the amended petition further alleged that, at the time the original petition was filed, Father had not contacted the children for about two-and-a-half years and was $57,000 in arrears on child support and health insurance premiums. His visitation rights had allegedly been suspended by court order on August 16, 2002 as a result of his negligence toward the children. The amended petition also alleged that terminating Father's parental rights was in the children's best interests. In addition to the termination, the amended petition also sought court approval of Stepfather's adoption of the children.

In September 2005, Mother obtained an ex parte temporary protective order against Father after Father twice appeared at the children's school. According to the police report, the second encounter ended when Father sped away from the school grounds after Mother displayed a handgun that she was permitted to carry. A consent order reflects that the parties agreed to continue the September 23, 2005 hearing on the protective order and agreed that the protective order would remain in effect until the hearing.

The trial court conducted a hearing in the case on January 26, 2006. In response to the allegations that Father was in arrears on support payments, the trial court stated, "As soon as the facts are before this Court, we will come up with a plan that is reasonable for the [Father] to pay, and then if he doesn't pay it, he will come stay with me here in Tennessee for a while."³ The trial court reserved its ruling on the termination of Father's rights and the stepparent adoption. Responding to a question from Father's counsel, the trial court stated that Father could telephone the children. By order dated April 13, 2006, the trial court ordered Father to provide documentation of endorsed checks reflecting disputed child support payments.⁴

On December 4, 2006, Father moved the trial court to set dates and times for Father's telephone calls with the children and to order Mother to provide Father with a current phone number to call. On January 16, 2007, Mother moved to have Father declared in willful contempt of the trial court's April 13, 2006 order. On January 19, 2007, Father moved for the modification of his child support obligations to reflect his support of his other children.

A hearing on all pending matters, including the amended petition, was scheduled for April 19, 2007. At this hearing, Father informed the trial court through counsel that he "wishe[d] to agree with that [amended] petition and allow the adoption to proceed." He was placed under oath and questioned but was not asked to add his signature to the amended petition. During his testimony, Father answered "That's true" or "That's correct" to the following questions, among others:

—Whether he had reviewed the amended petition;

—Whether he had informed counsel that he "wish[ed] to allow the termination of [his] parental rights and have [Mother] and [Stepfather] to adopt the children";

—Whether he "intend[ed] to freely and voluntarily surrender the rights to these children and allow them to be adopted"; and

—Whether the adoption would be in the best interest of "everybody," including the children, Father, his second wife, and his children from the remarriage.

Mother testified that the facts and allegations of the amended petition were true. She also testified that the termination of Father's rights and the children's adoption by Stepfather would be "in the best interest of everyone involved . . ., especially the children."

At the conclusion of the testimony, the trial judge found that "the surrender by the natural father is freely and voluntarily made, [and] that the stepfather is the proper person to be allowed to adopt the children. The Court hereby awards and grants the adoption" (emphasis added). With the agreement of the parties, the trial court globally dismissed all other pending matters in the case. Subsequently, on April 25, 2007, the trial court issued its "Final Judgment of Parental Rights and Adoption" ("final judgment"). The final judgment found that "[t]he termination of parental rights and adoption as set forth herein is in the best interest of the children" (emphasis added). Without making factual findings as to grounds for termination or concluding that any such grounds existed, the final judgment found that Father "testified under oath in open court that he agrees to surrender his parental rights to the minor children . . . and that the termination of [Father's] parental rights and the adoption of the minor children as set forth herein are in the best interest of the children" (emphases added). The final judgment ordered that Father's parental rights "are hereby terminated" (emphasis added).

After agreeing in open court to the termination of his parental rights, Father litigated feverishly to undo that result. On May 16, 2007, he filed a "Petition to Vacate or Void Surrender."⁵ The petition asserted that Father had not consented to the termination of his parental rights but had surrendered those rights instead. The petition specifically argued that the trial court had not complied with the procedural requirements of Tennessee's surrender statute. See Tenn.Code Ann. § 36-1-111 (2005). Furthermore, Father claimed that he had given up his parental rights under duress because Mother and Stepfather had offered to dismiss the civil contempt petition (with its prayer for Father's incarceration until Father paid the substantial amount of back child support) in exchange for his support of Stepfather's adoption. Father subsequently filed motions for the...