Facts: Father was convicted of rape of a child for the rape of a half-sibling of the two children at issue here. He was sentenced to serve 35 years in prison at 100%.

In the ensuing termination case brought by the Department of Children’s Services (DCS), the trial court found six grounds for terminating Father’s parental rights and that termination was in the children’s best interest.

Before I go any further, I want to reveal that the Court of Appeals affirmed five of the six grounds and the best-interest finding. I will only address the one ground for termination that was reversed. Before I get into that, however, I want to clarify that Father’s parental rights have been—and remain—terminated.

The one ground at issue here is Father’s failure to manifest an ability and willingness to assume custody.

The trial transcript reveals that DCS counsel failed to specifically mention the ground of failure to manifest an ability and willingness to assume custody until the trial court was announcing its ruling. DCS counsel interrupted the trial court to say:

Your Honor, I didn’t mention this ground one way or another, and I do apologize, but I went through my list and you can rule [on] it however you see fit based on the proof. I did allege failure to manifest an ability and willingness to assume custody as to [one child].

The trial court responded by reading the statute—Tennessee Code Annotated § 36-1-113(g)(14)—out loud and noting that it was “shown by clear and convincing proof as well.”

The trial court’s written order was prepared by DCS counsel and contained far more detail as to this ground than was announced in the oral ruling.

Father appealed.

On Appeal: The Court of Appeals reversed this one ground for termination but affirmed everything else.

Tennessee courts may adopt party-prepared findings and legal conclusions when they accurately reflect the trial court’s decisions and do not create doubt that the ruling represents the trial court’s own deliberations and decisions.

The Court found that standard was not met here:

The findings of fact in the written order were clearly not present in the trial court’s oral ruling. The discrepancies between the two rulings are substantial, as they essentially reflect the whole of the factual basis for the trial court’s determination on this ground. Indeed, in light of the overwhelming evidence in support of the other grounds for termination, this ground was apparently nearly forgotten by both DCS and the trial court. Given these discrepancies, we cannot conclude that the trial court’s findings of fact in support of this particular ground for termination were the product of the trial court’s independent judgment.

Moreover, considering only the findings that were the product of the trial court’s independent judgment, we conclude that they were deficient.

* * * * *

[W]e have significant doubt that the detailed findings contained in the trial court’s written order as to this ground are the product of the trial court’s independent judgment. Considering only those findings that were clearly made by the trial court, we conclude that insufficient findings of fact were made to support this ground for termination. Consequently, we vacate the trial court’s finding that a ground to terminate Father’s parental rights exists based on Father’s failure to manifest a willingness or ability to assume custody or financial responsibility for the children.

Because the remaining grounds and best-interest analysis were affirmed, the Court declined to remand this ground to the trial court for reconsideration. Father’s parental rights are terminated.

K.O.’s Comment: In a footnote, the Court “admonish[es] DCS from preparing orders that do not accurately reflect trial court proceedings and caution[s] trial courts to ensure that orders are correct before entry.” This same issue arose in In re Marneasha D.

In re O.W., Jr. (Tennessee Court of Appeals, Western Section, January 9, 2020).