### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 25, 2001 S ession TIMOTHY JOE ELLINGTON v. LINDA MADDOX, ET AL 

### . A Direct Appeal from the Juvenile Court for Haywood County No. 5644 The Honorable J. Roland Reid, Judge

No. W2000-00948-COA-R3-CV - Filed March 12, 2001

Natural father

filed a petition to o

btain custody of his son against the maternal grandmother and her husband, the child’s custodians by previous court order. After an evidentiary hearing, the juvenile court denied father’s petition and retained custody in the matern al gra ndmother and husband. Father appeals, and we reverse.

Tenn.R.App.P. 3; A

ppeal as of Right; Judgm ent of the Juvenile Co

urt Vacated and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the cour

t, in which A LAN E. H IGHERS , J. and H OLLY K IRBY L ILLARD , J., joined. C. Timothy Crocker, Milan, For Appellant, Timothy Joe Ellington Larry S. Banks, Brownsville, For Appellees, Linda Maddox,Rickey Maddox, and Kimberly Dawn Rosson
OPINION
Petitioner, Timothy Joe Ellington (Father), appeals the order of the juvenile court deny ing his petition to change c ust ody of his minor son, Conner Ellington, against respondents, Linda Maddox and Rickey M

addox (Maddoxes), th

e child ’s natura l grandmother and step-grandfather,
res pect ive ly. We vacate the decision of the Haywood County Juvenile Court denyin

g Fat her c ust ody, because the evidence does not support a finding that the award of custody to the

natural father

would subject the child to

a substantial thre

at of harm.

The child was born out of wedlock on September 24, 1993. The mothe r, Kimberl y Dawn Haywood, now Rosson, filed a petit io n to establish paternity on September 22, 1994, naming TimothyJoe Ellington as father of the child. On November 2, 1994, an order was entered declaring Mr. Ellington the natural father and ordering him to pay child support.1 At trial the mother test ified to having two other chil dren.
-2- For most of the child’s life, he has resided in the home of his maternal grand-mother, Linda Maddox andstep grand-father, Rickey Maddox. On September 22, 1994, while the paternity action
was pending and prior to the court order establishing patern ity, the Maddoxes filed a petition for temporary

custody alle

ging that the mot

her, who lived with

them at the time, wa

s unable to proper

ly
carefor the child and regularly left him unprovided for and unattended. No ac tion was taken on this pet ition. On April 18, 1995, after the order of paternity was entered, they filed another petition requesting temporary custody and that they receive Father’s child support payments ordered to be paid to the mother. The m

other joined in

th is petition. On June 15, 1995, Father filed a petition seeking custody of the child. At the hearing on these petitions, the Maddoxes withdrew their petition by oral motion. By order entered in January 16, 1996, the mother retained custody, and Father was allo wed l iberal visitation. On September 11, 1997, the Maddoxes filed a petition for emergency temporary

custody of the child, alleging that the child was dependent and neglected, and in imminent danger if he continues to r

eside with

the mother. Temporary custody wa s awarded to theMaddoxes
on September 11, 1997. On October 30, 1997, an order was entered gra nti ng cu sto dy t o the Maddoxes because of the mother’s violation of a previous order.

On April 13, 1998, the mother filed a petition for change of a custody a

gainst the Maddoxes alleging a substantial cha

nge in circumstances. On May 8, 1998,Father filed an answer and cros sclaim admitting that the

re had been a substantial change in circumstances a

nd that a parent should be awarded custody. The cross-claim averred that no a llegations or

findings have been made that he was an unfit parent, or that he had contributed to the conditions giving rise to the child’s removal from the custody of the mother. Father further averred that he

has paid require

d child support and has developed a subst

antial relationsh

ip with his son. Fath

er sought custod

y of the chil

d in the event that it was not restored to the mother. Apparently, no action was taken on these petitions.

On August 20, 1999, the mother filed another petition f

or the change o

f custody, a

gain alleging that there had been a substantial change in circumstances. The mother averred that she had married Mr. Rosson, and lived with him and her three other children 1 in a stable and lovi ng home environment. She alleges that the Maddoxes had interfered with her visitation rights. On September 7, 1999, Father

filed a petition seeking custody of the child alleging that he ha d married in July of 1999, and that he and his wife have a house, are employed, and a re able to maintain a safe and loving homefor the child. The Maddoxes answered Fath

er’s petition and

filed a cross-pe

tition against him. They alleged that expo

sing the child

to Father’s attitude and living conditions, including the use of alcohol and foul langua

ge, were not in t

he best inter est of the child, a

nd that the conditio

ns in Father’s home would probably subject the child to further abuse or neglect. Most of theallegations containedin the Maddoxes cross-claim were later voluntarily dismissed without prejudice . O n October 21, 1999, a consent

order was entered, limiting Father’s visitation to supervised visitation by his mother, Linda Hallibrook. On October 26, 1999, the Maddoxes filed an ans wer to the mother’s petitions for

a change of custody and

sought to terminate her parental rights averring that the child had reported sexual abuse by the mother’s husband, the child’s step-father.-3-

An evidentiary hearing was held on December 10 , 1999. The mother appeared and voluntarily

dismissed her petition. Father’s proof included his testimo

ny as to his

relationship with his son, his prompt pay

ment of child suppor

t, his stable home

environment, and

his desire and abi

lity to have custody

of his son. Father

denied ever hav

ing discussed the

sexual abuse alleg

ations with the child. Susan Hamm, employ ee of the Depar

tment of Children’ s Services,testified that she had visi ted in Father’s home and found that it would be a safe place for the child to live. Linda Hallibrook, Father’s mother, testified to the ongoing relationship between the child and Father, and Father’s care for the child throughout the child’s life. Father’s wife, Christie Ellington , testified to the appropriatenes s of their home for the child and the c

hild’s relationshi

p with her eight y

ear old daughter, who also lived in the Elling tons’ home. Ms. Ellin

gton further te

stified to Father

’s close relationship

with the child, andtheir desire and ability to have custody. Ms. Ellington denied any conversationwith the child regardin g the sexual abuse

allegations, and stated that profanity was not used in the child’s presence as a rule. She admitted to having marital disagreements with Father, and stated that the child coul

d have overhear

d them. Finall

y, Ms. Ellington stated that she and Father occasionally drink alcoholic beverages in the prese nce of the child.

The Maddoxes then presented their proof including the testimony of the mother, Kimberly Rosson, who stated that she is curre ntly mar ried, but separated, and has two children other than Conner. Ms. Rosson stated that she had separated from Mr. Rosson due to allegations of his sexual abuse of Conner. The mother agreed that she h ad sought to regain the custody of the child in the past, but no longer wa

nts to remove him fr

om the custody

of her parents,

because she believes that it would be selfish of

her as the child is happy and well cared for. Ms. Rosson also testified to the child’s use of profanity in the past upon returning from visitation with his father, and stated that it would be in the child’s best interests to stay with her parents. Next, Joyce Brummit, a close friend of Linda Maddox, testified that she transported the child to school every morning and that

he was
a happy, well-adjusted boy. Ms. Brummit testified that the Maddoxes provide a good home for the child. She stated that on occasion she has witnessed the child’s upset at hav ing to go with his father. Ms. Brummit st ated that a c hange in custody wo uld devastate the

child as the Maddoxe

s’ home is the only home he has known.

Next to testify was Renae Pullen, an employee with the Department of

Children’s Servic

es, wh o interviewed t he child one time. Ms. Pullen testified to referring the child to counseling, and stated that the investigation into the allegations of child abuse is ongoing. Ms. Pullen recommended that the child rem ain w ith the Maddoxes, however admitted that her knowledge of the father was “nonexistent.” Rickey

Maddox, the child’s step-grandfather, then testified to the clean conditions in the Maddoxes’ home and the child’s resistence to visitati on with his father. Kathy Barnes, a licensedclinical social worker, testified that during her previous em ploy ment with Professional Counseling Service s, the ch ild was referred to her by the Department of Human Servic es for counseling following the alleged sexual abuse. Ms. Barnes testified to having eleven visits with the child, and stated that he was very concerned about the well being of his grandmo

ther. Over the objection of Father’s attorney, Ms. Barnes testified to what the child told her concerningstatements that Father had made to the child r egarding the alleged sexual abuse. She believed Father’s statements

hindered the child’s progress in counseling, and that it was in the child’s be st interests-4-

to stay in the Maddoxes’ home because a change in custody would create a substantial harm to the child. Linda Maddox then testified regarding the continued care

that she has give

n to the child, the child’s at tendance at a Christian school in Jackson, and the stability of her home. Ms. Maddox further testifie d that Fa ther’s visitations have had a negative effect on the child, and that she was concerned for the child in the event of a change of custody to Father.

After the submission of post-trial briefs by the parties, the trial court entered an order
on January 5, 2000, denying Fathe r’s petition for a

change of custody,

which states in per

tinent part:

The Court is convinced by the evidence presented that
a change in custo

dy at t his ti me would subject the chi ld to a risk of substan tial harm. With

th e emotional state of

the child as it is hav

ing todeal with the sex abuse

issues and a danger of the investigation being compromised a change o f custody would be inappropriate. Father appeals, raising two issues as stated in his brief:

I. Whether the Trial Court erred by ruling that the Appellees satisfied their burden to make a clear show ing t hat an immediate award of custody of the involved child

to the Appellant would create a risk of serious or substantial harm to the child.?

II. Whether the Trial

Court ma

de evide ntial rulings that would amount to reversible error.

We will consider I

ssue II f irst. These issues rela

te to the testimony

of Kathy L

ynn Barne

s, a witness for the Ma

ddoxes. Ms. Barnes testified that she is a licensed clinical social worker. Conner
was referred to her by the Department of Children’s Services concerning the report of sexual a

buse by his stepfather. During the course of her testimony relating her inter views with Conner, she stated that Conner told her that Father ridiculed him by ca lling him a liar and a frea k. Her notes of thi

s interview, whi ch co nta ine d th is s tat eme nt b y Con ner, were int rod uced as an exh ibi t to her t est imo ny. Also int rod uced as an exh ibi t to her t est imo ny was a le tter that she had w ritten to the Maddo

xes’ attorney at his request whic

h contained the sam

e information con

cerning Conner

’s statement. Father’s lawyer objected to the introduction of the evidenc e on three occasions on the ground of hearsay, and the trial court overruled the objections.

The Maddoxes first

asser t that the child’s st

atement to Ms. Bar

nes is not hearsay

, because they arg ue it was not offer

ed to prove the truth of

the matter there

in asserted. The

y contend th

at it
was not offered

to prove th

at the chi ld was a lia

r or frea k. We can certainly agree on that contention; but, they miss the point. The evidence was offered to prove that

Father called

his son a liar and a-5-

freak. The crucial question was did Father say these things, and, obviously , the evidenceas offered
was hear say.
Alt erna tiv ely, t he Maddoxes assert that the trial court properly admitted the evidence pursuant to Tenn.R

.Evid. 803(6) whic

h provides:
(6) Records of Regular

ly C onducted Activity

. - A memorandum, report, record, or data compilat ion i n any form of

acts, events, conditions, opinions, ordiagnoses made at or near the time by or from information transmitted by a person with knowledge and a

business duty to record or transmit if kept in the course o f a re gularly conducted

business activity

and if it was t he regular practice of that bus iness activity to make the memorandum, report, record, or dat a compilation, all as shown by the testimony of

the custodian or other qualifiedwitness, unless the source of information or the method or circumstances of preparation indicate lack of tr ustworthiness. The term“business” as used on this paragraph includes every kind of business, institution, association, profession, occupation, andcalling, whether or not co

nducted for prof

it. The Advisory

Commission Comment stat es: [T]he proposal specifically requires that the d ec larant have “a business duty to reco

rd or transmit”

information. Without tha t du ty,
a business record would lack the tru stw orthiness necessary to carve out a hearsay exception.

The record in

the present case fails to indicate a business duty on the part of this counselor to record or transmit the record. The testimony indicates that these are notes she makes concerning the interview for her ow n personal reco rds. In any

event, if the rec

ord is properly

admitted into evidence, the complained of statement th

erein con stitutes hearsay on hearsay or a second-level hearsay statement.

In Butler v. Ballard

, 696 S.W.2d 533 (T enn. Ct. App. 1985) , this Court had bef ore it a personal injury case wherein the plaintiff made objection to hearsay to certain portions of his hospital record which the

defendant admitt

ed into evidence . The opinion state s: Plaintiff, in his testimony, denied the use of either drugs or alcohol on the day of

the accident.At the time plaintiff was admitted to Eastwood Hospital, an employee of the hospital included as part of plaintiff’s admittin g hi story a statement taken from a person or persons unknown, that on that day plaintiff had ingested a half of a pintof sc otch and had smoked marijuana. There was a second-6- reference to this statement from an unknown source in plaintiff’s hospital records in a nurs e’s admission/disc

harge assessme

nt. Notwithstanding plaint iff’s objections, the trial court admitted the hospital records of plaintiff, includingthe s tatement concerning the ingestion of alcohol and dr ugs, as substantive evidence without qualification or limitation.
Id. at 535. The trial court admitted the hos pit al r ecor d wi tho ut q ual ifyi ng in str uct ion s fo r th e ju ry. This Court, in ruling on the trial court’s action, stated:

While the Business Records As Evidence Act is a broad exception to the hearsay rule, it should not be considered a vehicle by which any and every stateme nt reco rded in a business record may qualify as admissible evidence. A limitation on this hearsay exception was aptly

described by

the Connecticut Sup

reme Court in Kelly v. S he ehan , 158 Conn. 281, 259 A.2d 605 (1969): “the mere fact that a record is generally admissible under § 52-180 [Connecticut’s Business Records As Evidence Act] ‘does no t mean that anything a

nd everyth

ing contained in

the record is nec

essarily admissible

in any given case.’” Id. 259 A .2d a t 607. Our Supreme Courtin Graham likewise recog nize d that other rules of evidence
come into play when considering the business recordsexception. The Court stated:

Thus it i s th at t he ad mis sib ili ty of rec ords made during the course of bus iness is the general r

ule andtheir in

troduc tion is not subject to a blanket objection on the basis of hearsay. Thi s d oes not mean, ho we ver, that other recognized rules of evidence may not prec

lu de their introduction

in whole, or in part.

547 S.W.2d at 538.
Id. at 536. In holding that the statement in the hospital record was not admissible, the Court said:

For the second-levelhearsay statements of the unidentified informant to be admissible, they would either have to fall within a hearsay exception, in which

case they could be considered to be admitted as substantive evidence, or they would have to be relevant to the treatment and diagnosis

of the plaintiff by the testifying phy sician and-7- thus so admitted, but with limiting instructions from the court to the effect that they could not be considered for the truth of the matter therein asserted.
Id. at 539.

The trial judge ruled on the admissibility of the evidence primari ly on the b asis of the BusinessRecords Act. Healso commented that the evidence was admissible under the state of mind exclusion of the hearsay rule. Tenn.R.Evid. 803(3). It is conce ivable that the child’s statement could be a reflection upo

n his state of mind re

garding Fath

er’s conduct.

This is a very

close question, but in view of the trial court ’s wide discretion and the admissibility of evidence, we find that the trial court did not err

in the admission of the evidence on that basis. If this were a jury trial, the trial court’s admission of the ev idence would nec

essitate a limiting instruction to the jury to the effect that the matter could

not be considere

d for the truth

of the matter therein asserted, and we assume the trial judge consider

ed the evidence

in that light.

Father’s first issue raises the question of whether the trial court erred in finding that the Maddoxes met their

burden to make a clear showing that an immediate awa

rd of custody

of the child to Father would create a risk of serious or substantial harm to the child.

Since this case was tried b y the trial court si

tting without a jury,

we review the ca

se de novo upon the record with

a presumption of correctness of the findings of fact by the tria l court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

Tennesseelaw protects a natural parent’s constitutional right to the care and c

ustody of the

ir children recognizing that “the right of a parent is superior in a custody dispute between a parent and
a third party.” Doles v. Doles, 848 S.W.2d 656, 660 (T enn.Ct. App. 1992)

In a contest

between
a parent and a non-parent, the parent can not be deprived of the custody of h

is child unless there

is
a finding t hat substantial harm threatens the welfare of the child if the parent is awarded cus tody

. In re Askew , 993 S.W.2d 1, 4 (Tenn. 1999) ; and In re Adoption of Female Child (Bond v. McKenzie), 896, S.W.2d 546, 548 (T enn. 1995). A find

ing of a substanti

al threat of harm to the child’s welf

are may include a finding that the parents are unf it or that the child is dependent an d neglected. Askew , 993 S.W.2d a t 4. A fter such a finding is made, the court may then view the question of custody by determining the best intere st of the child. Askew , 993 S.W.2d at 4.

We believe that the holding of our Supreme Court in In Re Askew is controlling in this case. In In re Askew , the Court held tha t without a valid

dete rmination that a parent was unfit, or that parent’s custody

would result in “substantial harm” to the child, deprivation of the parent’s custody of the child would be a violation of the parent’s “constitutional right to rear and have custody of

his
or her child.” Id. at 4. In finding that there had been no valid initial determination of “substantial harm” to the child

, the Supreme Court

reversed the low

er courts in awarding custody of

the child to a family friend who had physical c ustody of the child at the time of trial.-8-

In the instant case, there was no prior determination that Father was an unfit parent or that his custody of the

child would result in substantial harm to the child’s welfare. The bu

rden in this
case is on the Maddoxes to prove that Father’s custody would create a risk of serious har m to the child. The trial court recognized the controlling law, although the Maddoxes argued that Father was required to show a m aterial cha nge in circumstances in order to reach the question of substantial harm to the child. The record reflects that the trial court applied the correct standardincluding that “only after finding

a parent unfit or where a risk of substantial harm threatens that child’s welfare may a court consider

the best interest o

f the child.” The

refore, the que

stion before the Co

urt is whether the evidence preponderates against the trial court ’s finding t hat “a change in custody at this time would subject the child a risk of substantial harm.” The order reflects that the trial court based this determination on: “With the emotional state of the child as it

is having to deal w

ith the sex abuse issues and a danger of the investigation b eing compromised, a change of custody would be inappropriate.” We must respectful ly disagre e with the trial court. We cannot find that this would result in substantial harm

to the chil d. Moreover, we note that, although the juvenile court considered

the evidence concerning Father’s alleged statement abou t th e child being a liar and a freak, this, in itself, does not appear to this Court to be sufficient to show a substantial harm to the child’s welfare. Simply

stated, there is n

ot any evide

nce in the recor

d that indicates tha

t Father is unfit or that a grant o

f custody to F

ather would

result in substantial harm to the child. The record indicates an opinion by one of the social workers that cus tody awarded to Fath

er would result in substantial harm to the child, b ut this is a

co nclusory sta

tement without any

underlying

facts to support it or to bolster it in any manner.

Under these circumstances, we find that the evidence preponderates against the trial cour t’s finding that an award of custody to Father would result in substantial harm tothe chi ld. Acco rdi ngly, the order of the trial court is vacated, and custody of the child is awar ded to Father.

In a previous case, In Re Kayla D. Crawford , No. 02A01-9405-CH-00124, 1995 WL 72615 (Tenn. Ct. App. W.S. Feb. 22, 1995), this Court dealt with a cus tod y contest between the natural father of the child and his brother and sister-in-law. In vacating the order of the trial court granting custody to the father, this Court said:

Moreover, it does appear that the chancellor gave much weight to the fact that the child had been with the aunt and uncle for a long period of time, while at the sa

me time evidencing confidence in respondent’s responsibility

by award ing weekend visitation. We have no doubt that the aunt and uncle are kind, caring and loving a nd have been good custodians for Kayla. The fact remain s, however, that they are notthe natural parents. Undoubtedly, the policy of the law favors a natural parent and every effort should be made to put stability in the child’s life with its

natural parents. The parenthood bond should be
nur turedin every wa

y possible, be

cause it is by

far one of th

e strongest bonds known to h umankind. By the same token, Ka

yla deserves the love and aff ection derived from lovi ng grandpar

ents,-9- aunts and uncles. Ever

y effort sh

ould be m ade by Kayla’s entire family that she not be deprived of all of the love and care availa

ble to her. The extended fam ily is by far a blessing which cannot be duplicated.
Id. At *6. The statements of the Court in Crawford apply equally to the case b efore us, and w e strongly recommend to Father that he work with the exte

nded family

of this child

to give this child every advantage available.

The order of the juvenile court is vacated , cust ody is awar ded to Father, a

nd the case is remanded to the juvenile court for such further proceedings as may b e nec ess ary. Costs of the appeal
are asse ssed aga inst the ap

pellees, Linda Ma

ddox and Ric

key Ma ddox.

__________________________________________ W. FRANK CRAWFORD, PRESIDI NG JUDGE, W.S

.