APPELLATE COURT OPINIONS

I fully agree with the majority’s conclusion that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of custody, even when that order resulted from the natural parent’s voluntary relinquishment of custody to the non-parent. I also agree with the majority’s conclusion that, in such circumstances, a natural parent seeking to modify custody must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. I disagree, however, with the majority’s conclusion that Blair has failed to show a material change of circumstances in this case. The factors in the record supporting this conclusion are succinctly summarized in Justice Birch’s dissenting opinion as follows: When Blair originally agreed to surrender custody of Joy to Badenhope, his relationship with his daughter was uncertain and had only begun. Indeed, he apparently did not even see Joy until after her mother’s death. But in the many years that have passed since that time, Blair has expended great effort to create a strong, loving bond with his daughter. That bond has flourished to such a degree that Joy now has expressed an interest in living with Blair. Additionally, Blair has moved to Tennessee to be nearer to Joy, [footnote omitted] and he has purchased a new home in a neighborhood where Joy has many friends. Blair’s relationship with his daughter, his daughter’s interest in living with him, and even his place of residence have changed entirely.

With today’s holding, the majority declares, essentially, that a parent who voluntarily surrenders custody of a child forfeits any right to custody and  from that day forward is shorn of parental status and relegated to a status no better than that of a non-parent, should the parent petition to modify the custody decree. I cannot agree. In my view, this decision condescendingly brushes aside the fundamental and constitutionally-grounded principle  that a parent has a right to raise a child without undue governmental  interference. Likewise, the holding disregards the presumption, widely recognized in law, that a child’s best interests are served most effectively,  where possible, by placement with a fit parent. The majority’s holding places far too little weight on the parent’s fitness to care for the child or the parent’s efforts, no matter how extensive or admirable, to foster and nurture a loving bond with the child. Moreover, my views aside, the majority misapplies its own analysis to reach a result I find to be unsupportable and unjust. For these reasons, I respectfully dissent.

This case addresses the applicable standard to modify a child-custody  order awarding custody to a non-parent. In 1993, the child’s natural father agreed to give custody to the child’s maternal grandmother, and a consent order was entered accordingly. The father later petitioned to modify that order, asserting that a material change in circumstances had occurred and claiming that he had a superior parental right to the custody of his daughter. The trial court denied the petition, finding that no material change in circumstances had occurred warranting modification, and a majority of  the Court of Appeals affirmed. We granted the father’s application for permission to appeal and hold that a natural parent cannot generally invoke the doctrine of superior parental rights to modify a valid order of  custody, even when that order resulted from the parent’s voluntary consent  to give custody to the non-parent. Instead, a natural parent seeking to  modify a custody order that grants custody to a non-parent must show that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. We also affirm the judgment of the Court of Appeals finding that the father has not shown a material change in circumstances that makes a change of custody in his daughter’s best  interests.

In this post-conviction proceeding, the petitioner alleges that his pre-trial counsel failed to accompany him while he gave statements to the police and that trial counsel failed to offer the testimony of an expert pathologist. These failures, the petitioner asserts, deprived him of the constitutionally-grounded right to the effective assistance of counsel. Our review is guided by the United States Supreme Court's holding in Strickland v. Washington, which requires petitioners alleging ineffective assistance of counsel to prove that counsel's performance "fell below an objective standard of reasonableness" and that the petitioner was prejudiced by the deficient representation. 466 U.S. 668, 687-88, 694 (1984). We readily conclude that pre-trial counsel's representation fell below reasonable standards. Because we hold, however, that the petitioner has failed to prove he was prejudiced by the deficient pre-trial representation, the petitioner is not entitled to the relief sought. As far as trial counsel's failure to offer the testimony of an expert pathologist is concerned, we hold that the petitioner failed to sufficiently articulate this claim in his post-conviction petition. Thus, the trial court properly refused to hear evidence concerning that claim. It results that the denial of post-conviction relief is affirmed.

I concur with the majority’s opinion affirming the convictions as to both defendants. With regard to the imposition of the death sentences in this case, however, I cannot agree. My concerns, as expressed below, pertain to: (1) the comparative proportionality review protocol imposed by the majority; and (2) the trial court’s refusal, during the sentencing phase, to address a jury question related to the amount of time the defendants would serve under a life sentence.

In this workers' compensation appeal, an employee was allegedly injured in the course and scope of her employment. While purportedly seeking medical treatment for these injuries, she contracted an infection and died. The employer filed suit in the Davidson County Chancery Court claiming that no compensable injury occurred and that the employee used the excuse of an injury to seek prescription drugs for her addiction. The trial court held for the employer and later granted the employer's motion for discretionary costs. The Special Workers' Compensation Appeals Panel reversed, finding that a preponderance of the evidence established that a work-related injury did occur and that the employee died as a result of seeking treatment for those injuries. We then granted the employer's application for full court review and hold that the trial court's findings are supported by a preponderance of the evidence. We also hold that the trial court did not abuse its discretion in awarding discretionary costs to the employer. The judgment of the Davidson County Chancery Court is affirmed.

The primary issue in this case is whether a trial court may use the common fund doctrine in a wrongful death action to spread attorneys' fees equitably among the surviving beneficiaries of the action. The trial court consolidated two wrongful death actions, which were brought by the surviving spouse and children of the decedent, and it gave the surviving spouse control of the consolidated action. After the suit was settled, the trial court awarded the surviving spouse's attorney one-third of the settlement proceeds as a fee. On appeal, the children argued that the trial court improperly awarded fees to the surviving spouse's attorney from their share of the settlement because they possessed no contract with that attorney. A majority of the Court of Appeals held that although the award of fees could be proper under the common fund doctrine, the case should be remanded to resolve factual ambiguities in the record. We granted permission to appeal and hold that a trial court has the discretion to apply the common fund doctrine to the proceeds of a wrongful death action, thereby obliging the beneficiaries of that action to pay a reasonable fee to the attorney procuring the judgment or settlement. We also hold that the record contains no evidence showing that the trial court abused its discretion in awarding fees to the surviving spouse's attorney. The judgment of the Court of Appeals is affirmed in part and reversed in part.

We granted this appeal to determine the following issues: (1) whether the Court of Criminal Appeals, in reviewing the denial of pretrial diversion, erred by considering evidence presented at trial and failing to limit its review to evidence considered by the district attorney general; and (2) whether the trial court applied the correct standard in reviewing the district attorney general’s denial of pretrial diversion pursuant to a petition for writ of certiorari. After a thorough review of the record and relevant authority, we hold that in reviewing the denial of pretrial diversion, the Court of Criminal Appeals erred in failing to limit its review to the evidence that was considered by the district attorney general and any factual disputes resolved by the trial court. We also hold that in considering the petition for writ of certiorari, the trial court failed to apply the proper standard of review, which requires that it determine whether the district attorney general has considered and weighed all of the relevant factors and whether there is substantial evidence to support the district attorney general’s decision. Accordingly, the judgment of the Court of Criminal Appeals is reversed, and this case is remanded to the trial court to apply the appropriate standard of review.

An abuse of discretion in denying pretrial diversion should be found only when the record
shows an absence of any substantial evidence supporting the district attorney general’s decision.
State v. Pinkham, 955 S.W.2d 956, 960 (Tenn. 1997); State v. Hammersley, 650 S.W.2d 352, 356
(Tenn. 1983). When the reasons cited by the district attorney general are sufficient to support the
denial of pretrial diversion, I would hold that there is no abuse of discretion in the district attorney
general’s failure to make specific reference to every non-statutory, judicially-imposed factor. I
continue to adhere to my separate opinion in State v. Curry, 988 S.W.2d 153 (Tenn. 1999), and
therefore must respectfully dissent.

At the outset, I recognize that the facts and evidence surrounding the heinous murder of Shannon Sanderson are certainly indicative of guilt on the part of the defendant, Gerald Powers. Indeed, even without the disputed testimony of the defendant’s wife, the evidence implicating Mr. Powers is convincing, if not overwhelming. However, I am unwilling to affirm a criminal conviction based upon a flawed interpretation of the marital communication privilege as codified in Tennessee Code Annotated section 24-1-201(b) (Supp. 1998). In my opinion, the statutory marital communications privilege codified at Tennessee Code Annotated section 24-1-201(b) should have resulted in the exclusion of the defendant’s wife’s testimony relating to the defendant’s confidential communications. Because I am of the opinion that reversible error occurred in this respect, I respectfully dissent.

We granted this appeal to determine whether the trial court and the Court of CriminalAppeals erred by denying the petitioner’s motion to reopen his post-conviction petition. In hismotion, the petitioner asserted that new evidence establishes that he is mentally retarded and,therefore, ineligible for the death penalty under Tenn. Code Ann. § 39-13-203, which prohibits theexecutionof the mentally retarded. The petitioner also argued on appeal that the Eighth Amendmentto the United States Constitution and article I, § 16 of the Tennessee Constitution prohibit the execution of mentally retarded individuals.

With its decision today, a majority of this Court has effectively permitted a defendant, who was sentenced to death in 1989 for the brutal execution of a 74-year-old grandmother, an opportunity to escape the ultimate punishment for his actions solely because he has managed to obtain a lower score on a revised I.Q. test than he was previously able to do. Before today, the Constitution of this State has never been held to provide blanket capital immunity to a class of persons based only on the fact of low intellectual ability and deficits in adaptive behavior. Instead, the Constitution has barred such executions only when the defendant’s mental condition displaces the following capacities: (1) the cognitive capacity to appreciate that certain action will lead to the death of others; (2) the moral capacity to appreciate the wrongfulness of murder; or (3) the volitional capacity to behave in a lawful manner.