                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   October 27, 2009 Session

              DAVID M. SHARP v. DEBBIE F. STEVENSON, ET AL.

               Direct Appeal from the Chancery Court for Obion County
                     No. 24,758    W. Michael Maloan, Chancellor


                     No. W2009-00096-COA-R3-CV - March 10, 2010


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.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Vacated;
                                  and Remanded

D AVID R. F ARMER, J., delivered the opinion of the Court. J. S TEVEN S TAFFORD, J., filed a
concurring opinion. H OLLY M. K IRBY, J., filed a dissenting opinion.

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.

                                            OPINION

       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 May 2007; that there had been a substantial material change of circumstance “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.

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                                      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-

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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.1 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.2 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).

        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

        1
         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).
        2
          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.

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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

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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 Blair 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

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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

                                               -7-
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, Mr.
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

                                               -8-
(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.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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