# F I L E D
N ovem ber 24, 1998 Ceci l Crow

son, J r
. Appel l a t e Court C l e r k IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

ASHLEY C HRISTINE OLEN and ) C/A NO. 03A01-9805- CV-00166 STEVEN MICHAEL OLEN, ) BY: THERE SA E. OLE N, ) JOHNS ON CIR CUIT

) Appellan t, ) HON . G. RIC HAR D JO HNS ON, ) JUDGE v. ) ) ANGELA ARLENE OLEN ALTHERR, ) AFFIRMED ) AND Appellee. ) REMANDED

H. RA NDO LPH F ALLIN , Moun tain City, for A ppellant. WILLIAM J. COC KETT, SMITH & COCKETT , Mountain City, f or Appellee.

O P I N I

O N Franks, J.
In this chil

d custody action,the minor childr en’s stepmother sought custody after t

he death of her husband,who had been the custodial parent. The natural m other coun ter-claimed for custody , and the Tr ial Judge aw arded cus tody to the natural mother . The stepmother has appea led. At the time the fat

her and mother divorced,there was an award of joi nt custody of the chi

ldren, with pr

imary residential custody in t he mother. Subsequentl y, the Kansas Social Servi ce System took custody of t he children, a

nd in a subsequent2

court hearin g in Kan sas, the Co urt determ ined that the m other had fa iled to prope rly care for the chi

ldren and was “not economical ly or emotionall

y stable enough at t

he present ti

me to properly care f

or the childr

en”, and changed the cust ody to the father and orde red the m other to pay $261.00 per mon th as child su pport.

On November 24, 1995, the father marr ied Theresa E. Olen (stepmoth er). Follow ing an evid entiary hea ring, the Trial C ourt was h ighly complimentary of the st epmother in her love and ca re of the chil

dren. He also found that the n atural m other k ept in co ntact an d main tained a relation ship w ith the ch ildren. The Court also observed:

Ms. Altherr (natur

al mother) doesn’t

have the education of

the children’s stepmother, but i n spite of not ha

ving the education of the children’s ste pmothe r, and in spite o f a real strugg le in trying to k eep in contact w ith the children and find o ut where the children were, there is no doubt in this Court’s mind that she loves them just as much as Mrs. Olen. The Court concluded that the issue was not the traditional best inter est of the childre n test, but wh ether a child w ould suffer “ substantial ha rm” if custo dy is awarded or retained in the natural p arent vis a vis a non-pa rent.

The standard of review in child custody cases is de novo upon the record of the Trial Court with a presumption of the correctness of the Trial Court’s fi ndings, unless e videnc e prepo nderate s otherw ise. Hass v. Knighton , 676 S.W.2d 544, 555 (Tenn . 1984)
.

We affirm the judgment of the Tr ial Court in awardi

ng custody of the two minor children to the natural mother. The evidence does not preponderate against the Trial Co urt’s conclu sion that the c hildren are n ot in dange r of substan tial harm in their mother’s

custody. The Tennessee Supre me Court has held “in a conte st between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a fi

nding, after

notice requir

ed by due process, of substial har m to the child”. In re Adoption of Female Chil d, (Bond v. McKenzie) , 896 S.W.2d 546-5483

(Tenn . 1995)
. Also see Hawk v. Hawk , 855 S.W.2d 5 73 (Tenn. 1993 ). Only after a court finds “substantial

harm to a child” may it “e ngage in a general ‘ best inter est of the child ’ evaluta tion in m aking a determ ination o f custod y”. Id.

The stepmother did not meet t he burden of proof on the i ssue of substantial

harm. The stepmother asser ts that t he children are i

n danger due to the lack of the m other’s pare nting skills, w ilfull failure to pay support an d failure to visit the children r

egularly, as

well as being emotional ly unstable. The mother admits that her children were removed fr om her custody, but disputes that

she does not possess

parenting skills. She explained that t he children were removed from her upon allegat ions of sexual abus e. The allegat ions came the day after she i

nformed the father t

hat she planned to move with t he children, a

nd the accused was acquitted of any wrongdoing. After t he children were removed fr om her custod y, the fath er contin ued to le ave the m alon e in her c are wh ile he w as at wo rk. There was other evidence t hat her parenti

ng skills were s atisfact

ory, and the chil

dren interacted wel

l with her. Her physi

cians were of the opi

nion that she did not have any psychological pr

oblems that would int

erfere with her

care of the chil

dren. The mother admits that she did not pay child support for several years, and claims that she could not affor d to pay child suppor

t and visit

her childrens,

so she chose visitatio n. After she joined the n avy she v oluntarily starte d paying c hild support, and cont

inued to pay support

until she coul

d not locate her c

hildren. At t

he time of the heari

ng the mother was earning i ncome from two jobs, and intended to live with her p arents for the time being , as there wa s ample ro om in tha t home fo r herself and her children. We affirm the award of custody t o the natural mother

and remand with the co st of the app eal assessed to the appe llant.4 __________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.