Rocky Michael Bruce and Cheryl Bruce v. Angela Jacobs ( 1999 )

IN T H E C O U R T O F A P P E A L S O F T E N N E S S E E
A T N A S H V IL L E
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A P P E A L F R O M T H E JU V E N IL E C O U R T
F O R W A R R E N C O U N T Y
T H E H O N O R A B L E B A R R Y M E D L E Y P R E S ID IN G
G . K L IN E P R E S T O N , IV
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A T T O R N E Y F O R P E T IT IO N E R S /A P P E L L E E S
C H A R L E S S . R A M S E Y , JR .
1 1 4 N O R T H S P R IN G S T R E E T
P .O . B O X 6 8 7
M A N C H E S T E R , T E N N E S S E E 3 7 3 5 5
A T T O R N E Y F O R R E S P O N D E N T /A P P E L L A N T
A F F IR M E D A N D R E M A N D E D
P A T R IC IA J. C O T T R E L L , JU D G E
C O N C U R :
K O C H , J.
C A IN , J .
OPINION
This dispute over the custody of a minor child arose after the paternal
grandparents filed an intervening petition for child custody. They were granted
temporary custody of the child pending a hearing on the matter. After two
hearings, the trial court ordered that custody remain with the paternal
grandparents pending the results of home studies of each party seeking custody,
i.e., the mother and the paternal grandparents. The trial court held additional
hearings after receiving the results of the home studies and awarded custody to
the paternal grandparents. We affirm the trial court.
The minor child, D.R.B., was born in Michigan December 24, 1996.
When the child was six days old, she and her mother (Angela Jacobs) came to
Tennessee with the child’s father (Shawn Bruce) to live. D.R.B.’s parents were,
and remain, unmarried, although at the time of the hearing, the mother was
pregnant with a second child fathered by D.R.B.’s father. Shortly after the award
of temporary custody to the paternal grandparents, the mother returned to
Michigan, where she was still living at the time of the hearing.
Shortly after D.R.B.’s birth, her mother agreed to move with the infant to
Tennessee. The mother didn’t want to fly, so D.R.B.'s father, the father's ten-
year-old sister, and his mother (Cheryl Bruce) drove to Michigan from
Tennessee and transported D.R.B. and her 22-year-old mother to Tennessee.
Upon arriving in Tennessee, D.R.B.’s mother and father established a residence
and kept D.R.B. for a couple of days. What began as assistance and babysitting
by the paternal grandparents (the Bruces) expanded to virtually full time care,
due to the inability and/or unwillingness of D.R.B.’s parents to care for her.
The paternal grandparents (the Bruces) became concerned for D.R.B.’s
2
welfare because of the parents’ behavior. After their 10-year-old daughter
(D.R.B.’s aunt) saw Ms. Jacobs shake the infant, scream at her, and throw her
on a bed because she was crying, the Bruces took action.
The Bruces filed an Intervening Petition for Child Custody on January 22,
1997. The original Intervening Petition named as Respondents both the infant’s
mother, Angela Jacobs, and the infant’s father, Shawn Bruce, the Bruces’ son.
Two weeks before the final hearing in this matter, the Bruces moved to amend
their petition to add the natural father, Shawn Bruce, as a Petitioner and remove
him as a Respondent. The motion further asked that “Petitioners be granted joint
custody of the minor child.” 1 The record indicates that the court never ruled on
this motion. However, the father, Shawn Bruce, stated at the hearing, “My
wishes are that D.R.B. stays where she’s at where I know she’ll be safe...”. When
directly asked if he was seeking custody, the father answered, “When I’m able
to I will. When I’m able to live on my own means and I know that my daughter
is secure. For now I know that my daughter is in the safest hands.” For some
time before the hearing, the father had been living in his parents’ house and
helping to care for D.R.B.
In conjunction with temporary custody, the petition sought a restraining
order prohibiting D.R.B.'s mother from removing D.R.B. from Tennessee. The
trial court issued the restraining order on January 22, and granted the petition for
temporary custody the following day, pending a hearing.
After hearings on January 27 and April 2, 1997, the trial court ordered the
Tennessee Department of Children's Services and its Michigan equivalent to
conduct home studies of the Bruces and Ms. Jacobs who had returned to
1
T h i s m o t i o n w a s n o t m a d e b y o r o n b e h a lf o f th e fa th e r, S h a w n B r u c e .
A d d iti o n a lly , th e fa th e r is n o t a p a r ty to th is a p p e a l.
3
Michigan to live with her mother. During the studies, custody remained with the
paternal grandparents with visitation granted to D.R.B.'s mother. A three-day
hearing was held in November 1997.
After the hearing concluded, the trial court determined that custody should
remain with the paternal grandparents, the Bruces, with reasonable visitation to
D.R.B.'s mother, Ms. Jacobs. The court also ordered D.R.B.'s mother to pay
child support and prohibited her from removing the child from the court's
jurisdiction.
I.
D.R.B.'s mother argues that the trial court abused its discretion by
awarding custody to the paternal grandparents because her right to the child is
superior to that of third parties like the paternal grandparents.
Our courts have long recognized that "the right of a parent is superior in
a custody dispute between a parent and a third party." Doles v. Doles, 848
S.W.2d 656, 660 (Tenn. App. 1992). In a contest between a natural parent and
a non-parent, the parent cannot be deprived of the custody of the child absent a
finding, after proper notice in accordance with due process, that substantial harm
threatens the child’s welfare if custody is left with or given to the parent. See
Adoption of Female Child, 896 S.W.2d 546, 548 (Tenn. 1995). Only after
making such a finding may a court engage in a general “best interest of the
child” evaluation to determine custody. In the recent case of In re Bianca
Arneshe Askew, 993 S.W.2d 1 (Tenn. May 3, 1999), our Supreme Court
reaffirmed the requirement that a court must find that custody to the natural
parent would result in substantial harm to the child.2
2
T h e C o u r t i n d i c a t e d th a t s u f f ic ie n t g r o u n d s f o r a n o n - p a re n t to s e e k
c u s t o d y m i g h t a ls o in c lu d e u n f it n e s s o f th e p a r e n t a n d d e p e n d e n c y a n d n e g l e c t
o f th e c h ild .
4
Ordinarily our review of a trial court's determinations would be de novo
with a presumption that the trial court's findings of fact are correct. See Tenn.
R. App. P. 13(d). However, the trial court's failure to make findings of fact,
written or otherwise, leaves nothing to which the presumption of correctness can
attach. In such a situation, our review is de novo without a presumption of
correctness. See Goodman v. Memphis Park Comm'n, 851 S.W.2d 165, 166
(Tenn. App. 1992); see Kelly v. Kelly, 679 S.W.2d 458, 460 (Tenn. App.1984).
Herein, the trial court made no explicit finding regarding the threat of
harm to the child if custody were awarded to the mother.3 In In re Bianca Askew,
the Supreme Court found that the lack of such a finding in that case was fatal to
the award of custody to a non-parent. In re Bianca Arneshe Askew, 993 S.W.2d
at 12. However, in that case, “an explicit and implicit reading of the order . . .
[conveyed] every indication that the juvenile court intended to return [the child]
to the custody of her natural parents in the near future.” Id., 993 S.W.2d at 14.
Additionally, nothing in the record of that case even alluded to potential harm
to the child if she were returned to her mother. In contrast, the well-developed
record before this court and the trial court’s order herein (which includes no
statement which could be interpreted to indicate an intention to return custody
to the mother) permit us to review the record and make the requisite findings.
II.
At the November hearing, D.R.B.’s mother acknowledged that the original
grant of temporary custody to the paternal grandparents had been due to her own
actions and those of D.R.B.’s father. When asked if she understood that she was
responsible for the Bruces having temporary custody, Ms. Jacobs replied, “from
3
T h e t r ia l c o u r t ’ s c o m m e n ts a t th e b e g in n in g o f th e h e a ri n g in d ic a t e d h e
w a s w e ll a w a re o f t h e h ig h s t a n d a r d w h i c h n o n - p a re n ts m u s t m e e t w h e n s e e k i n g
c u s t o d y f r o m a c h il d ’ s p a re n t.
5
my understanding, it was from mine and Shawn’s actions.”
Until she was approximately seven months pregnant with D.R.B., Ms.
Jacobs was living in a motel in a “prostitution zone.” She moved into her
mother’s house prior to D.R.B.’s birth. She agreed to move to Tennessee with
the baby because she wanted a family and wanted to work things out with
D.R.B.’s father. She acknowledged that she was ill-prepared for motherhood.
She also acknowledged that she and the baby’s father left the infant with the
Bruces most of the time.
The paternal grandmother, Ms. Bruce, also described those early days
when D.R.B. first was brought to Tennessee. Ms. Bruce encouraged her son and
Mr. Jacobs to participate in the child’s care, but stated that they were more
interested in remaining “constantly high” on marijuana and prescription drugs.
Ms. Jacobs and D.R.B. arrived in Tennessee on December 31, 1996. Ms. Jacobs
kept D.R.B. in her care for two days, but continually called the paternal
grandparents and asked them to come get the baby. During the next two weeks,
the Bruces would try to get D.R.B.’s parents to come to their house and to take
the baby back with them. The parents always declined, using various excuses,
most of which related to their impaired ability to care for the baby due to alcohol
and drug use, including prescription drugs. Ms. Bruce testified that when visiting
the parents, she had observed the baby’s mother in a “trance”, unresponsive to
things around her. After about two weeks, the parents no longer even made
excuses or bothered to ask the Bruces to keep the child. The infant remained in
the Bruces’ care at their home, a situation acknowledged to be at the request of
the parents.
During this time, Ms. Jacobs confided to Ms. Bruce about various
problems she was having. Ms. Jacobs felt her baby hated her and was concerned
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she (the mother) would hurt the baby. She feared post-partum depression and
was experiencing dramatic mood swings. She talked to medical personnel, at a
visit arranged and observed by Ms. Bruce, about these issues and about the
trances she would occasionally experience. Ms. Jacobs later testified that she has
since been diagnosed as manic depressive and also suffers from depression
which she attributes to an incident in her earlier life.
The paternal grandmother, Ms. Bruce, was concerned about the baby’s
welfare due to the parents’ inability to care for her, the mother’s concerns about
her relationship with the baby, her own observations of the parents’ impaired
states, and the mother’s yelling at the baby when it cried. The shaking incident
happened while the paternal grandmother had taken the father to the vet with the
parents’ sick dog. Ms. Bruce took her ten-year old daughter out of school to stay
with Ms. Jacobs and the baby because she was afraid to leave the mother alone
with the baby. D.R.B.’s ten-year old aunt described in some detail how she
observed Ms. Jacobs scream at the baby for crying, violently shake the baby,
and throw her on the bed. The aunt was so upset that she ran downstairs and tried
to telephone her parents for help. When Ms. Bruce arrived back at the apartment,
her ten-year old daughter told her what had happened. The Bruces immediately
instituted proceedings for temporary custody. D.R.B.’s mother denies that she
shook the baby.
Shortly after the award of temporary custody to the Bruces, D.R.B.’s
mother returned to Michigan to live with her mother. D.R.B.’s father was in jail
at that time. 4 From the time Ms. Jacobs returned to Michigan in early February
of 1997 until just prior to the hearing in November of 1997, she returned to
4
T h e r e c o r d i s n o t c le a r w h e t h e r th e i n c a r c e ra ti o n w a s th e re s u lt o f th e
f a t h e r ’ s a s s a u lt o n h is o w n f a th e r , o r d u e to u n r e la te d c h a rg e s f r o m a n o th e r
c o u n ty , o r b o t h .
7
Tennessee only twice. The first time was around Easter. Although she was
invited, even encouraged, according to the testimony of Ms. Bruce, to spend time
with her child, she spent only a few hours over a 6 to 7 day visit, although she
spent a great deal of time with Shawn Bruce. About a month later, Ms. Jacobs
returned to Tennessee with the intention of establishing residence and working
things out with D.R.B.’s father. Ms. Jacobs apparently told several people that
her mother had told her to find a new residence after the two had an argument.
Although Ms. Jacobs denied that her needing to leave her mother’s house was
the primary reason for her decision to come to Tennessee, she admitted that she
had had an argument with her mother. She also stated that when she and her
mother disagreed, "I just go my own way and she goes hers."
Ms. Jacobs stated that she came to Tennessee to visit her baby. Instead of
visiting with D.R.B. when she arrived, as the Bruces invited her to do, she later
sought a court order for visitation, which provided for one hour per week.
According to the social worker who was to supervise the visits, Ms. Jacobs chose
not to come to the first visit because it was raining. She did make one visit with
the infant at the social worker’s office during her three to four week stay.
A few days prior to the November hearing, Ms. Jacobs exercised visitation
with her child at the DHS office. Ms. Bruce testified that she had encouraged
Ms. Jacobs to spend more time with D.R.B. on her visits to Tennessee. Ms.
Jacobs testified that there had never been any problems with the Bruces about
her visitation with D.R.B., that the Bruces had not tried to keep the child from
her on her visits to Tennessee, but that she had just felt uncomfortable.
D.R.B.'s father testified that he wanted his parents to continue caring for
the child until he and D.R.B.'s mother could straighten out their lives. He
admitted that he had previously been jailed for assaulting his father, had theft
8
charges pending, and had abused alcohol and drugs. However, he offered proof
he was now employed, living with his parents and had attended Alcoholics and
Narcotics Anonymous meetings. He also testified that D.R.B.'s mother had
abused drugs before, during, and after she was pregnant with D.R.B., and was
presently carrying his second child.
Although Ms. Jacobs denied using marijuana after March of 1996, others
testified to seeing her use that drug as late as June of 1997, as well as during the
time she originally moved to Tennessee with the six-day-old D.R.B. While seven
or eight months pregnant, Ms. Jacobs sent a letter from Michigan to Shawn
Bruce which stated that while she and others were downstairs smoking at her
mother's house, her mother's live-in companion "was asking us who had the joint
and wanted to hit it." Ms. Jacobs also testified that she had been attending an
alcohol and drug abuse program, but denied that she participates in that program
because of a drug or alcohol problem. She also attended counseling for
depression related to a traumatic incident in her earlier life.
A report from the Michigan Family Independence Agency admitted at the
hearing indicated that D.R.B.'s maternal grandmother lived with her third
husband in a well-maintained house in a lower middle class neighborhood.
Notwithstanding that information, Ms. Jacobs’s mother and the man she resided
with were not married. At the time of the report, this man was employed and the
maternal grandmother was on short-term disability. The report indicated that
Ms. Jacobs was seeking part-time employment, planned to obtain her GED, and
was eligible for Medicaid coverage for her unborn child. At the hearing, Ms.
Jacobs testified she had been employed as a telephone marketer for almost one
month.
The report stated that Ms. Jacobs dropped out of school in the tenth grade
9
and became an emancipated minor at sixteen. After a traumatic incident, she
began experimenting with marijuana and alcohol. She became an exotic dancer
in her teens. She was employed as a dancer in a strip club at the time she met
Shawn Bruce and testified that she had worked as a dancer at that same club
during the year prior to the November 1997 hearing.
The report stated that Ms. Jacobs intended to remain at her mother's home,
had completed a series of parenting classes and group therapy and attended
Narcotics Anonymous meetings. The report found the maternal grandmother's
home "suitable for placement" of D.R.B., but its author testified in deposition
that if Ms. Jacobs were to try to care for the child on her own, outside her
mother’s home, the author “would have some concerns.” The author also
indicated that any return of the child to the mother’s custody should be
conditioned on (1) Ms. Jacobs remaining in her mother’s home and (2) weekly
counseling and in-home supervision or monitoring.
Notwithstanding the fact that the Michigan home study was premised on
Ms. Jacobs’s continued residence in her mother's home, the record shows that
even during the course of these proceedings she was unable to remain there or
cohabit peacefully with her mother for extended periods of time. The record
establishes that the maternal grandmother had a troubled relationship with Ms.
Jacobs, who had been without adult supervision from the time of her
emancipation at age 16. The maternal grandmother testified that more than once
in the past two years she and Ms. Jacobs had fought, resulting in Ms. Jacobs
leaving her mother’s home. Ms. Jacobs admitted that she had told Shawn Bruce
that her brief move to Tennessee in May followed an argument with her mother,
although she denies that was the reason for the move.
Before returning to Michigan, D.R.B.'s mother wrote the custodial
10
grandparents a profane letter expressing an intent to take the child to Michigan
and prevent them from seeing her, notwithstanding the order prohibiting the
child's removal from this State.
The record showed that the custodial grandparents provided D.R.B. with
full-time care and a stable environment, and attended church regularly. The
custodial grandparents resided in a three bedroom, two bath home with their ten-
year-old daughter. D.R.B.'s father lived in the basement, which also had a
bathroom. He participated in D.R.B.'s care and paid some child support and rent
to his parents. The paternal grandmother reported that D.R.B. had a congenital
heart defect which required regular monitoring by physicians at Vanderbilt in
Nashville, and that she and her husband also took D.R.B. for weekly medical
examinations locally.
The record does not reflect a consistent effort by D.R.B.'s mother to
develop and maintain a healthy relationship with or environment for D.R.B. The
case worker who had dealt with the parties and prepared the home study report
on the Bruces expressed concern over Ms. Jacobs’s failure to establish a
relationship with her child. She was concerned because, as a consequence of Ms.
Jacobs’s failure to visit her child, no bonding had occurred between the two. She
also stated that Ms. Jacobs was irresponsible, while she found that the Bruces
had been responsible custodians of D.R.B.
Based upon the facts in the record of this case, we find that an award of
custody to the mother poses a threat of substantial harm to the welfare of the
child. We additionally find that continued custody with the custodial
grandparents is in D.R.B.'s best interest. See Hawk v. Hawk, 855 S.W.2d 573,
580-581; see Olen v. Altherr, No. 03A01-9805-CV-00166, 1998 WL 820733,
* 1 (Tenn. App. November 24, 1998). While it is admirable that D.R.B.'s mother
11
has sought counseling and attended drug and alcohol treatment programs, we
believe the record clearly demonstrates that she is not yet able to provide a stable
environment or proper care for D.R.B. and that she has failed to establish or
maintain a relationship with her child, only sporadically taking the opportunities
presented to her to visit D.R.B. At the time of the hearing, D.R.B.'s mother was
unmarried, pregnant, undereducated, manic-depressive, had abused drugs, and
had been seen abusing D.R.B. Nothing in the record indicated that she would no
longer present a threat to D.R.B.'s physical welfare. This evidence preponderates
against a reversal of the trial court's award of custody to the paternal
grandparents, the Bruces.
III.
Ms. Jacobs contends that the Bruces' failure to attach to their petition an
affidavit regarding D.R.B.'s "home state" as contemplated by Tenn. Code Ann.
§ 36-6-210 required dismissal of the petition. She also argues that the trial court
abused its discretion in finding that Tennessee was D.R.B.'s home state.
Tenn. Code Ann. § 36-6-210 states in pertinent part:
Information in a first pleading or affidavit -- Continuing duty
to inform court. -- (a) Every party in a custody proceeding in its
first pleading or in an affidavit attached to that pleading shall give
information under oath as to the child's present address, the places
where the child has lived within the last five (5) years, and the
names and present addresses of the persons with whom the child
has lived during that period . . . .
Although the paternal grandparents' petition does not include the requisite
information, the statute's requirements are not jurisdictional. See Powell v.
Powell, No. 02A01-9501-CH-0006, 1996 W.L. 469 (Tenn. App. August 15,
1996). Because the procedural issues regarding the affidavit D.R.B.'s mother
raises on appeal are not jurisdictional, her failure to present them to the trial
court precludes her from raising them for the first time on appeal. See id.; see
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Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983).
Furthermore, we find the trial court's exercise of jurisdiction was
authorized under Tenn. Code Ann. § 36-6-203(a)(2). At the time of the initial
temporary custody determination, no other state had exercised jurisdiction.
Additionally, D.R.B. had significant connections with Tennessee. When the
petition was filed D.R.B. and her parents were living in Tennessee, and D.R.B.
(who was approximately one month old then) had resided in Tennessee for all
but six days of her life. The shaking incident occurred here, and the witness to
the incident resided here. Substantial evidence concerning D.R.B.’s present and
future care, protection, training and personal relationships existed here. In light
of the possible threat to D.R.B.'s physical welfare, we find her best interests
required the immediate exercise of jurisdiction. See also Tenn. Code Ann. § 36-
6-204(a)(2).
IV.
In light of the evidence, we must reject D.R.B.'s mother's contention that
the trial court abused its discretion in refusing to apply the tender years doctrine.
Having determined that she is presently unfit to resume custody of D.R.B., we
find the tender years doctrine is not controlling under the facts of this case. See
Ruyle v. Ruyle, 928 S.W.2d 439, 441-442 (Tenn. App. 1996); see Malone v.
Malone, 842 S.W.2d 621, 623 (Tenn. App. 1992).
D.R.B.'s mother's also contends that she should have been awarded
custody in order to keep D.R.B. and her then unborn sibling together. We
disagree. The principle that siblings should not be separated by a custody order
necessarily gives way to the paramount consideration of the child's best interest.
See Dantzler v. Dantzler, 665 S.W.2d 385, 387 (Tenn. 1983); Rice v. Rice, No.
03A01-9709-CV-00415, 1998 WL 135571, * 4 (Tenn. App., March 26, 1998).
13
Clearly, D.R.B.'s best interest at this time lies in remaining with her paternal
grandparents. Moreover, notwithstanding Appellee's argument, the fact that
D.R.B. has never met her sibling, who was not yet born at the time of the
hearing, logically precludes a loss of stability resulting from their separation.
IV.
Ms. Jacobs maintains that the trial court abused its discretion in issuing the
restraining order which prohibited her from removing D.R.B. from the State.
She argues that the absence of a bond, affidavit, or verification invalidated the
order. Ms. Jacobs’ failure to contest this issue in the trial court precludes her
from raising it for the first time on appeal. Civil Service Merit Board v. Burson,
816 S.W.2d 725, 734-735 (Tenn. 1991). Moreover, the record shows that the
Bruces' petition was verified and the paternal grandfather was surety on a $500
bond to cover costs. Tenn. R. Civ. P. 65.05 (1); see also Tenn. R. Civ. P. 65.07
(authorizing the issuance of restraining orders in domestic relations cases on
such terms and conditions "as shall seem just and proper to the judge . . ."). The
restraining order which D.R.B.'s mother challenges, issued after the three-day
hearing, prohibits her from removing D.R.B. from the court’s jurisdiction. Based
upon D.R.B.'s mother’s threats to do just that, we find that order just and proper.
V.
The paternal grandparents argue that they are entitled to attorney's fees and
costs on the ground that this appeal is frivolous. Having reviewed the entire
record and all issues raised by the parties, we decline to grant this request.
Accordingly, having considered the entire record, we affirm the trial
court's entrustment of custody to the paternal grandparents. Their request for
14
attorney's fees is denied. This case is remanded for such further proceedings as
may be required. The costs of this appeal should be taxed to Ms. Jacobs.
_____________________________
PATRICIA J. COTTRELL, JUDGE
CONCUR:
___________________________________
WILLIAM C. KOCH, JR., JUDGE
___________________________________
WILLIAM B. CAIN, JUDGE
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