                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                October 22, 2014 Session

               IN RE GUARDIANSHIP OF TAYLOUR L., ET AL.

                 Appeal from the Probate Court for Shelby County
           No. D15303, D15304, D15305, D15306    Robert Benham, Judge




               No. W2013-01296-COA-R3-CV - Filed January 29, 2015




This appeal concerns a guardianship proceeding for four children. The mother of the
children (“Mother”) was killed while on duty as a police officer. The children’s maternal
grandmother and the father (“Father”) of three of the children sought custody of all four
children. The trial court ultimately awarded custody to the children’s maternal grandfather
(“Grandfather”), although Grandfather was not a party to the proceedings and did not request
guardianship of the four children. Father appeals, asserting that the trial court erred in not
awarding custody to him. We have determined that the trial court erred in awarding
Grandfather guardianship of Father’s three biological children without first determining that
there would be a substantial risk of harm to the children should Father be appointed guardian.
Furthermore, we find that the trial court erred in awarding Grandfather guardianship of
Mother’s fourth child without conducting a thorough best interest analysis. Therefore, we
vacate the trial court and remand for further proceedings.

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

A NDY D. B ENNETT, J., delivered the opinion of the court, in which J. S TEVEN S TAFFORD, P.J.,
W.S., and D AVID R. F ARMER, S P. J., joined.

Kathleen L. Caldwell, Memphis, Tennessee, for the appellant, Darius L.

Stephen R. Leffler, Memphis, Tennessee, for the appellee, Vivian W.

Flordia M. Henderson, Memphis, Tennessee, Guardian Ad Litem.
                                                 OPINION

                             F ACTUAL AND P ROCEDURAL B ACKGROUND

        MarToiya L. (“Mother”) and Darius L. (“Father” or “Mr. L.”) were married in 1998.
Three children were born of the marriage—Taylour L. (16 years old), Dariyn L. (15 years
old), and Naia L. (14 years old) Mother and Father separated in 2007 and never lived
together as husband and wife following their separation. During the parties’ separation,
Mother had a fourth child, Xaria L. (4 years old); however, Mr. L. is not the biological father
of Xaria.1 Also during the parties’ separation, Mr. L. fathered two children with his live-in
girlfriend. On January 4, 2008, Mother filed a complaint for divorce, which was eventually
dismissed for want of prosecution. On February 23, 2011, Mother filed a second complaint
for divorce.

       On December 14, 2012, Mother was tragically shot and killed while in the line of duty
as a police officer. On December 21, 2012, the children’s maternal grandmother, Vivian W.
(“Grandmother”), filed a petition seeking to be appointed guardian of all of the children.
Grandmother asserted that Father had a history of domestic abuse and that he had failed to
pay child support or participate in the children’s lives since 2009. On December 28, 2012,
Father filed a response and counter-petition seeking to be appointed guardian of the four
children. On February 25, 2013, the trial court entered a consent order of temporary
guardianships which provided that Naia and Xaria would reside with Grandmother; Dariyn
would reside with her paternal uncle; and Taylour would reside with Father. The order also
required Father and Grandmother to undergo psychological evaluations and engage in family
counseling with the children. Father was ordered to pay child support and provide insurance,
among other things.

       The trial court then held hearings in March and April 2013, at which twenty-two
witnesses testified.2 The trial court entered findings of fact and conclusions of law on April
19, 2013 and determined that neither Father nor Grandmother should be awarded
guardianship of the children.3 In reaching its conclusion, the trial court found, inter alia,
that Father had very little interaction with his children following the separation of the


        1
           The parties assumed that Chauncey S. (Mr. S.) was the biological father of Xaria; however, DNA
tests results introduced at trial showed that Mr. S. was not Xaria’s father. The record does not include the
identity of Xaria’s father.
        2
            We will discuss the testimony as it relates to the issues on appeal.
        3
            Grandmother does not appeal this ruling.

                                                       2
parties; Father had difficulty communicating with his daughters; Father received $30,000
following the death of Mother but failed to pay child support, choosing, instead to purchase
an extended cab pick-up truck; Father pled guilty to stalking and served eleven months in
jail; and Father had a history of physical altercations. The court emphasized that the
proceeding was “not a custody hearing” and went on to apply Tenn. Code Ann. § 34-2-103.
The court concluded:

       [I]t is not to the best interest of these four (4) children for their father, Darius
       L[.], to be appointed as Guardian of the Person of these children at this time.
       As set forth above, Darius L[.] has anger management problems, has not
       followed the Orders of this Court, has neglected his children over an extended
       period of time, and is living in a domestic situation that is not conducive to
       instilling appropriate behavior for these children.

       The court determined that the children’s maternal grandfather, Marvin W.
(“Grandfather”) should be appointed guardian of all four children. The trial court’s factual
findings regarding Grandfather are as follows:

       33. Marvin W[.], the father for Martoiya L[.], and his former wife, Vivian
       W[.], appear to have a “friendly” relationship.

       34. Over the years, and especially since the separation of Martoiya L[.] and
       Darius L[.] in 2007, Marvin W[.] has been a primary support giver for his
       grandchildren. He has been active in their extra-curricular activities; has
       provided transportation to and from school for them; and has supervised their
       activities while their mother was working as a Memphis Police Officer.

       35. The Court interviewed the three (3) oldest children of Martoiya L[.] in the
       presence of the Court Reporter, the Guardian Ad Litem, and counsel for Darius
       L[.] and for Vivian W[.].

       36. From this interview, the Court finds that these three (3) children have a
       close and respectful relationship with their grandfather, Marvin W[.]

Finally, the court held that, as guardian of the four children, Grandfather is “empowered to
make all decisions regarding the appropriate education, housing needs, extra-curricular
activities and medical decisions” related to the children.

        Father appeals, asserting that the trial court deprived him of his constitutional rights
to the care and custody of his children without a finding that he poses a substantial risk of

                                                3
harm to the children or is an unfit parent. He further argues that the court abused its
discretion by allowing the children’s guardian ad litem to serve as an attorney ad litem.

                                     S TANDARD OF R EVIEW

       In an appeal of a decision rendered after a bench trial, we review the trial court’s
findings of fact de novo with a presumption of correctness unless the preponderance of the
evidence is otherwise. T ENN. R. A PP. P. 13(d); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). We review questions of law de novo, with no presumption of
correctness. Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999).

                                            A NALYSIS

        The trial court determined that Grandfather was the appropriate person to appoint as
guardian of three of Father’s biological children and one child unrelated to Father. In coming
to this conclusion, the trial court cited Tenn. Code Ann. § 34-2-103 and focused its analysis
solely on the best interest of the children. Father asserts that the trial court deprived him of
his constitutional rights to the care and custody of his children by failing to find that he posed
a danger of substantial harm to the children prior to conducting a best interest analysis.
Because this presents a question of law, we review the trial court’s decision de novo, with
no presumption of correctness. See Nelson, 8 S.W.3d at 628.

        The section of the trial court’s final order, in which it sets out its “conclusions of law,”
states, in its entirety:

              This is not a custody hearing. This is a hearing to determine the
       Guardian of the Person only of the four (4) children of Martoiya L[.].
       Previously, Guardian of the Estate has been appointed to handle their assets.
       The primary legal authority is found in Title 34, Chapter 2, §§ 101 through 106
       of the Tennessee Code. The Court’s primary guideline is Tenn. Code Ann. §
       34-2-103, which follows:

               34-2-103. Priority of persons to be considered. -
               Subject to the court’s determination of what is in the best
               interests of the minor, the court shall consider the following
               persons in the order listed for appointment of the guardian:
               (1) The parent o[r] parents of the minor;
               (2) The person or persons designated by the parent or parents in
               a will or other written document;
               (3) Adult siblings of the minor;

                                                 4
              (4) Closest relative or relatives of the minor; and
              (5) Other person or persons . . .

       As such, it is the duty of this Court to determine what is in the best interests
       of these four (4) children.

       From the abundant Findings of Fact above, it is apparent that it is not to the
       best interest of these four (4) children for their father, Darius L[.], to be
       appointed as Guardian of the Person of these children at this time. As set forth
       above, Darius L[.] has anger management problems, has not followed the
       Orders of this Court, has neglected his children over an extended period of
       time, and is living in a domestic situation that is not conducive to instilling
       appropriate behavior for these children.

             Further, as stated above, it is not to the best interest of these children for
       Vivian W[.] to be their Guardian.

               The Court finds the person best situated to assume the duties of
       Guardian of the Person of the four (4) children, subject to these Orders, is in
       fact their grandfather, Marvin W[.].

              The above-referenced Statute is very clear and this Court is following
       the guideline as established by Statute.

        Under the United States and Tennessee Constitutions, a parent has a fundamental
liberty interest in making decisions concerning the care, custody, and control of his or her
child(ren). Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Quilloin v. Walcott, 434 U.S.
246, 255 (1978) (“We have recognized on numerous occasions that the relationship between
parent and child is constitutionally protected.”); Stanley v. Illinois, 405 U.S. 645, 651
(1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). In disputes between
a parent and a non-parent, parents are afforded a “presumption of ‘superior parental rights.’”
In re B.C.W., No. M2007-00168-COA-R3-JV, 2008 WL 450616, at *3 (Tenn. Ct. App. Feb.
19, 2008) (quoting Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002)); see Ray v. Ray,
83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (“[W]hen faced with competing custody claims
by a biological parent and a third party, the courts must favor the biological parent.”).
Furthermore, these superior parental rights “continue without interruption unless a parent
consents to relinquish them, abandons the child, or forfeits parental rights by conduct that
substantially harms the child.” In re B.C.W., 2008 WL 450616, at *2 ; see Hawk v. Hawk,
855 S.W.2d 573, 582 (Tenn. 1993) (declaring the then existing Grandparent Visitation
Statute, which allowed courts to order visitation with grandparents based solely on a finding

                                                5
that such visitation was in the child’s best interest, unconstitutional).

       Thus, our Supreme Court has ruled that, absent 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). Accordingly, a
two-part inquiry is to be applied when resolving a dispute between a parent and a non-parent
regarding the care, custody, and control of the parent’s children:

        In 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.

Sikora ex rel. Mook v. Mook, 397 S.W.3d 137, 143 (Tenn. Ct. App. 2012) (quoting In re
Askew, 993 S.W.2d at 3-4). While circumstances that constitute substantial harm are difficult
to define precisely, this Court has suggested the following guidance:

        [T]he use of the modifier “substantial” indicates two things. First, it connotes
        a real hazard or danger that is not minor, trivial, or insignificant. Second, it
        indicates that the harm must be more than a theoretical possibility. While the
        harm 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.

Ray, 83 S.W.3d at 732 (footnote omitted).

        In view of these fundamental constitutional rights, we will consider whether the trial
court erred in granting Grandfather guardianship of Father’s three biological children.4 The
trial court emphasized that this proceeding was for guardianship and “not custody.”
(Emphasis provided). The trial court made much of this distinction 5 and was convinced that,
because this was a proceeding to appoint a guardian, the court was simply required to
conduct a best interest analysis pursuant to Tenn. Code Ann. § 34-2-103.




        4
           We will discuss the guardianship of Xaria, Mother’s fourth child who is not Father’s biological
child, separately, below.
        5
          In its oral ruling, the trial court stated, “The outset - - let me say that this is not a custody matter.
This is a guardianship matter. There is a difference between custody and guardianship. The guardian
determines who has custody of whom and under what circumstances.”

                                                        6
        The statute cited by the trial court, Tenn. Code Ann. § 34-2-103, is part of a broader
statutory scheme dedicated to guardianships and conservatorships. Tennessee Code
Annotated section 34-1-101(9) defines a “guardian” as “a person . . . appointed by the court
to provide partial or full supervision, protection and assistance of the person or property, or
both, of a minor.” Tennessee Code Annotated section 34-1-102 addresses the presumption
that biological parents are to be the primary guardians and providers for their children:

       (a) Parents are the joint natural guardians of their minor children, and are
       equally and jointly charged with their care, nurture, welfare, education and
       support and also with the care, management and expenditure of their estates.
       Each parent has equal powers, rights and duties with respect to the custody of
       each of their minor children and the control of the services and earnings of
       each minor child; provided, that so much of the net income of each minor child
       as may be necessary may be expended by a parent (without the necessity of
       court authorization) for the child’s care, maintenance and education. Funds of
       a minor held by a guardian shall not be expended to relieve or minimize the
       obligation of the parent or parents to support the minor.
       ...
       (c) If either parent dies or is incapable of acting, the guardianship of each
       minor child shall devolve upon the other parent.

Tenn. Code Ann. §§ 34-1-102(a), (c). Tennessee Code Annotated section 34-2-103, the
statute quoted by the trial court, dictates the order of priority of persons to be considered
when appointing a guardian for a minor and lists parents first.

        We disagree with the trial court’s interpretation that appointing a guardian pursuant
to Tenn. Code Ann. § 34-2-103 requires nothing more than a best interest analysis when the
choice of guardian is between a biological parent and a non-parent. Where a parent is not
appointed as the guardian of his or her children, that parent’s fundamental constitutional
rights to the care, custody, and control of his or her children are implicated. In that
circumstance, we believe the two-part test discussed in In re Askew and Sikora ex rel. Mook
v. Mook, quoted above, should be undertaken. This is because, a proceeding to appoint a
guardian who will provide “partial or full supervision, protection and assistance of the person
or property, or both, of a minor” and will be empowered with broad decision-making
authority on behalf of the child, requires a similar analysis as a proceeding involving custody
of a child. Tenn. Code Ann. § 34-1-101(9); see Marsh v. Sensabaugh, No. W2001-00016-
COA-R3-JV, 2001 WL 1176017, at *3 (Tenn. Ct. App. Oct. 1, 2001) (“[I]n order to prevail
in a child custody action in Tennessee, third parties must overcome a strong presumption in
favor of the child’s natural parents.”).



                                              7
        Here, the trial court failed to make an express finding that there was a risk of
substantial harm to the children should Father be named their guardian.6 Therefore, we find
that the trial court acted prematurely in awarding guardianship of Father’s three biological
children—Taylour, Dariyn, and Naia—to Grandfather based solely on a best interests inquiry.
We vacate and remand this portion of the judgment to the trial court for a determination of
whether Father poses a risk of substantial harm to the children.

         Next we consider whether the trial court erred in awarding Grandfather guardianship
of Xaria. As we have mentioned, Xaria is not the biological or adopted child of Father.
Under these circumstances, and pursuant to Tenn. Code Ann. § 34-2-103, it was appropriate
for the court to consider Xaria’s best interests when appointing a guardian for her. Tennessee
Code Annotated section 36-6-1067 provides the relevant factors to be considered when
examining the best interests of a child:

        (1) The love, affection and emotional ties existing between the parents[ 8 ] or
        caregivers and the child;

        (2) The disposition of the parents or caregivers to provide the child with food,
        clothing, medical care, education and other necessary care and the degree to
        which a parent or caregiver has been the primary caregiver;

        (3) The importance of continuity in the child’s life and the length of time the
        child has lived in a stable, satisfactory environment; provided, that, where


        6
           In its oral ruling, the trial court stated: “Now, the father would have under our law the first right
to have all his children with him. But would that render a risk of substantial harm to the child.” The trial
court went on to discuss Father’s “track record,” but the court never conclusively stated that Father would
pose a substantial risk of harm to the children. Moreover, in its written order, the court did not discuss
“substantial harm” at all.
        7
          Tennessee Code Annotated section 36-6-106 was amended by 2014 Tenn. Pub. Acts ch. 617, which
took effect on July 1, 2014. We have cited to the version of Tenn. Code Ann. § 36-6-106 that was in effect
at the time of the hearing on this matter.
        8
          We recognize that this statute refers to the “parent” of the child; however, this Court has applied
Tenn. Code Ann. § 36-6-106 in matters involving competing custody and guardianship petitions between
parties who are not the biological or adoptive parents of the children involved. See Presley v. Shadrick, No.
E2001-00015-COA-R3-JV, 2001 WL 1657210, at *7-8 (Tenn. Ct. App. Dec. 27, 2001) (granting custody and
guardianship to the children’s maternal great uncle and his wife when the children’s father murdered their
mother); Ward v. Turner, No. M1999-00719-COA-R3-CV, 2000 WL 1532987, at *2-3 (Tenn. Ct. App. Oct.
18, 2000) (affirming trial court’s award of custody to children’s maternal grandparents after the children’s
parents were killed in an automobile accident).

                                                       8
there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-
15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one
(1) parent, and that a nonperpetrating parent or caregiver has relocated in order
to flee the perpetrating parent, that the relocation shall not weigh against an
award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if twelve (12) years of age or
older;

(B) The court may hear the preference of a younger child on request. The
preferences of older children should normally be given greater weight than
those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or
to any other person; provided, that, where there are allegations that one (1)
parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402,
or child sexual abuse, as defined in § 37-1-602, against a family member, the
court shall consider all evidence relevant to the physical and emotional safety
of the child, and determine, by a clear preponderance of the evidence, whether
such abuse has occurred. The court shall include in its decision a written
finding of all evidence, and all findings of facts connected to the evidence. In
addition, the court shall, where appropriate, refer any issues of abuse to the
juvenile court for further proceedings;

(9) The character and behavior of any other person who resides in or frequents
the home of a parent or caregiver and the person’s interactions with the child;
and

(10) Each parent’s or caregiver’s past and potential for future performance of
parenting responsibilities, including the willingness and ability of each of the
parents and caregivers to facilitate and encourage a close and continuing
parent-child relationship between the child and both of the child's parents,
consistent with the best interest of the child. In determining the willingness of
each of the parents and caregivers to facilitate and encourage a close and

                                       9
        continuing parent-child relationship between the child and both of the child's
        parents, the court shall consider the likelihood of each parent and caregiver to
        honor and facilitate court ordered parenting arrangements and rights, and the
        court shall further consider any history of either parent or any caregiver
        denying parenting time to either parent in violation of a court order.

       Without expressly referencing these statutory factors, the trial court made the
following findings of fact regarding Grandfather:

        33. Marvin W[.], the father for Martoiya L[.], and his former wife, Vivian
        W[.], appear to have a “friendly” relationship.

        34. Over the years, and especially since the separation of Martoiya L[.] and
        Darius L[.] in 2007, Marvin W[.] has been a primary support giver for his
        grandchildren. He has been active in their extra-curricular activities; has
        provided transportation to and from school for them; and has supervised their
        activities while their mother was working as a Memphis Police Officer.

        35. The Court interviewed the three (3) oldest children of Martoiya L[.] in the
        presence of the Court Reporter, the Guardian Ad Litem, and counsel for Darius
        L[.] and for Vivian W[.].

        36. From this interview, the Court finds that these three (3) children have a
        close and respectful relationship with their grandfather, Marvin W[.]

       We have reviewed the record and the trial court’s decision, and we find that the trial
court did not err in determining that appointing Father as the guardian of Xaria was not in
her best interests; however, we are not convinced that the trial court thoroughly applied the
best interest factors when appointing Grandfather as her guardian. First, Grandfather was
not a party in the proceeding (he never filed a petition or pleading of any kind) and he never
requested to become the guardian of Xaria.9 Grandfather was not given temporary
guardianship of any of the four children pursuant to the consent order entered by the trial
court on February 25, 2013, and there was no testimony regarding whether he would be an
appropriate guardian for Xaria, specifically. In fact, most of Grandfather’s testimony focused
on his interactions with Father as well as his observation of Father’s past interactions with
Mother. Grandfather testified that he had a good relationship with Grandmother, his ex-wife,
and he testified that he frequently picked up the school-age children from school, but there


       9
         Grandfather testified that he would like to be the guardian of Dariyn; however, Grandfather was
never questioned about his desire to be the guardian of the other children.

                                                  10
was no testimony relating to his relationship with Xaria specifically. Therefore, we remand
the case for a thorough analysis of Xaria’s best interests and to determine who should be
appointed her guardian.

       Finally, we consider Father’s contention that the trial court “abused its discretion by
appointing a guardian ad litem for the children, then allowing the guardian ad litem to serve
as attorney ad litem.” Father asserts that the guardian ad litem (“GAL”) “was an actual
advocate for the maternal grandmother” and that it was inappropriate for the GAL to testify
as a “fact witness” and offer proof at the hearing.

        Pursuant to Tenn. Code Ann. § 34-1-107(d)(1), a GAL “owes a duty to the court to
impartially investigate the facts and make a report and recommendations to the court” and
is not an advocate for the respondent or any other party. Tennessee Code Annotated section
34-1-107(d)(2)(D)(iii) allows a GAL to make a report and recommendations to the court
regarding any matter “as directed by the court.” This Court has explained that it is the duty
of a GAL to “voice the desires and advocate the best interests” of the person for whom they
are appointed. McGill v. Hendrix, 913 S.W.2d 184, 192 (Tenn. Ct. App. 1995).

       At the trial on April 12, 2013, the trial court requested Flordia Henderson, GAL for
the children, to take the witness stand and “summarize” her report. Ms. Henderson gave an
account of the individuals she interviewed and gave her ultimate impressions of the case. We
disagree with Father’s contention that Ms. Henderson was “an actual advocate for the
maternal grandmother.” While Ms. Henderson may have reached similar conclusions as
those advocated for by Grandmother’s counsel, there is nothing to indicate Ms. Henderson
was acting other than to voice the desires and advocate the best interests of the children.

       Ms. Henderson also testified regarding an incident that transpired a few days prior to
the hearing when a Memphis police officer telephoned her in the middle of the night and
requested that she come to Father’s home during a disturbance. The court then requested that
Ms. Henderson present two witnesses, Officer Robinson and Officer Trakul, to testify
regarding the specifics of the incident. Officer Trakul testified that when he arrived at
Father’s house, Father stated that “he was in an argument with his daughters and that they
were being unruly.” The officers testified that they called Ms. Henderson when they learned
the children had a court-appointed guardian. With Ms. Henderson’s help, the Officers
recommended that the children spend the rest of the night with their Grandmother until
everyone’s emotions settled.

      On appeal, Father asserts this testimony and line of questioning was inappropriate.
Counsel for Father never objected to Ms. Henderson’s questioning the officers at trial.
“Objections to the introduction of evidence must be timely and specific.” Grandstaff v.

                                             11
Hawks, 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000). “A party who invites or waives error,
or who fails to take reasonable steps to cure an error, is not entitled to relief on appeal.” Id.
(citing T ENN. R. A PP. P. 36(a), cmt. a). Father’s failure to object to Ms. Henderson’s
questioning of the officers in a timely and specific fashion precludes him from taking up the
issue on appeal.

                                         C ONCLUSION

        For the foregoing reasons, we vacate the trial court’s decision to appoint Grandfather
guardian of Father’s three biological children without first finding a risk of substantial harm
to the children. Likewise, we vacate the court’s appointment of Grandfather as guardian of
Xaria. The case is remanded to the trial court for further proceedings consistent with this
opinion. Costs of the appeal are taxed to the parties equally.




                                                               _________________________
                                                               ANDY D. BENNETT, JUDGE




                                               12
