             IN THE COURT OF APPEALS OF TENNESSEE
                        AT NASHVILLE
                              January 7, 2003 Session


               JOSEPH NEIL NOLEN v. AMY JAY NOLEN

                 Appeal from the Chancery Court for Hickman County
                     No. 01-260C Donald P. Harris, Judge



                No. M2002-00138-COA-R3-CV - Filed August 5, 2003


This appeal arises from the trial court’s decision to award custody of the parties’ minor
children to third party custodians. After finding each parent unfit, the chancellor
awarded custody of the daughter to the mother’s aunt and the son was awarded to an
unrelated third party. Parenting time was established every first and second weekend
with the third party custodians having the third weekend. Holiday parenting time was
also included. Most importantly the siblings were reunited during these times with their
parents. Both parties were ordered to split the child support obligation owed to the third
parties. The father filed this appeal. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

DON ASH, SJ delivered the opinion of the court, in which BEN H. CANTRELL , PJ, MS,
joined and WILLIAM B. CAIN , J, concurring.

Irene R. Haude, Nashville, Tennessee, for the appellant, Joseph Neil Nolen.

Douglas Thompson Bates, III, Centerville, Tennessee, for the appellee, Amy Jay Nolen
and Third Party Custodian, Jeannie LaCasse.

Ronald Kilgore, Nashville, Tennessee for appellee, LaDonna Miller, Third Party
Custodian.

                                       OPINION

                                            I.

                                      Background

       Joseph Neil Nolen (“Father”) and Amy Jay Nolen (“Mother”) were married

February 14, 1998 after a dating relationship which began the previous fall. The parties


                                          -1-
married when Father was seventeen years old and Mother was eighteen. They have two

children, Alexcia Renea (“Lexie”) born March 21, 1998 and Steven Eugene (“Neil”) born

July 14, 1999. Throughout the relationship, the young family moved from place to place,

mostly relying upon family to supply a place to live. Initially, they lived in a trailer in

Burns, Tennessee. During this time, the Father worked during the day and the Mother

was responsible for Neil’s care with the assistance of the Father’s sisters, Jessie and

Jackie.

          In late summer 1998 the family moved in with the Mother’s parents. This turned

out to be an unpleasant experience for everyone. Eventually, the Nolen’s moved out

around Neil’s birth in July 1999 and moved in with Father’s parents.

          The Nolen’s stayed with Father’s parents until around mid-summer 2000. At that

time, they moved to a trailer located on Father’s grandparent’s property. During the

majority of the year 2000, Father worked nights and Mother worked days. For the most

part, Neil spent time with LaDonna Miller and Jessie kept Lexie. This general pattern

continued into early 2001.

          In May 2001, Father began an adulterous relationship with Shandell Hillyard.

Soon after the Nolen’s separated.      Around the same time Father, Shandel, and her

daughter moved in with Father’s parents, Tina and Jeffery Nolen. The Nolens also had

Father’s two sisters living with them in a four- bedroom house. During this period,

Father stayed with Shandel leaving Neil with LaDonna Miller and Lexie with his sister

Jessie rather than exercising his parenting time. Shandel continued living at the Nolen’s

home until shortly before the trial in this action in November 2001.




                                           -2-
         In the summer of 2001, Mother and Jessie engaged in various activities, including

troubling sexual conduct and illegal drug use. This period was repeatedly referred to as

the “dark summer.” Mother and Jessie had numerous sexual partners during this time

period. On occasions, Mother has no recollection of what happened to her children due

to her use of Prozac and hallucinations from her use of Xanax. She and Jessie drank

alcohol and smoked marijuana. The girls had visitor’s traveling to and from the trailer

into early morning hours while keeping the children. The children were exposed to R-

rated horror movies. Mother’s paramours visited the trailer with the children present.

She engaged in adulterous sexual relations while the children were in the trailer. Jessie

brought her boyfriends into the trailer as well, one of which was a convicted felon.

         In September 2001, Mother, Jessie, and Lexie visited Mother’s grandmother for

lunch. After talking around the table for a few hours, Mother became angry when it was

suggested Mother not reconcile with Father. She threatened to take the children to

Indiana where her uncle lived. Grandmother pleaded with her not to take the children to

Indiana and away from her support system. Grandmother also said “Somebody will take

your kids away from you.” Mother replied she would become a “psychopathic mother”

and “kill my kids and myself” and stormed out of the house with Jessie.

         Father filed a pro se Temporary Restraining Order petition in Juvenile Court on

September 28, 2001.1 Mother filed a divorce complaint on October 10, 2001 alleging

inappropriate marital conduct and irreconcilable differences. Father responded by filing

an Answer, Affirmative Defenses and Counterclaim on October 19, 2001 alleging


1
  The exact disposition of this filing is unclear in the record. In his opening statement, Mother’s attorney
stated Father filed a “pro se petition.” Father later testified he filed a Petition for a Tem porary Restraining
Order in Juvenile Court. Apparently, however, the Juvenile Court transferred the proceedings to the
divorce co urt under T .C.A. § 37 -1-10 3(c). See also Toms v. Toms, 98 S .W .3d 1 40, 1 44 (Tenn. 20 03).


                                                      -3-
justifiable cause and claiming irreconcilable difference, adultery, and inappropriate

marital conduct. In this document, Father requested primary custody of the children

citing Mother’s activities during the “dark summer.”        The divorce was heard on

November 5, 2001 and the Chancellor found joint grounds for divorce. Furthermore, the

Chancellor found neither parent to be a fit parent and awarded permanent legal

guardianship of Neil to LaDonna Miller and permanent legal guardianship of Lexie to

Jeannie LaCasse. Father filed his Notice of Appeal on January 11, 2002.

                                           II.

                                 STANDARD OF REVIEW

       Removing custody from both biological parents is a serious matter involving

constitutionally protected rights. Our standard of review reflects the hesitancy to invoke

such action. Our review is de novo upon the record and we presume the trial court’s

findings of fact were correct, unless the evidence preponderates otherwise. Tenn. Rule

App. P. 13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The trial court’s

legal conclusions are reviewed de novo with no presumption of correctness.

Ganzenvoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                                           III.

RESPONSIBILITY FOR PARENTING THE CHILDREN



                                           A.

       Tennessee courts recognize our State Constitution provides a right to privacy

found at Article I, Section 8. In re Askew, 993 S.W.2d 1, 3 (Tenn. 1999) (citing Davis v.

Davis 842 S.W.2d 558 (Tenn. 1992)). Based upon this right to privacy, parents have a




                                          -4-
constitutional right to care for their children. Hawk v. Hawk, 855 S.W.2d 573, 570 (Tenn.

1993).

         In child custody disputes between a biological parent and a non-biological parent,

Tennessee courts must apply a two-part inquiry as set forth by our Supreme Court in In

re Askew, holding as follows:

         [I]n a contest between a parent and a non-parent, a parent cannot be
         deprived of the custody of a child unless there has been a finding, after
         notice required by due process, of substantial harm to the child. Only then
         may a court engage in a general “best interest of the child” evaluation in
         making a determination of custody.

In re Askew, 993 S.W.2d at 3-4 (quoting Bond v. McKenzie, 896 S.W.2d 546, 548 (Tenn.

1995). Accordingly, a court, when faced with such a custody dispute will not make a best

interest inquiry until it first determines there exists substantial harm if the child is placed

in the custody of the biological parent. Ray v. Ray, 83 S.W.2d 726 (Tenn. Ct. App. 2001).

         Neither the Tennessee General Assembly nor the courts have precisely defined

what circumstances pose a risk of substantial harm to a child. Id at 726. Common sense

and judicial experience are therefore appropriate processors of evidence in determining

what acts are a “real danger or hazard” and what acts are “minor, trivial, or

insignificant.” Id. at 732. Our Supreme Court has used the unfit parent standard in

determining if a child would be exposed to substantial harm if parenting time were

placed with the biological parent. See In re Askew, 993 S.W.2d 1 (Tenn. 1999) (third

party custody may not be awarded without showing biological parent unfit, child was

dependent and neglected, or substantial danger of harm to child existed); Hawk v. Hawk,

855 S.W.2d 573 (Tenn. 1993) (finding absent showing substantial danger of harm to




                                             -5-
child, fit parents may not lose parental right to care for child by judicial order). In Ray,

this court stated:

        The courts cannot award custody to a third party instead of a biological
        parent unless the third party can demonstrate that the child will be exposed
        to substantial harm if custody is awarded to the biological parent. In other
        words, a biological parent cannot be denied custody unless he or she is
        found to be unfit.

Ray, 83 S.W.3d at 732; see also Hall v. Bookout, 87 S.W.3d 80, 86 (Tenn. Ct. App. 2002)

(holding coupling the lack of a finding of unfitness and denying third party’s custody

petition “amounted to” a finding of no risk of substantial harm).

        An indication of the importance of the court’s evidentiary determination is the

standard of proof required to establish the biological parent’s unfitness.     In a custody

dispute between a biological parent and a non-biological parent, the biological parent’s

unfitness must be established by clear and convincing evidence. Bookout, 87 S.W.3d at

86. Our Supreme Court repeatedly emphasizes the biological parent’s constitutionally

protected interest in raising their children free from unwarranted state intervention. See

Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999); In re Swanson, 2 S.W.3d 180 (Tenn.

1999). The decision to remove a child from the biological parents is one that should be

carefully and seriously examined.

                                             B.

    WAS THE TRIAL COURT’S DETERM INATION OF PARENTAL UNFITNESS ERROR ?

        Without question, the trial court found both parents unfit to raise the two children.

In making this determination, the trial court stated, “I don’t think I’ve ever had a case

that gives me more concern about children.” The trial court made findings of fact

regarding each parent respectively. We examine each in turn below.




                                            -6-
                                   1. Mother’s Unfitness

          The trial court clearly found Mother was unfit to care for her two minor

children. On appeal, Mother does not contest the trial court’s determination of her

unfitness. Rather, Mother argues against Father’s fitness. We do not disagree with the

trial court’s determination. Mother’s conduct during the time period described as the

“dark summer” displays her unfitness. We affirm.

                                   2. Father’s Unfitness

       The trial court gave the following reasons for finding Father unfit: (1) moving his

lover and her child into his parent’s already crowded home; (2) allowing his sister Jessie

to continue to care for the children during and after her actions during the “dark

summer;” and (3) failing to adequately establish a stable plan for caring for the children.

       First, Father argues the court violated his constitutional right to rear his children

by finding Father unfit and awarding the children to separate third parties. Father argues

the trial court lacked a factual foundation for its unfitness finding. In support, he argues

once he became aware of Mother’s conduct, he petitioned Juvenile Court for temporary

custody. The record clearly reflects facts to the contrary.

        During “dark summer” Father was aware of Mother and Jessie’s activities in the

trailer. He knew Mother endangered the children with her drug abuse, her abusive

language, and her “boyfriends.” He did nothing until September with the exception of

occasionally voicing his opposition. When questioned about his reaction to Mother and

Jessie’s activities, Father stated, “I didn’t care what Amy and them was doing.” Rather




                                             -7-
than spend time with Neil, he sent Neil to LaDonna Miller’s house. On at least seven

occasions, Father deferred staying with his children in favor of staying with Shandel. His

decisions clearly demonstrated a clear disregard of parental responsibilities. 2

        Finally, Father argues he has a specific plan for caring for the children. We can

find no evidence Father has taken any meaningful steps to develop a substantial

relationship with his children or accept responsibility for their care and custody. See Nale

v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994).                 At trial, Father had just been

terminated from his job and his brief on appeal does not indicate he is currently

employed. He planned to live with his parents, whose home was still crowded with his

siblings and he had made virtually no effort to secure his own home. Father continued to

allow Jessie to baby-sit Neil and Lexie even after her actions during the “dark summer.”

Although he argued he wished to reduce LaDonna Miller’s time with Neil, he continued

up until trial to allow her to keep Neil for extended periods of time. Mrs. Tina Nolen

encouraged her daughter-in-law to get a boyfriend to make her son jealous and return to

his family. Finally, testimony indicated Mr. Jeffery Nolen drank excessively and had

anger management problems. From the record, we agree with the trial court’s finding Mr.

Nolen unfit. Next, we turn to the trial court’s custody determination.

                                                 C.




2
 See Marsh v. Sensabaugh, No. W2001-000160-COA-R3-JV, 2001 Tenn. App. LEXIS 755 (Oct. 1, 2001)
(unreported) (upholding unfitness determination where father regularly failed to exercise visitation
privileges, along with other acts).


                                                -8-
        WAS IT ERROR TO AWARD PERMAN ENT CUSTODY TO THIRD PARTIES?

       Once a parent is found by clear and convincing evidence to be unfit, the court

must make a custody determination based on what custody arrangement is in the child’s

best interest. In re Askew, 993 S.W.2d 1, 3-4 (Tenn. 1999). The court below took the

remarkable step of placing the children in the custody of separate third parties. The

Father attacks this determination on two alternative grounds: (1) assuming the Father is

unfit, custody should have only temporarily been awarded to another party; or (2)

assuming the Father is unfit, the children should not have been separated into the custody

of two separate third parties. We will address both issues separately.

                                              1.

       As an alternative argument, Father argues even if both parents are unfit, the trial

court should have only temporarily removed custody from the parents. In support, Father

cites two of our decisions, Hall v. Bookout, 87 S.W.3d 80 (Tenn. Ct. App. 2002) and

Henderson v. Mabry, 838 S.W.2d 537 (Tenn. Ct. App. 1992), as precedent for the

proposition that even if a parent is unfit the court should order only temporary custody to

a third party. Presumably, temporary loss of custody will allow the unfit parent time to

become fit. A careful review of both cited cases reveals neither case supports such an

argument.

       Henderson and Hall are factually distinct from the present case because in both

cases the trial court did not find the biological parent unfit or pose a substantial danger of

harm to the child. Furthermore, in both cases, “exigent circumstances” existed justifying

temporary custody in a third party rather than with the biological parent. The “exigent

circumstances” in each case was that the biological mother had died. In Henderson, this




                                             -9-
court explicitly conditioned returning the child to the biological parent on two conditions:

(1) “so long as he is a fit custodian” and (2) “when the present exigent circumstances no

longer require custody in another.” Id. at 540-541. In Bookout, this court held it was

error for the trial court to “prolong indefinitely the return of the child to Father’s

custody” by awarding temporary custody to the paternal grandparents where the court

made no finding of unfitness or of substantial harm regarding the biological father.

Bookout, 87 S.W.3d at 86.


        Simply put, the trial court did not provide for the children to be returned to either

parent because the trial court viewed them as unfit to provide a stable, nurturing, and

loving environment for the children. We do not find Father’s arguments persuasive.


                                                      2.


        Next, Father argues even if parents unfit, the children should not have been

separated. Initially, we note keeping siblings together is generally preferred. See Baggett

v. Baggett, 512 S.W.2d 292, 293-294 (Tenn. Ct. App. 1973).                   Nevertheless, the

overriding concern is the welfare and best interests of the children. Parker v. Parker, 986

S.W.2d 557, 562 (Tenn. 1999).

        The trial court sought to preserve whatever stability and familiarity had developed

in these children’s lives. Mrs. Miller provided the stable, nurturing, and traditional family

environment for Neil he did not receive with his parents or close relatives. Mrs. Miller

works at a special education pre-school and is a foster parent. Additionally, she is

married and has three teenage daughters. Neil had developed a significant relationship

with LaDonna Miller. The record is clear Neil referred to Mrs. Miller as “mom” and Mr.



                                             - 10 -
Miller “dad.” Neil spent a significant amount of time with Mrs. Miller, even staying with

her for almost an entire summer.

       With respect to Jeannie LaCasse, the court’s reasoning is less clear but it seems

apparent however the trial court sought to establish some stability and preserve some

continuity of placement for Lexie.      Although Mrs. LaCasse did not have the long-

standing, established relationship with Lexie compared to LaDonna Miller’s relationship

with Neil, Mrs. LaCasse had kept Lexie on several occasions.            The trial court also

formulated a parenting plan allowing the siblings visitation together during parenting

times with Mother and Father.

       In assessing the court’s custody determination, it is important to recognize trial

courts have broad discretion in fashioning custody arrangements designed to suit the

unique circumstances presented in individual cases. Id. at 563. Our role as an appellate

court is not that of a “Monday morning quarterback.” Rather, we must assess if the trial

court’s decision overstepped the boundaries of a reasonable application of the law to the

facts presented. See Eldridge v. Eldridge, 42 S.W.3d 82 (Tenn. 2001). We find the facts

in the record do not support reversal of the trial court’s decision to separate the children.

                                             III.

       The trial court’s decision regarding the biological parents unfitness is affirmed.

The trial court is also affirmed regarding the issue of placing the children in separate

homes. Costs are taxed to the appellant.



                                               _________________________________
                                               DON R. ASH, SPECIAL JUDGE




                                            - 11 -
                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 7, 2003 Session

                    JOSEPH NEIL NOLEN v. AMY JAY NOLEN

                    Appeal from the Chancery Court for Hickman County
                         No. 01-260C    Donald P. Harris, Judge



                    No. M2002-00138-COA-R3-CV - Filed August 5, 2003



WILLIAM B. CAIN , J., concurring.

       For reasons articulated in Estate of Acuff v. O’Linger, 56 S.W.3d 527 (Tenn.Ct.App.
2001)(application to appeal denied) and in In re: Z.J.S. and M.J.P., 2003 WL 21266854
(Tenn.Ct.App. June 3, 2003)(Cain, Judge, concurring), I cannot agree that T.R.A.P. 13(d) provides
the proper standard of review in cases where the finder of fact is required to determine upon “clear,
cogent and convincing evidence” that the controlling facts are “highly probable.” In such cases, tried
non-jury, an appellate court must independently review the evidence and determine whether “clear,
cogent and convincing evidence establishes that such facts are “highly probable.” Such is the
standard of review that was used in Estate of Acuff wherein this Court held that a “clear and
convincing evidence” standard is incompatible and irreconcilable with a “preponderance of the
evidence” standard.

       Since the evidence in this case reviewed under the “clear and convincing evidence” standard
applied in Estate of Acuff clearly establishes the facts as found by the trial court to be “highly
probable,” I concur in the judgment.



                                               __________________________________________
                                               WILLIAM B. CAIN, JUDGE
