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# FILED March 31, 2000 Cecil Crowson, Jr. Appellate Court Clerk 

### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

DEBORAH ANN HOLLAND, ) NO. E1999-00586- COA-R3-CV ) Plaintiff/Appellant ) Appeal As Of Right From The ) SEVIER COUNTY CIRCUIT CO

URT v. ) ) JASON KEITH HOLLAND, ) HON. REX HENRY OGLE, ) JUDGE Defendant/Appellee )

For the Appellant: For the Appellee: Rebecca D. Slone George R. Garrison P. O. Box 1088 WEBB & GARRISON Dandridge, TN 37725 1415 Middle Creek Road Sevierville, TN 37862

VACATED and REMANDED SWINE Y, J.



### O P I N I O N This is an appeal by Mother and Father of the Trial Court’s award of custody of their two-year -old son to the child’s pa

ternal grandmo

ther. The pater

nal grandmothe

r was not a party

to the divorce action in which the award of

custody was made, and she had not petitioned for custody2

of the child. For the reasons herein stated, we vacate the Judgment of the Trial Court and remand the case for further proceedings consistent with this Opinion. BACKGROUND Deborah Ann Holland

(“Mother”) mar

ried Jason Keith

Holland (“Father”) on June 7, 1997. One child, Dylan Kei th Holl and, was born to this couple, on February 28, 1998. On September

18, 1998, Mother petitionedfor divorce on the grounds of irreconcilable differences or, in the alternative, inappropriate marital conduct by Fathe r whic h woul d enti tle he r to a d ivorc e. In her Complaint, Mo

ther asked the Trial Court that she “be designated the primary residential custodial parent of the parties’ minor child, subject on lyto reasonable co-parenting times by the husband.” Father filed his Answer on October 28, 1998, admitting tha t irr econcilable differences exist and denying inappropriate ma

rit al condu ct. He filed a Motion on that same date seeking temporary custody of Dylan pending a final hearing. The matter was c ontinued severa

l times. On February 12 , 1999, the Trial Court appointed attorney Lisa F. Burg ess as Guardian Ad Litem for Dylan and instructed her to “cond uct an examination and m ake a report to th

is Honorable

Court.” On May 12, 1999, the Guardian Ad Litem filed a comprehensive report with the Trial Court. In that report, she stat ed tha t her investigation included the review of pleadings and depositions,meetings with both parents and observation

of each parent with Dylan, home study at bothresi dences, interview of the paternal grandmother, unsuccessful attempt to interview the maternal grandfather

, interview of Moth

er’s “boyf riend/fiancé”

and his mother, and

contact with general references provided by the parties. The Guardian A d Litem ’s interview with Father and Mrs. Finchum, the paternal grandmother, was conducted on April 21, 1999, with Dylan present. Father told the GuardianAd3

Litem that he and Mother had dated for four years throug h h igh school , had gotten married after gra duation, and that Mother had become pregnant on the honeymoon or soon there after. When Dylan was born, Mother s

tayed at hom

e to care for him

while Father worked. When

Father came homefrom

work in the evening, Mother would hand Dylan to him and say , “Here . . . I can’t take it anymore.” He said Mother t ook Xanax and Valium for “nerves” and he believed she took the medications to excess at times. Dylan had medical problems (reflux) and had to be taken to the doctor often. When the parties separated, on August 25, 1998, Father and Dylan w

ere visiting Mrs. Finchum at her home in Clark

Range. Dylan had an ear infection with vomiting and diarr hea, and Father told Mother by phone that the child could not be returned to her until he had recov ered enough to travel. Mother did not call to inquire about Dylan for five days. F ather returned Dylan to Mother after

nine days, when Dylan had re covered. Thereafter, Mother denied visitation to Father for several months because she thought he was trying to take Dy lan away from her. Mother filed the Complaint for divorce on September 18, 1998.

Father and Mrs. Finchum told the Guardian Ad Litem that when Dylan

was newborn, Mother often left the child with Mrs. Finchum for weeks at a time when he was sick or Mother was stressed. On one occasion, Mother checked Dylan in to a hospital, then left the next evening to get clothes and did not return u ntil th e next day. Father complained to the Guardian Ad L item that Mothe rrefused to allow him visitation with Dylan on Christmas Day until 6:00 p.m. and on the child’s birthday.

Father told the Guardian Ad Litem that he has learned that Mother’s father, Charles Ronald Gibson, has a child molestation conviction f or which h e was imprisoned. Father is concerned

for Dylan’s safety if he

continues to be around thematernal grandfather. Mr. Gibson left4

with the child

on one occasion when Father was on his way to pick up Dy lan, and Mr. Gibson has stated tha t “n o Ho lla nd o r Fin chu m” i s al low ed o n hi s pr ope rty. Father also complained that Mark Gi bson, Mother’s brother, has a criminal record and is a drug abuser. Father further claimed that Michelle Ogle, Mother’s cousin, isa prostitute. Fat her is concerne

d for his son’s saf

ety around

these maternal relatives. Mark

Gibson lived with Mother andFather, sleeping on their living room floor, when they were first married. Father also expressed g reat concern to the Guardian Ad Litem that Dylan was being taught by Mother that her current boyfriend is Dy lan’s “DaDa.” On April 30, 1999, the Guardian Ad Litem interviewed Mother at her home. Mother told the Guardian Ad Litem that her marriage began breaking down during her pregnancy and that she believes Father had an affair or some kind of improper encounter with another

woman during the seventh month of her pregnancy. Mother’s father , Mr. Gibson, was not available, and Mother advisedthat he was a “stubborn man” and she could not require him to make himself available for interview. Mother acknowledged that Mr. Gibson was Dylan’s primary ca retaker duringher work hours of 3:00 to 9:00 p.m. She thinks herfather’s crimi nal conviction and imprisonment was for “making a young boy

perform oral sex on him,” but she is not concerned for Dylan’s safety around her father because she does not think he is “that kind of person” and thinks he might have been “set up” on the charge.

Mother told the Guardian Ad Litem that she is engaged to Robbie Reagan, whom she met at Cotton Eyed Joe in September 1998. She became pregnant by Reagan in Nove mber 1998 but miscarried. She a nd Reagan plan to mar ry as soon as her divorce fro m Father is f inal. Alth ough Dylan calls Reagan “DaDa,” she thinks he probably knows who his real father is. However, Reagan “supports Dylan” and considers him to be like a son.5 The Gua rdian Ad Litem interviewed Robert “Robbie” Reagan and his mothe r . Reagan advised that he plans to marry Mother when her divo rce is final. He spends time with Mother and Dylan

but most of his visits are after Mother gets home from work and Dylan is asleep. Rea gan’ s mo the r of ten bab ysit s Dyl an an d cal ls t o ch eck o n hi m al mos t da ily.

Fin all y, the Guardian Ad L item considered h

er investigatio

n of the parents in

li gh t of the factors set forth in T.C.A. § 36-6-106. B ased on all of the information she gathered, she recommended

to the Trial Court that Father be granted primary phy

sical custody of Dylan and that Mother be granted libe

ral visitation but “

with no unsupervise

d vis ita tion with Mr. Gibson absent further determination/evaluation.”

On May 13, 1999, one day after the Guardian Ad Litiem filed her report with the Tr ial Court and provided copies to the parties, the final hearing in this matter was held. At tha t hearing, Father testified substantially as he had advised the Guardian Ad Litem. He denied having any extra-marital relationships before the parties separated but ad mi tted a relationship during the separation. He testified that h is mother, Mrs. Fin

chum, lives 1/4

mile fromhis home in Clark Range andwould be available to help him care for Dylan if the Trial Court were to a ward him custody. He compl ainedto the Court that he did not want Dylan in the presence of Mr. Gibson w ithou t supervision because of Mr. Gibson’s criminal history.

Mother also testifiedsubstantially as she had advised the Guardian Ad Litem. She stated that her father

, Mr. Gibson, is

Dylan’s primary care

taker when she is working. Her testimony

was evasive on the issue of whether or not she knew that Mr. Gibson had been c onv icted of child molestation when she allowed him to care for Dylan, but she testified that she is not concerned that he m ight harm her s on. She did adm it t hat Mr. Gib son has mad e th reat s to Fath er an d hi s fa mil y.6 After Father and Mother were heard, the Guardian At Litem was calle d as the ne

xt witness. She began her te stimony by

describing the s

teps she undertoo

k to investigate t

he parties. At that point, the following occurred: COURT: Ms. Burgess, let me ask you this. What is your

impression of Ms. F

inchum? A: I had a very favorable opinion of Ms. Finchum. She was also there . The child slept during ha lf of the interview that I had. When he awoke, he seemed to have a good re lationship with Ms. F

inchum. She seems ver y intelligent and capable of expressing her love for the child. MR. OGLE: I object to all of this, if your Honor please. COURT: Ms. Burgess, I ’l l tell you what. Would you step

down? Ms. Finchum, is she here? MR. GARRISON: Yes, she is. COURT: Step down here. I want to talk to you. The witness, JUDY FINCHUM, having been fir

st duly sworn

, testified as foll

ows: COURT: Q: Take th e witness stand. I want to ask you some

questions. Ms. Finchum, what do you do during the day time? A: We have our ownbusiness with floor covering. I

help in the business when I’m needed.

When I’m not a

t work, my

time is basically whatever I w

ant to do with it. Q: How old are you, if you don’t mi nd me askin g? A: I’ll be 45 this year. Q: How many other children do you have? A: Two. Q : How old are t hey?7

A: James is 21. Judson’s 19. Q: What kind of living arrangements do you have in y our home? A: Ihave a two-b edroom room , living room, dining room, k itchen , garage, two

bath rooms. Q: Wou ld yo u be wil lin g to t ake t his bab y? A: Would I be willing to take him? Q: And be the custodian of the child? A: Yes. The Trial Court

then asked counsel for the parties if they were “re ady for the Court to rule?” Counsel forFather requested and was permitted a brief examination of the Guardian Ad Litem

. The Trial Court then ruled that both parties in this divorce action had be en gu ilt y o f misconduct

and granted both a divorce, accompanied by a property

settlement that is

not on appeal. The Court then summarized the parental deficiencies it found in Father and Mother and held:

Based upon t h at, based upon what the Court finds to be the overwhelming deficiencies of the parties, the Court is going to award the absolute

care, custody, and control of this child to Ms. Finchum pursuant to T.C.A. § 36-6-101. In this appeal, Mother raises the following issue:

The Trial Court erre

d in awarding cu

stody of the p

arties’ minor chi

ld to the paternal grandmother when such relief was not requested in any pleading or by either party and when no finding of substantial harm to the child was made. Father argue s that the Court properly refused to grant custody to Mother because the evidence showedthat the Mother posed a substantial risk of harm to Dylan, but that the Court erred in refusing to award custody to Father because the evidenc e did not show that he posed such a risk to the child.8 DISCUSSION Our review is de novo upon the record, accompanied by a presumption of the correctness

of the findings of fact of the Trial Court, unless the preponderance of the evidence is otherwise. Rule 13(d), T.R.A.P.; Davis v. Inman , 974 S.W.2d 689, 692 (Tenn. 1998). A Trial Court’s conclusions of law are subject to a de novo review with no pre sumpti on of correctness

. Ganzevoort v. Russell, 949 S.W.2d 293 (Tenn. 1997).

The Trial Court based its awa rd of custody

to the paternal gr

andmother in this c

ase on T.C.A. § 36-6-10 1. That statute pro vides, as pertine

nt: 36-6-101. Decree for cust ody and support o f child - Enforcemen t - Juvenile court jurisdiction - Presumption of parental fitness - Educational seminars - (a)(1) In a suit for annulment, divorce or separate maintenance, where the custody of a minor child or min

or chi ldren is a question, the court may . . . award the care, custody and control of such child or children to either of the parties to the suit or to bothparties in the instance of joint custody or sh

ared parenting

, or to some suitable person, as the welfare and interest of the child or children may demand. The statute

plainly per

mits a Trial Court to a

ward custody

of a minor to

“some suitable person, as the welfare and interest of the child or children may demand.” H owever, that

statute, presupposes that rights of constitutional magnitude are protected. See Vogel v. Well s Fargo Guard Servi

ces, 937 S.W.2d 856, 858 (Tenn. 1996). (“It is an accepted principle that the enactments of the Ge neral A ssembly are presumed co

nstitutional.”) B efore the Trial Court could exercis

e its statuto

ry authorit y under T.C.A. § 36-6-101 to award custody to a non-parent over the objections of both parents, it had the duty to co

nsider the paren

ts’ constitutional r

ights as they

have been descr

ibed by our Su

preme Court in the recent case of In re Swanson, 2 S.W.3d 180 (Tenn. 1999), which held:

[t]he federal an d state constitutions require the opportunity for an individualized determination that a parent is either

unfit or will cause9 substantial harm to hisor her child before the fundamental right to the care and custody of the child can be taken away

. In re Swanson, 2 S.W.3d a t 188, quot ing Stanley v. Illinois, 405 U.S. 645, 650, 92 S.Ct. 1208, 3 1 L.Ed. 2d 551 (1972). The Swanson case dealt with th e terminatio

n o f parental rights rather than with denial of physical custody to parents. However, parents’ rights to physical custody of their children are

also afforded constitutional protection. In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), our Supreme Court held: Tennessee law, thus, upholds the state’s authority as parens patriae when interference

with parenting is

necessary to prevent serious harm to a child. The fede ral ca ses that support the constitutional right to rear one’s child and the right to f

ami ly privacy also indicate that the state’s power to interfere in the parent-child relationship is subject to a finding of harm to the child. . . . Federal cases . . . clearly require tha t someharm threaten a child’s welfare before the state may constitutionally

interfere with a parent’s right to rear his

or her child. The requirement of harm is the sole protecti on that parents have against pervasive state interference in the parenting process. As one author has stated: For the state to delegate to the parents the authority to raise the child as the pa

rents see fit, except

when the state thinks another choice would be better, is to give the parents no authority at all . . . . Hawk v. Hawk, 855 S.W.2d 573, 580 (Tenn. 1993). The Hawk

decision was upheld by our Supreme Court in 1995: After an extensive review of prior d ecisions of this Court and cases from other jurisdictions, the court in Hawk v. Hawk expressly rejected the proposition that the courts may engage in best int erest analysis without first determining the threshold issue – substantial danger of harm to the child. The Court stated: In light o f [the constitutional right of privacy10 acknowledged

in Davis v. Davis, 842 S. W.2d 588 (Tenn. 1992) ], w e belie ve that when no substantial harm threatens a child’s welfare, the s tate lacks a sufficiently

compelling just ification for th e infringement

o n t he fundamental r

ight of parents t

o raise their child

ren as they

see fit. Simmons v. Simmons, 900 S.W.2d 682, 683-684 (Tenn. 1995). In Hawk and Simmons, our Supreme Courtdenied visitation r ights in favorof grandparents when parents chose not to permit such visitation. The Supreme Court afforded the paren ts a right under t he constitution to “

raise their children as they see fit.” Simmons at 684. Clearly

, if parents have a constitutional right to prevent grandparents ’ visitation unless a risk of substantial har m wil l result, those same parents have a constitutional right to prevent the award of custody to a gra ndpar ent over t heir objections un less there is a showing of substantial danger of harm. See also, In Re Askew, 993 S.W.2d 1 (Tenn. 1999). Mother argues that the Trial Court made no such “individualized determination that

a parent is either unfit or will cause substantial harm to [the child].” Father argues that the evidence in the record preponderates in favor of a finding that custody by the Mother will cause substantial harm to the child bu

t no such evidence

exists as to the Fath

er, and, theref

ore, he should

have been

awar ded cus tod y.

In awarding cus tod y of D ylan to h is gr and mot her, who had not sou ght c ust ody, the Trial Court stated:

This Court, in all

candor, to put it mildly and to put it nicely, does not feel like that

either of these parties can provide the necessary care and nurturing this child needs. Th is Court would be re

miss; t he Court does notthink as f

ar as the proper relationship for the child and the nurturing and c

are that the mothe

r is presently capable of doing that

. . . This is one of those unfortunate situations where as between the parties, as far as the care and custody of this child, the Court does not feel real positive about either one. The father could not care for

this11 child without the support of his mother. Fortunately she’s been there

. . . based upon what

the Court finds to be the overwhelming deficiencies of the parties, the Court is going to award the absolute care , custodyand control of this child to Ms. Finchu

m pursuant to T.C.A. § 36-6-101. Nowherein the Trial Court’s explanation of the basis for its judgment is there any findin g that awarding custody of D

ylan to eithe

r of his parents wo

uld cause Dy

lan to be at risk

o f “substantial danger of harm.” We have carefully reviewed the re cord in this case and fi nd it to be lack ing in evidence that neither parent coul d assume custody of Dylan without causing the child substantial harm. The Trial Court,understandably, sought to place Dy lan in the best situation possible. There

are serious difficulties to be overcome before either parent can provide appropriate care of this child. There appear to be serious dangers involved in the child’s involvement with one or more of mother’s relatives. However, absent a showi ng that n either parent can be the primary custodian withoutsubstantial danger of harm to the child, we hold the Trial Co urt erred in

awarding the care,

cus tod y, and control of the child to a non-parent.

The Trial Court sho

uld apply the

factors set fort

h in T.C.A. § 36-6-106 t

o determine whic

h of the two parents is comparatively more fit to have custody of Dylan. Only if the Court fi r st concludes that neither parent is fit and that awarding custo dy to either parent would put Dylan at risk of substantial danger of harm shoul d the Cour t consider any other alternative custodian. CONCLUSION For the reasons herein stated, the Judgment of the Trial Court awarding custody of Dylan Holland to Judy Fincham, his paternal grandmother, is vacated. The case is remanded for a

new trial, at which time the Trial Court shall conduct a comparative fitness analysis of the child’s parentsand award custody of the child to one or both of his parents based on their co mparative12

f itness unless the Trial Cou rt finds that to do so w

ould result in substa

ntial danger of

harm to th e child. Only if such a finding of substantial danger of harm is made shall the Trial Court consider awarding custody and

control of Dy

lan to some suitable

person other than

the parents. Costs of this appeal are assessed on

e-half t o Appellant, Deborah Ann Holland and one-half to Appellee, Jason Keith Holland.

_________________________________________ D. MI CHAEL SWINE Y, J.

CONCUR:

___________________________________ HOUSTO

N M. GOD

DARD, P .J.

___________________________________ HERSCH EL P. F RANKS, J.