# FILED
September 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

) ) ) Perry Juvenile IN RE: ) No. 165 LAURA ANN CAMPBELL ) ) Appeal No. ) 01A01-9802-JV-00086 )

APPEAL FROM THE JUVE NILE COURT FOR PERRY COUNTY AT LINDEN, TENNESSEE
THE HONORABLE CLOVIS G. PARNELL, JUDGE

For Plaintiff/Ap

pellant : For Defendant/Appellee : William Landis Turner No Appearance KEATON, TURNER & SPITZER Hohenwald, Tennessee



## VACATED AND REMANDED

WILLIAM C. KOCH, JR., JUDGE

### -2- O P I N I O N

This appeal involves a

biological fathe

r’s att empt to gain custody of h is eleven-year

-old daughter. Apparently ignor ing the bio logical father’s petitio n for custody, the

Perry County Juven

ile Court placed the child i

n the custody of he

r former ste

pfather who had recently divorced her biological mother. The fathe r asserts on this ap

peal th at the juvenile

court failed to give him an opportunity

to present evidence to support his petition for custody and also failed to emp loy the proper evidentiary standard in deciding to award custody to his daughter’s former stepfather. We vacate the juvenile

cour t’s custody order because the natural father was not afforded a hearing on h is custody petition an

d because the juv

enile court did not

make the requisite

findings of fact t

o support awarding

custody of a child t

o someone other tha

n a biological par

ent.
I.
Patricia King and Timothy Campbell are lifelong residents of Lobelvi lle and have known eachother for

many years. Ms. Ki

ng runs a carpet

cleaning business , while Mr. Campbel l is in the grocery business. Ms. King discovere d that she was pre

gnant with Mr. Campb

ell’s child in late 1986
or early 1987, but before the child was born, she married David Keith Leegan who was also from Lobelville. Laura Ann Campbell was born on June 30, 1987.
Ms. King and Mr. Leegan began to raise Laura together, and Mr. Campbell had little, if any, contact with the child during her early years. In June 1988, Ms. King filed a pa ternity action against Mr. Camp bell in the Perry County Juvenile Court. Mr. Campbell did not contest the petition and declinedto pay for

the required blood tests. Following a hearing in July198 8 which Mr. Campbe ll declinedto attend, the juve nile court determined that Mr. Campbell was Laura’s father and directed Mr. Campbell to begin pa ying Ms. King $200 pe

r month in child

s upport. Mr. Campbell did not request visi tation rights , and so Laura continued to live with Ms. King and Mr. Leegan without establishing a re

lationship with Mr. Ca

mpbell.
Mr. Cam pbell soon became delinquent with the child support payments, and in October 1988 , the District Attorney General filed a petition to hold him in contempt. In January 1989, the juvenile court found Mr. Campbell

in contempt for fa

ilure to pay child s

u pport. The ju

venile court also sentenced Mr. Campbell to six months in jail, but suspended the sentence on the condition that Mr. Campbell continue t

o pay Ms. King $150 pe

r month in child suppo

rt.
Ms. King and Mr. Leeganhad a child of their own, Rebecca Lynn Leegan, in October 1989. They lived together with the two girls until they separated in March 1995. Ms. King and Mr. Leegan
were divorced in the Chancery Court for Perry C ounty in Nove mber 1995. The chancery court awarded them joint custody of

Rebecca but desi

gnated Ms. King as the primary custodian. Thus, Ms. King and her two daughters continued to live together in Lobelville.1 The appellate record contains no information concerning when or under what circumstances

Mr. Campbell and his daughter began developing a father-daughter relationship.

2 The absence of

an explicit disposition of Mr. Campbell’s custody petition coupled with the (continued...) 

### -3- In July 199 7, the t wo girls began living with Mr. Leegan rather than Ms. King. Ms. King asserted that she turned the children over to Mr. Leegan because they would be safer liv

ing with him. Mr. Leegan stated th

at Ms. King was not a

suitable parent and that the children appeared dirty and disheveled while they were under her care. Thus, during the summer and fa

ll of 1997, the children lived part of the time wit h Mr. Leegan and

part of the time wit

h Mr. Campbell. 1 As Ms. K in g retreated increasingly from

her parental duties, Laura’s custody became a heated issue between Mr. Leegan and Mr. Ca

mpbell. In August 1997, Mr. Campbell filed a petition in the Perry County Juvenile Court seeking custod y of Laura. He alleged that Ms. King was no longer a suitable custodian for their daughter because she had become involved with drugs and bec

ause she exposed

their daughter to

strangers by entertaining visitors at her h ome a t unusual hours. Af ter he filed the p

etition, Mr. Campbe

ll explainedto Department of Human Services investigators that he had had no contact with Laura during the first years of her life because he was not convinced that she was his child and because he was unable to pay child

support. However, he also insisted that he had now developed a rel ationship withLaura and that he

and his mother coul

d provide her with

a more suitable environment than Ms. King could provide.

In September 1997, the District Attorney General filed a second petition seeking to hold Mr. Campbell in contempt for failure to pay child support. By this time, the amount of Mr. Campbell’s unpaid child support had incre

ased to$15,900. In response to this petition, the juvenile court entered
an order directing Mr. Campbell to appear on October 28, 1997 to show ca use why he should not be held in contempt

of court for fai

ling to pay child supp

ort.
In the meantime, Mr. Leegan began taking steps to consolidate his position as the custodian of both Rebecca and Laura. On October 15, 1997, he filed a petition in the juvenile court seeking custody of Laura. On October 27, 1997, he and Ms. King filed an agreed order in the chancery court amending their divorce decree to award him sole custody of Rebecca.
The juvenile court held a hearing on October 28, 1997, although the reco rd does not disclose what transpired at the hearing. There is no transcript of the proceeding, but apparently no testimony was h eard, and no evidence was presented. At the conclusion of the hearing, the juvenile court awarded Mr. Leegan sole custody of Laura with visitation rights to both Ms. King an d Mr

. Campbell. The trial court also awarded a $16,804 judgment against

Mr. Campbell and in favor of Mr. Leegan for delinquent child support. There is noindication in the record that the juvenile court considered or disposed of Mr. Campbell’s custody petition. 22 (...continued)

order granting Mr. Leegan’s custody petition might support an inference that the trial court denied Mr. Campbell’s petition. We need not rely on th is inference in

this case because the present record supports the conclusion that the procedure employed by the juvenile court was fatally defective. 

### -4- Since the hearing, Laura has lived in Lobelville with Mr. Leegan and her half- sister. Mr. Leegan’s girlfriend and her son and two daughters also live in the same hou sehold. Even though they have had notice of this appeal, neither Mr. Leegan nor Ms. King have filed a brief nor made any other sort of appearance in this case.
II.
Mr. Campbell asserts that the order awarding custody of Laura to Mr. Leegan cannot stand for two related reasons. First, he argues that he was not given adequate noticethat the October 28, 1997 hearing would deal with custody issues. Second, he argues that the juvenile court employed the wrong standard f

or determining whe

ther Laura’s c

ustody sh ould be awarded to Mr. Leegan rather than to him.
A. Biological parents have a f undamental, cons

titu tionally protected interest in maintaining their relationship

with their children. See Nash-Putnam v. McCloud , 921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of

Female Child

(Bond v. McKenzie) , 896 S.W.2d 546, 547 (Tenn. 1995); Nale v. Robertson , 871 S.W.2d 674, 678 (Tenn. 1994). Accordingly, both

Tenn. Const. art. I

, §8 and U.S. Const. amend. XIV affo

rd biological par

ents faced with th

e possibility of losin

g this relationship withimportant due proc

ess rights. Specifically, the se parents are e

ntitled to a hearin

g on adequate notice, see Stanley v. Il linois , 405 U.S. 645, 649, 92 S. Ct . 1208, 1211 (1 972), and legal representationwhen the circumstances require it. See Lassiter v. Department of Social Servs. , 452 U.S. 18, 31-32, 101 S. Ct. 2153 , 2162 (1981); State ex rel. T.H. v . Min , 802 S.W.2d 625,626 (Tenn. Ct. App.1990).
These rights exte

nd to paren ts of nonmarital ch ildren who have ta

ken affirmative

steps to develop a relationship with their child. See Petrosky v. Keene , 898 S.W.2d 726, 728 (Tenn. 1995); Nale v. Robertson , 871 S.W.2d at 678. Th us, i f a biological par ent has establishe

d a relationship witha nonmarital child, the State may not interfere with the parent’s rights unless continuing the relationship

poses a substantial threat of harm to the child. See Petrosky v. Keene , 898 S.W.2d at 728; Hawk v. Hawk

, 855 S.W. 2d 573, 579-582 (Ten n. 1993). Accord

ingly, in a custody d

ispute between a biological parent and a non-parent, the biological parent should not be deprived of custody of his or her child unless there has been a finding, after appropriate notice and an opportunity to be heard, that awarding custody of the child to the biological pa rent will pose a threat of substantial harm to t he child. Se e In re Adoption of F emale Child

, 896 S.W.2d at 548; Hawk v. Hawk , 855 S.W.2d at 579-582. Only after a court has found that a threat of su

bstantial harm to th

e child exists

### -5-

may the court engage in the general “best in terest of the child” evaluation for determining custody. See In re Adoption of Female Child , 896 S.W.2d at 548; Hawk v. Hawk , 855 S.W.2d at 579-582.

B.
The limited record in this case contains some evidence that Mr. Campbell has established a parental relationship with Laura. He has, therefore, at least a colorable claim to Laura’s custody and the right to notice and an opportunity to be heard bef or e the juvenile court fashions a custody arrangement

for her. While Mr. Campbell received notice that the October 28, 19

97 hearing would involve his delinq ue nt child support, we can find no indication that he was put on notice that the j uvenile court also intended to adjudicate Laura’s custody. Mr. Leegan’s petition for custody di d not contain a certif

icate showing tha

t Mr. Campbell h

ad receive d a copy of the petition, and the record contains no show ca

use order or othe

r notice to Mr. Camp

bell that t

he October 28, 1997 hearing would involve custody in addition to child support.

Because he did not receive notice that cus tody issues would be adjudicated at the October 28, 1997 hearing, Mr.

Campbell was not pr

epared to prese

nt evidence su

pport ing his claim for custody of Laura. Even if he had been prepared to present this evidence, there is some indication in the record that the j uvenile court wou ld not have conside

red it because of the agreement between Mr. Leegan and Ms. King to gi ve custody of Laura to Mr. Leegan. Th

is was error. The

juvenile court should have given Mr. Campbell notice that Laura’s custody was at issue. It should also have afforded Mr. Campbell an opportunity to prove that he had established a sufficient pare nt al relationship

with Laura that would entitle him to be the child’ s custo dian and that awa rding him custody of his daug

hter would not expo

se her to a substan

tial risk of harm.
The only remedy for the lack of notice and an opport unity to be heard is to vacate the judgment and remand the case for a proper hearing. If, after hear ing all the proof, the juvenile court determines either that Mr. Campbell has not established a parental relationship with Laura or that awarding him custody would expose Laura to a substantial risk of harm, the trial court may determine that Laura’s interests would be served best by awarding custody to Mr. Leegan.
III.
We vacate the order awarding custody of Laura Ann Campbell to David Leegan and remand the case to the juvenile cour

t for further pro

ceedings consiste

nt with this opinion. W

e tax the costs of this appeal, jointly

and severally, to

Pa tricia King and Da

vid Leegan for w

hich execution, if necessary, may issue.

### -6- ____________________________ WILLIAM C. KOCH, JR., JUDGE
CONCUR:

____________________________________ HENRY F. TODD, PRESIDING JUDGE, MIDDLE SECTION

____________________________________ WILLIAM B. CAIN, JUDGE