Court Rulings

<bold>Child Support, Custody, and Visitation — custody — fitness of</bold> <bold>parent — waiver of constitutionally protected status as</bold> <bold>natural parent</bold> <block_quote> The trial court's finding that defendant biological father is a fit and proper person to care for his minor child did not preclude it from making the conclusion of law that defendant waived his constitutionally protected status as a natural parent based upon his conduct of abandonment and neglect, thus allowing the trial court to grant joint or paramount custody to plaintiff paternal grandparents, because a natural parent may lose his constitutionally protected right to the control of his children by a finding of unfitness of the natural parent or where the natural parent's conduct is inconsistent with his or her constitutionally protected status. However, the trial court failed to apply the clear and convincing evidence standard as set forth in <italic>Adams v. Tessener,</italic> <cross_reference>354 N.C. 57</cross_reference> (2001), and the case is remanded for findings of fact consistent with this standard of evidence.</block_quote>

The issue we address is whether a defendant has an appeal as of right from the denial of a Tennessee Rule of Criminal Procedure 41(g) motion for return of property when the defendant did not file a pretrial motion to suppress and pleaded guilty. The defendant was indicted on charges of aggravated assault by use or display of a deadly weapon. Law enforcement officers seized guns and other related items from the defendant's home. The defendant did not challenge the seizure of his property and pleaded guilty to reduced charges of reckless endangerment. Three years later, he filed a Rule 41(g) motion for the return of property. The trial court dismissed the motion, and the defendant appealed. The Court of Criminal Appeals reversed and remanded, finding that the defendant may be entitled to relief under Rule 41(g) based on the court's determination that an illegal seizure occurs when, after a conviction, the State retains possession of property that is not stolen and not connected to the commission of a crime. See State v. Rowland, No. W2014-02311-CCA-R3-CD, 2015 WL 6601315, at 3 (Tenn. Crim. App. Oct. 30, 2015), perm. app. granted (Mar. 23, 2016). We hold that the defendant had no appeal as of right under Tennessee Rule of Appellate Procedure 3(b) from the trial court's order denying the Rule 41(g) motion. The Court of Criminal Appeals erred by hearing the defendant's appeal when it lacked jurisdiction under Rule 3(b) and by determining that the defendant could be entitled to relief under Rule 41(g).