Session Date: October 22, 2014
Appeal from the Probate Court for Shelby County No. D15303, D15304, D15305, D15306 Robert Benham, Judge
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.
Andy D. Bennett, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and David R. Farmer, Sp. J., joined.
ANDY D. BENNETT, JUDGE
Factual and Procedural Background
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. 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. 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. In reaching its conclusion, the trial court found, inter alia, that Father had very little interaction with his children following the separation of the 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 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.
Standard of Review
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. Tenn. R. App. 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 ...