                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                    ASSIGNED ON BRIEFS FEBRUARY 22, 2008

                              IN THE MATTER OF:
                   M.R. (d/o/b 10/26/99) and C.R. (d/o/b 9/27/03),
                          Children Under 18 years of age

                    CHARLIE ROBERTSON v. TRACY MAYES

                Direct Appeal from the Juvenile Court for Davidson County
                Nos. 9919-49746, 2005-002580    Betty Adams Green, Judge



                     No. M2007-02532-COA-R3-JV - Filed: June 3, 2008


This appeal involves a petition for custody of two minor children. The juvenile court named the
father primary residential parent and the mother alternate residential parent. The mother appeals;
we affirm.


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

ALAN E. HIGHERS, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and
HOLLY M. KIRBY , J., joined.

Jennifer L. Evans, Springfield, TN, for Appellant

No appearance by Appellee




                                           OPINION
                                   I. FACTS & PROCEDURAL HISTORY

        On September 21, 2005, Charlie Robertson (“Father”), acting pro se, filed a “Petition to
Change Custody in a Parentage Case” in the juvenile court of Davidson County, seeking custody of
his daughters, Monicha Robertson and Chamiya Robertson.1 Monicha was seven years old at the
time, and Chamiya was nearly two years old. According to Father’s petition, the children were born
out of wedlock to Tracy Mayes (“Mother”), but no custody order had been entered regarding the
children. Father alleged that Mother was using drugs, leaving the children at home alone, failing to
change Chamiya’s diapers regularly, and failing to provide the children with a proper diet.

        On September 29, 2005, the juvenile court referee held a hearing and ordered that a Court
Appointed Special Advocate (CASA) representative be appointed to act on behalf of the children.
The referee also appointed a guardian ad litem for the children. Father filed a motion seeking to have
an attorney appointed to represent him. At a hearing on November 11, 2005, the juvenile court
appointed an attorney for Mother, but Father continued to proceed pro se.

        On January 13, 2006, the referee held a hearing on the petition to change custody. We do not
have a transcript of the hearing, but the referee issued written findings stating that he had heard
“evidence from the various witnesses,” and that the following individuals were present in court:
Father, Mother, Mother’s attorney, Mother’s boyfriend, Father’s mother, three other individual
witnesses, two CASA representatives, a social worker, and the guardian ad litem. The referee took
the matter under advisement and scheduled another hearing for two weeks later. The referee also
ordered the guardian ad litem to obtain the police record of Mother’s boyfriend, and ordered that
Father be allowed visitation with the children on weekends pending the next hearing.

        The second hearing was held on January 27, 2006. The record does not contain a transcript
of the hearing, but the referee made the following findings:

                  The court heard from the parents, attorney [for Mother,] and the
                  Guardian ad Litem, reviewed the submitted information regarding
                  convictions against the father and the mother’s live-in boyfriend and
                  announced the following findings and ORDERS:
                  1)     The court finds that the father has established that a
                         substantial and material change in circumstances does exist
                         from when the court previously addressed the custody
                         situation of the children. The court finds that the mother did
                         not always properly care for the children and at times left the
                         children home alone; in particular, an incident on September



         1
           The record before us does not include any information regarding the prior proceedings in the juvenile court
involving these children. The appellant does not dispute that some proceedings had taken place and that Father was
ordered to pay child support.


                                                         -2-
                   19, 2005, led to involvement of the Child Protective Services
                   section of the Tennessee Department of Children’s Services.
          2)       Based on the testimony presented, the court also finds that the
                   mother is not currently able to financially support her
                   children. She is unemployed and is relying on government
                   assistance plus a relatively small amount of child support to
                   care for the children. There is also a boyfriend of the mother,
                   Timothy Cartwright, that provides some financial assistance
                   to the mother.
          3)       The live-in boyfriend of the mother, Timothy Cartwright, also
                   causes this court concern in regard to the welfare of the
                   children. Mr. Cartwright was convicted in August 1991 of 2nd
                   degree Murder for which he received a 25 year sentence and
                   was also convicted of a separate offense of Aggravated
                   Robbery. Mr. Cartwright had previous felony convictions for
                   property offenses. Upon Timothy Cartwright being released
                   from prison in April 2005, after having served approximately
                   16 years in prison, [Mother] took him directly into her home;
                   she described him as “her boyfriend from prison.” The
                   mother did not know Mr. Cartwright prior to his
                   incarceration. [Mother]’s three young daughters2 were in the
                   home at the time Mr. Cartwright came to stay. Mr.
                   Cartwright remains on parole for the murder conviction.
          4)       The father also had a recent conviction which caused the court
                   concern. He was charged with Statutory Rape in January
                   2003. Mr. Robertson was convicted of a lesser misdemeanor
                   offense of Contributing to the Delinquency of a Minor and
                   was placed on probation on January 29, 2003.
          5)       Another concern of the court was the mother’s appearance of
                   deception. She was asked, in several different ways, whether
                   she had recently moved. Only after repeated questioning from
                   the court did the mother finally admit that she either had
                   moved or was going to move soon. The impression this left
                   with the court was one of instability in the living situation of
                   the mother and of a lack of faith in her credibility as a
                   witness.
          6)       The court also considered the report of CASA in its
                   determination of the proper disposition in this case. A copy
                   of CASA’s report was submitted to the court.




2
    According to the CASA report, the children also have a stepsister.


                                                 -3-
               7)      The court, as a result of the above findings, designates the
                       father as the Primary Residential Parent; the mother is the
                       Alternate Residential Parent. . . .
               ...

Mother filed a request for a rehearing before the juvenile court judge.

        Following numerous continuances, the juvenile court judge held a final hearing on Father’s
petition for custody on March 1, 2007. The final order provides, in relevant part:

               Present at court were Charlie Robertson, father; Karl Warden,
               attorney for the father; Tracey Mayes, mother; Jennifer Evans,
               attorney for the mother; Kristina Casterline and Joseph Manners,
               CASA; and Rob Robinson, Guardian ad Litem. The court heard from
               the witnesses presented and reviewed the submitted materials and
               now announces the following findings and ORDERS:
1)     The court finds that the mother did not always properly care for the children and at times left
       the children home alone. In particular, an incident on September 19, 2005, led to
       involvement of the Child Protective Services section of the Tennessee Department of
       Children’s Services. Although the exact number of hours the children were left unsupervised
       is disputed, it is clear to the court that the children were not properly supervised for a period
       of time which led to their temporary removal from the mother’s home. The court also finds
       that the mother made poor choices in regard to living arrangements when she invited a
       person, Timothy Cartwright, into the home with the children upon Mr. Cartwright’s parole
       from prison. Mr. Cartwright had previous convictions for Aggravated Robbery and Second
       degree Murder. The mother continued to live with Mr. Cartwright even after [the juvenile
       court referee] strongly suggested at the hearing on January 27, 2006 that the arrangement was
       not appropriate, and custody was changed to the father. Mr. Cartwright was arrested on May
       5, 2006 for separate charges of murder of a 9 year old boy and aggravated robbery of a
       nursing home; the nursing home robbery is alleged to have occurred in December 2005 when
       these children were still living with the mother and Mr. Cartwright, and the murder of the 9
       year [old] is alleged to have occurred on March 21, 2006.
               2)        Based on the testimony presented, the court also finds that the
                         mother is not financially stable. She is unemployed and is
                         relying on a relatively small amount of government assistance
                         for her income. While this fact alone might not be cause for
                         a custody change, it causes this court concern about the
                         mother’s ability to meet the financial needs of the children.
               3)        This court finds, based on the testimony and evidence
                         presented, that the father established that there was a
                         substantial and material change in circumstances in the
                         children’s lives since previous custody determinations. The
                         court, as a result of the above findings, designates the father


                                                 -4-
                       as the Primary Residential Parent; the mother is the Alternate
                       Residential Parent. . . .
               ...


Mother subsequently filed a notice of appeal to the circuit court, and the circuit court transferred the
case to this Court.



                                      II. ISSUES PRESENTED

       Mother presents the following issues, as we perceive them, for review:

1.     Whether the trial court violated Mother’s constitutional right to due process.
2.     Whether the trial court erred in finding a material change in circumstances and granting the
       petition to change custody without a prior order of parentage as to the minor child, Chamiya
       Robertson.

For the following reasons, we affirm the decision of the juvenile court.

                                    III.   STANDARD OF REVIEW

        The appellant has a duty to prepare a record that conveys a fair, accurate, and complete
account of what transpired in the trial court regarding the issues that form the basis of the appeal.
In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). A recitation of facts and argument in
an appellate brief does not constitute evidence and cannot be considered in lieu of a verbatim
transcript or statement of the evidence and proceedings. State v. Draper, 800 S.W.2d 489, 493
(Tenn. Crim. App. 1990). We cannot simply assume that the facts as recited are true. In re
Conservatorship of Chadwick, No. E2006-02544-COA-R3-CV, 2008 WL 803133, at *1 (Tenn. Ct.
App. Mar. 27, 2008). “Absent the necessary relevant material in the record an appellate court cannot
consider the merits of an issue.” State v. Ballard, 855 S.W.2d 557, 561 (Tenn. 1993).

        In the case before us, the record does not contain a transcript or statement of the evidence.
Therefore, we may only reverse the trial court’s decision if we find, based on the “technical” record
before us, that the trial court committed an error of law. See In re Conservatorship of Chadwick,
2008 WL 803133, at *2. We review a trial court’s conclusions of law under a de novo standard upon
the record with no presumption of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d
87, 91 (Tenn. 1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817
(Tenn. Ct. App. 1989)).

                                           IV. DISCUSSION



                                                  -5-
                                               A.     Due Process

        Mother argues that she was denied due process because she did not have a “full and fair
hearing.” She first claims that the trial court proceedings were unfair because “several court hearings
were conducted prior to the Mother being appointed legal counsel.” Father filed his pro se petition
for custody on September 21, 2005. From our review of the record, it appears that one hearing was
held before counsel was appointed for Mother on September 29, and the juvenile court referee
ordered that a CASA representative and guardian ad litem be appointed for the children. The case
was continued, and at the next hearing on November 11, an attorney was appointed for Mother.

        “With the exception of certain proceedings involving the termination of parental rights, it is
now well-settled that there is no absolute right to counsel in a civil trial.”3 Bell v. Todd, 206 S.W.3d
86, 92 (Tenn. Ct. App. 2005) (citing Knight v. Knight, 11 S.W.3d 898, 900 (Tenn. Ct. App. 1999);
Memphis Bd. of Realtors v. Cohen, 786 S.W.2d 951, 953 (Tenn. Ct. App. 1989)). “In a particular
case, however, an indigent parent facing a hearing affecting parental rights may be entitled to the
assistance of counsel as a matter of due process.” State ex rel. T.H. by H.H. v. Min, 802 S.W.2d
625, 626 (Tenn. Ct. App. 1990). The requirements of due process vary from case to case. In re
Valle, 31 S.W.3d 566, 571 (Tenn. Ct. App. 2000). Due process is a flexible concept, which “calls
for such procedural protections as the particular situation demands.” Keisling v. Keisling, 92 S.W.3d
374, 377 (Tenn. 2002) (citing Wilson v. Wilson, 984 S.W.2d 898, 902 (Tenn. 1998); Phillips v. State
Bd. of Regents of State Univ. & Comty. Coll. Sys., 863 S.W.2d 45, 50 (Tenn. 1993)). The elements
to be examined in deciding what process is due include the parent’s interest, the state’s interest, and
the risk that the failure to appoint counsel will lead to an erroneous decision. Min, 802 S.W.2d at
626 (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L.Ed.2d 18 (1976)).

       In State ex rel. T.H. by H.H. v. Min, for example, the Court of Appeals held that the parents
involved in that case were denied due process by the juvenile court’s failure to appoint counsel to
represent them at various custody hearings that resulted in a finding that their child was dependent
and neglected. 802 S.W.2d at 627. The Court recognized that parents do not have “an absolute right
to counsel” in proceedings affecting parental rights, but the circumstances of that particular case
required that the parents be provided counsel.4 Id. at 626-27.


        3
           Rule 13 of the Tennessee Supreme Court Rules and Rule 39(e)(2) of the Tennessee Rules of Juvenile
Procedure now address the appointment of counsel in parental termination proceedings.
        4
           The Court identified various factors to consider when assessing the risk of an unfair proceeding and
erroneous decision if counsel is not provided, including:

                 (1) whether expert medical and/or psychiatric testimony is presented at the hearing;
                 (2) whether the parents have had uncommon difficulty in dealing with life and life
                 situations; (3) whether the parents are thrust into a distressing and disorienting
                 situation at the hearing; (4) the difficulty and complexity of the issues and
                 procedures; (5) the possibility of criminal self-incrimination; (6) the educational
                 background of the parents; and (7) the permanency of potential deprivation of the
                                                                                                        (continued...)


                                                         -6-
        In the case before us, there is nothing in the record to indicate that Mother ever requested
appointed counsel; however, the juvenile court did appoint counsel for Mother at the second hearing.
We do not have a transcript of the initial hearing, but the orders entered thereafter only addressed
the appointment of a guardian ad litem and CASA worker for the children. No significant action was
taken at the first hearing that would be likely to lead to an erroneous decision. Mother was
represented at the other hearings before the referee, including when the witnesses testified, and more
importantly, she was represented throughout the rehearing before the juvenile court judge. See In
re S.Y., 121 S.W.3d 358, 365-66 (Tenn. Ct. App. 2003) (holding that any violation of due process
by the juvenile court’s failure to appoint an attorney at a dependency and neglect proceeding was
fully remedied by the fact that the appellant had full assistance of counsel at the subsequent parental
termination proceeding). Due process “calls for such procedural protections as the particular
situation demands,” Keisling, 92 S.W.3d at 377, and we find that the juvenile court provided
sufficient procedural protections to Mother in this case.

        Next, Mother argues that her “due process right to have timely and adequate notice [of the
allegations against her]” was violated. Father’s original petition for custody alleged that he should
be granted custody of the children because Mother was using drugs, leaving the children at home
alone, failing to change their diapers, and neglecting the children by failing to provide them with a
proper diet. Mother argues that Father could not then introduce “evidence of additional allegations
not set forth in the petition,” such as evidence about her boyfriend’s criminal record. The juvenile
court referee ordered the guardian ad litem to obtain the police record of Mother’s boyfriend on
January 23, 2006, following a hearing at which the boyfriend appeared as a witness. The referee’s
findings entered on February 1, 2006, recount Mother’s testimony about “her boyfriend from prison,”
and the juvenile court judge heard additional testimony about the boyfriend at the final hearing on
March 15, 2007. In Keisling v. Keisling, 92 S.W.3d 374, 380 (Tenn. 2002), the Supreme Court held
that a parent’s right to due process was violated when the pleadings did not give her notice that
custody would be an issue in the case, and the trial court changed custody after the hearing.
However, that is not the situation here. Mother clearly knew that Father was seeking custody of the
children. We find no merit in Mother’s argument that she was unaware that the court would consider
the situation involving her live-in boyfriend, which is relevant to her fitness as a parent. On appeal,
Mother argues that Father should have amended his pleadings pursuant to Rule 15.01 and Rule 15.02
of the Tennessee Rules of Civil Procedure. However, “in the absence of a transcript from the
hearing or a statement of facts, we must conclude that the parties presented the issue . . . to the court
based on the implied consent of the parties pursuant to Tenn. R. Civ. P. 15.02.”5 England v.
England, No. E2005-00382-COA-R3-CV, 2005 WL 3115867, at *4 (Tenn. Ct. App. Nov. 22, 2005).


         4
             (...continued)
                      child in question.

Min, 802 S.W.2d at 627 (citing Lassiter v. Dep’t of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 2161-63, 68 L.Ed.2d
640 (1981); Davis v. Page, 714 F.2d 512, 516-17 (5th Cir. 1984)).
         5
            Pursuant to Rule 1(b) of the Rules of Juvenile Procedure, the Tennessee Rules of Civil Procedure governed
this child custody proceeding.


                                                        -7-
The determination of whether there was implied consent for the purposes of Rule 15.02 rests in the
discretion of the trial judge, and we will reverse only upon a finding of abuse of discretion. Id.
There was no abuse of discretion in this case. In fact, one of the statutory factors to be considered
in custody determinations is “[t]he 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.” Tenn. Code
Ann. § 36-6-106(a)(9). Mother cites no authority for the notion that a trial court can only consider
each of the statutory factors if the parent petitioning for custody addressed that factor in his or her
petition for custody.

                                                B.    Prior Orders

         Next, Mother argues that the trial court erred in granting custody to Father because he is not
the legal parent of one of the children. According to Mother’s brief, an order of parentage was
previously entered by the juvenile court, but it only addressed one child. There is nothing in the
technical record to support Mother’s argument, or to suggest that Mother raised this issue in the trial
court. Throughout the proceedings, Mr. Robertson was referred to as “Father” by the juvenile court
and by Mother. One of Mother’s pleadings expressly states, “The minor children reside with the
father, Charlie Robertson . . . .”6 In In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005), this
Court considered whether a mother could raise the issue of whether a father was a “legal parent”
when it was not raised during the course of the trial court proceedings. In that case, the parents were
never married, and the mother filed a petition to terminate the father’s parental rights. Id. The father
then filed a petition for visitation. Id. at 893. The trial court refused to terminate parental rights and
ordered that a parenting plan be entered granting the father visitation. Id. The mother then filed a
motion to alter or amend, attempting to raise the issue of whether the father was the child’s legal
parent. Id. at 895. On appeal, we found that the mother waived the issue by failing to raise it during
the trial proceedings. Id. In the present case, the record does not demonstrate that Mother ever
raised the issue of Father’s status as a “legal parent” in the trial court. Mother consistently referred
to him as the children’s father, as did the juvenile court referee and judge, and the order of parentage
Mother relies on is not in the record. Therefore, Mother has waived the issue. “A party may not
raise an issue for the first time upon appeal.” In re M.L.D., 182 S.W.3d at 895 (citing Cantrell v.
Walker Die Casting, Inc., 121 S.W.3d 391, 396 (Tenn. Ct. App. 2003)).

       Finally, Mother argues that the juvenile court erred in finding that a material change in
circumstances had occurred because no prior custody order existed. As previously noted, the record
does not reveal the extent of the prior proceedings in juvenile court. Both the referee’s findings and
the juvenile court judge’s order state that a material change in circumstances had occurred since




         6
          Mother does not suggest that Father is not the children’s biological father. Both children bear Father’s last
name, and according to the CASA report, Father had visitation with the children every other weekend prior to this
proceeding.


                                                         -8-
previous custody determinations.7 Even assuming that no prior custody order existed, the court’s
finding that a material change in circumstances had occurred was harmless error. The statutory
factors to be considered when a court makes a best interest determination in an initial custody
proceeding are set forth in Tennessee Code Annotated section 36-6-106(a). Harless v. Harless, No.
E2006-00192-COA-R3-CV, 2007 WL 906757, at *6 (Tenn. Ct. App. Mar. 26, 2007); see also
Dillard v. Jenkins, No. E2007-00196-COA-R3-CV, 2007 WL 2710017, at *3 (Tenn. Ct. App. Sept.
18, 2007). In a modification proceeding, after a threshold finding that a material change in
circumstances has occurred, the court makes a “fresh determination” of the best interest of the child,
Gervais v. Gervais, No. M2005-01483-COA-R3-CV, 2006 WL 3258228, at *3 (Tenn. Ct. App. Nov.
9, 2006); Costley v. Benjamin, No. M2004-00375-COA-R3-CV, 2005 WL 1950114, at *4 (Tenn.
Ct. App. Aug. 12, 2005), using those same factors enumerated in Tennessee Code Annotated section
36-6-106. Kendrick v. Shoemake, 90 S.W.3d 566, 570 (Tenn. 2002).8 The juvenile court made
extensive findings regarding facts relevant to the children’s best interest, then named Father the
primary residential parent. We find no reversible error in the trial court’s procedure.

                                                 V. CONCLUSION

       For the aforementioned reasons, we affirm the decision of the juvenile court. Costs of this
appeal are taxed to the appellant, Tracy Mayes, for which execution may issue if necessary.



                                                                  ___________________________________
                                                                  ALAN E. HIGHERS, P.J., W.S.




         7
           The referee’s findings stated, “The court finds that the father has established that a substantial and material
change in circumstances does exist from w hen the court previously addressed the custody situation of the children.”
The juvenile court judge’s final order states that “the father established that there was a substantial and material change
in circumstances in the children’s lives since previous custody determinations.”
         8
            Of course, if the trial court had found that no material change of circumstances had occurred and dismissed
the petition without reaching the best interest analysis, its use of the custody modification criteria would not have been
harmless error. See Dillard v. Jenkins, No. E2007-00196-COA-R3-CV, 2007 W L 2710017, at *3 (Tenn. Ct. App. Sept.
18, 2007).


                                                           -9-
