IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
FILED
FOR PUBLICATION
May 3, 1999
IN THE MATTER OF: ) Filed: May 3, 1999
BIANCA ARNESHE ASKEW, ) Cecil Crowson, Jr.
) Appellate Court Clerk
)
DOROTHY LEWIS, ) FAYETTE COUNTY
Petitioner/Appellee, )
) Hon. Jon Kerry Blackwood
v. ) Judge
)
JULIE DONOHO, ) Supreme Court
Respondent/Appellant. ) No. 02S01-9901-CV-00006
FOR APPELLANT FOR APPELLEE
Margaret R. Barr-Myers David W. Camp
Memphis, TN Jackson, TN
OPINION
TRIAL COURT AND
COURT OF APPEALS REVERSED;
CASE REMANDED TO TRIAL COURT. DROWOTA, J.
In this child custody case involving Bianca Arneshe Askew, now age eight
years and nine months, we consider the competing claims between the child’s natural
mother, Julie Donoho, and Dorothy Lewis, who presently has physical custody of the
child. The lower courts found that a prior court order had granted custody to Ms.
Lewis and that Ms. Donoho had failed to satisfy her burden of proving that custody
should be restored to her. Because we find that Ms. Donoho’s constitutional right as
a parent has been abridged, due to the absence of a showing of unfitness or of
substantial harm, we reverse the decisions of the lower courts.
FACTS & PROCEDURAL HISTORY
Bianca Arneshe Askew was born on August 2, 1990. Bianca’s mother is
Respondent/Appellant Julie Donoho and Bianca’s father is Avery Askew.
Petitioner/Appellee Dorothy Lewis became involved in the care of Bianca during the
child’s early years. Ms. Lewis is the cousin of Ms. Donoho’s uncle’s former wife and
became acquainted with Ms. Donoho during her pregnancy with Bianca. Although
the details are not clear from the record, Ms. Donoho admitted that she was “going
through some problems” at the time of Bianca’s birth, including employment
difficulties and the rearing of her other two young children.1 As a result, Bianca
began to reside with Ms. Lewis at some point, although the record is unclear.
1
Ms. Donoho has two other children, one of whom is in her legal custody and the other of whom
is in the legal custody of the child’s father. Ms. Donoho, however, testified that she cares for both of
these children a majority of the time.
-2-
This dispute began following an order entered by the Juvenile Court of Shelby
County in 1991 awarding custody of Bianca to Ms. Donoho. In February of 1994, Ms.
Lewis, a resident of Fayette County, filed a petition in the Juvenile Court of Fayette
County seeking custody of Bianca. As grounds, this petition simply alleged that “[t]he
child has been with Ms. Lewis since Oct. 1991.” After a hearing in March of 1994, the
juvenile court awarded custody of Bianca to Ms. Lewis in a perfunctory order. 2
Immediately thereafter, Ms. Donoho filed a petition for custody in the Juvenile
Court of Fayette County alleging that she had not been provided with notice of the
proceeding and, thus, requesting that the March 1994 order be set aside.3
Alternatively, Ms. Donoho asserted that a change of circumstances warranted that
Bianca should be returned to her custody. Following a hearing, the juvenile court
found in August of 1994 that Ms. Donoho did not receive notice of Ms. Lewis’s
petition until the date of the hearing when she received a telephone call from the
juvenile court clerk’s office. The juvenile court proceeded to award “temporary
custody” of Bianca to Ms. Lewis, but noted:
the Court declines to grant the natural parents custody of the minor
child until such time as they show the Court that they are able to care
for the minor child; that the Court finds that the interest of the natural
parents in regaining custody of their child is superior to the right of [Ms.
Lewis] and that the Court is only delaying restoring custody to the
natural parents. . . . It is, therefore, ordered, adjudged and decreed that
. . . the Court declines to grant the natural parents custody of the minor
child until such time as they show the Court that they are able to care
2
This was the begin ning of a p rocedu ral debac le. The petition did not allege any grounds of
unfitness or depe nde ncy an d neg lect. T he ju venile cour t’s ord er did not m ake any fin ding in this regard
and, in fac t, the f ollow ing lan gua ge is e xplic itly crossed -out in the orde r: “It is c ontra ry to the Child ’s
welfare to rema in in the care , custod y, or control of her pare nt guard ian.”
3
Bian ca’s father, Avery Askew, also filed a petition to set aside the order. However, he is not
a party to this a ppeal.
-3-
for the minor child; and that the Court is hereby delaying restoration of
custody to the natural parents.
The juvenile court proceeded to set forth a visitation and child support schedule. The
order did not specify the conditions that the natural parents would need to satisfy in
order to establish their ability to care for Bianca. Neither party appealed this order.
In March of 1996, Ms. Donoho filed a petition to restore custody, but the
Juvenile Court of Fayette County entered an order holding that it would not entertain
Ms. Donoho’s action due to her failure to pay child support as required by the August
1994 order. In October of 1996, the child support issue apparently resolved, Ms.
Donoho filed a renewed petition in the juvenile court to restore custody as well as a
contempt motion against Ms. Lewis for her alleged refusal to allow Ms. Donoho to
visit with Bianca. After the juvenile court entered an order denying her petition, Ms.
Donoho appealed to the Circuit Court of Fayette County.
The trial court held a hearing in this case in March of 1997. Ms. Donoho
offered her own testimony as well as the testimony of two of her cousins and her
pastor. This testimony basically stated that Ms. Donoho has turned her life around:
she is gainfully employed and has developed a stable home in which she has helped
to rear her other two children. Ms. Donoho testified that she does not drink or smoke
and that members of her extended family, who have helped to rear her children, live
nearby. When questioned by Ms. Lewis’s counsel concerning why she has neglected
to adhere to the court-ordered visitation schedule with Bianca, Ms. Donoho
responded that she was traumatized by Ms. Lewis’s alleged harassment during the
course of such visitation. When questioned regarding her failure to adhere to regular
-4-
court-ordered child support payments, Ms. Donoho maintained that she had paid all
arrearages.4
Following the proof presented by Ms. Donoho, Ms. Lewis moved for dismissal.
The trial court granted this motion, finding that Ms. Donoho had “fail[ed] to carry her
burden of proof of showing ‘changed circumstances.’” Ms. Donoho appealed to the
Court of Appeals, asserting that the trial court did not apply the proper test. Ms.
Donoho contends that due to her status as Bianca’s parent and Ms. Lewis’s status
as a non-parent and due to Ms. Donoho’s recognized fundamental constitutional
parental right of privacy, the burden should have been on Ms. Lewis to demonstrate
a threat of substantial harm to Bianca if she is returned to the custody of Ms. Donoho.
The Court of Appeals on September 23, 1998, found that a two-prong test
must be utilized in a modification of custody dispute in which a natural parent seeks
custody of a child in the custody of a non-parent. First, the non-custodial parent must
demonstrate a change of his or her circumstances. Then, the non-custodial parent
bears the burden of proving that a change of custody would not result in substantial
harm to the child. Applying this test to the facts, the majority of the Court of Appeals
found that Ms. Donoho had failed to satisfy the first prong by demonstrating that a
change of circumstances existed. Thus, the majority affirmed the trial court’s finding
with regard to this prong and reasoned that it was unnecessary to consider the
second prong. In a separate concurrence, Judge Lillard opined that Ms. Donoho had
proven changed circumstances, but found that Ms. Donoho had failed to demonstrate
4
Ms. Lewis’s counsel suggested that all arrearages had not been paid and that Ms. Donoho
would only pay the arrearages immediately prior to related legal proceedings.
-5-
that a change of custody would not result in substantial harm to Bianca. Ms. Donoho
filed an application for permission to appeal on November 23, 1998. This Court
granted the application on January 19, 1999, and expedited the briefing schedule and
set this cause for oral argument on April 13, 1999.
DISCUSSION
The controversy at issue presents the Court with another opportunity to
consider the delicate interplay involving the constitutional right of a parent regarding
custody, the custodial right of a non-parent, and the welfare of a young child.
Following this Court’s recognition in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992),
that the Tennessee Constitution guarantees the right to privacy, a progeny of recent
cases has held that this privacy interest includes the right for parents to care for their
children. In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), we found that:
In light of this right to privacy, we believe that when no substantial harm
threaten’s a child’s welfare, the state lacks a sufficiently compelling
justification for the infringement on the fundamental right of parents to
raise their children as they see fit.
Id. at 577; see also Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995); Nale v.
Robertson, 871 S.W.2d 674 (Tenn. 1994).
In a recent case, Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d
546 (Tenn. 1995) (“Bond”), we discussed this principle in the context of a dispute
between a parent and a non-parent. In Bond, the natural mother gave birth to the
child in 1987. Soon thereafter, the mother and father divorced and the mother was
-6-
awarded custody of the child. Due to the child’s medical condition, the mother asked
a couple to temporarily assist her in caring for the child, who was eight and one-half
months old. One month later, the couple filed a petition for custody of the child. The
mother joined in the petition, mistakenly believing that the petition was simply
designed to allow the couple to authorize medical treatment but not to alter legal
custody. Realizing her mistake after the trial court entered an order awarding custody
to the couple, the mother filed a petition seeking to regain custody of the child. From
1988 until the case was resolved by this Court in 1995, the child was in the physical
custody of the couple for virtually the entire time period.
After conducting a hearing on the petition, the trial court found that the mother
“has not sufficiently prepared herself to parent this child.” Nevertheless, the court
awarded custody to the mother provided that she receive parental training and
counseling. Id. at 547. The Court of Appeals reversed, finding that the child’s best
interest was best served by remaining in the custody of the couple. Applying cases
such as Hawk, supra, and Nale, supra, we reversed the decision of the Court of
Appeals, stating as follows:
[I]n a contest between a parent and a non-parent, a parent cannot be
deprived of the custody of a child unless there has been a finding, after
notice required by due process, of substantial harm to the child. Only
then may a court engage in a general “best interest of the child”
evaluation in making a determination of custody.
Bond, 896 S.W.2d at 548. Therefore, Bond stands for the proposition that a natural
parent may only be deprived of custody of a child upon a showing of substantial harm
to the child.
-7-
In the present case, the Court of Appeals found that the August 1994 order of
the juvenile court contained an “[i]mplicit . . . finding that Donoho was unable to care
for Bianca at that time and of substantial harm to Bianca that would have resulted in
awarding custody to Donoho.” Noting that this order was not appealed, the Court of
Appeals stated that the res judicata effect of this order made it “conclusive as
between Donoho and Lewis absent a showing by Donoho of a material change in
circumstances.”
We cannot agree. The August 1994 order contains neither an explicit nor
implicit finding of substantial harm. Nothing in the record suggests that Ms. Donoho
is an unfit parent or that Bianca is a dependent and neglected child. See Tenn. Code
Ann. § 37-1-129 (1996). In fact, an explicit and implicit reading of the order conveys
every indication that the juvenile court intended to return Bianca to the custody of her
natural parents in the near future. When granting “temporary custody” to Ms. Lewis,
the juvenile court stated that “the interest of the natural parents in regaining custody
of their child is superior to the right of [Ms. Lewis] and that the Court is only delaying
restoring custody to the natural parents.” Nothing in the record alludes to Bianca
potentially being harmed by returning to the custody of her natural parents. We
respectfully disagree that the juvenile court’s requirement that custody is delayed until
the natural parents demonstrate “that they are able to care for the minor child”
indicates that the juvenile court found that a threat of substantial harm existed. The
magnitude of a parent’s constitutional right to rear and have custody of his or her
children would necessitate a clear finding of substantial harm.
-8-
In addition, we are also troubled by the Court of Appeals’ analysis of the res
judicata effect of this August 1994 order. The order conveys no suggestion of finality
but, instead, characterizes the custody award as “temporary,” stating that “the Court
is only delaying restoring custody to the natural parents,” and emphasizing that the
rights of the natural parents are superior to the interest of Ms. Lewis. We would
characterize this order as a continuance of the case until the court heard more proof
from Ms. Donoho. Under these circumstances, Ms. Donoho had virtually no incentive
to appeal what was not a final order, since the juvenile court explicitly indicated that
Bianca would soon be returned to the custody of her natural parents.
It appears that no valid initial determination was ever made that Ms. Donoho’s
custody of Bianca would result in “substantial harm” to the child. Absent such a
finding, we conclude that the deprivation of the custody of her child has resulted in
an abridgment of Ms. Donoho’s fundamental right to privacy. Bond, 896 S.W.2d at
548; Nale, 871 S.W.2d at 680; Hawk, 855 S.W.2d at 577. In light of the unique
circumstances of this case, we believe that the Court of Appeals has misapplied
modification of custody principles when no valid initial order depriving the natural
mother of custody existed. In the absence of such a valid initial order, we believe that
it would be unconstitutional for the natural mother to bear the burden of proving the
absence of substantial harm. Because the record does not show that a finding of
substantial harm was made in this case, constitutional principles compel us to
reverse the decisions of the lower courts.
CONCLUSION
-9-
In this procedurally defective case, Ms. Lewis, a non-parent, never pled any
grounds sufficient to warrant custody of the child being taken away from her natural
parents. Having neglected to allege that Ms. Donoho was an unfit parent, that Bianca
was a dependent and neglected child, or that a danger of substantial harm to Bianca
existed, Ms. Lewis also failed to prove these necessary elements before obtaining
custody from the child’s natural mother. Moreover, nothing in the record would
support such a finding. The order of the Juvenile Court of Fayette County entered
August 1994, the subject of much discussion in the Court of Appeals’ opinion, was
in fact erroneous if it is to be interpreted to award permanent custody of Bianca to
Ms. Lewis. However, we do not so interpret that order, nor do we construe it, as the
Court of Appeals did, to show a finding of substantial harm. In the absence of such
a showing, Ms. Donoho should never have been deprived of the custody of her child,
and the lower courts erred by requiring her to carry the burden of proof.
The decisions of the lower courts are reversed. Physical custody of Bianca
Askew shall be returned to Ms. Donoho in a manner least disruptive to the welfare
of the child by June 1, 1999. In the interest of the child, we implore the parties to
cooperate. This cause is remanded to the trial court for supervision and enforcement
of this decision.
Costs on appeal are taxed to Ms. Lewis.
_____________________________________
Frank F. Drowota, III,
Justice
-10-
CONCUR:
Anderson, C.J.
Birch, Holder, Barker, J.J.
-11-