### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Decem ber 9, 2002

Session I N RE 

### : SHIANN MARIE HORNER, A MINOR Appeal from the Juvenile Court for Greene County No. JV15502 Thomas J. Wright, Judge FILED MARCH 21, 2003 No. E2002-00588-COA-R3-JV

This appeal focuses on

the trial court’s guardianship decree regarding

Shiann Mari e Horner (DOB: November

18, 1996) (“the child”). When the child’s mother died, she moved in with her f

ather, Charles E. Horner

(“the father”), in Greene

County. Following

the father’s inc arcer

ation as a result of his second arrest for

driving under the influence of an intoxicant (“DUI ”), the child started

living full-time with her w eekend

caregivers, Ra

lph L. Hensley

and Dian a Hensle

y (“the G reenev ille couple”), a married couple who are not relate d to the child by blood or marr iage. The c hild’s matern al aun t, Lo ri Ly

nn Kopsi, a resident of Menominee, Michigan (“the Mic higan aunt”), filed a petition seeking custody

of the child. The Greeneville couple responded with their own petition for custody. Following a hearing on the compe ting petitions, the trial court determined that it was in the child’s best interest that the Greeneville couple shou ld serve as the child’s guardian. The Michiga n aunt app eals, ch alleng ing the t rial cou rt’s judgment. We a

ffirm. Tenn. R. App. R. 3 Appeal as of Right; Judgment of the Juvenile Court

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Russell D. May s, Gree

neville, Tenness ee, for

the appe llant, L ori L ynn Kopsi. Douglas L. Pay

ne, Greeneville, Tennessee, g uardian ad litem for Shiann Marie Horner, a minor. Kenneth N. Bailey , Jr., Greeneville, Tennessee, for the appellee s, Ralph L. Hensley and Diana Hensley. OPINION1 Ten n. Cod e Ann. § 3 4-2-103 (200 1), reads, in pertinent p art, as follows: Subject to the court’s determination of what is in t he best interes ts of t

he minor, the court shall

consider the foll owing persons in the order li sted for appointment of the guardian: * * * (2) The person or per sons desi gnated by the pare nt or pare nts i n a wil l or ot her written d ocu men t; * * * (4) Closest relative or relati ves of the minor; and (5) O ther pe rson o r pers ons.

2 I. The mother of the ch il d, St ac y Ray (“the mother ”), died in an automobile accident on December

25, 200 0. Prior to the mother’s death, the child lived with her in Greene County . The mother and the father were never married and had been living apart since early in t he child’ s lif

e. Shortly after the child’s birth, the father moved to Florida where he continued

to reside until after the mother’s death. The father’s relationship wi t h the child was limited to weekly telephone convers ations. Following the mother’s dea th, the father returned to Greene County and rented a residence where the child resided with him. The father and the child appear to hav e devel oped a strong bond. However, the fa ther’s substance abuse problems interfered with his ability to raise the child. The father would drink and smoke cigarettes in the presence of the child, who suffers from chronic asthma. I n addition, the father has twice been arrested for DU I; the child was in the car on both occ asions. Followi ng the secondDUI arrest, fa

ther was incarcerated, and the Greeneville couple, who had been taking care of the child on weekends, assumed full-time responsibility for the child’s custody a

nd welfare.
II. On November 21, 2001, after the father’s se cond DUI arre st, the M ichigan aunt filed her secondpetition seeking cust ody of th e child. In response, the Gr eeneville couple filed their own petition for

custody. By

this time, as previously mentioned, the child was already residing with the Greeneville couple. The trial court held that it was in the child’s best interest to remain in t he care of

the Greene villecouple. The court

evaluated the evidence with refer ence to the custody

factors set

forth in Tenn. Code Ann. § 36-6-106 (2001). I t also considered

the Father ’s pref

erence for the G reenev ille couple, relying

on the language of Tenn. Code A nn. § 34-2-103 (2001) (“the guardianship statute”). 1 Accord ingly , it desig nated the

Greene ville cou ple as the child’s g uardian s.3 III. A. The Michigan aunt contends that the trial court made both factual and legal errors. She states that the cour t below er red in finding that plac ement wit

h the Gre eneville

couple was in the child’s best in terest. As support for her position, the Michigan aunt points to numerous instances, as reflected in the record, where her

parenti ng skills were te sted and f ound to be strong. For example, the Michigan aunt points to the fact that she had been marr ied for 21 ye ars and had served as a foster parent to more than 115 chi ld ren whi le a ls o ra is in g he r bi ol ogi cal and ado pt iv e ch il dre n. In contras t, the Greeneville couple had been marr ied for only five y

ears. In addition, the Michigan aunt states that, at the request of one of her natural childre n, she is no longer

taking foster children, thus freeing her to take care of the child. The Michigan aunt argues tha t the Greene

ville cou ple cann ot expose the child to a

n experie nced fa mily environm

ent. She points out that she does not work outside the home while her adversaries both do. The Michigan aunt argue s that the G

reenev ille coup le would not have a s much time

as she would to devo te to the child and her welfare. For these reasons, the Michiganaunt asserts t

h at the Greeneville couple are sig nificantly less suitable g uardians for the child. Given this evidence, the Michigan aunt contends that placeme ntwith her i s clear

ly in the best interest of the child. The M ichigan au nt asserts that the trial court made a legal er ror in giving weight to the father’s prefer

ence tha t the child be place d with

the Greeneville couple. The Michi gan au nt points to the la nguage of the g

uardian ship statut

e and ass erts that

it only directs a court to ta

ke into account a parent’s preference f

or a guardian in a case involving wills or other written legal documents. As a blood kin to the child, the Michigan aunt contends that the guard ianship statut e militates in her favor with respect to the guardianship issue.
B. The Greeneville couple contends that the trial court reached the correctresult regarding the child’s best inter

est and that it proper

ly a pplied the guard ianship sta

tute. The y c ite evide

nce in the record that they assert we

ighs in favor

of a finding that it is in the best interest of the child to leave her custody with them. They

stress the continuity of the child’s place ment and the need to keep the child in the father’s locale. Regarding the application of the guardianship statute, the Gree neville couple argues that even a paren

t who has a

llowed hischild

to become

de pe nd en t a nd ne gl ec te d c an , t hr ou gh te st im on y, designate a prefere

nce as to the guardian for his child.
IV. Our review o f thi s non-jur

y c ase is de novo upon the record of the proceeding s below; however, that record comes to us with a presumption that thetrial judge's factua l finding s are co

rrect.4

Tenn. R. App. P. 13 (d). We mu st honor th is presump tion unles s we fi nd that the evidence preponderates against those findings. Id. ; Hass v. Knighton , 676 S.W.2d 554, 555 (T enn. 1984). Our de novo review i s subject to the well-est ablish ed princ iple that t he trial j udge is in the best position to assess the credibi lity of the witnesses; accordingly , such credibility deter minations are e ntitled to great weight on appeal. Massengalev. Masseng ale , 915 S.W.2d 8 18, 819 (T enn. Ct

. App. 1995); Bowman v. Bowman , 836 S.W.2d 563, 566 (Tenn. Ct. App. 1991). A trial court has broaddiscretion regarding a c ustody determination. Brumit v. Brumit , 948 S.W.2d 739, 740 (Tenn. Ct. App. 1997). We will not disturb such a determination unless the record reflects an abuse of that discretion. Id

. V. There are “[n]o hard and fast rules . . . fo r de termining which custody and visitation arrangement

wil l bes t serve a child’s needs.” Gaskill v. Gaskill , 936 S.W.2d 6 26, 630 (T enn. Ct. App. 1996). A custody dete rmination is “factually dr iven” and “re qu ires the c ourts to c areful ly weigh numerous considerations.” Id

. The overriding consideration is the best interest of the child. See id . The primary c ontrolling statute, Tenn

. Code Ann. § 36-6-106, in pertinent parts, provides as follow s: (a) In . . . any . . . proceeding requiring the court to make a custody

determination regarding a minor chil d , such determination shall be made upon the b asis of

the best in

terest of the child . The cou

rt shall consider all relevant factors includi ng the following where applica ble: (1) The love , affection and e mo t ional ties existing between the parents and child; (2 ) The disposition of the parents to provide the child wi th food , cloth ing, medical c are, ed ucation a nd other necess ar y care

and the degree to which a pare

nt has been the primary

caregiver; (3) The impor

tance of continuity

in the child’s life and the length of time the child has lived in a stable, satisfactory environment;... (4) The s tability

of the fa mily unit of the

parents ; * * * (6) The home, school and community record of the child;
* * * (9) The character and behavior of any other

person who resides in or5 freque nts the home

of a parent and such person’s interac tions with the child; and (10) Each paren t’s past and potential for future performance of parenting responsibilities, including the willingness and ability of eachof the pa

rents to facilitate and

encoura ge a c lose and continuing pa ren t-child

relation ship between the ch ild and the

other pa rent, consistent with the best interest of the child. (Emphasis added).
In the instant appeal, the trial court considered the leg al effect of the guardia nship statute, Tenn. Code Ann. § 34-2-103. That statute adds to the custody evaluation by providing

a hierarchy of pref erence with reg ard to ap

pointing a minor c hild’s guardian . It pr ovides: Subject to the court’s determination of what is in the best interests of the minor, the court shall consider the following per sons in

the order listed for appointment of the guardian: (1) The parent or parents of the minor; (2) The pe rson or per sons designated by the parent or parents in a will or other written document ; (3) Adult siblings of the minor; (4) Closest relative or relatives of the minor ; and (5) Other person or persons. Id. (emphasis added).
VI. A. The trial court made the following conclusions in its opinion: With regard to placing

the child in the [Gre eneville

couple’s] home, it is a [negative] that the [Gre eneville c ouple is] not blood r

elation to the child. There is also a preference in Tennessee law for

placement withfamily – blood relatives. The neg ative point is that the [G reenevi lle couple’ s] home is so f ar from t he [Michig an aunt’ s]6 home and from

the child’s half-brother that she’s grown up with but also lives in Michigan, although apparently not very close to t he [Michigan aunt]. It’s a negative in c omparing the [G reenev ille couple’ s] home with the [Michigan aunt’s] home in that [the fema

le member of the Gree nevi lle c ouple ] w orks f

ull time and therefore would have less time available for the child. It’s a nega tive that [the female member o f th e Greenev ille couple] smokes . . . . In the [Michigan aunt’s] home it’s ce rt ai nl y a negative that the child will be separated a great distance from the child’s father and the ma

ny f amily members that we’ ve hear d about that are i n Greene County . It’ s a ne ga tive that the relationships here which are standing would be disrupted in large measure by placing the child in the [ Mi chigan aunt’s] home. I

t’s a negative to me that there are seve ral other kids in the home, including foster children that are there

when school is let out. And it’s also a negative that [the fathe r] s tated his preference where he would like his daughter’s guardianship g o to [ sic ] the [the Greene villecoup le]. T he gre at advan tage of the [Michig an aunt’ s] home is the expe

rience that they had with the court system with foster childre n there . . . . Tennessee Code Annotated, Section 34-2-10 3 , provides the cour

t with a pr

iority list of persons to be considered for a g uardian ship of the

minor chil d demonstr

ating th e St ate o f Tennessee is paramo

unt [ sic ] with the concern and right of the natural paren ts, bo th parents, and their desire to provide that guardia nship. Second in priority order fr om that is the person or persons designated by the pare nt or par ents in a w ill o r other w ritten documents. The court finds that [the fathe

r’s] testimony tonight satisfied the spirit of that provision. So that’ll obviously not be a written letter, b ut he designated [the Greeneville couple]. . . .
I’m so angr y w ith [the fathe

r] for his f ailure. After th

e angu ish I went throu gh at the last hearing, it’s hard for m e to con sider his d

esires. But in the abstract and as a judge I think that Tennessee law requires his considering. I think the Gua rdian Ad Litem

is correct in pointing tha t out to the c ourt. And really the only question –

I thin k my analy sis of this situation is [the father’s] rights have not b een terminated. [The father] is still very much alive. He’s still the legal and biological parent of the child. He has designated

[the Gree neville coup le]. And my

analy sis is unles s I ca

n find . . . t

hat it not be in the child’s best inter

est to live with [the Gr

eeneville couple] then I’ve got to give re spect to th

e const itut ional rig

hts of the

father and his designation. There are reports in favor of [the Michig an aunt] and orders in fa vor of [the Greeneville couple] that I ca n’t find that are notin the chi ld’s best interest t hat goe s back to t

he fathe r’s wishe s.7 In light of the fact that

I’m a lmost going to terminat

e the dad ’s righ

ts to the child if I place her

in Michigan[,] . . . I’ve got to dea l with that fact and with [the fat her’s] legal rights that I ’ve lost a lot of respect for but can’t disregard from

the legal standpoint I’m taking . Having said that, the c ourt d

ecid es tha t we s hould

give resp ect t

o [t h e father ’s] desi gnation and allow the temporary guardianship of the child to remain with [the Greeneville couple] who are no relat ion to the child. . . . The Michigan aunt argues that the trial court impr operly applied t he gua rdianshi p statute t o the present case. I

n Presley v. Shadrick , No. E2001-000 150-COA-R3-JV, 2001 WL 1657210 (Tenn. Ct. App. E.S., filed December 27, 2001) , we stated that the priority of Tenn. Code Ann. § 34-2-103 does not override the best interest analy sis of Tenn. Code Ann. § 36-6-106. Id. at *8. This is clear from the lead -in language of Tenn. Code Ann. § 34-2-103 providing that its provisions are “[s]ubject to the court’s determination of what is in the best interests of the minor.” T

his means that the “

best interest s” of a chil d whose custody is being decided is t he a lpha and omega of the determination. It is only when competing

individuals are essentially equal in the “best interests” determination that a court is justified in evaluating the statutory priority of Tenn. Code Ann. § 34- 2-103.
B. While the Michig an aunt ur ges us to hold that th

e priorit y set forth in Tenn. Code Ann. § 34- 2-103(2) only applies if the parent’s preference is recited in “a

will or other written document,” we do not find it necessary

to reach this issue. The trial court’s discussio n of the child’s be st intere st clearly indicates that

it properly consider

ed the best interest standards set forth in Tenn. Code Ann. § 36-6-106. The child’s best interest was the linchpin of the trial court’s custody award. We do not believe that the trial court’s reference to the g uardians h ip statute was determinative. There is nothing in the record to indicate that the trial court decided that the child’s best interest would be served by placing her with t

he Michig an aunt, but d eclined to do so because of the father’s testimonial preference

for the Greeneville couple. Accordingly , we find no abuse of discretion in the trial court’s decision to leave the child with the Greeneville couple. The above quoted langua ge fr om the lower court’s opinion clearly demonstrates that the court properl y considered the Tenn. Code Ann. § 36-6-106 factors . A mong the negatives listed for the Greene villecouple are that they

are not blood relatives, one of the m is a smoke r, and the female custodian ’s w ork schedule. Among the nega tives cited for the Michigan aunt are the pr esence of several other children in that home and the fact that the child will have to move and leave behind the only bonds she has formed. T he trial court’s opinion correctly indicates that this is a close case. The closene ss of this c ase brin gs us to th e issue of continuity . The tr

ial court ’s opinion makes severa

l refer ences to continuity

in the chi ld’s l ife, p articularly a s it relates to the child’s relationships with others. Tennessee courts have held that continuity in the child’s life may be the tiebreaker in a best interest determination. See Taylor v. Taylor , 849 S.W.2d 319, 328, 332 (Tenn.8

1993); Steen v. Steen , 61 S.W.3d 324 , 328 (Te nn. Ct. App . 2001); Gaskill , 936 S.W.2d a t 631; Hill v. Robbins , 859 S.W.2d 355, 358 (Tenn. Ct. App. 1993). W e believ e the tria l court pr operly considered

continuity to be an important factor in its deci sion. By

allowing the child to remain

in Tennessee, the trial court left open the possibility that the fa ther and th e child might someday be re un ited. The court’s opinion also makes reference to other relationships the child has developed in T ennessee. Clearly, the cour t believed that removing the child from Greene County would be adverse to the chi ld’s best interest. Co ncer ning the father’s preference for the Greeneville couple, we believe the father’s prefer e nce that the child remain with the Greeneville couple in Tennessee has a bearing on the child’s best interest. The trial court’s opinion ind icates th at the ch

ild has not

success fully

bonded withmany people since

her mother’s death. The guardia n ad litem’s report indicates that the child has formed a bond with the father. The father ’s pref erence indicate s that he w ishes to c ontinue hi s relation ship with the child. Remov al from T ennesse e would ma ke it more difficul t for the f ather to contin ue his relation ship with the child, s omething that does not appea

r to be in th

e child’ s best interest

. C.
Assum ing, without deciding, that the trial court placed undue emphasis on the g uardian ship statute, we hold that the evidence preponderatesin favor of the trial court’s ultimate finding that the best interest of the child militates in favor of a finding that her custody should be placed with the Greeneville couple.
VII. The judgmen

t of the tr ial cour t is affir me d. This c ase is remanded to the trial court for enforcement

of the trial court’s judgment and for collection of costs assesse d there, all pursu ant to applica ble law. C osts on app eal are taxed to the

appella nt, Lo ri Ly nn Kopsi.

_______________________________ CHARLES D. SUSANO, JR., JUDGE