IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
March 8, 1999
TERI MICHELLE PARKER ) FOR PUBLICATION
) Cecil Crowson, Jr.
Appellant ) FILED: Appellate Court Clerk
)
v. ) HOUSTON CHANCERY
)
RICHARD KEN PARKER ) HON. ALLEN W. WALLACE,
) CHANCELLOR
Appellee )
) NO. 01-S-01-9704-CH-00085
CONCURRENCE
Although I concur in the majority’s decision to affirm
the grant of custody to the father, I write separately to condemn
the appearance of impropriety this case exudes. As the United
States Supreme Court stated in Offutt v. U.S., 348 U.S. 11, 14, 75
S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954), “justice must satisfy the
appearance of justice.” The trial court’s actions in this case do
not satisfy that appearance.
Under the authority of Palmore v. Sidoti, 466 U.S. 429,
104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984), the trial court clearly
erred by allowing the introduction of the nurse practitioner’s
testimony regarding the alleged harmful effects on the child from
an interracial relationship. The admission of this testimony
seemingly violated Palmore’s prohibition against heeding private
biases. See id. at 433, 104 S. Ct. at 1882, 80 L. Ed. 2d at 426.
The trial court then compounded its error during the testimony of
another witness by remarking:
She [Mrs. Parker’s mother] comes
from the same school I do. She
can’t help the way she feels.
Society today feels differently than
the way we were brought up.
This remark was made during a series of questions about the
mother’s relationship with her Afro-American employer. It thus
could easily have been construed as reflecting the trial court’s
own prejudices regarding interracial relationships.
The trial court’s visitation order also furthered the
appearance of impropriety. In that order, the trial court
prohibited the minor child from having any contact with the
mother’s employer, who was her alleged Afro-American paramour.
This prohibition was neither requested by either party nor
supported by the record in any way; rather, it was “gratuitously”
imposed by the trial court.
I accept, unequivocally, the trial court’s statement in
the record that race did not play a part in its decision to award
custody to the father. This acceptance, however, neither erases
the errors nor removes the appearance of impropriety. Thus, the
judicial process is the victim. Under ordinary circumstances, such
an appearance would mandate that this Court remand the case for a
new determination of custody. See Tenn. R. App. P. 36(b) (final
judgment may be set aside if “error involving a substantial
right . . . would result in prejudice to the judicial process”).
This case, however, is typical of those in which the
appropriate “legal decision” would effectively have a synergistic
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effect on the errors already made. At least for now, the trial
court’s custody decision has become, to a degree, unassailable
simply because of the passage of time. Recognizing how the mere
passage of time can frustrate our ability to do justice, this Court
has instituted mechanisms designed to expedite review of custody
cases. Unfortunately, this case was well into the process when
those mechanisms were instituted and thereby was unaffected by
them.
I agree, therefore, with the majority’s decision to
affirm the judgment of custody to the father without a remand for
a fresh determination of the parties’ comparative fitness, because
there is some evidence in the record supporting the trial court’s
conclusion that the mother’s relationship with her employer caused
her to neglect the child. Even though the appearance of
impropriety in the trial court’s actions cannot be erased, the
judgment is probably, nevertheless, the most reasonable disposition
now apparent and available.
______________________________
ADOLPHO A. BIRCH, JR., Justice
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