*1 Barr-Myers, Memphis, Margaret R. TN, for appellant. In the Matter of Bianca Arneshe ASKEW. Jackson, TN, appel- Camp, David W. lee. Lewis, Dorothy Petitioner/Appellee, OPINION Donoho, Respondent/Appellant. DROWOTA,
Julie J. involving Bian- child case Tennessee. Supreme Askew, eight years now age ca Arneshe 3,May 1999. months, compet- we consider and nine the child’s natural claims between ing 21, 1999. Denying Rehearing May Order mother, Donoho, Dorothy Julie custody of the presently physical who a prior courts found that child. The lower granted custody to court order had had failed and that Ms. Donoho her burden of to her. Because should be restored constitutional find that Ms. Donoho’s abridged, due to as a has been showing of unfitness or absence of harm, decisions we reverse the of the lower courts. HISTORY
FACTS & PROCEDURAL Au- Arneshe Askew was born Bianca Respon- gust 1990. Bianca’s mother and Bianca’s dent/Appellant Julie Donoho Petitioner/Appel- Askew. Avery father is Dorothy Lewis became involved lee early during child’s care of Bianca cousin of years. Ms. Lewis is the former and became uncle’s wife her during Ms. Donoho acquainted with Although the de- with Bianca. pregnancy record, Ms. not clear from the tails are “going that she was Donoho admitted at the time of through problems” some birth, including employment diffi- Bianca’s rearing her other two culties and result, Bianca be- young children.1 As with Ms. Lewis at some gan to reside although the record is unclear. point, following dispute began Shelby Juvenile Court of awarding custody of Bianca County in 1991 however, Donoho, children, testified that has two other one of father. majority legal custody for both of these children and the other of she cares whom is the time. legal child's whom is in *2 1994, February to Ms. Donoho. In Ms. of custody restoration to natural Lewis, a Fayette County, parents. resident of filed petition a in the Fayette Juvenile Court of juvenile The court proceeded to set forth County seeking custody of Bianca. As support visitation and child schedule. The grounds, petition alleged simply this specify order did not the conditions that has “[t]he child been with Ms. Lewis since the natural would need to Oct. hearing 1991.” After a in March of in order to establish their ability to care 1994, juvenile court awarded for Bianca. party appealed Neither this of Bianca to Ms. in perfunctory order.
order.2 1996, In March Donoho filed petition to but custody, restore the Juve- thereafter, Immediately Ms. Donoho Fayette County nile Court entered an petition filed a the Juvenile holding order that it would not entertain Court of alleging that she action due to her failure to provided had not been with notice of the pay child support required by the Au- and, thus, proceeding requesting that the gust 1994 order. In October of March 1994 order set aside.3 be Alterna- resolved, support child issue apparently tively, Ms. a change Donoho asserted that Ms. Donoho petition filed a renewed of circumstances warranted that Bianca juvenile to court restore as well as be custody. returned to her Fol- contempt against Ms. Lewis for lowing hearing, juvenile court found her alleged refusal allow Ms. to to Donoho in August of 1994 that Ms. Donoho did not juvenile visit with Bianca. After the court receive notice of Ms. Lewis’s until denying her hearing the date of the when she received appealed Donoho to the Circuit Court of juvenile a telephone call from the court Fayette County. juvenile proceed- clerk’s office. The The trial hearing court held “temporary custody” ed to award of Bian- case in March 1997. Ms. Donoho of- ca to Ms. but noted: fered her testimony own as well as the declines to grant Court natural testimony of two her cousins and her parents custody of the minor child until pastor. testimony basically stated such time they show the Court that Ms. Donoho has her turned life child; they are able to care for the minor gainfully around: she employed is and has that the Court finds that the interest of developed a stable home in which she has the natural parents regaining helped to rear her other two children. Ms. superior their child is to Donoho she testified that does not drink or [Ms. and that the Court Lewis] is smoke and that members of her extended delaying restoring custody to the natural family, who have to rear her chil- helped is, therefore, ordered, parents.... dren, It nearby. questioned by live When adjudged and decreed that ... concerning why Ms. Lewis’s counsel she declines grant par- to the natural to adhere to the court-or- Bianca, ents of the minor child until dered visitation schedule with such time as show the responded that she was trauma- child; they are minor alleged able care for the tized Ms. Lewis’s harassment hereby and that delaying during Court is the course of such visitation. care, procedural beginning custody, 2. This was de- welfare to remain in or any allege bacle. The grounds not did parent guardian.” control dependency of unfitness or and ne- glect. order did father, Askew, Avery 3. Bianca’s also filed and, fact, any finding regard make in this However, petition to set aside order. he following language explicitly crossed- party appeal. is not a contrary out order: "It is to the Child’s January on application her failure questioned regarding When and set briefing schedule sup- child regular expedited court-ordered adhere argument April port Ms. Donoho maintained oral payments, this cause for. *3 had all paid arrearages.4 that she 1999.
Following
by
the
proof presented
Donoho, Ms. Lewis moved for dismissal.
DISCUSSION
motion,
granted
finding
The trial court
this
the
controversy
presents
at issue
carry her
Donoho
to
that Ms.
had “fail[ed]
consider
opportunity
another
to
with
showing ‘changed
of
of
cir-
proof
burden
involving the consti-
interplay
the delicate
”
to
appealed
cumstances.’
Donoho
parent
a
custo-
regarding
of
right
tutional
asserting that
the
Appeals,
the Court of
and
right
a
the
of
dy,
custodial
proper
the
test.
apply
trial court did
Following
young
of a
child.
the welfare
due to her sta-
Ms. Donoho contends that
Davis,
in
v.
recognition Davis
this Court’s
parent
Bianca’s
and Ms. Lewis’s
tus as
(Tenn.1992),
the Ten-
588
that
842 S.W.2d
non-parent
as a
due to Ms.
status
and
guarantees
right
the
nessee Constitution
recognized
fundamental constitu-
progeny
cases
privacy,
to
a
of recent
parental right of
the burden
privacy,
tional
privacy
includes the
held that this
interest
have been on
to demon-
Ms. Lewis
parents
for
to care for their children.
right
of
a threat
harm to Bian-
strate
(Tenn.
Hawk, 855
In Hawk v.
S.W.2d 573
if
of
custody
ca
she is returned
the
to
1993),
that:
we found
Donoho.
privacy,
this
we
light
right
In
of
to
of Appeals
September
The Court
on
when
harm
believe that
no substantial
that a
found
test must be
two-prong
welfare,
a child’s
the state
threaten’s
in
custody
a
of
dis-
utilized
modification
sufficiently
justifica-
a
compelling
lacks
a
parent
which natural
seeks custo-
pute
the funda-
infringement
for the
on
tion
dy
custody
of a child
non-
to raise their
mental
First,
parent
parent.
non-custodial
children as
see fit.
or her
change
must demonstrate a
of his
Simmons,
577;
v.
Id. at
see also Simmons
Then,
circumstances.
non-custodial
(Tenn.1995);
v. Rob
682
Nale
900 S.W.2d
bears
that
parent
burden
(Tenn.1994).
ertson,
674
871 S.W.2d
change
result in
would not
sub-
case, Adoption
harm to
Female
Applying
stantial
the child.
In
recent
facts,
(Bond McKenzie),
majority
test to the
of the Court
Child
(Tenn.1995) (“Bond”),
had
discussed this
found
Donoho
that Ms.
be-
dispute
context
prong by
to
demon-
in the
principle
failed
first
In
non-parent.
and a
strating
change
parent
that
of circumstances
tween
Thus,
Bond,
gave
affirmed the
the natural mother
birth
majority
existed.
thereafter,
mother
finding
regard
to this
child in 1987. Soon
trial
with
divorced and the mother was
and reasoned
unneces-
and father
prong
that it was
In a
of the child. Due to
sary
prong.
consider the
awarded
to
second
condition,
asked
concurrence,
Lillard
the mother
Judge
child’s medical
separate
caring
proven
temporarily
couple
that Ms.
had
assist
opined
Donoho
circumstances,
and one-half
eight
that Ms.
who was
changed
but found
for the
later,
couple
One
failed to
old.
month
Donoho had
demonstrate
months
child.
result
sub-
filed a
change would not
joined
filed
mistak-
Donoho
The mother
stantial
Bianca. Ms.
believing
simply
was
permission
enly
application
appeal
an
to authorize
granted
couple
to allow
designed
1998. This Court
November
arrearages
pay
imme-
suggested
all ar-
Lewis’s
counsel
legal
diately prior
proceedings.
related
paid
that Ms.
rearages had not been
and
medical treatment but not
legal
to alter
agree.
We cannot
The August 1994 or-
custody. Realizing her mistake after the
der
explicit
contains neither an
implicit
nor
trial court
order awarding cus-
finding of substantial harm. Nothing in
tody to the
couple,
mother
filed a
suggests
record
that Ms. Donoho is an
petition seeking to regain custody of the
unfit
or that Bianca
ais dependent
child. From 1988 until the case was re-
child. See Tenn.Code Ann.
solved
the child was
(1996).
fact,
§
37-1-129
an explicit and
in the physical
couple
implicit reading of the
conveys
every
virtually the entire time period.
indication that the
court intended
*4
to return Bianca to the custody of her
conducting
After
a hearing on the
parents
natural
near
the
future. When
the trial court found that
the
granting “temporary custody” to Ms. Lew-
mother
sufficiently
“has not
prepared her
is,
juvenile
the
court stated that “the inter-
self
parent
Nevertheless,
this child.”
parents
est
natural
the
in regaining
the court
custody
awarded
to the mother
custody of their child is superior to the
provided
parental
that she
training
receive
right of [Ms. Lewis] and that the Court is
counseling.
Id. at
Court of
only delaying restoring custody to the nat-
Appeals reversed, finding that the child’s
parents.”
ural
Nothing
the record al-
best interest was best served by remaining
ludes
Bianca potentially being harmed
in the custody of the couple. Applying
by returning to the custody of her natural
Hawk,
Nale,
cases such as
supra, and
parents. We respectfully disagree that
supra, we reversed the decision of the
juvenile
requirement
that cus-
Court of Appeals,
as
stating
follows:
tody
delayed
until the
parents
natural
[I]n
contest
parent
between a
and a
demonstrate “that
are able to care for
cannot be deprived
the minor
juvenile
child” indicates that the
custody
a child
there
unless
has
court found that a threat of substantial
been a finding, after
required by
notice
magnitude
existed. The
par-
process,
due
of substantial harm to the
right
ent’s constitutional
to rear and have
Only
child.
then
amay
engage
custody of his or her children would neces-
a general “best interest of the child”
sitate a clear finding of substantial harm.
in making
evaluation
a determination of
custody.
addition,
In
by
we are also troubled
Bond,
Therefore,
5 burden carry her to by requiring initial de erred appears It that no valid Ms. Dono ever made that of proof. termination was result ho’s of Bianca would are lower courts of the The decisions the child. Absent harm” to “substantial As- custody of Bianca Physical reversed. depri finding, we conclude that such a Donoho in be returned to Ms. kew shall of the her child has vation disruptive to the welfare of least manner abridgment in an of Ms. Donoho’s resulted the interest 1999. In the child June Bond, privacy. fundamental implore parties Nale, 680; 548; at S.W.2d at S.W.2d is remanded cause cooperate. Hawk, light at 577. and enforcement supervision trial court case, of this we be circumstances unique of this decision. misap of Appeals lieve that to Ms. Lewis. are taxed appeal Costs on custody principles plied modification of depriving no valid initial order when ANDERSON, C.J., BIRCH, In the
natural mother of existed. Holder and order, a valid initial we BARKER, J.J., absence of such concur. *5 that it would be unconstitutional
believe for the natural mother to bear the burden ORDER of harm. of absence substantial in this Following our decision that a Because record does show case, Petitioner/Appellee Dorothy Lewis finding of harm was made (1) a in this Court: filed three motions case, compel principles constitutional judg- stay for of execution motion us to reverse the decisions of lower ment; (2) motion for consideration courts. (3) facts; for petition and post-judgment 1999, May Ms. Lewis rehearing. On CONCLUSION rehearing petition for filed an amended case, procedurally In this defective Ms. for consideration an amended motion and pled any never 20, 1999, May facts. post-judgment On grounds custody of sufficient to warrant Donoho filed Respondent/Appellant Julie her natu- being away the child taken from to the motions. These Motions response Having neglected allege ral parents. to the central raise serious issues relevant parent, that Ms. Donoho an unfit was However, in this case. consideration issue dependent Bianca was a and require of the motions would child, danger or that a of substantial fact-finding court and because become existed, Lewis also failed to Bianca Ms. Court, we is of this not the function prove necessary these elements before ob- deny all motions. must taining custody the child’s natural from mo- post-judgment The for all the basis Moreover, nothing mother. record hearsay state- certain uncertified tions are finding. such a The order support would police photocopies ments in the form of of the Juvenile Court reports incident attached August subject much facts. We post-judgment consideration of Appeals’ opinion, discussion the Court incident re- that the contents of the note if it is to be inter- was in fact erroneous Howev- ports are not admissible evidence. Bi- permanent custody of preted to award er, reports, according to those incident However, not so anca to Ms. Lewis. we do at of assault Donoho has been victim it, order, nor do we construe interpret individuals, including the hands of various did, to show the Court re- father. Ms. Lewis Bianca’s natural finding harm. the ab- of substantial re- we these incident quests that consider showing, sence of such and reconsid- ports post-judgment facts deprived of the never have been addition, 3, 1999, May order. In our the lower courts er custody of her and rehearing amended and the post- amended motion for consideration of Tennessee, Appellee, STATE of judgment May 18, 1999, facts filed Lewis has attached a pleading indicating
that she filed SMITH, Appellant. Leonard Edward Fayette Bianca in the County Juvenile Tennessee, Supreme the same date. basis for the at Knoxville. custody petition is the aforementioned as- reports. sault May Ms. Lewis asserts that returning custo-
dy May Donoho as ordered in our
1999, opinion improper is these because
assaults demonstrate that Ms. Donoho’s However, is
home unstable. in order to
adequately resolve this issue
need to hearing conduct a evi- hear
dence. Such is not the function of this jurisdiction
Court. Court’s appel- only,
late it improper and would be for us
to function as a fact-finding court. Tenn. (a). §
Code apparently Ann. 16-3-201 As
recognized Ms. the proper place
for the determination of factual matters is Moreover,
the trial court. as- factual
sertions which Ms. Lewis seeks have us
consider are not proper consideration
under the Rules of Appellate Procedure.
Facts related to issues central to the de-
termination of controversy the merits
are not appropriate for consideration as
post-judgment App. facts under Tenn. R. 14(a). Duncan, Duncan v.
P. (Tenn. 1984). Therefore, respectful-
ly deny execution, stay
the motion post-judg- for consideration of facts,
ment the petition for rehearing,
amended petition rehearing and the
amended motion post- for consideration of
judgment facts.
It is so ORDERED.
DROWOTA, Justice, dissenting.
I grant stay, pending expe- petition recently
dited resolution of the
filed in the Juvenile court.