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explaining that parenting plans should be interpreted as binding agreements between two parents
Summary of this case from Pierce v. PierceOpinion
No. W2009-00096-COA-R3-CV.
October 27, 2009 Session.
Filed March 10, 2010.
Direct Appeal from the Chancery Court for Obion County; No. 24,758; W. Michael Maloan, Chancellor.
Judgment of the Chancery Court Vacated; and Remanded.
James T. Powell, Union City, Tennessee, for the appellant, David M. Sharp.
Jeffrey W. Parham, Martin, Tennessee, for the appellees, Debbie F. Stevenson and Michael W. Stevenson.
David R. Farmer, J., delivered the opinion of the Court. J. Steven Stafford, J., filed a concurring opinion. Holly M. Kirby, J., filed a dissenting opinion.
OPINION
The trial court denied Father's petition to modify custody of his three minor children, who are in the custody of their maternal grandparents. We vacate the trial court's order and remand for further proceedings.
This is a child custody case in which a father seeks to regain custody of his minor children from their maternal grandmother and step-grandfather. We begin this Opinion by noting that the record transmitted to this Court provides little information about the background of this case. It is undisputed, however, that David M. Sharp (Mr. Sharp) and Barbie H. Sharp (Ms. Sharp) are the parents of three minor children. The two youngest children are the parties' biological children; the eldest child, Alexis, is Ms. Sharp's biological child and was adopted by Mr. Sharp. Apparently, in 2003, Mr. Sharp and the children's maternal grandmother, Debbie F. Stevenson, and her husband, Michael W. Stevenson ("the Stevensons"), were awarded temporary custody of the children. Mr. Sharp and Ms. Sharp subsequently were divorced in 2004, and Mr. Sharp was named primary residential parent of the minor children in their marital dissolution agreement. The status of the Stevensons following the divorce and naming of Mr. Sharp as primary residential parent cannot be determined from the record. Apparently, the children were removed from Mr. Sharp's custody by a temporary restraining order entered in May 2005, and he subsequently filed a petition to modify custody and to dismiss the temporary custody/restraining order in July 2005. It does not appear whether this motion was adjudicated or dismissed.
The technical record transmitted to this Court begins with a May 2007 "consent order" that was approved by legal counsel for Mr. Sharp and the Stevensons and entered by the Chancery Court for Obion County in May 2007. The order stated only that "parties and/or their respective counsel . . . agree[d] and the [c]ourt [found] that the Permanent Parenting Plan entered simultaneously herewith shall be entered into the [c]ourt record." A document styled "Permanent Parenting Plan Order" was entered by the court. Although the style of the case recited on the consent order was "David M. Sharp, Plaintiff/Respondent v. Barbie H. Sharp, Defendant/Respondent, Debbie F. Stevenson and Michael W. Stevenson, Intervenor/Third Party Movants", it does not appear from the record that Ms. Sharp or her counsel signed the order or parenting plan, or that they were served with either.
In December 2007, Mr. Sharp filed a petition to modify custody. In his petition, Mr. Sharp asserted that the parties had entered into a consent order and permanent parenting plan in M ay 2007; that there had been a substantial material change of circum stance "which would require modification of the Parenting Plan"; and that it was in the best interests of the children to "return to the primary care" of Mr. Sharp. Mr. Sharp served the petition on the Stevensons and appears to have served it on Ms. Sharp. The Stevensons responded and denied Mr. Sharp's allegations. It does not appear that Ms. Sharp was served with the Stevenson's response or with any other pleadings. Following unsuccessful attempts to mediate, Mr. Sharp moved to amend his pleading to include his superior parental rights as grounds for modification. It does not appear that Ms. Sharp was served with this motion. The trial court granted Mr. Sharp's motion in December 2008. The trial court's order granting the motion was approved for entry by attorneys for Mr. Sharp and the Stevensons. It does not appear that it was approved by Ms. Sharp or her counsel, or that she received notice of the court's order.
The trial court heard the matter in December 2008. On January 7, 2009, the trial court entered its order denying Mr. Sharp's petition to modify. In its order, the trial court stated that it found no change in circumstance since entry of its last order. The trial court incorporated "findings of fact and conclusions of law as set forth . . . in its ruling, attached . . . as Exhibit A[.]" The order was approved for entry by legal counsel for Mr. Sharp and the Stevensons, but it does not appear to have been approved by or served on Ms. Sharp or her counsel. Additionally, Exhibit A is not included in the record. Mr. Sharp filed a timely notice of appeal to this Court.
Issues Presented
Mr. Sharp presents the following issues, as slightly reworded, for our review:
(1) Whether the trial court erred in failing to apply the superior parental rights doctrine.
(2) Whether the trial court erred in failing to find a material change of circumstance that warranted a return of custody to Mr. Sharp.
Standard of Review
We review the trial court's findings of fact with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d). Accordingly, we will not reverse the trial court's factual findings unless they are contrary to the preponderance of the evidence. We review the trial court's conclusions on matters of law de novo, however, with no presumption of correctness. Tenn. R . App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).
Discussion
Mr. Sharp asserts that the trial court erred by failing to apply the superior parental rights doctrine in this case. He asserts that he did not waive his superior parental rights to his children, and that the court erroneously applied the change in material circumstance test to this custody modification case. Mr. Sharp additionally asserts, in the alternative, that the trial court erred in finding that a material change in circumstance has not occurred since entry of the prior custody order.
We begin our discussion by again noting that it is difficult to determine the complete procedural posture or background facts of this case from the record before us. In the trial court, however, Mr. Sharp, testified that the custody order placing the children in the Stevenson's custody was temporary; that the "permanent parenting plan order" was a parenting plan that he entered into as a binding agreement in order to secure more visitation with his children, and not an order of permanent custody; and that he did not intend to give up his rights as a parent. He also testified that the Stevensons had been the primary caregivers of the children since 2005, and that the children were doing well in their care. Mr. Sharp's testimony was uncontroverted.
It is well-settled that parents have a fundamental right to the custody and care of their children. Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993); Askew v. Donoho, 993 S.W .2d 1, 4 (Tenn. 1999). Therefore, in an initial custody proceeding between a parent and a non-parent, a natural parent has superior rights and cannot be deprived of the custody of their child absent a showing of substantial harm to the child. Blair v. Badenhope, 77 S.W .3d 137, 143 (Tenn. 2002); Askew v. Donoho, 993 S.W.2d 1, 4 (Tenn. 1999). The burden is on the non-parent to demonstrate substantial harm to the child. Id. Only after the trial court has made a finding of substantial harm to the child may it engage in a best interest of the child analysis. Blair, 77 S.W.3d at 142. In a proceeding to modify custody from a non-parent to a parent, however a parent enjoys superior parental rights only if 1) there has been no order transferring custody from the natural parent or if 2) the order transferring custody from the natural parent was accomplished by fraud or without notice; 3) the order is invalid on its face; 4) the natural parent has ceded only temporary and informal custody. Id. at 143. An order transferring custody from a parent to a non-parent in a contested case is not valid absent a finding of substantial harm to the child. Askew, 993 S.W.2d at 5. Because such an order is invalid, under Blair, a natural parent may assert the superior parental rights doctrine in a subsequent modification proceeding. In Re T.M.S., No. W2004-02867-COA-R3-JV, 2005 WL 1848477, at *9 (Tenn. Ct. App. Aug. 5, 2005), perm. app. denied (Tenn. Dec. 27, 2005).
It is well-settled that adoptive parents enjoy the same constitutionally protected rights as biological parents. Simmons v. Simmons, 900 S.W.2d 682, 685 (Tenn. 1995).
As we have noted previously, the circumstances that would support a finding of a risk of substantial harm to the child have not been fully defined by the courts. However, the term "substantial . . . connotes a real hazard or danger that is not minor, trivial, or insignificant." Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001). It also "indicates that the harm must be more than a theoretical possibility." Id. Although it "need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not." Id. A finding of parental unfitness or of child dependency and neglect, and the circumstances identified by the General Assembly in the termination of parental right statutes, relocation statutes, and grandparent visitation statutes, provide guidance to the courts when determining whether a child would face a risk of substantial harm if not removed from a parent's custody. Id. at n. 6 7.
In Blair v. Badenhope, the supreme court addressed whether a natural parent may assert superior parental rights in a custody modification proceeding where the order transferring custody to the non-parent resulted from a voluntary transfer of custody. The court held, "a parent's voluntary consent to cede custody to a non-parent defeats the ability of that parent to later claim superior parental rights in a subsequent proceeding to modify custody." Blair v. Badenhope, 77 S.W.3d 137, 147 (Tenn. 2002). The court held that where a parent was afforded the opportunity to assert their superior parental rights but voluntarily permitted the transfer of custody to a non-parent, "with knowledge of the consequences of that transfer," then the voluntary transfer "effectively operates as a waiver of these fundamental parental rights." Id. at 147. Thus, where a custody order transferring custody to a non-parent has been entered by consent of the parties, the natural parent may not assert superior parental rights in a modification proceeding even where there has been no finding of substantial harm to the child. Id. at 148.
In Blair, the court reasoned that, absent the four circumstances recited above, to permit the application of the superior parental rights doctrine in custody modification proceedings would "effectively render existing orders of custody to non-parents practically worthless." Id. at 149. The court responded to the dissent's concern that parents may not fully appreciate or understand the effect of waiving their superior parental rights by voluntarily relinquishing custody by emphasizing that the transfer of custody "must be made with knowledge of the consequences of that decisions." Id. at 148 n. 3. The court noted that, absent such knowledge, the superior parental rights doctrine would be applicable in a subsequent proceeding. Id.
Thus, in a proceeding to modify a valid, voluntary order ceding custody from a parent to a non-parent, the parent will be deemed to have waived their superior parental rights presuming the parent was "afforded the opportunity to assert superior parental rights." Id. at 147. In light of that presumption, the parent petitioning to modify the custody order bears the burden of demonstrating that application of the superior parental rights doctrine is justified. See id. at 149 (quoting, with approval, Darlene S. v. Justino L., 141 Misc.2d 303, 533 N.Y.S.2d 179, 182 (N.Y. Fam. Ct. 1988); see also Dep't of Children's Servs. v. Dalton, No. E2007-01216-COA-R3-JV, 2008 WL 2811305, at *6 (Tenn. Ct. App. July 22, 2008)( no perm. app. filed) (holding petitioner had the burden of establishing they were not afforded presumption of superior legal rights at lower court hearing). To hold otherwise would create a situation where
final orders of custody are worthless and . . . the custodian of a child could have no confidence in the court process since, upon demand of the natural parent, the legal custodian would bear the burden of proving that extraordinary circumstances required their continuing to have custody of the infant child. Requiring such a burden of proof to be borne by the respondents in a proceeding to modify a custody order would practically render the initial custody determination a Pyrrhic victory for the non-parent.
Blair v. Badenhope, 77 S.W.3d 137, 149 (Tenn. 2002) (quoting Darlene S. v. Justino L., 141 Misc.2d 303, 533 N.Y.S.2d 179, 182 (N.Y. Fam. Ct. 1988)). As the supreme court opined in Blair v. Badenhope, "[w]e must respect valid orders of custody, and we will not lightly embrace a rule that effectively renders such orders without effect or worth." Id. at 150 (footnote omitted).
A parent's voluntary relinquishment of custody to their child, "confirmed in a valid order of custody," operates as a waiver of superior parental rights and the best interests of the child take on "a more dominant role . . . in determining whether" the parent is entitled to a return of custody. Id. at 150 n. 5. Thus, in a proceeding to modify custody, the petitioner must demonstrate a material change of circumstance such that modification is in the best interests of the child, and parents are not entitled to assert superior parental rights "absent [the] extraordinary circumstances" recited in B lair v. Badenhope. In re Adoption of A .M .H ., 215 S.W.3d 793, 811 (Tenn. 2007) (quoting Blair v. Badenhope, 77 S.W.3d at 143). The burden is on the parent seeking to modify the permanent custody order to demonstrate that they were misled as to the consequences of their actions, uninformed regarding the provisions of the order, or not afforded the opportunity to assert their superior parental rights. See id. at 812. Absent such a showing, the parent must demonstrate that a material change of circumstance has occurred such that a modification of custody is in the child's best interest. Blair v. Badenhope, 77 S.W.3d at 150.
In the case now before us, Mr. Sharp's testimony regarding the circumstances and intent of the "permanent parenting plan" entered by the trial court in May 2007 was not controverted. Additionally, the circumstances described by the trial court at the hearing of this matter, and the wording of the parenting plan itself, support Mr. Sharp's characterization of the plan as an agreement regarding visitation and responsibilities, and not an agreement to cede permanent custody to the Stevensons.
It is undisputed that the plan was entered into by Mr. Sharp and the Stevensons in response to Mr. Sharp's 2005 petition to modify the court's order awarding the Stevensons temporary custody. Apparently, nothing transpired in the trial court between November 2005, when the parties entered into an agreed order for custodial evaluations and Mr. Sharp agreed to undergo drug testing, and entry of the parenting plan in May 2007. The May 2007 parenting plan contained in the record is a slightly modified version of a parenting plan which would be entered into between natural parents in a divorce proceeding. It states that the "primary residence" would be with the Stevensons, and establishes a parenting schedule giving Mr. Sharp 104 days of parenting. Under the plan, Mr. Sharp and the Stevensons had "responsibility for the care of the children" on their respective parenting days. The plan also granted Mr. Sharp "additional parenting time every Monday and Tuesday from 4:00 to 8:00 p.m." (Emphasis added). The plan provides that Mr. Sharp would "be responsible for making sure that the children get to their activities any time he is exercising parenting time." It establishes a holiday schedule, and provides "[e]ach parent shall make decisions regarding the day-to-day care of a child while the child is residing with that parent, including any emergency decisions affecting the health or safety of the child," that major decisions would be discussed between the parties, and that the Stevensons would make non-emergency health care decisions. The plan stated that the Stevensons were receiving child support in an unspecified amount and that Mr. Sharp would provide health insurance, and provided a schedule for income tax deductions. The plan also provided that the children's mother, Ms. Sharp, would not be allowed any unsupervised parenting time. It further provided that "both parents" would be entitled to the statutory rights provided at Tennessee Code Annotated § 36-6-101, and that disputes would be submitted to mediation before resort to the courts. There is nothing in the plan to suggest that Mr. Sharp agreed to relinquish his superior parental rights to the children, or to grant the Stevensons permanent custody. On the contrary, the word "custody" does not appear in the plan, and Mr. Sharp unambiguously retained considerable parental decision-making under the agreement. The consent order entered by the trial court simultaneously with the plan likewise does not contain the word "custody." It simply states that the parties had agreed to a "permanent parenting plan."
We generally consider the trial court to be in the best position to interpret and construe its own orders, even when a trial judge has no independent memory of the proceedings in a cause of action. Richardson v. Richardson, 969 S.W.2d 931, 935 (Tenn. Ct. App. 1997). However, like other written instruments, court orders should be interpreted according to the plain meaning of the words used. When the language is unambiguous, then the literal meaning of the words used is controlling. Konvalinka v. Chattanooga-Hamilton County Hosp., 249 S.W.3d 346, 359 (Tenn. 2008) (citations omitted). In this case, the trial court's conclusion that the parenting plan entered in May 2007 was intended by the parties to be a permanent custody order that replaced the prior temporary order simply is not supported by the plain language of the plan. Rather, the language of the parenting plan supports a conclusion that it was a mediated compromise intended to modify the temporary order of custody by establishing a parenting schedule and delineating rights and obligations.
Additionally, as noted above, Mr. Sharp's testimony regarding the intent and nature of the plan was uncontroverted at the hearing of this matter. Although, as the dissent notes, the trial court did not believe that Mr. Sharp had been "mislead," we do not believe Mr. Sharp asserted that he was actively mislead. Rather, Mr. Sharp testified that he believed that the parenting plan was a binding agreement that could be changed as material circumstances changed. Even if we assume that the trial court made an implicit credibility determination, a determination to which we give great deference, a trial court's credibility determination may be reversed when other real evidence compels a contrary conclusion. E.g., Wright Medical Technology, Inc. v. Grisoni, 135 S.W.3d 561, 593 597 (Tenn. Ct. App. 2001) (reversing the trial court's finding on credibility as "clearly erroneous"); In re adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *22 (Tenn. Ct. App. May 4, 2005) (holding that, when considering whether clear and convincing evidence supports a finding of grounds for parental termination, "we must look at the aggregate of the evidence to ascertain whether its combined weight amounts to `clear and convincing' evidence" notwithstanding the trial court's assessment of credibility). In this case, there is simply no evidence to support the trial court's determination that Mr. Sharp intended to cede custody to the Stevensons and waive his superior parental rights.
The dissent observes that the parenting plan contained in the record "was essentially a standard form for a parenting plan for two divorced parents that had been modified to name the Stevenson, the grandparents, as the `primary residential parents.'" The dissent further observes that the custody orders formerly entered in divorce proceedings "was ultimately not descriptive of the allocation of parenting responsibilities in a divorce," and that the legislature chose to alter the terms used in parenting plans between two natural parents in order that the plans be "more accurate in describing the roles of divorced parents." We agree. However, we must disagree with the dissent that the legislature merely changed the terms in order to "us[e] language that was less divisive." Rather, the legislature recognized that, although a child might reside primarily with one parent, the other parent is not relegated to a less-than-parent status. On the contrary, the current parenting plans, which are designed to fully describe each parent's rights and responsibilities as a full parent, preserve each parent's superior parental rights with respect to any claims which might be asserted by a non-parent. An "alternate residential parent" does not waive his or her superior parental rights merely by agreeing not to be named the "primary residential parent." Although the courts may continue to use the word "custody" to refer to primary residential parent designation, we do so inaccurately.
We must also disagree with the dissent that this holding results in an interpretation of parenting plans that "destabilize[s] existing agreed parenting plans." On the contrary, our holding reflects the intention of the legislature that parenting plans be interpreted as binding agreements between two parents who, although divorced, continue in their roles of parents. The intention of the legislature to foster cooperation between divorcing parents is more fully achieved by recognizing that parents who enter permanent agreed parenting plans, whether named primary or alternate residential parent, maintain their status as parents with the attendant rights and responsibilities, including rights superior to those of third parties. Non-parents seeking custody of a minor child must demonstrate that the natural parent is unfit, or that substantial harm will result if the child is placed in that parent's care, regardless of whether the natural parent is the primary residential parent or the alternate residential parent. A parenting plan is simply not the equivalent of a valid order awarding custody to a non-parent.
Mr. Sharp has demonstrated by a preponderance of the evidence that he did not waive his superior parental rights by allowing the Stevensons to be named primary residential parents when the parenting plan was entered in the trial court in May 2007. Accordingly, M r. Sharp's petition to regain custody could only be denied by the trial court upon a finding of a risk of substantial harm to the children. The Stevensons carry the burden to demonstrate a risk of substantial harm by clear and convincing evidence. Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001).
Additionally, as noted above, the style of this case indicates that the Stevensons became parties by intervening in the matter between Mr. Sharp and Ms. Sharp. The record before us does not contain an order permitting the Stevensons to intervene, and it likewise does not contain an order dismissing Ms. Sharp. Although Mr. Sharp served his petition to modify on Ms. Sharp, and although Ms. Sharp undisputedly had actual notice of the proceedings where she testified at the 2008 hearing of the matter, it does not appear from the record that Ms. Sharp was served with all of the pleadings or with the trial court's order denying Mr. Sharp's petition to modify. Further, it does not appear from the record that Ms. Sharp was served with the May 2007 parenting plan, which prohibited Mr. Sharp and the Stevensons from leaving the children with her unsupervised. It is not clear from the record whether the trial court previously had entered an order adjudicating Ms. Sharp's parental or visitation rights. Accordingly, we are unable to determine whether the trial court's orders of May 2007 and January 2009 were validly entered pursuant to Rule 58 of the Tennessee Rules of Civil Procedure. We urge the trial court and the parties to ensure that all remaining parties to this matter have been properly served and that the court's final order is entered in conformance with Rule 58. The Stevensons seek to recover their attorney's fees which we decline.
Holding
In light of the foregoing, we vacate the order of the trial court and remand for further proceedings consistent with this Opinion. All other issues are pretermitted. Costs of this appeal are taxed to the Appellees, Debbie F. Stevenson and Michael W. Stevenson.
I concur in the result reached by Judge Farmer. However, because I reach the result by different reasoning, I write separately.
In addressing Mr. Sharp's contention that the trial court erred in not applying the superior parental rights doctrine, I find it necessary to discuss the standard applied to parent versus non-parent custody disputes and the history behind that standard. "It is well-settled that the Tennessee Constitution protects a natural parent's fundamental right to have the care and custody of his or her children." In Re: R.D.H. , 2007 WL 2403352 at *6 (citing Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002) (citing Nale v. Robertson , 871 S.W.2d 674, 680 (Tenn. 1994); Hawk v. Hawk , 855 S.W.2d 573, 579 (Tenn. 1993)). "[P]arental rights are superior to the rights of others and continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child." Blair , 77 S.W. 3d at 141 (citing O'Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995)).
I recognize that the legislature abrogated the use of the term "custody order," and adopted the nomenclature of "permanent parenting plans" and its associated terminology. See Tenn. Code Ann. § 36-6-404 (2005). For simplification and clarification, I will use the term custody throughout this opinion in reference to parenting plans and primary residential parent status.
In an initial custody determination, where the court is asked to resolve a custody dispute between a parent and a non-parent, "a parent cannot be deprived of custody of a child unless there has been a finding, after notice required by due process, of a substantial harm to the child." Blair , 77 S.W.3d at 142 (citing In re Adoption of Female Child , 896 S.W.2d 546, 548 (Tenn. 1995)). In that situation, the non-parent must prove by clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the parent. In re R.D.H. , 2007 WL 2403352 at *6 (citing Ray v. Ray , 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001)); see also Stubblefield v. State ex rel. Fjelstad , 106 S.W.2d 558, 560 (Tenn. 1937). Only after this burden is met may the court engage in a best interest of the child analysis. In Re Adoption of Female Child , 896 S.W.2d at 548. Further, the Tennessee Supreme Court has held that, in the absence of a finding of substantial harm, "the deprivation of the custody of [a] child [would] result in an abridgment of [Father's] fundamental right to privacy." In re Askew , 993 S.W.2d 1, 5 (Tenn. 1999). Our Supreme Court went on to state that in the absence of a valid initial order it would be unconstitutional for the parent "to bear the burden of proving the absence of substantial harm" to regain custody from a non-parent. Id.
The Tennessee Supreme Court in Blair v. Badenhope , addressed the situation where a parent sought to modify a valid order awarding custody to a non-parent. Blair , 77 S.W.3d at 141. In Blair , the Supreme Court held that only in certain circumstances may a parent assert his or her superior parental rights to modify a valid court order transferring custody to a non-p are nt. Id. at 143. The Supreme Court recognized four situations where a parent may assert his or her superior parental rights:
(1) When no order exists that transfers custody from the natural parent;
(2) When the order transferring custody from the natural parent is accomplished by fraud or without notice to the parent;
(3) When the order transferring custody from the natural parent is invalid on its face; and
(4) When the natural parent cedes only temporary and informal custody to the non-parents.
In re. A.M.H. , 215 S.W.3d 793, 811 (Tenn. 2007) (citing Blair , 77 S.W.3d at 143.)) If one of these situations does not apply, the parent may not assert his or her superior parental rights and may only regain custody upon a showing "that a material change in circumstances has occurred which makes a change in custody in the child's best interests." Blair , 77 S.W. 3d at 148 (citations omitted). This is the same standard as in the case of parent versus parent, where one parent seeks to modify custody. Id. The burden of proof in this situation is on the party seeking to change custody. Id. (citations omitted). This standard applies even when that order resulted from the parent's voluntary relinquishment of custody to the non-parent. Id. at 143.
My two colleagues assert that the Blair court held that "the parent petitioning to modify the custody order bears the burden of demonstrating that application of the superior parental rights doctrine is justified." Citing Blair, 77 S.W.3d at 149 (quoting, with approval, Darlene S. v. Justino L. , 141 Misc.2d 303, 533 N.Y.S.2d 179, 182 (N.Y. Fam. Ct. 1988); see also Dep't of Children's Servs. v. Dalton , No. E2007-001216-COA-R3-JV, 2008 WL 2811305, at *6 (Tenn. Ct. App. July 22, 2008). Respectfully, I must disagree with this assertion. The Blair court held that the parent bore the burden of proving one of the four exceptions discussed above in order to invoke the superior parental rights doctrine in a modification proceeding. Blair , 77 S.W.3d at 148. Unless one of the four exceptions, mentioned above, applied, the parent bore the burden of proof in a modification proceeding against a non-parent; i.e. the burden of showing a material change in circumstances and the best interests of the child. Id. at 148. The Blair court did not address the burden of proof for voluntary relinquishment with know ledge o f the consequences of that decision . Id. at n. 3. The court did explicitly state that consent, without knowledge of the effect of that decision, would justify the application of the superior parental rights doctrine, and therefore a waiver would not be affected. Id. The dissent further relies on In re A.M.H. , 215 S.W .3d 793, 812 (Tenn. 2007), to support this contention. However, In re A.M.H. , the Tennessee Supreme Court found that the parents had been misled and that the transfer of custody was entered into as a temporary arrangement. Id. Because the parents thought the custody arrangement was temporary, a situation where superior parental rights would clearly apply according to Blair , the parents did not have knowledge of the consequences. Id. The A.M.H. Court did not address who, the parent or the non-parent, bore the burden of showing the applicability of the superior parental rights doctrine or that the parent entered into the arrangement without knowledge of the consequences.
Mr. Sharp submits that the fourth Blair exception applies in this case; specifically, he asserts that the parenting plan entered into by the parties was temporary. After reviewing the record, I disagree. The terms "temporary and informal" refer to the finality of the order. In re R.D.H. , 2007 WL 2403352 at *9. "An interim order is one that adjudicates an issue preliminarily; while a final order fully and completely defines the parties' rights with regard to the issue, leaving nothing else for the trial court to do." State, ex rel., McAllister v. Goode , 968 S.W. 2d 834, 840 (Tenn. Ct. App. 1997) (citing Vineyard v. Vineyard , 170 S.W.2d 917, 920 (Tenn. 1942)). "Trial courts have discretion to grant temporary custody arrangements in circumstances `where the trial court does not have sufficient information to make a permanent custody decision or where the health, safety, or welfare of the child or children are imperiled.'" In re R.D.H. , 2007 WL 2403352 at *9 — 10 (quoting Warren v. Warren , W1999-02108-COA-R3-CV, 2001 WL 277965 at *4 (Tenn. Ct. App. 2001) (quoting King v. King , No. 01A01-91-10PB00370, 1992 WL 301303, at *2 (Tenn. Ct. App. 19992)). Nothing in the record indicates that this parenting plan was a temporary or informal order. As noted by the trial court, two previous orders between these parties were specifically designated as temporary, but this one was not. In fact, this parenting plan is titled "Permanent Parenting Plan." Additionally, nothing in the consent order or parenting plan indicates that it is temporary, or places a condition on the plan, or signifies that it will later be reconsidered by the court. Accordingly, I would affirm the trial court's finding that the parenting plan was not temporary.
However, finding that the parenting plan is not temporary is not dispositive because the Blair court stated that the "parent's voluntary relinquishment of custody must be made with knowledge of the consequences of that decision." Blair , 77 S.W.3d at n. 3(emphasis added). A parent may knowingly cede custody without understanding that by doing so he is forever waiving his superior rights. In response to the dissent's concern that a voluntary waiver could be a "trap for the unwary," because a parent "may make custodial decisions without fully understanding the legal ramifications of their choices," the Blair court stated, "[w]here a natural parent voluntarily relinquished custody, without knowledge of the effect of that act, then it cannot be said that these rights were accorded the protection demanded by the Constitution. As such, application of the superior parental rights doctrine would be justified." Id .(emphasis added ) Accordingly, "if the parent did not understand the legal ramifications of the action, the superior parental rights doctrine may still apply in a modification proceeding." In re R.D.H. , 2007 WL 2403352 at *7 (citing Blair , 77. S.W.3d at n. 3) (emphasis added). In Blair , however, as specifically noted by the court, the parent did not assert that he did not have knowledge of the consequences; therefore, the issue was not addressed. Blair , 77 S.W.3d at n. 3. The mother in R.D.H. did assert that she did not have knowledge of the consequences. In re R.D.H. , 2007 WL 2403352 at *8. However, the R.D.H. court was not required to address this issue because it found that the order mother sought to modify was a temporary order and, as such, fell within the fourth Blair exception. Id. at 11.
The interpretation of the phrase, "with knowledge of the consequences of that transfer" is the determinative issue in this case. It appears that this issue has not previously been interpreted by the courts of this State. Nonetheless, the issue requires us to consider not only "the degree of knowledge sufficient to give effect to voluntary waiver," but also "the specific knowledge required, who must provide that knowledge, the burden of proof regarding knowledge and waiver, and when the issue is properly raised." Campbell, Betty, Constitutional Law — Blair v. Badenhope: Parent v. Parent or Parent v. Non-Parent — the Tennessee Supreme Court's New "One Size Fits all" Standard for Modification of Valid Custody Orders, 34 U. Mem. L. Rev 199, 230-31 (2003).
Superior parental rights "continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child." Blair , 77 S.W. 3d at 141 (citations omitted). In a contested hearing, in order to grant custody initially to a non-parent, a trial court must find substantial harm or misconduct by clear and convincing evidence. Ray v. Ray , 83 S.W.3d 726, 733 (citing Stubblefield , 106 S.W.2d at 560) (requiring a "clear preponderance of convincing proof"); see also In re Adoption of Female Child, 896 S.W.2d at 548 (requiring a clear showing); Hall v. Bookout , 87 S.W.3d 80, 86 (Tenn. Ct. App. 2002); In re J.C.S. , No. M2007-02049-COA-R3-PT, 2008 WL 2924982 at *3 (Tenn. Ct. App. 2008); and In Re R.D.H. , 2007 WL 2403352 at *6. "The state and federal constitutions require a heightened standard because of the possible effects on a biological parent's parenting rights." Ray , 83 S.W.3d at 733 (citing O'Daniel v. Messier , 905 S.W.2d at 187).
It would be illogical for this Court to require clear and convincing proof of substantial harm or other misconduct in a contested case, but delineate a different standard of proof for showing consent to voluntarily transfer custody. Accordingly, I would hold, as a matter of law, that a parent's consent to relinquish his or her superior parental rights must be shown by clear and convincing evidence. Furthermore, because our Supreme Court has stated that the parent waiving his or her superior parental rights must do so with knowledge of the consequences, Blair 77 S.W .3d at 148, I would hold that the knowledge of the consequences of the transfer, must also be shown by clear and convincing evidence. Specifically, there must be clear and convincing evidence that the parent understood the legal consequences of entering into the agreement in order for the agreement to operate as a waiver of the fundamental constitutional right to parent one's children.
The waiver of a constitutional right is voluntary and intelligent if the record expressly reflects that the defendant had a basic understanding of the nature of the right which was relinquished or abandoned, and expressly reflects acknowledgment that the defendant made or agreed to the relinquishment or abandonment of that right.
16 C.J.S. Constitutional Law § 141 (2009). While no formal or written waiver is required, statements and supporting evidence must clearly and convincingly show that the parent voluntarily relinquished his or her superior parental rights, with knowledge of the consequences. Our Supreme Court has held that deprivation of custody without a finding of substantial harm or requiring the parent "to bear the burden of proving absence of substantial harm," would be unconstitutional. In re Askew , 993 A.W.2d at 5. Similarly, deprivation of custody absent a finding of consent with knowledge of the consequences, or requiring the parent to prove the absence of consent with knowledge of the consequences, would unconstitutionally infringe on a parent's fundamental right to parent his or her child. See In re Askew , 993 S.W.2d 1, 5 (Tenn. 1999).
This holding would be consistent with the Supreme Court of Kentucky in its opinion in Greathouse v. Shreve , 891 S.W.2d 387 (K.Y. 1995). In that case, the maternal grandmother brought an action to adopt the child and terminate father's rights. Id. at 388. The complaint was later amended and grandmother was only seeking custody. Id. Grandmother and mother were awarded custody and father was awarded visitation rights. Id. The Kentucky Court of Appeals affirmed the trial court, but instead used a waiver principle. Id. at 389. The Court of Appeals found that because Father had surrendered custody to grandmother, he waived his superior parental rights and therefore a best interest analysis applied. Id. The Kentucky Supreme Court reversed this decision based on the waiver issue. Id. at 390. The Kentucky Supreme Court found that the trial court erred by applying a best interests analysis, as Kentucky recognizes the parent's superior rights. Id. The Kentucky Supreme Court held that a parent may waive his superior parental rights. Id. On remand, the Kentucky Supreme Court directed that the trial court must find by clear and convincing evidence that the father waived his superior parental right before it may use a best interests analysis in deciding custody between father and grandmother. Id.
The Kentucky court defined waiver as a "voluntary and intentional surrender or relinquishment of a known right, or an election to forego an advantage which the party at his option might have demanded or insisted upon." Id. (quoting Barker v. Stearns Coal Lumber Co. , 163 S.W.2d 466, 470 (1942)) (emphasis added). In addressing the issue of evidence required for waiver, the KY court stated:
"waiver requires proof of a `knowing and voluntary surrender or relinquishment of a known right.' Because this is a right with both constitutional and statutory underpinnings, proof of waiver must be clear and convincing. As such, while no formal or written waiver is required, statements and supporting circumstances must be equivalent to an express waiver to meet the burden of proof.
Id. at 391. While Tennessee would not apply a waiver in this situation, as there was no previous consent order entered giving grandmother custody initially, the analysis on waiver would not differ.
The standard adopted in Greathouse is still applicable and was used as recently as January 2010 by the Supreme Court of Kentucky in Mullins v. Picklesimer , No. 2008-SC-000484-DGE, 2010 WL 246063, (K.Y. January 21, 2010):
[T]he non-parent pursuing custody must prove either of the following two exceptions to a parent's superior right or entitlement to custody: (1)that the parent is shown by clear and convincing evidence to be an unfit custodian, or (2) that the parent has waived his or her superior right to custody by clear and convincing evidence.
Mullins , 2010 WL 246063, at * 7(citing Moore v. Asente, 110 S.W.3d 336, 359 (K.Y. 2003). Similarly to the standard required by the Supreme Court of Kentucky, I would require that it be shown by clear and convincing evidence that a parent consented, with knowledge of the consequences, thus waiving his or her superior parental rights, before that parent could be barred from asserting his or her superior rights.
Mullins is a case between the biological mother and the same-sex partner that she was in a relationship with at the time the mother was artificially inseminated. While presenting a slightly different factual situation, Kentucky applied the same standard as would apply between a parent and non-parent. I would note that Kentucky only applies this standard as between a parent and non-parent when the non-parent is not a "de facto custodian," as noted by the Mullins court. Mullins , 2010 WL 246063 at *7. A "de facto custodian" is a creature of statute in Kentucky, Ky. Rev. Stat. Ann. § 403.270, and because Tennessee does not differentiate between types of custodians or non-parents, the analysis would be the same. I also recognize that Mullins is not a final decision, however, the Greathouse standard has been applied consistently in cases subsequent to its release. See e.g. Vinson v. Sorrell , 136 S.W.3d 465, 469 (K.Y. 2004); Moore v. Asente , 110 S.W.3d 336 (K.Y. 2003); and Shifflet v. Shifflet , 891 S.W.2d 392 (K.Y. 1995).
The Tennessee Supreme Court has defined "clear and convincing" evidence as more exacting than the preponderance of the evidence standard but not requiring such certainty as beyond a reasonable doubt. Hughes v. Bd. of Prof'l. Responsibility. Of Sup. Ct. of Tenn. , 259 S.W.3d 631, 641 (Tenn. 2008) (quoting O'Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). "Clear and convincing evidence eliminates any serious or substantial doubt concerning the correctness of the conclusions to be draw n from the evidence. It should produce in the fact-finder's mind a firm belief or conviction with regard to the truth of the allegations sought to be established." O' Daniel v. Messier , 905 S.W.2d at 188 (citations omitted).
The Blair court expressed concern over the ability of a parent to create a situation requiring the custodial non-parent to show cause as to why the parent should not be granted custody. Blair , 77 S.W.3d at 149. The court feared that such ability would render existing orders of custody to non-parents worthless. Id. Appellee submits that allowing Mr. Sharp to assert his superior rights would create such a situation. I disagree. This holding merely clarifies the standard set forth in Blair and the existing case law. In accordance with Blair , in a modification proceeding, where a parent seeks to change custody from a non-parent, the parent may not assert his or her superior parental rights if he or she has previously relinquished those rights with knowledge of the consequences of the transfer by entering into the original order. However, in a case where there is not clear and convincing evidence that the parent entered into the initial order with knowledge of the legal consequences of the transfer, such order or agreement to relinquish custody will not serve as a waiver. Rather, in that case, the parent would be able to assert his or her superior parental rights.
Utilizing this reasoning, we are required to review the case before us to determine whether the facts, as found by the trial court, clearly and convincingly show that Mr. Sharp entered into this agreement with knowledge of the consequences of the transfer. The trial court, based on the fact that Mr. Sharp had counsel and is presumed to have knowledge of the agreements he enters into, held that Mr. Sharp knowingly entered into the parenting plan. Mr. Sharp entered into the agreed permanent parenting plan in May 2007, which granted primary residential status to Grandparents. Superior parental rights are not mentioned anywhere in the parenting plan or consent order. The standard of proof necessary to change custody is also not mentioned in the parenting plan or consent order.
At trial, the only evidence introduced as to whether Mr. Sharp understood the legal consequences of entering into the agreed parenting plan was his own testimony. Mr. Sharp contended that he had not waived his superior rights because he did not understand that, by agreeing to the plan, he was permanently giving up these rights. Mr. Sharp repeatedly testified that he did not understand he was waiving his superior parental rights and that, had he known, he would not have entered into the agreement. Mr. Sharp testified that he had counsel when entering into the parenting plan and that he had discussed this issue with his counsel. He testified that he was assured by his attorney that he was not giving up his parental rights. He further testified that he was entering into the parenting plan in order to gain more parenting time with the children which had been severely limited by the Stevensons over the previous two years. This action is consistent with his assertion that he intended to retain his superior right to custody. No further evidence was introduced concerning Mr. Sharp's knowledge and understanding of the rights he was waiving by entering into the Consent Order and Permanent Parenting Plan.
We may presume that Mr. Sharp had knowledge of the terms of the agreement based on his execution of the agreement. Giles v. Allstate Ins. Co., Inc. , 871 S.W.2d 154, 157 (Tenn. Ct. App. 1993). However, we may not presume that he had knowledge of the consequences of entering into the agreement. Specifically, we may not presume that he knew he was waiving his constitutionally protected superior parental rights by entering into the agreement, especially in light of the fact that nowhere in the agreement are these rights mentioned.
The dissent focuses on the history in the case in reaching the conclusion that Mr. Sharp knew the legal consequences of the agreement on custody. The dissent cites the fact that Mr. Sharp had entered into a previous custody arrangement with Ms. Sharp and was in fact named the "primary residential parent," the fact that the Stevensons had a temporary custody order, and the fact that he had been involved in "two years of legal wrangling" wherein he was represented by counsel. While I concede that these facts indicate Mr. Sharp must have known he was giving up custody of his children to the Stevensons, it in no way indicates that he understood the legal consequences of that act; that is, forever waiving his constitutionally protected superior parental rights.
"Where a natural parent voluntarily relinquishes custody without knowledge of the effect of that act, then it cannot be said that these rights were accorded the protection demanded by the Constitution." Blair , 77 S.W.3d at n3. Based on my finding, it would be unconstitutional to deny M r. Sharp his fundamental right to parent his child without a finding of substantial harm.
I find that the parenting plan was not a temporary arrangement. The right to parent ones child is a constitutionally protected right. A parent only loses this right upon a showing of substantial harm or by voluntarily transferring custody, with knowledge of the consequences, i.e. the legal ramifications. Because this is a constitutionally protected right, consent, with knowledge of the consequences, must be shown by clear and convincing evidence, the same standard of proof required for a finding of substantial harm. Further, if the parent asserts his or her superior rights and the non-parent asserts a waiver of these rights, the burden of proving the waiver rests with the non-parent. This burden must be met by clear and convincing evidence.
Father's consent with knowledge of the consequences has not been shown by clear and convincing evidence. Thus Father has not waived his superior parental rights. Consequently, I concur with Judge Farmer in his decision to vacate the order of the trial court and I would remand for further proceedings in accordance with this opinion.
DISSENT
I must respectfully dissent in this case. Unfortunately, I find that I disagree with both the majority opinion and the concurrence.
First, I believe that the finding of the trial court below was necessarily based, at least in part, on its assessment of Mr. Sharp's credibility. Mr. Sharp claimed in his testimony that he was either uninformed or misled about whether the permanent parenting plan was an award of permanent custody to the Stevensons. The trial court found that he was neither. The majority states that Mr. Sharp's testimony was undisputed, but "the trier of fact is free to believe or disbelieve all or part or none of a witness'[s] testimony, even where the testimony is uncontradicted." Cornell v. State of Tennessee , 118 S.W.3d 374, 378 (Tenn. Ct. App. 2003). The trial court's determination of a witness's credibility is "binding on the appellate court unless from other real evidence the appellate court is compelled to conclude to the contrary." Wright Med. Tech., Inc. v. Grisoni , 135 S.W.3d 561, 585 (Tenn. Ct. App. 2001) (quoting Hudson v. Capps , 651 S.W.2d 243, 246 (Tenn. Ct. App. 1983)) (comparing witness's transcribed courtroom testimony with transcribed recorded conversation). The majority reverses the trial court's determination of Mr. Sharp's credibility, but cites no "real evidence" contradicting the trial court's finding.
Indeed, the record includes ample support for the trial court's finding that M r. Sharp's claim was not believable. Prior to the dispute with the Stevensons, Mr. Sharp was involved in divorce proceedings with the children's mother. As a result, Mr. Sharp was named as the children's "primary residential parent" in their marital dissolution agreement. Certainly he would have understood from this experience that he had custody of his children. After Mr. Sharp's conduct resulted in an award of temporary custody to the Stevensons in 2005, Mr. Sharp testified that two years of legal wrangling ensued, including attempts at mediation, letters back and forth, and numerous discussions. Mr. Sharp was represented by counsel during these lengthy negotiations, which resulted in his consent to the permanent parenting plan. Against this backdrop, Mr. Sharp asked the trial court to believe that he did not understand that the product of the mediation, letters and negotiations involved "custody." The trial court did not believe his assertion and the record supports its credibility determination.
Further, Mr. Sharp's testimony shows that he understood the effect of the permanent parenting plan. Referring to the permanent parenting plan, Mr. Sharp complained that "the Court order says that they [the Stevensons] have complete control," which is, of course, the effect of an award of custody. He understood that the permanent parenting plan was "binding." Mr. Sharp acknowledged that, before agreeing to the permanent parenting plan, he was advised that he could only ask the court to change the parenting order "based on a modification of circumstances." This is, in effect, the legal consequence of a valid order transferring custody to a non-parent: custody can be modified only when "a material change in circumstances has occurred." Blair v. Badenhope , 77 S.W.3d 137, 148 (Tenn. 2002). Thus, despite Mr. Sharp's protestations, his own testimony shows that he was fully advised about the consequences of his choice.
The fact that Mr. Sharp's motivation in agreeing to the parenting plan was to get more visitation with his children does not affect this conclusion.
The majority is troubled by the fact that Mr. Sharp and the Stevensons used a standard form for a permanent parenting plan for two divorced parents that had been modified to name the Stevensons, the grandparents, as the "primary residential parents." The concerns raised by the majority appear to be (1) the permanent parenting plan uses terminology such as "primary residential parent" and "parenting time" instead of more traditional terms, like "custodian" and "visitation"; (2) Mr. Sharp retained input into parenting decisions and parenting responsibilities when the children were with him; and (3) the permanent parenting plan does not state that Mr. Sharp waives his superior parental rights.
First, the language in the permanent parenting plan. Tennessee's legislature has recognized that the terminology used in family law cases, referring to "custody" of children, "custodial" and "non-custodial" parents, and the non-custodial parent's "visitation," was divisive, freighted with "negative win/lose connotations," and was ultimately not descriptive of the allocation of parenting responsibilities in a divorce. See JANET L. RICHARDS, RICHARDS ON TENNESSEE FAMILY LAW (2D ED.) § 8-2(e) at 184, and 2007 Cum. Supp. At § 8-2(e); Don L. Ash, Bridge Over Troubled Water: Changing the Custody Law in Tennessee, 27 U. MEM. L.REV.769, 804 (Summer 1997). Consequently, the legislature indicated that courts are to replace "custody" orders with "parenting plans," using language that is less divisive and more accurate in describing the roles of divorced parents. T.C.A. § 36-6-404 (2005). A parent who formerly would have been "awarded custody" would now be "designated as the child's primary residential parent." The former "non-custodial parent" is now the "alternate residential parent." "Visitation" is now "residential parenting time." This nomenclature recognizes that the "alternate residential parent" still retains parental rights and responsibilities, particularly when the child is in his care, and that the child has a second home with the alternate residential parent and is not just a "visitor."
Our appellate courts have been somewhat uneven in using the current terminology in opinions. For example, the court in Blair v. Badenhope used the term "custody" repeatedly in its decision. This uneven usage does not change the legal import of the language used in family law orders. A "permanent parenting plan" that "designates" the "primary residential parent" is still the equivalent of an order awarding permanent primary custody of the child.
The majority states: "A parenting plan is simply not the equivalent of a valid order awarding custody to a non-parent." Because the majority did not find that the order incorporating the parenting plan was invalid or void, I assume that this statement reflects concern that usage of "parenting plan" terminology in the context of an order with a non-parent, instead of between parents, may have confused Mr. Sharp. The majority even goes so far as to state that "[t]here is nothing in the plan to suggest that Mr. Sharp agreed . . . to grant the Stevensons permanent custody." But the permanent parenting plan clearly designates the Stevensons as the primary residential parents. Mr. Sharp had had the same designation in a previous order with the children's mother and thus had to understand that the "primary residential parent" meant custody, and Mr. Sharp has not asserted that he did not understand the word "permanent."
I am concerned that the majority's reliance on the "parenting plan" terminology to support its decision will serve to destabilize existing agreed permanent parenting plans between parents. The majority's reasoning could certainly be relied upon by countless "alternative residential parents" to claim that they did not understand that the permanent parenting plan to which they agreed was in fact a custody order.
The majority also notes that, under the permanent parenting plan, Mr. Sharp retained some parenting rights and responsibilities, such as the right to make decisions regarding the children's day-to-day care while they are with him, the right to discuss major decisions with the Stevensons, and the standard statutory rights. It notes that, under current standard parenting plans, the alternate residential parent
. . . is not relegated to a less-than-parent status. On the contrary, the current parenting plans, which are designed to fully describe each parent's rights and responsibilities as a full parent, preserve each parent's superior parental rights with respect to any claims which might be asserted by a non-parent.
That is certainly true. But the same can be said of the old-time "custody" order. Even the most one-sided "custody" order between a child's parents has never affected either parent's ability to assert his superior parental rights as against a non-parent.
Finally, the majority states: "There is nothing in the [permanent parenting] plan to suggest that Mr. Sharp agreed to relinquish his superior parental rights to the children." This portion of the majority's reasoning seems to coincide with Judge Stafford's concurrence, in that this prong of the majority's decision implies that there must be an express written waiver relinquishing the parent's superior parental right to custody of his child. Therefore, I will address this part of the majority decision at the same time that I respond to the concurrence.
In Blair v. Badenhope , 77 S.W.3d 137 (Tenn. 2002), the Court held:
Presuming that a parent is afforded the opportunity to assert superior parental rights in the initial custody proceeding, then the parent's voluntary transfer of custody to a non-parent, with knowledge of the consequences of that transfer, effectively operates as a waiver of these fundamental parental rights. Under these circumstances, the Constitution does not again entitle the natural parents to assert superior parental rights to modify a valid custody order, even if no court has previously found the natural parent to be unfit.
Id. at 147-48 (footnote omitted) (emphasis added). The Blair court did not indicate what was meant by "knowledge of the consequences" of voluntarily transferring custody to a non-parent.
In reaching its decision, the Blair court surveyed the law in other states regarding proceedings filed by a biological parent to modify a prior custody award to a nonparent. It was persuaded by the majority view in other states that "the voluntary relinquishment of indefinite custody to a non-parent" is "conduct that [is] inconsistent with the parent's constitutionally protected rights." Blair , 77 S.W.3d at 146. The majority of other states saw such a decision as a "forfeiture" of the parent's superior right to custody. Id. at 147. The Blair court emphasized:
The Blair court chose not to follow other states that apply the parental preference in all custody proceedings, whether they are initial proceedings or proceedings to modify, and also eschewed the small minority of courts that apply a best interest test in all circumstances, including an initial custody proceeding between a parent and a non-parent. See Guinta v. Doxtator , 20 A.D.3d 47, 52, 794 N.Y.2d 516, 520 (N.Y. App. 2005).
Having once protected the parent's rights to custody, at the risk of sacrificing the child's best interests, we should not then sacrifice the child's need for stability in its care and living arrangements by modifying those arrangements more readily than in a parent-parent case.
Id. at 145 (quoting C.R.B. v. C.C. , P.2d 375, 380 (Alaska 1998) (emphasis by Blair court)). Thus, the Blair court carefully balanced protection of the parent's superior right to custody against the child's need for nurturing and stable care.
The Supreme Court applied Blair in In re: A.M.H. , 215 S.W.3d 793 (Tenn. 2007). In A.M.H. , the Court stated that it was required to address the consent order transferring custody to non-parents because, "[u]nless we conclude that the consent order is unenforceable, the parents of A.M.H. have no superior rights to the custody of A.M.H." Id. at 811. The A.M.H. Court then stated that it was applying and interpreting the phrase in Blair that the majority interprets in the instant case:
Recognizing the possibility that in the informal setting of juvenile court unrepresented parents could enter into a formal order without understanding the actual effect of transferring custody, we have explained that it is only a parent's "voluntary transfer of custody to a non-parent, with knowledge of the consequences of that transfer," that will defeat a parent's claim to superior rights of custody. [ Blair , 77 S.W.3d] at 147 (emphasis added).
Id. (emphasis in A.M.H. ). The A.M.H. Court also quoted the language in Blair , relied upon by the majority herein:
As we stated in Blair :
Where a natural parent voluntarily relinquishes custody without knowledge of the effect of that act, then it cannot be said that these rights [to the care and custody of one's child] were accorded the protection demanded by the Constitution. As such, application of the superior rights doctrine in a subsequent modification proceeding would be justified.
Blair , 77 S.W.3d at 148 n. 3.
Id. at 812 (bracketed language added in A.M.H. ). Applying Blair , the A.M.H. Court then considered the biological parents' evidence that, at the time of the initial custody order, they were told that the order was temporary and that their later request for return of custody would be refused only if they engaged in misconduct such as substance abuse. Id. The A.M.H. Court found that this evidence established that the parents' transfer of custody was not done "with knowledge of the consequences." Id.
Thus, the A.M.H. Court initially recognized that, unless the consent custody order was unenforceable, the parents would be deemed to have waived their superior right to custody of their child. Id. at 811. At no point did the Supreme Court in A.M.H. indicate that the burden was on the petitioner Bakers to show that the biological parents were informed of their superior parental rights or that they expressly waived them in executing the consent order on custody. This is consistent with the Blair court's description of a parent's voluntary relinquishment of permanent custody to a non-parent as a "forfeiture" of the parent's superior right to custody. Blair , 77 S.W.3d at 147. The act itself is "conduct that [is] inconsistent with" a parent's assertion that he intended to retain the superior right to custody in the future. Id. at 146. Thus, the order transferring custody to the non-parent need not go on to state expressly that the parents agree to relinquish their superior rights to custody of their children.
As shown in A.M.H. , however, the biological parent is not foreclosed from asserting his superior right to custody if he can show that he entered into the consent order transferring custody without "knowledge of the consequences of that transfer." A.M.H. , 215 S.W.3d at 811 (quoting Blair , 77 S.W.3d at 147). In A.M.H. , the biological parents submitted affirmative evidence that, despite the language in the consent order transferring custody, they were told that the transfer of custody was temporary and that, absent misconduct on their part, they could regain custody in the future if they chose to do so. This evidence from the parents showed that their voluntary relinquishment of custody was done without "knowledge of the consequences." Thus, they were permitted to assert their superior right to custody in the subsequent modification proceedings. Id. at 811-12.
Consistent with the Supreme Court's application of Blair in A.M.H. , I would hold that, absent other evidence, once biological parents agree to a valid consent order transferring custody of the child to a non-parent, thereafter, the parents "have no superior rights to the custody of" their child. A.M.H. , 215 S.W.3d at 811. The parents, however, have the opportunity to show that, when they agreed to relinquish custody, they did not have knowledge of the consequences of their decision. If they can carry the burden of proving that they did not have such knowledge, then they can assert their superior right to custody in the modification proceedings. Id. at 811-12. This can be done, as in A.M.H. , by showing that the parents were told that the order was temporary, or that they were told that they would not have to show a material change in circumstances in order to regain custody.
In the instant case, the majority does not disagree with the trial court's holding that the permanent parenting plan under which the Stevensons received custody is a valid custody order. The concurrence states explicitly that it is a valid, final order. Despite Mr. Sharp's assertions to the contrary, the trial court found that the order clearly shows that the order is not temporary, but is a final, permanent award of custody to the Stevensons, and that Mr. Sharp, represented by counsel at the time, knew that the order was final and permanent when he consented to it.
Moreover, there is no indication that Mr. Sharp's superior right to custody was not fully protected in the initial custody proceeding. Mr. Sharp does not contend that, at the time he entered into the consent order, he was not aware that he, as the child's biological parent, had a superior right to custody of his child. Knowing that he had a superior right to custody, Mr. Sharp voluntarily forfeited custody to the Stevensons — not temporary custody, permanent custody. This act is inherently inconsistent with Mr. Sharp's claim that he believed he was retaining his superior right to custody in the future.
As in A.M.H. , Mr. Sharp had the opportunity to produce evidence that he was told something contrary to the plain language of the initial custody order, i.e., he was told that the order was temporary or that he would be permitted to assert his superior right to custody in the future. He did not do so. Thus, Mr. Sharp produced no evidence that he did not have "knowledge of the consequences of [the] transfer" of custody to the Stevensons. Blair , 77 S.W.3d at 147. Under A.M.H. , then, Mr. Sharp no longer has superior rights to the custody of the child.
The concurrence in this case would go even further from the Supreme Court's holdings in Blair and A.M.H. The concurrence would hold that a non-parent who has permanent custody of a child pursuant to a valid consent order, when faced with a petition to modify custody, must prove by clear and convincing evidence that, when the biological parent entered into the consent order, he specifically waived his right to assert his superior right to custody in future proceedings. This is clearly an extension of Blair .
The only cases cited by the concurrence in support of its approach are two Kentucky cases whose facts are so different from the case at bar that they must be considered inapposite. In Greathouse v. Shreve , 891 S.W.2d 387 (Ky. 1995), the child's parents never married and initially lived with the child's maternal grandmother. While the child was still an infant, the father moved out, and later the mother departed as well, leaving the child in the grandmother's care. Id. at 388.
After several years, the father established his paternity. The grandmother then filed an action to adopt the child and terminate the parental rights of both parents. This claim was later dropped, and the maternal grandmother joined forces with the mother in filing a petition for joint custody, to the exclusion of the father. Id. However, the mother lived out of state, and it became apparent that she was merely a shill, a device to permit the grandmother to obtain legal custody and exclude the father. Id. at 388, 390. Nevertheless, because the mother sought custody jointly with the grandmother, the trial court employed a "best interests" analysis and granted the request for joint custody to the mother and grandmother. Id. at 389.
The father appealed to the intermediate appellate court. The intermediate appellate court affirmed the award of custody, without addressing the portion of the order that awarded joint custody to the mother. Id. Instead, it found that the father, by leaving the child in the grandmother's care, had waived his superior parental right to custody because he "surrendered the care and custody of the child to another" and "acquiesced in the child's remaining there for an extended period of time." Id. at 389. The intermediate appellate court then applied a best interests analysis and affirmed the award of custody to the grandmother. Id.
The father appealed again. The Kentucky Supreme Court found that joining the mother in the grandmother's petition for custody as a basis for applying the best interests test "was a purely technical device, a method for evading the natural father's superior claim to custody." Id. at 390. It also disagreed with the intermediate appellate court's application of the waiver principle. It noted the father's assertion that, for several years, "he did not realize he had any right to his son because of the fact that he and the child's mother were never married." Id. The Kentucky Supreme Court said that, under the facts of that case, the trial court needed to make factual findings on the issue of waiver, observing that the father's long term acquiescence in the living arrangement was a factor to be considered, but was not conclusive. Id. Therefore, the Greathouse Court remanded the case to the trial court for factual findings. Greathouse , then, is distinguishable from the case at bar in numerous important respects. Unlike the instant case, Greathouse involved the first proceeding regarding the custody of the child. Moreover, the proceedings in Greathouse were complicated by the mother's participation in the grandmother's petition for custody. In contrast to the instant case, the Kentucky intermediate appellate court did not find waiver of the father's superior right from his voluntary consent to an order awarding permanent custody, but rather from the father's act of leaving the child in the grandmother's care at a time when the father did not have legal counsel and was not aware of his superior parental right. Thus, Greathouse involves the protection of the parent's superior right in the first instance. O f course, "parents in the initial proceedings enjoy a strong presumption that they are entitled to the physical custody of their children." Blair , 77 S.W.3d at 146. In the instant case, Mr. Sharp's superior parental rights were fully protected in the first proceeding. Unlike Greathouse , Mr. Sharp now seeks to modify the permanent custody order to which he consented, with full benefit of counsel. Clearly, Greathouse is wholly inapplicable.
In its analysis, the Greathouse Court cites Boatwright v. Walker , 715 S.W.2d 237 (Ky. Ct. App. 1986); Greathouse , 891 S.W.2d at 391. In Boatwright , the Court noted that a parent's superior right to the care and custody of his child can be "contracted away" by executing "an agreement of a permanent nature," such as a consent for adoption. In such a case, once such a contract has been executed, even if consent is later withdrawn, "the natural parent has waived its superior right, and the best interests of the child take precedence." Boatwright , 715 S.W.2d at 244.
As to the second Kentucky case cited by the concurrence, although it indeed cites Greathouse , it does not support the approach advocated by the concurrence. In Mullins v. Picklesimer , 2010 WL 246063 (Ky. 2010), a biological mother and her same-sex partner executed a consent order awarding the non-biological parent custody rights. After the partners ceased living together, legal proceedings regarding the child's custody ensued. Id. at *2. The prior agreed custody order was invalidated on the basis of fraud. Id. at *6. The Mullins Court held that, even though the child was never separated from the biological parent, and even though the biological parent was not represented by counsel when she executed the now-invalidated consent custody order, her execution of the consent order was "as absolute waiver of part of her superior custody rights as the natural parent of the child." Id. at *8, *10. In so holding, the Mullins Court relied on a North Carolina case that "couched its analysis in terms of whether the natural parent had acted in a manner inconsistent with her constitutionally protected status as a natural parent." Id at *9 (citing Heatzig v. MacLean , 664 S.E.2sd 347, 350-51 (N.D. Ct. App. 2008)). The Mullins Court found that the biological parent's act of setting up a family unit with the partner and executing a custody agreement constituted "clear and convincing evidence" that she "waived her superior custody rights" to the child. Id. at *10.
Indeed, neither Kentucky case indicates that the biological parent must have expressly waived his or her superior parental right in order to make a factual finding of waiver. Rather, both of the Kentucky cases focus on whether the biological parent's actions were inconsistent with his or her protected status. Thus, the Kentucky cases cited by the concurrence do not support the approach advocated in the concurrence. The concurrence points to no other case in any jurisdiction that goes so far.
The concurrence claims that, under the standard it advocates, "no formal or written waiver is required." This is wishful thinking. Absent a "formal or written waiver," how can the child's custodian prove the parent's knowledge at the time of the initial custody order? The evidence proffered by Mr. Sharp in this case is a prime example. The information Mr. Sharp says that he was given at the time he entered into the agreed permanent parenting plan was correct. He seeks to now vitiate the agreed permanent parenting plan based only on his claimed presumption, articulated to no one at the time, that he would retain his superior right to custody. As found by the trial court, the understanding now claimed by Mr. Sharp is at odds with the language in the agreed permanent parenting plan and with his unequivocal act of relinquishing permanent custody.
Mr. Sharp claims that his attorney at the time assured him that he was not giving up his parental rights. This is, of course, correct. Mr. Sharp to this day retains his parental rights. His parental rights are separate and distinct from his superior right to custody of his child.
Under the standard advocated by the concurrence, even if the biological parent's superior right to custody is fully protected in the initial proceeding and the order giving custody to a non-parent is valid, final and permanent, the child's custodian must in effect prove by clear and convincing evidence that the parent made an additional promise not to assert his superior right to custody in the future. This holding effectively transforms Tennessee into a jurisdiction in which "the parental preference [is applied] in all custody proceedings, whether they are initial proceedings or proceedings to modify prior orders." Guinta v. Doxtator , 20 A.D.3d 47, 52, 794 N.Y.2d 516, 520 (N.Y. App. 2005). This approach was specifically rejected in Blair , inasmuch as it "would effectively render existing orders of custody to non-parents practically worthless." Blair , 77 S.W.3d at 149.
The Supreme Court in Blair carefully balanced protection of the parent's superior right to custody against the child's need for permanency and stability. Mr. Sharp's constitutional superior right to custody of his child was fully protected in all of the proceedings leading up to the permanent order, and he nevertheless chose to relinquish custody permanently. As emphasized in Blair , at this point we should protect "the interests of the child in a stable and secure environment." Blair , 77 S.W.3d at 149.
I would affirm the decision of the trial court. Therefore, I respectfully dissent.