1 Rule 10 (Court of Appeals) . Memorandum Opinion. - This Court, with the concu rrence of all judges participati ng in the case, may affi rm, reverse or modify the act ions of the t

rial court by memorand um opinion when a forma l opi nion woul d have n o precede nti al v alue . When a ca se i s deci ded by memor andum opi nion it shal l be desi gnat ed “MEMO RANDU M OP INION”, sh all not be publi shed, and sh all not be cit ed or r eli ed on f or any reas on in any unrel ated case

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### IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON ASSIG NED O N BRIE

FS OCT OBER 31 , 2002 IN THE MATTER

OF: S. M. S. , D.O. B. 10-28- 91 Direct Appeal from the Juvenile Court of Memphis and Shelby County No. B7551; The Honorable Harold W. Horne, Special Judge

No. W2001-02999-COA-R3-JV - Filed January 27, 2003

This appeal arises from a child custody proceeding. The juvenile court g ranted custody to the mother. T

his appea l ensued. For the f

ollowing reasons , we rema

nd for fu rther findings o f fact. Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Remanded
A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY K IRB Y L ILLARD , J., joined. Kim G. Sims, Memphis, TN, for Appellant Anastacia Frost, Memphis, TN, pro se MEMORAN

DUM OP

INION 1 Facts and Procedural History The minor

child wasborn in No vember 1 991 to Ana stacia N aomi Naug le-Otto F rost (“Ms. Fr ost”). At the time of

the child ’s birth, M s. Frost w as fourt een (14) ye ars of a

ge. On Jul

y 23, 1991, Sh arreth

Ann Naugle (Ms. Na

ugle), mother of

Ms. Frost , filed a

petition to

establish parentage. On June 16, 1992, the juvenile court found Alonzo Demetrius Story to be the father of Ms. Fr ost’s chil d. On the s ame day , the juve nile cour t awarded custody

of the mino

r child to Ms. Naugle. Ms. Frost and her child continued to live with Ms. Naug le until Ms. Frost was nineteen (19) y ears of age.-2-

On February

3, 2000, Ms. Frost filed a “Petition to Modify Orde r.” Ms. Frost, alleging that circumstances had changed in that she had provided a home for the minor child for three (3) years, a sked that custody and g uardianship of the minor child be removed from Ms. Naugle and placed with Ms. Frost. The juvenile court heard the ca use on February

17, 2000 and found that the case should be continued. On March 9, 2000, the juvenile court a gain heard the case and again ordered that the matter be c ontinued. The case was heard on April 13, 2000 and continued until May 11, 2000. On May 4, 2000 the juvenile court appointed a special advocate to ser ve as guardian and to act on behalf of the minor c hild. The case was again hear d on May 11, 2000, at which time the juvenile court granted another c ontinuance so that the “mother and step-father [had] time to complete parenting classes before custody of said child is awarded to them.” On July 3, 2000, the juvenile court terminated the appointment of the special advocate. On July 13, 2000, the juvenile court dismissed Ms. Frost’s petition, finding that it was appropriate for Ms. Frost to have custody of her child, but that it was not in the best interests of the child at this time . The cou

rt furthe r direc ted that th

e paren ts should c omplete f

amily counseling bef

ore any chang e in custo dy s hould be ma de. Ms. F rost file d her sec ond “Petit ion to Modify Order”on January

19, 2001. Sh

e aga in asked t he court to remove

custody from Ms. Naugle and to place custody of the child with her. On February 15, 2001, the court recomme nded that the case be contin ued until M arch 22, 2001 and t hat Ms. Fr

ost and Ms. Naugle undergo counse

ling together. On March 22, 2001, the cour t again heard the case a

nd again ordered a continuanc e. On April 26, 2001, the juvenile court, based upon the entire recor d and the proof introduced, found that the June 16, 1992 order of the court should be modified. The ref eree recomme nded that the minor c

hild “be r emoved f rom the c ustody

and gua rdianshi p” of Ms. Naugle and that custody

be awarded to Ms. Frost. Ms. Naugle f iled a “Request for Hearing Befor e the Judg e” on Apr

il 27, 2001. The cau se was he ard by a specia l judge o f the juve

nile court on Jul

y 12 , 2001. Up on good a nd suffic ient cau se, the ju dge or dered a continua nce until August 23, 2001. On July 25, 2001, the juvenile court appointed a special advocate to serve as guardian and to act on behalf of the minor c hild. An order for continuance was ag ain ordered by the juvenile court on August 23, 2001. On September 6, 2001, the court issued another order for continuance. On November 8, 2001, the special judg e found that the juvenile court referee’ s ruling of April 26, 2001 should be reconfirmed. The juvenile c ourt terminated the appointment of the special advocate on November 13, 2001. Ms. Naug le filed h

er notic e of appe al on Dec ember 5, 2001. On A ugust 26 , 2002, this Court issued an order which gave Ms. Frost fif teen (15) day s to show cause why this appe al should not be submitted for decision on the record and Ms. Naugle’ s brief. Ms. Frost did not timely respond. On Octobe

r 29, 2002 , this Court

issued an order st ating th at this app eal would be submitted for decision on the record and Ms. Naug le’s brief.
Issues-3-

The parties raise the following issues for our re view:
1. Whether a material change of c ircumstance existed to warrant a change of cu st od y. 2. Whether the trial court erred in not apply ing the exigent and compelling circumstance exception to the Parental Rights Doctrine.
3. Whether the change of custody was in the best interest of the child.
4. Whether the trial court erred in refusing to a ward the grandmother visitation. Standard of Review The findings of f

act made by a trial cou rt are g iven a pr esumption

of corr ectnessthat will not be overturned unless the evidence preponder ates against those findings. See Tenn. R. App. P. 13(d); see also Bank/First Citizens v. Citizens and Assoc

. , 82 S.W.3d 259, 262 (Tenn. 2002) (citi ng Bogan v. Boga

n , 60 S.W.3d 721, 727 (Tenn. 2001)). A trial court’s ruling on a matter of law, however, will be reviewed “‘unde r a pure de novo standar

d . . . acc ording no defer

ence to the conclusions of law made by the lower court[].’” Bank/First Citizens , 82 S.W.3d at 727 (quot ing Southern Constructors, Inc. v. L oudon County Bd. of Educ

. , 58 S.W.3d 706, 710 (Tenn. 2001)). When the trial court does not make specific findings of f act, we must conduct a review of the record to determine where the pr eponderance of the evidence lies. Ganzevoo

rt v. Russe

ll , 949 S .W.2 d 293, 296 (T enn. 1 997) ( citi ng Kemp v. Thurmond , 521 S.W.2d 806, 808 (Tenn. 1975)). Law and Analysis In the case sub judice , the juvenile court referee found that “upon pr oof introduced and the entir e recor d” that the previous order granting custo dy o f the minor child to Ms. Naugle should be modified. The referee rec ommended that the minor child be removed from the custody and guardianship of Ms. Naugle a nd that custody of the child be g iven to Ms. Frost. On November 8, 2001, the juvenile court special judge, ba sed “upon proof introduced and the entire record,” reconfirmed the re feree’s ruling of April 26, 2001. Ms. Naugle now appeals this order. During the pendency

of this appeal, our Supreme Court has rendered two dec isions which bear dir ectly on the issu es prese

nted in thiscase. I

n May of 2002, th

e Court co nsidere d a case with a similar factual background. Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002) addressed the question of what standard should be applied when considering a petition to modify custody filed by a natur

al parent seeking to chang e custody from a non-parent. The Court held: that a natural parent cannot gene rally invoke

the doctrine of superior

parenta l rights-4-

to modify a valid order o f cust ody, even when t hat or der res ulted from t he pare nt's voluntary consent to give custody

to the non-parent. Instead, a natural parent seeking to modify a custody

order that grant s custody to a non-p arent mu st show tha t a material change in circumstances has occurr ed, which makes a

chang e in custo dy in the child 's best interests

. Id . at 139. The Supreme Court has since reaffirmed the above ho lding in Kendrick v. Shoemake , No. E2000- 01318-SC-R11-CV, 2002 Tenn. LEXI S 489 (Tenn. Nov. 1, 2002), The principa

l issue in th

is case c oncernsthe prope r standa rd to be a

pplie d to a petition to modify custody from one parent

to the other pa

rent. Thi s issue is la

rgely resolvedby our rec ent decision in Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002). Blair involved a custody dispute between a parent and a non-parent. We concluded that once a valid order of custody has been issued, subsequent custody modification procee dings should apply the "standa rd typically

appl ied i n parent- vs-parent modifi cation cases: that a material change in c ircumstances has occurred, which makes a chang e in custo dy in the chil d's bes tinte rests." 77 S.W.3d at 148. As explained in Blair, the "threshold issue" is whether a ma terial chan ge in circumstances has occurred after the initial custody determination. 77 S.W.3d at 150. While "there are

no hard and

fast rules for determining when a child' s circumstances have ch anged

sufficie ntly to warrant a change of

his or her custody," the following factors have formed a sound basis for determining whe the r a materi al chang e in circumstances h as occurr ed: the change "has occ urred after the entry

of the order s ought to be modif

ied," the chang e "is not

one that w as known o

r reaso nably anticipatedwhen the order was entered," and the change "is one that affect s the child 's well-being in a meaningfu l way ." I d. (cita tions omitte d). We note

that a parent 's change in circumstances may be a material change in circumstanc es for the purposes of modify

ing cust ody if such a change affects the child's well-being. I f a material change in circumstances has oc curred, it must then be determined whether the modifica

tion is in the

child'sbest inter

ests. Thisdetermination should be made according to the factors enumerated in Tennessee Code Annotated section 36-6-106. Id . at *7-8. (footnotes omitted). From the record before us, we are unable to discern whether the juvenile c ourt applied the correct standard. The recor d is void of any finding of a material change in circumstanc e warran ting a change

in custody

and no men

tion is made

of a best interest analy sis. The on

ly insight into the juvenile court’s reasoning is the court’s comment in its ruling fr om the bench that “the law say s that parents are to raise their children, not g randparents.” The record before us is insufficient to make the de terminations prescribed by the above cases and the applicable statute on best interest determination. Thus, under Tennessee Code Annotated section 27-3-128, we remand to the juvenile court to make the additional findings of2 Sec tion 27 -3-12 8 pr ovid es as follo ws: T he co urt shall also , in all cases , where , in its opinio n, com plete

justice c anno t be ha d by re ason of som e defe ct in the re cord , want o f prop er pa rties, or o versigh t without c ulpab le negligence, remand the cause t o the court below for furt her proceedings, with proper directi ons to effect uate the obj ects of the ord er, and upo n such terms a s may b e dee med right. T enn. C ode Ann. § 27-3 -128

.
-5- fact. 2
Conclusion Accord ingly , we rema

nd this ca se to the ju

venile c ourt for

procee dings co nsistent w ith this opinion. Costs on appeal are assessed equally against the Appellant, Sharreth Naug le, and her surety, a

nd the Appellee, Anastacia Naomi Naug le-Otto Frost, for which execution may issue if ne ce ss ar y.

HI GHE RS, J

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