                IN THE SUPREME COURT OF TENNESSEE
                            AT JACKSON


                                               FILED
                                     FOR PUBLICATION
                                                    May 3, 1999
IN THE MATTER OF:                )   Filed: May 3, 1999
      BIANCA ARNESHE ASKEW,      )              Cecil Crowson, Jr.
                                 )            Appellate Court Clerk
                                 )
DOROTHY LEWIS,                       )     FAYETTE COUNTY
         Petitioner/Appellee,    )
                                 )   Hon. Jon Kerry Blackwood
v.                               )   Judge
                                 )
JULIE DONOHO,                    )   Supreme Court
      Respondent/Appellant.      )   No. 02S01-9901-CV-00006




FOR APPELLANT                                    FOR APPELLEE
Margaret R. Barr-Myers                           David W. Camp
Memphis, TN                                      Jackson, TN




                              OPINION
TRIAL COURT AND
COURT OF APPEALS REVERSED;
CASE REMANDED TO TRIAL COURT.                          DROWOTA, J.
        In this child custody case involving Bianca Arneshe Askew, now age eight

years and nine months, we consider the competing claims between the child’s natural

mother, Julie Donoho, and Dorothy Lewis, who presently has physical custody of the

child. The lower courts found that a prior court order had granted custody to Ms.

Lewis and that Ms. Donoho had failed to satisfy her burden of proving that custody

should be restored to her. Because we find that Ms. Donoho’s constitutional right as

a parent has been abridged, due to the absence of a showing of unfitness or of

substantial harm, we reverse the decisions of the lower courts.




                            FACTS & PROCEDURAL HISTORY



        Bianca Arneshe Askew was born on August 2, 1990. Bianca’s mother is

Respondent/Appellant Julie Donoho and Bianca’s father is Avery Askew.

Petitioner/Appellee Dorothy Lewis became involved in the care of Bianca during the

child’s early years. Ms. Lewis is the cousin of Ms. Donoho’s uncle’s former wife and

became acquainted with Ms. Donoho during her pregnancy with Bianca. Although

the details are not clear from the record, Ms. Donoho admitted that she was “going

through some problems” at the time of Bianca’s birth, including employment

difficulties and the rearing of her other two young children.1 As a result, Bianca

began to reside with Ms. Lewis at some point, although the record is unclear.




        1
           Ms. Donoho has two other children, one of whom is in her legal custody and the other of whom
is in the legal custody of the child’s father. Ms. Donoho, however, testified that she cares for both of
these children a majority of the time.

                                                  -2-
         This dispute began following an order entered by the Juvenile Court of Shelby

County in 1991 awarding custody of Bianca to Ms. Donoho. In February of 1994, Ms.

Lewis, a resident of Fayette County, filed a petition in the Juvenile Court of Fayette

County seeking custody of Bianca. As grounds, this petition simply alleged that “[t]he

child has been with Ms. Lewis since Oct. 1991.” After a hearing in March of 1994, the

juvenile court awarded custody of Bianca to Ms. Lewis in a perfunctory order. 2



         Immediately thereafter, Ms. Donoho filed a petition for custody in the Juvenile

Court of Fayette County alleging that she had not been provided with notice of the

proceeding and, thus, requesting that the March 1994 order be set aside.3

Alternatively, Ms. Donoho asserted that a change of circumstances warranted that

Bianca should be returned to her custody. Following a hearing, the juvenile court

found in August of 1994 that Ms. Donoho did not receive notice of Ms. Lewis’s

petition until the date of the hearing when she received a telephone call from the

juvenile court clerk’s office. The juvenile court proceeded to award “temporary

custody” of Bianca to Ms. Lewis, but noted:

         the Court declines to grant the natural parents custody of the minor
         child until such time as they show the Court that they are able to care
         for the minor child; that the Court finds that the interest of the natural
         parents in regaining custody of their child is superior to the right of [Ms.
         Lewis] and that the Court is only delaying restoring custody to the
         natural parents. . . . It is, therefore, ordered, adjudged and decreed that
         . . . the Court declines to grant the natural parents custody of the minor
         child until such time as they show the Court that they are able to care



         2
          This was the begin ning of a p rocedu ral debac le. The petition did not allege any grounds of
unfitness or depe nde ncy an d neg lect. T he ju venile cour t’s ord er did not m ake any fin ding in this regard
and, in fac t, the f ollow ing lan gua ge is e xplic itly crossed -out in the orde r: “It is c ontra ry to the Child ’s
welfare to rema in in the care , custod y, or control of her pare nt guard ian.”

         3
          Bian ca’s father, Avery Askew, also filed a petition to set aside the order. However, he is not
a party to this a ppeal.

                                                         -3-
       for the minor child; and that the Court is hereby delaying restoration of
       custody to the natural parents.

The juvenile court proceeded to set forth a visitation and child support schedule. The

order did not specify the conditions that the natural parents would need to satisfy in

order to establish their ability to care for Bianca. Neither party appealed this order.



       In March of 1996, Ms. Donoho filed a petition to restore custody, but the

Juvenile Court of Fayette County entered an order holding that it would not entertain

Ms. Donoho’s action due to her failure to pay child support as required by the August

1994 order. In October of 1996, the child support issue apparently resolved, Ms.

Donoho filed a renewed petition in the juvenile court to restore custody as well as a

contempt motion against Ms. Lewis for her alleged refusal to allow Ms. Donoho to

visit with Bianca. After the juvenile court entered an order denying her petition, Ms.

Donoho appealed to the Circuit Court of Fayette County.



       The trial court held a hearing in this case in March of 1997. Ms. Donoho

offered her own testimony as well as the testimony of two of her cousins and her

pastor. This testimony basically stated that Ms. Donoho has turned her life around:

she is gainfully employed and has developed a stable home in which she has helped

to rear her other two children. Ms. Donoho testified that she does not drink or smoke

and that members of her extended family, who have helped to rear her children, live

nearby. When questioned by Ms. Lewis’s counsel concerning why she has neglected

to adhere to the court-ordered visitation schedule with Bianca, Ms. Donoho

responded that she was traumatized by Ms. Lewis’s alleged harassment during the

course of such visitation. When questioned regarding her failure to adhere to regular


                                          -4-
court-ordered child support payments, Ms. Donoho maintained that she had paid all

arrearages.4



       Following the proof presented by Ms. Donoho, Ms. Lewis moved for dismissal.

The trial court granted this motion, finding that Ms. Donoho had “fail[ed] to carry her

burden of proof of showing ‘changed circumstances.’” Ms. Donoho appealed to the

Court of Appeals, asserting that the trial court did not apply the proper test. Ms.

Donoho contends that due to her status as Bianca’s parent and Ms. Lewis’s status

as a non-parent and due to Ms. Donoho’s recognized fundamental constitutional

parental right of privacy, the burden should have been on Ms. Lewis to demonstrate

a threat of substantial harm to Bianca if she is returned to the custody of Ms. Donoho.



       The Court of Appeals on September 23, 1998, found that a two-prong test

must be utilized in a modification of custody dispute in which a natural parent seeks

custody of a child in the custody of a non-parent. First, the non-custodial parent must

demonstrate a change of his or her circumstances. Then, the non-custodial parent

bears the burden of proving that a change of custody would not result in substantial

harm to the child. Applying this test to the facts, the majority of the Court of Appeals

found that Ms. Donoho had failed to satisfy the first prong by demonstrating that a

change of circumstances existed. Thus, the majority affirmed the trial court’s finding

with regard to this prong and reasoned that it was unnecessary to consider the

second prong. In a separate concurrence, Judge Lillard opined that Ms. Donoho had

proven changed circumstances, but found that Ms. Donoho had failed to demonstrate


       4
        Ms. Lewis’s counsel suggested that all arrearages had not been paid and that Ms. Donoho
would only pay the arrearages immediately prior to related legal proceedings.

                                             -5-
that a change of custody would not result in substantial harm to Bianca. Ms. Donoho

filed an application for permission to appeal on November 23, 1998. This Court

granted the application on January 19, 1999, and expedited the briefing schedule and

set this cause for oral argument on April 13, 1999.




                                     DISCUSSION



       The controversy at issue presents the Court with another opportunity to

consider the delicate interplay involving the constitutional right of a parent regarding

custody, the custodial right of a non-parent, and the welfare of a young child.

Following this Court’s recognition in Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992),

that the Tennessee Constitution guarantees the right to privacy, a progeny of recent

cases has held that this privacy interest includes the right for parents to care for their

children. In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), we found that:

       In light of this right to privacy, we believe that when no substantial harm
       threaten’s a child’s welfare, the state lacks a sufficiently compelling
       justification for the infringement on the fundamental right of parents to
       raise their children as they see fit.

Id. at 577; see also Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995); Nale v.

Robertson, 871 S.W.2d 674 (Tenn. 1994).



       In a recent case, Adoption of Female Child (Bond v. McKenzie), 896 S.W.2d

546 (Tenn. 1995) (“Bond”), we discussed this principle in the context of a dispute

between a parent and a non-parent. In Bond, the natural mother gave birth to the

child in 1987. Soon thereafter, the mother and father divorced and the mother was


                                           -6-
awarded custody of the child. Due to the child’s medical condition, the mother asked

a couple to temporarily assist her in caring for the child, who was eight and one-half

months old. One month later, the couple filed a petition for custody of the child. The

mother joined in the petition, mistakenly believing that the petition was simply

designed to allow the couple to authorize medical treatment but not to alter legal

custody. Realizing her mistake after the trial court entered an order awarding custody

to the couple, the mother filed a petition seeking to regain custody of the child. From

1988 until the case was resolved by this Court in 1995, the child was in the physical

custody of the couple for virtually the entire time period.



       After conducting a hearing on the petition, the trial court found that the mother

“has not sufficiently prepared herself to parent this child.” Nevertheless, the court

awarded custody to the mother provided that she receive parental training and

counseling. Id. at 547. The Court of Appeals reversed, finding that the child’s best

interest was best served by remaining in the custody of the couple. Applying cases

such as Hawk, supra, and Nale, supra, we reversed the decision of the Court of

Appeals, stating 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.

Bond, 896 S.W.2d at 548. Therefore, Bond stands for the proposition that a natural

parent may only be deprived of custody of a child upon a showing of substantial harm

to the child.




                                          -7-
       In the present case, the Court of Appeals found that the August 1994 order of

the juvenile court contained an “[i]mplicit . . . finding that Donoho was unable to care

for Bianca at that time and of substantial harm to Bianca that would have resulted in

awarding custody to Donoho.” Noting that this order was not appealed, the Court of

Appeals stated that the res judicata effect of this order made it “conclusive as

between Donoho and Lewis absent a showing by Donoho of a material change in

circumstances.”



       We cannot agree. The August 1994 order contains neither an explicit nor

implicit finding of substantial harm. Nothing in the record suggests that Ms. Donoho

is an unfit parent or that Bianca is a dependent and neglected child. See Tenn. Code

Ann. § 37-1-129 (1996). In fact, an explicit and implicit reading of the order conveys

every indication that the juvenile court intended to return Bianca to the custody of her

natural parents in the near future. When granting “temporary custody” to Ms. Lewis,

the juvenile court stated that “the interest of the natural parents in regaining custody

of their child is superior to the right of [Ms. Lewis] and that the Court is only delaying

restoring custody to the natural parents.” Nothing in the record alludes to Bianca

potentially being harmed by returning to the custody of her natural parents. We

respectfully disagree that the juvenile court’s requirement that custody is delayed until

the natural parents demonstrate “that they are able to care for the minor child”

indicates that the juvenile court found that a threat of substantial harm existed. The

magnitude of a parent’s constitutional right to rear and have custody of his or her

children would necessitate a clear finding of substantial harm.




                                           -8-
       In addition, we are also troubled by the Court of Appeals’ analysis of the res

judicata effect of this August 1994 order. The order conveys no suggestion of finality

but, instead, characterizes the custody award as “temporary,” stating that “the Court

is only delaying restoring custody to the natural parents,” and emphasizing that the

rights of the natural parents are superior to the interest of Ms. Lewis. We would

characterize this order as a continuance of the case until the court heard more proof

from Ms. Donoho. Under these circumstances, Ms. Donoho had virtually no incentive

to appeal what was not a final order, since the juvenile court explicitly indicated that

Bianca would soon be returned to the custody of her natural parents.



       It appears that no valid initial determination was ever made that Ms. Donoho’s

custody of Bianca would result in “substantial harm” to the child. Absent such a

finding, we conclude that the deprivation of the custody of her child has resulted in

an abridgment of Ms. Donoho’s fundamental right to privacy. Bond, 896 S.W.2d at

548; Nale, 871 S.W.2d at 680; Hawk, 855 S.W.2d at 577. In light of the unique

circumstances of this case, we believe that the Court of Appeals has misapplied

modification of custody principles when no valid initial order depriving the natural

mother of custody existed. In the absence of such a valid initial order, we believe that

it would be unconstitutional for the natural mother to bear the burden of proving the

absence of substantial harm. Because the record does not show that a finding of

substantial harm was made in this case, constitutional principles compel us to

reverse the decisions of the lower courts.




                                   CONCLUSION

                                          -9-
       In this procedurally defective case, Ms. Lewis, a non-parent, never pled any

grounds sufficient to warrant custody of the child being taken away from her natural

parents. Having neglected to allege that Ms. Donoho was an unfit parent, that Bianca

was a dependent and neglected child, or that a danger of substantial harm to Bianca

existed, Ms. Lewis also failed to prove these necessary elements before obtaining

custody from the child’s natural mother. Moreover, nothing in the record would

support such a finding. The order of the Juvenile Court of Fayette County entered

August 1994, the subject of much discussion in the Court of Appeals’ opinion, was

in fact erroneous if it is to be interpreted to award permanent custody of Bianca to

Ms. Lewis. However, we do not so interpret that order, nor do we construe it, as the

Court of Appeals did, to show a finding of substantial harm. In the absence of such

a showing, Ms. Donoho should never have been deprived of the custody of her child,

and the lower courts erred by requiring her to carry the burden of proof.



       The decisions of the lower courts are reversed. Physical custody of Bianca

Askew shall be returned to Ms. Donoho in a manner least disruptive to the welfare

of the child by June 1, 1999. In the interest of the child, we implore the parties to

cooperate. This cause is remanded to the trial court for supervision and enforcement

of this decision.



       Costs on appeal are taxed to Ms. Lewis.




                                  _____________________________________
                                  Frank F. Drowota, III,
                                  Justice

                                        -10-
CONCUR:

Anderson, C.J.
Birch, Holder, Barker, J.J.




                              -11-
