Teri Michelle Parker v. Richard Ken Parker - Concurring

• Court: Tennessee Supreme Court
• Decided: March 8, 1999
• Docket: 01S01-9704-CH-00085
• Status: Published

Opinion

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE FILED March 8, 1999 TERI MICHELLE PARKER ) FOR PUBLICATION ) Cecil Crowson, Jr. Appellant ) FILED: Appellate Court Clerk ) v. ) HOUSTON CHANCERY ) RICHARD KEN PARKER ) HON. ALLEN W. WALLACE, ) CHANCELLOR Appellee ) ) NO. 01-S-01-9704-CH-00085

CONCURRENCE

Although I concur in the majority’s decision to affirm

the grant of custody to the father, I write separately to condemn

the appearance of impropriety this case exudes. As the United

States Supreme Court stated in Offutt v. U.S., 348 U.S. 11, 14, 75

S. Ct. 11, 13, 99 L. Ed. 11, 16 (1954), “justice must satisfy the

appearance of justice.” The trial court’s actions in this case do

not satisfy that appearance.

Under the authority of Palmore v. Sidoti, 466 U.S. 429,

104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984), the trial court clearly

erred by allowing the introduction of the nurse practitioner’s

testimony regarding the alleged harmful effects on the child from

an interracial relationship. The admission of this testimony

seemingly violated Palmore’s prohibition against heeding private

biases. See id. at 433, 104 S. Ct. at 1882, 80 L. Ed. 2d at 426.

The trial court then compounded its error during the testimony of

another witness by remarking: She [Mrs. Parker’s mother] comes from the same school I do. She can’t help the way she feels. Society today feels differently than the way we were brought up.

This remark was made during a series of questions about the

mother’s relationship with her Afro-American employer. It thus

could easily have been construed as reflecting the trial court’s

own prejudices regarding interracial relationships.

The trial court’s visitation order also furthered the

appearance of impropriety. In that order, the trial court

prohibited the minor child from having any contact with the

mother’s employer, who was her alleged Afro-American paramour.

This prohibition was neither requested by either party nor

supported by the record in any way; rather, it was “gratuitously”

imposed by the trial court.

I accept, unequivocally, the trial court’s statement in

the record that race did not play a part in its decision to award

custody to the father. This acceptance, however, neither erases

the errors nor removes the appearance of impropriety. Thus, the

judicial process is the victim. Under ordinary circumstances, such

an appearance would mandate that this Court remand the case for a

new determination of custody. See Tenn. R. App. P. 36(b) (final

judgment may be set aside if “error involving a substantial

right . . . would result in prejudice to the judicial process”).

This case, however, is typical of those in which the

appropriate “legal decision” would effectively have a synergistic

2 effect on the errors already made. At least for now, the trial

court’s custody decision has become, to a degree, unassailable

simply because of the passage of time. Recognizing how the mere

passage of time can frustrate our ability to do justice, this Court

has instituted mechanisms designed to expedite review of custody

cases. Unfortunately, this case was well into the process when

those mechanisms were instituted and thereby was unaffected by

them.

I agree, therefore, with the majority’s decision to

affirm the judgment of custody to the father without a remand for

a fresh determination of the parties’ comparative fitness, because

there is some evidence in the record supporting the trial court’s

conclusion that the mother’s relationship with her employer caused

her to neglect the child. Even though the appearance of

impropriety in the trial court’s actions cannot be erased, the

judgment is probably, nevertheless, the most reasonable disposition

now apparent and available.

______________________________ ADOLPHO A. BIRCH, JR., Justice