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### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE January 7, 2003 Sessi on JOS EPH NE IL NOLEN v. AMY JAY N OLEN Appeal from the Chancery Court for Hickman County

No. 01-260C Donald P. Harris, Judge

No. M2002-00138-COA-R3-CV - Filed August 5, 2003
This appeal arises from the trial court’s decision to awa rd custody of the pa

rties’ minor children to third party custodian s. A fter finding each parent unfit, the c hancellor awarded custody of the daug

hter to the mother’s aunt and the son was a warded to an unrelated third party. Parenting

time was establishe d e ve ry first and second weekend wit h the third party custodians ha ving the third weekend. Holiday parenting time w a s also included. Most impor t antly the sibling s were r

eunited d uring th ese timeswith their parents . Both parties were ordered to split the child support ob li gation owed to the third parties. The fath

er filed this appe al. We af

firm. Tenn. R. App.P. 3 Appeal as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed. DON ASH, SJ delivered the opinion of the court, in which B EN H. C ANT RELL , PJ, MS, joined and W IL LI AM B. C AIN , J, concurring. Irene R. Haude, N ashville, Tennessee, for the appellant, Joseph Neil Nolen. Douglas Thompson Bates, II I, Centerville, Tennessee , for the appellee, Amy JayNol en and Third Party Custodian, Jeannie L aCasse. Ronald Kilgore , Nashvill e, Tenne ssee for appellee, La

Donna Mill er, Thir

d Party Custodian. OPINION I. Background Joseph N eil No len (“Father”) and Amy Jay Nolen (“Mother” ) were married February 14, 1998 a

fter a d ating r

elatio nshi p which began the previous fall. The par ties- 2 -

married when Fa ther wa s seventeen y ears old and Mother was eighteen. The y have two children, Alexcia Renea (“Lexie”) bor n March 21, 1998 and Steve n Eugene (“Neil”) born July 14, 19 99. Th rougho ut th e relat ions hip, the young fa mily moved from place to plac e, mostly relying up on fa mily

to supply

a place to live. I

nitially , they

lived in a

trailer in Burns, Tenn essee . During this time, the Father worked during the day and the

Mother

was responsi

ble for Neil’s ca

re with th

e assista nce of th e Fathe r’s si sters, Jes sie and Jackie. In late summe

r 1998 the

family moved in w ith the Mo ther’ s parents. This turned outto be an unpleasant experience for every on e. E ventually, the Nolen’s move d out around Neil’s birth in July 1999 and moved in with Father ’s parents. The Nolen’s stayed with Father ’s parents until around mid-summer 2000. At that time, they moved to a trailer located on Father’s gra ndparent’s property. During the majority of the yea

r 2000, Father work

ed nigh ts and Moth

er work ed day s. For the

most part, Neil spent time with LaDonna Miller and J essie keptLexie. This general pa ttern continued into early 2001. In May 2001, Fa

ther began an adultero us relationship with Shandell Hillyard. Soo n a fter the Nolen’s separated. Around the sa me time Father, Shandel, and her daughter moved in with Father’s parents, Tina and Jeffery Nolen. The Nolens also h a d Father’s two sister s living with them i n a fo ur- bedroom house. During this period, Father stay ed with Sha

ndel lea vin g Neil with LaDonna Miller and L exie with his sister Jessierather

than e xercising his parenting time. Shandel continued living at the Nolen’s home until shortly before the tria l in this action in November 2001.1 The exact dis positi on of th is f ili ng is unclear

in t he record. In hi s opening stat ement, Mother’s at torney stated Father f

iled a “pro se petit

ion.” Father later testi fied he fi led a Petition f or a Tem porary Restraining Order in Juvenile Court. Apparently, however, the Juvenil e Court transferr ed the proceedings to the divo rce co urt und er T .C.A . § 37 -1-10 3(c)

. See al so Toms v. Toms , 98 S .W .3d 1 40, 1 44 ( Te nn. 20 03)

. - 3 - In the summer of 2001, Mother and Jessie engaged in va rious activi ties, including troubling sexual conduct and i llegal drug us e. This pe

riod was r

epeate dly re ferred to as the “dark summer.” Mother and Jessie had numerous sexual partners during thi s time period. On occa sions, Mother has no recollection of w

hat happe ned to herchildren due to her use of Prozac and hallucinations from her use of Xa nax. She and Jessie drank alcohol and smoke d marijua na. The g

irls had visitor’s traveling to and from the trailer into early morning

hours while kee

ping the childre n. The ch

ildren we re expose d to Rratedho rror

movies. Mo ther’s p aramour s visited th e traile r with the

childre n presen t. She engag ed in adul

terous se xual relat ions whi le the ch

ildren we re in the trailer . Jessie brought her boy

friends into the trailer as well, one of which was a c onvicted felon. In September 2001, Mother, Jessie, and Lexie vi s ited Mother’s grandmother for lunch. After ta

lking ar ound the ta

ble for a few hour s, Mo ther became angry when it was suggested Mother not reco ncile wit h Fathe r. She thr

eatene d to take t

he childr en to Indiana where her uncle lived. G randmother pleaded

with her n ot to take

the child ren to Indiana and away from her support system. Gr andmother also said “Somebody will take your kids away fr

om you.” Mother re

plied she would bec ome a “psychopa thic mother” and “kill my kids and my self” and stormed out of the house with Jessie. Father filed a pro se Temporary Restraining Order petition i n Juv enile Court on September

28, 2001. 1 Mother filed a divorce complaint on October 10, 2001 alleging inapprop riate marital conduc t a nd irreconcilable differences. Father responded by filing

an Answer, Affirmative Defenses and C o unterclaim on October 19, 2001 alleging- 4 -

just ifiable

cause a nd claiming irre concila

ble diffe rence, adulter

y, a nd inappr

opria t e marital conduct. In this document, Father requested primary

custody of the chi ldren citing Mother’s activities duri ng the “dark summer.” The divorce was he ard on November

5, 2001 and the Chancellor found joint grounds for divorce. F urthermore, the Chancellor

found neithe r paren

t t o be a fit parent and awarded per manent legal guard ianshipof Neil

to L aDonna Miller and permane nt lega l guard ianship of

Lexie to Jeannie LaCasse. Father

filed his Notice of Appeal on January 11, 2002. II. S TAND ARD O F R EVIEW Removing custody

from both

biologic al pare

nts is a ser

ious matt er in volving constitution ally

protec ted rights. Our standard of review re flects the hesitancy

to invoke such action. Our review is de nov o upon the record and we presume the trial cour t’s findi ngs of fact were correct, unless the evidence preponderates otherwise. Tenn. Rule App. P . 13(d); Alexander v. Inman , 974 S.W.2d 689, 692 (Tenn. 1998). The trial cou rt’ s l egal co nclusions are reviewed de novo with no pre sumption of correctness. Ganzenv oort v. Ru ssell , 949 S.W.2d 293, 296 (Tenn. 1997). III. R ESP ONSI BIL ITY F OR P ARENTING THE C HILDRE N

A. Tennessee courts recognize our Sta te Constitution provides a right to privacy found at Article I, Section 8. In re Askew , 993 S.W.2d 1, 3 (Ten n. 199 9) (ci ting Davis v. Davis842 S.W.2d 558 (Tenn. 1992)). Based upon th is right to privacy , parents have a- 5 -

constitutional righ t to care for their children. Hawk v. H awk , 855 S.W.2d 573, 570 (Tenn. 1993). In ch il d c us to dy dispute s betwee n a biological par

ent and a non-biolo gical p arent, Tennessee courts mu st apply a two-pa rt inquiry as set fo rth by our Su pr eme Court in In re Askew , holding

as follow s: [I]n a contest between a parent and a non-parent, a parent cannot be deprivedof the custodyof a child unless there has been a finding, a fter notice require d by

due proc ess, of su

bstantial h a rm to the child. Only then may a court engage in a

general “best interest of the ch ild” evaluat

ion in ma ki ng a d et er mi na ti on of cu st od y. In re A skew , 993 S. W.2d at 3-4 (quot ing Bond v. M cKenzie , 896 S.W.2d 546, 548 (Tenn. 1995). Accordingly , a court, when faced with such a custody dispute will not make a be st interest inquiry until it first determ ines there exists substantial harm if the child is placed in the cus tody

of the bio logica

l parent

. Ray v. Ray , 83 S.W.2d 726 (Tenn. Ct. App. 2001). Neither the Tenness ee Genera l Assembly nor the courts have precisely de

fined what circumstances pose a risk of substantial harm to a child. Id at 726 . Common sen se and judicial experience are therefore a ppropriate pr oc essors of evidence in determining what acts are a “real dang er or hazard” an d what ac ts are “minor, trivial, or insignificant.” Id. at

7 32. Our Sup

reme Cour

t has used

the unfit p arent sta

ndard in determining if a child would be ex posed to substantial harm if parenting time were placed with the biological parent. See In re Askew , 993 S .W.2d 1 ( Tenn. 1999) (third par tycustod y may

not be awarded without showing biological pare nt unfit, child was dependent

and neg lected, or substa ntial danger of h arm to ch ild existed) ; Hawk v. H

awk , 855 S.W.2d 573 (Tenn. 1993) (finding absent s howing s ubstantia l dange r of har m to- 6 -

child, fit parents may not lose p arenta l right to care for child by judicial order). In Ray , this court stated: The courts cannot award custody to a third pa rt y instead of a biological parent unless the third party ca

n demonstrate that the child will be exposed t o substan tial harm if custody is awa rded to the biological parent. I n other wor ds, a biological parent cannot be denied c ustody unless he o r she i s found to be

unfit. Ray , 83 S.W.3d a

t 732; see also Hall v. Bookout , 87 S.W.3d 80, 86 (Tenn . Ct. App. 2002) (holding coupling the lack of a finding of unfitness a nd denying

third party’s custody petition “amounted to” a finding of no risk of substantial harm). An indication of the importance of the court ’ s evidentiary de termination is the standardof proof

require d to estab lish th e biolog ic al parent’s unfitness. In a c ustody dispute between a biological parent and a non-b iolog ical parent, the biological parent’s unfitnes s must be established by clea r and convincing evidence. Bookout , 8 7 S.W.3d at 86. Our S upreme Co

urt repe atedly

emphasize s the biolo gical p arent’ s constitut ionally protected interest in r aisin g their children free from unwa rranted state intervention. See Do e v. Su ndquist , 2 S.W.3d 919(Tenn. 1 999); In re Swanson , 2 S.W.3d 180 (Tenn. 1999). The dec ision to re move a ch

ild from th

e biolo gical parent s is one that should be carefully and seriously examined. B. W AS T HE T RIAL C OURT ’ S D ETERM INATION OF P ARENTAL U NFITNESS E RROR ? Without question, the trial court fo und both parents unfit to raise the two children. In mak ing this determination, the trial court stated, “I don’t think I’ve ever h ad a cas e that gives me more concern about chi ldren.” The trial court made findings of fact regarding eac

h parent respectively . We examine each in turn below.- 7 - 1. Mothe r’s Unfitne

ss The trial court clearly found Mother was unfit to care for her two minor children. On a ppeal, Mother does not contest the trial court’s determination of her unfitnes s. Rather, M other ar gues a gainst Father’ s fitness. We do not disagree w ith the trial court’s determination. Mother’s conduct during the time per iod d escrib ed as the “dark summer” display s her unfitness. We affirm. 2. Father’s Unfitne

ss The trial court gave the fo llowin g reas ons for f inding F ather un

fit: (1) mo ving his lover and her c

hild into hisparent’ s alrea dy c rowded home; (2) a

llowing h is sister Jes sie to continue to care for the children d uring and after her actions during the “dark summer;” and (3) failing to adequately establish a stable plan for caring for the children. First, Father

argue s the court violated his constitutional right to rear his children by finding Father unfit and awarding the ch

ildren to s eparat

e third pa rti es. Fathe r argues the trial cou

rt lacke d a fact

ual found ation for

its unfit ness findi ng. In support, he ar gues
once he became aware of Mother ’s conduct, he petitioned Juvenile Court for temporary

cu st od y. T he re co rd cl ea rl y re fl ec ts fa ct s t o t he co nt ra ry. During “dark summer” Fathe r was aware of Mo ther and Jessie’s activities in the trailer. He knew Mother endangered the children with her drugabuse, h er abusive langua ge , and her

“boyfrie nds.” He did nothing until September with the exception of

occa sionally

voicing his opposition. When questioned about his reaction to Mothe r an d Jessie’s activ itie s, Fat her st ated, “I didn’ t care w hat Am y and them was do ing. ” Rather2 See Marsh v. Sensabaugh , No. W2001-000160- COA-R3-JV, 2001 Tenn. App. LEXIS 755 (Oct. 1, 2001) (unr eport ed) (u pholdi ng un fi tnes s det ermi nati on wher e fa ther regu lar ly fai led t o exer cis e vi sit ati on privileg es, alon g with oth er acts)

. - 8 - than sp end time with Neil, he sent Neil to LaDonna Miller’s house . On at least sev e n occasio ns, Father deferr ed sta ying with his ch ildren in f avor of s tay

ing with S handel. H

is decisions clearly

demonstrated a clear disrega rd of parental responsibilities. 2 Fi na ll y, Father

argue s he has a

specific plan for carin g f or the children. We can find no evidence Father has taken a ny meaning ful steps to develop a subs t antial relation ship withhis chi ldren or accept responsibility for their care and custody

. See Nale

v. Robertson , 871 S.W.2d 6 74, 678 (T enn. 1994 ). At tria l, Father hadjust been terminatedfrom his job and his brief on appeal does not indicate he is cur

rently employed. He planned to live with his pa

rents, whose home w as still cr owded wit

h his sibl ings and he had made virtually no effo rt to se cure hisown home. Father continue d to allow Jessie to baby-sit Neil and L exie even af

ter her act ions during the “dark summer.” Alth ough he arg

ued he wi s hed to reduce LaDonna Miller’s time with Neil, he continued up until trial to allow her to keep Neil for extended periods of time. Mrs. Tina Nolen encouraged

her daug hter-in- law to g et a boy

friend to make her

son jealous and re

turn to his family . Finally , testimony indicate d Mr. Jeffe

ry Nolen dr

ank exces si vely an d had anger management prob lem s. From the record, we ag ree with the trial court’s finding Mr. Nolen unfit. Next, we turn to the trial court’s custody determination. C.- 9 - W AS I T E RROR T O A WARD P ERMAN ENT C USTODY T O T HIRD P ARTIES ? Once a parent is found by clear and convincing evidence to be unfit, the court must make a custody dete rmination based on what custody a rrangement is in the child’s best interest. In re Askew , 993 S.W.2d 1, 3-4 (Tenn. 1999). The court below took the remarkable step of placing the c hildren in the custody of sepa rate third parties. The Father attacks this deter

mination on

two alter native g rounds: ( 1) assuming the F ather is unfit, custody should have only temporarily bee

n awarded to another party ; or (2) assuming the Father is unfit, the children should not have been se parated into the custody of two separate third parties. We will address both issues separately

. 1. As an alternative argument, Fa ther argues even if both pare nts are unfit, the trial court should have only tempora rily removed c

ustody from the pare

nts. In support, Father cites two of our decisions, Hall v. Bookout , 87 S.W.3d 80 (Tenn. Ct. App. 2002) and Henders on v. Mab ry , 838 S.W.2d 537 (Tenn. Ct. App. 1992), as precedent for the propositio n that eve

n if a par ent is unf it the cou rt should o

rder onl y te mporary custody to a third pa rty . Presuma

bly , tempora

ry loss of cu stody

will allow

the unfit p arent tim

e to become fit. A careful review of both c ited cases reveals neither case suppor ts such an argume nt. Henderson and Hall

are fa ctually distinct f rom the pr

esent ca se beca

use in both cases the trial court did not find the biological parent unfit or pose a substantial danger of harm to the child. Furthermore, in both cases, “exigent c ircumstances” existed justifying temporary c

ustody in a third party

rather than with the biological parent. The “ exigent circumstances” in each case w as that the biological mother had died. I n Henderson , this- 10 -

court explicitly

conditioned retur

ning the child to the

biologic al pare

nt on two c onditions: (1) “so long as he is a fit custodian” and (2) “ when the present exigent circumstances no longer require custody

in another.” Id. at 540-541. In Bookout , this court held it was error for the trial court to “prolong inde finitely the return of

the child to Father’s custody” by

awarding temporary

custody to the paterna

l grandparents where the c ourt made no finding of unfitness or of substantial harm reg arding the biological father. Bookout , 87 S.W.3d at 86. Simply put, the trial court did not provide for the children to be returned to eithe r parent because the trial court viewed them as unfit to provide a stable , nurt uri ng, and loving environment for the children. We do not find Father’s a rguments persuasive.
2. Next, Father a

rgues even if parents unfit, the children should not have been separated. Initially , we note keeping siblings together is generally

preferred. See Ba gg ett

v. Baggett , 512 S.W.2d 292, 293-294 (Ten n. Ct. App. 1973). Nevertheless, the overriding concern is the welfare and best intere sts of the children. Parker v. Parker , 986 S.W.2d 557, 562 (Tenn. 1999). The tri al court sought to preserve whatever stability and familiarity

had devel ope d in these ch

ildren’slives. Mrs . Miller pr ovided the

stable, n urturing , and tra

ditional f amily environm e nt fo r Neil he did not receive with his parents or close rela tives. Mrs. Miller works at a s pe ci al ed uc at io n p re -s ch oo l a nd is a fos te r p ar en t. Ad di ti on al ly, she i s married and has th

ree tee nage d aughte

rs. Neil h ad developed a si gnific ant rela tion ship withLaD onna Mille

r. The record is c lear Ne il r eferred t o Mrs. Miller as “mom” and Mr.- 11 -

Mil ler “dad.” Neil spen

t a signi ficant a

mount of tim

e with Mrs . Miller, e

ven stay ing with her for almost an entire summer. With respect to Jeannie L aCa sse, the c ourt’s re asoning is less cle ar but it seems apparent howe ver the t

rial cou rt sough t to establ

ish some sta

bility and pres erve som

e continuity

of placement for Le

xie. Althoug h Mrs. LaCas se did not h ave th e longstand ing, establish

ed rela tionship with Le

xie compar

ed to L aDonna Mill er’s relation ship

w ith Neil, Mrs. L aCasse h ad kept L exie on sev eral oc casions. The tria l court a lso formulateda paren

ting pla n allowing

the si bli ngs visitation together during parenting times with Mother and Father. In assessin g the co

urt’s cu stody

determin ation , it is important to recognize trial courts have bro ad discr

etion in fa shioning

cust ody arra

ng ements designed to suit the unique circum stan ces presented in individual cases. Id. at 563 . Our role as an app ellate court is not that of a “Monday morning quarterback.” Rather, we mus t assess if the trial court’s decision overstepped the boundaries of a rea sonable application of the law t o the facts presented. See Eldridge v. Eldridge , 42 S.W.3d 82 (Tenn. 2001). We find the fact s in the record do not support reversal of the trial court’s decision to separate the children. III. The trial cou

rt’s dec ision reg arding

the biolog

ical par ents u nfitn ess is affirmed. The trial court is also affirmed regard ing the issue

of placing the children in separa te homes. Costs are taxed to the appellant.

_________________________________ DON R. ASH, SPECIAL JUDGE

### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 7, 2003 Se ssion JOSEPH NEIL NOLEN v. AMY JAY NO LEN Appeal from the Chancery Court for Hickman County No. 01-260C Donald P. Harris, Judge

No. M2002-00138-COA-R3-CV - Filed August 5, 2003

W ILLI AM B. C AIN , J., concu rring. For reasons articulated in Estate of Acuff v. O’Linger , 56 S.W.3d 527 (Tenn.Ct.App. 2001)(application to appeal denied) and in In re: Z.J.S. and M.J.P. , 2003 WL 21266854 (Tenn.Ct.App. June 3, 2003)(Cain, Judge, concurring), I cannot agree that T.R.A.P. 13(d) provides the proper

standard of review in cases where the finder

of fact is required to determine upon “clea r, cogent and convincing evidence” that the contr olling f acts ar e “high ly p robable .” I

n such ca ses, tried no n- ju ry, an appellate

court must independently re view the evidence and determine whether “ clear, cogent and convincing evidence establishes that such fa cts are “highly

probabl e.” Such

is the standardof review that was used in Estate of A cuff w herein this Cour t held that a “clear and convincing evidence” standard is incompatible and irreconcilable with a “prepo nderance of the evidence” standard. Since the evidence in this case reviewed under the “clear and convincing evide nce” standard applied in Estate of A cuff clearly e stab lishes the

facts a s found by

the trial court to b e “high

ly probable,” I conc

ur in the judgment.

__________________________________________ WILL IAM B. CAI

N, JUDGE