Ashley Christine Olen and Steven Michael Olen By: Theresa E. Olen v. Angela Arlene Olen Altherr - Concurring

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
F L E
I D
N o v e m b e r 2 4 ,
1 9 9 8
C e c il C r o w s o n ,
J r .
ASHLEY C HRISTINE OLEN and ) C/A NO. 03A01-9805- A p p e lla t e C o u r t
C le rk
CV-00166
STEVEN MICHAEL OLEN, )
BY: THERESA E. OLEN, ) JOHNS ON CIR CUIT
)
Appellan t, ) HON . G. RIC HAR D JO HNS ON,
) JUDGE
v. )
)
ANGELA ARLENE OLEN ALTHERR, ) AFFIRMED
) AND
Appellee. ) REMANDED
H. RA NDO LPH F ALLIN , Moun tain City, for A ppellant.
WILLIAM J. COC KETT, SMITH & COCKETT , Mountain City, for Appellee.
O P I N IO N
Franks, J.
In this child custody action, the minor children’s stepmother sought
custody after the death of her husband, who had been the custodial parent. The
natural m other coun ter-claimed for custody , and the Tr ial Judge aw arded cus tody to
the natural mother. The stepmother has appealed.
At the time the father and mother divorced, there was an award of joint
custody of the children, with primary residential custody in the mother. Subsequently,
the Kansas Social Service System took custody of the children, and in a subsequent
court hearin g in Kan sas, the Co urt determ ined that the m other had fa iled to prope rly
care for the children and was “not economically or emotionally stable enough at the
present time to properly care for the children”, and changed the custody to the father
and orde red the m other to pay $261.00 per mon th as child su pport.
On November 24, 1995, the father married Theresa E. Olen
(stepmoth er). Follow ing an evid entiary hea ring, the Trial C ourt was h ighly
complimentary of the stepmother in her love and care of the children. He also found
that the n atural m other k ept in co ntact an d main tained a relation ship w ith the ch ildren.
The Court also observed:
Ms. Altherr (natural mother) doesn’t have the education of the
children’s stepmother, but in spite of not having the education of the
children’s ste pmothe r, and in spite o f a real strugg le in trying to k eep in
contact w ith the children and find o ut where the children were, there is
no doubt in this Court’s mind that she loves them just as much as Mrs.
Olen.
The Court concluded that the issue was not the traditional best interest
of the childre n test, but wh ether a child w ould suffer “ substantial ha rm” if custo dy is
awarded or retained in the natural p arent vis a vis a non-pa rent.
The standard of review in child custody cases is de novo upon the record
of the Trial Court with a presumption of the correctness of the Trial Court’s findings,
unless e videnc e prepo nderate s otherw ise. Hass v. Knighton, 676 S.W.2d 544, 555
(Tenn . 1984) .
We affirm the judgment of the Trial Court in awarding custody of the
two minor children to the natural mother. The evidence does not preponderate against
the Trial Co urt’s conclu sion that the c hildren are n ot in dange r of substan tial harm in
their mother’s custody. The Tennessee Supreme Court has held “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 substial harm to the
child”. In re Adoption of Female Child, (Bond v. McKenzie), 896 S.W.2d 546-548
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(Tenn . 1995) . Also see Hawk v. Hawk, 855 S.W.2d 5 73 (Tenn. 1993 ). Only after a
court finds “substantial harm to a child” may it “engage in a general ‘best interest of
the child ’ evaluta tion in m aking a determ ination o f custod y”. Id.
The stepmother did not meet the burden of proof on the issue of
substantial harm. The stepmother asserts that the children are in danger due to the
lack of the m other’s pare nting skills, w ilfull failure to pay support an d failure to visit
the children regularly, as well as being emotionally unstable.
The mother admits that her children were removed from her custody, but
disputes that she does not possess parenting skills. She explained that the children
were removed from her upon allegations of sexual abuse. The allegations came the
day after she informed the father that she planned to move with the children, and the
accused was acquitted of any wrongdoing. After the children were removed from her
custod y, the fath er contin ued to le ave the m alon e in her c are wh ile he w as at wo rk.
There was other evidence that her parenting skills were satisfactory, and the children
interacted well with her. Her physicians were of the opinion that she did not have any
psychological problems that would interfere with her care of the children.
The mother admits that she did not pay child support for several years,
and claims that she could not afford to pay child support and visit her childrens, so she
chose visitatio n. After she joined the n avy she v oluntarily starte d paying c hild
support, and continued to pay support until she could not locate her children. At the
time of the hearing the mother was earning income from two jobs, and intended to live
with her p arents for the time being , as there wa s ample ro om in tha t home fo r herself
and her children. We affirm the award of custody to the natural mother and remand
with the co st of the app eal assessed to the appe llant.
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__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Don T. McM urray, J.
___________________________
Charles D. Susano, Jr., J.
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