The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 9, 2016 Session
MONICA CHAMBERLAIN v. MYRA DANIELLE BROWN
Appeal from the Circuit Court for Greene County
No. 14CV465AEP Douglas Jenkins, Chancellor Sitting By Interchange
No. E2015-01658-COA-R3-CV-FILED-DECEMBER 19, 2016
Monica Chamberlain (“Grandmother”) sued Myra Danielle Brown (“Mother”) seeking to
be awarded grandparent visitation with Mother‟s child Talan B. (“the Child”) pursuant to
Tenn. Code Ann. § 36-6-306. After a trial, the Circuit Court for Greene County (“the
Trial Court”) entered its judgment awarding Grandmother visitation with the Child after
finding and holding, inter alia, that Grandmother had proven that Mother had denied
visitation, that Mother had failed to rebut the presumption that denial of visitation may
result in irreparable harm to the Child, that Grandmother and the Child had a significant
existing relationship, and that visitation was in the best interest of the Child. Mother
appeals to this Court. We find and hold that the evidence does not preponderate against
the Trial Court‟s findings, and we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.
Curt Collins, Greeneville, Tennessee, for the appellant, Myra Danielle Brown.
Brent Hensley, Greeneville, Tennessee, for the appellee, Monica Chamberlain.
OPINION
Background
Grandmother is the paternal grandmother of the Child. When the Child was born,
Mother, the Child‟s father, Devin B. (“Father”), and the Child lived with Grandmother.
Mother, Father, and the Child lived with Grandmother for more than two and a half years.
In August of 2011, Mother, Father, and the Child moved out of Grandmother‟s house.
Mother and Father were arrested in March of 2012. The Child was found to be
dependent and neglected, and the Child‟s maternal grandparents were given custody of
the Child. Grandmother intervened in that suit and was granted visitation with the Child.
During the autumn of 2013, Mother regained custody of the Child. An order was entered,
however, denying Father any contact with the Child.
In November of 2014, Grandmother filed the instant suit alleging, in part, that
Mother had denied Grandmother visitation with the Child and that Grandmother was
entitled to visitation pursuant to Tenn. Code Ann. § 36-6-306. The case was tried without
a jury in June of 2015. The Child was almost six years old at the time of trial.
Grandmother testified that when the Child was born Mother, Father, and the Child
lived with her. Grandmother stated: “I helped care for [the Child] and play with him and
develop a realtionship with him. We bonded very closely.” Grandmother stated that the
Child and his parents lived with Plaintiff “[f]or over two and a half years.” Grandmother
testified that she would babysit and play with the Child. She admitted she never was the
Child‟s sole caretaker.
Grandmother admitted that she knew that Father had issues with drugs, but stated
that she was unaware that Mother also had issues until both Father and Mother were
arrested. Grandmother explained that when Father and Mother were arrested, the Child‟s
maternal grandmother took custody of the Child. Grandmother intervened in that suit,
was granted visitation with the Child, and exercised her visitation regularly. During the
time that the Child was in the custody of the maternal grandmother, Grandmother would
have visits with the Child every other week for a twenty-four hour period.
In the autumn of 2013, Mother regained custody of the Child. Grandmother stated
that Mother “allowed me to see [the Child] for a few times [after Mother regained
custody], and then it stopped.” Grandmother testified that she was unable to contact
Mother because Mother‟s phone number had changed. Grandmother explained that when
she was able to have visits with the Child, she set up the visits by texting Mother.
Grandmother also attempted to text the Child‟s maternal grandmother, but received no
2
reply. Grandmother then filed the instant suit. Grandmother testified that she is
requesting one weekend a month visitation with the Child.
Grandmother stated that initially the judge asked the parties to try to work things
out. Grandmother stated:
Again, [Mother] allowed me to see him a couple of times, the first time at
McDonald‟s, and it was supervised because [Mother] and her sister were
there. It had been about five months since I had seen [the Child], and when
he saw me, he ran to me and latched on and, you know, cried, “Mamaw,
where have you been? I‟ve missed you so much.” It is very difficult not to
be able to see him.
Grandmother also stated:
And then as we were sitting there and playing, and [Mother] and her sister
were sitting in the booth next to us, he said, “Mamaw, can I come live with
you?” Of course, I wanted to say yes, but I said, “Well, wouldn‟t you miss
your mom?”, and he said, “Well, can‟t she come, too”?
The last time Grandmother saw the Child was approximately one year before trial.
Grandmother testified that since that time she has tried calling and texting Mother but has
received no response. Grandmother also tried texting the Child‟s maternal grandmother
but again received no response.
Grandmother was unsure where her son, Father, was residing at the time of trial.
She stated that the last place she knew of was at Greeneville Terrace where he had been
living with his girlfriend. Grandmother testified that her son has not lived with her for
more than a year. She stated “there has been time when he has stayed a night or two, but
he does not - - has not lived in my home for quite some time.” When asked if Father ever
just showed up at her house, Grandmother stated: “No.” She further stated:
He did once, asked if he could stay the night, and I told him yes. I didn‟t
have any kids in the home. I didn‟t have - - there was no reason other than
him just not having a place to sleep that night that I allowed him to. But I
am in complete agreement that he does not need to see nor does he deserve
to see [the Child].
Grandmother was questioned about a text she sent to Mother asking when Father
could see the Child, and Grandmother stated:
3
I think that was more in reference to when would he ever be allowed to see
im [sic] again, not can he see him right away. I knew [Father] had drug
issues for some time, and I am completely in agreement that he does not
need to nor deserve to see him because of his own choices.
With regard to this text, Grandmother further stated:
You know, it‟s a mother‟s hope that her son will do better and be better. . . .
I mean it was a question to her of at some point is he ever going to be able
to see his son, and that wouldn‟t have been, oh, just on a whim. It would
have been through the Court. You know, I would have done things
properly, but it‟s a mother‟s hope that her son will be better and be able to
see his son.
When asked if she could understand how such a text might cause Mother concern,
Grandmother stated:
Well, yeah, sure. I can - - you know, hindsight is 20-20, but, you know, it -
- when your son is in tears because he can‟t see his own son. Well, like I
said, it‟s a mother‟s hope that her son will do better and be better, but he‟s
proven otherwise. I‟m in complete agreement with that he does not need to
see him.
Grandmother testified that the Child never saw Father when the Child was with
Grandmother. Grandmother acknowledged that there was a no contact order prohibiting
Father from having any contact with the Child. She stated: “There was one time I had - -
I had told him I was going to get [the Child], and when I got home, he was there. Now
[the Child] did not see him, but I said, „You need to leave,‟ and I thought he had left.”
This incident happened approximately a year and a half before trial. Grandmother
explained further stating:
[Father] was home at that point, and I had [the Child] on my shoulder. I
had a blanket over him. I don‟t know if it was cold or rainy or whatever it
was, but when I saw him, I said, “You can‟t be here. You‟ve got to go.” . .
. Well, he went down the steps. I have a split foyer. So he went down the
stairs through the basement. I thought he left, and [the Child] absolutely
never saw him.
Grandmother testified that she resides with her fiance and her younger son.
Grandmother‟s younger son drives a truck, but is at home “a couple” of nights a week.
Grandmother was asked about her home, and she stated:
4
Just a three-bedroom ranch home in a neighbor - - you know, in a pretty
quiet, decent neighborhood. . . . And my home has been checked out by
state foster care people and the foster care folks who I have been associated
with that oversees my foster parenting. I‟m not fostering now, but when I
was, they would have to do home studies and home checks, and there have
never been any issues.
Grandmother testified that she works at SteppenStone Youth Treatment Services where
she works with the Department of Children‟s Services on getting sex offending children
in the system in for treatment.
With regard to whether Mother ever denied her visitation, Grandmother stated:
“There‟s no verbal, no text, no anything like that, but when they kind of stopped
contacting you, it‟s - - to me, it was obvious they didn‟t want me to see him.”
Grandmother testified that she texted the Child‟s maternal grandmother one time to tell
her that she had some of Mother‟s mail from the court, but no one responded.
Grandmother stated that she still has that piece of mail addressed to Mother.
Mother testified that she lives with her fiance and her two children, the older of
which is the Child. Mother explained that her parents got custody of the Child in April of
2012, and Mother regained full custody of the Child in August of 2013. After she
regained custody of the Child, Mother allowed Grandmother to see the Child once.
Mother was asked if she had issues with the Child‟s visitation with Grandmother,
and she stated:
There was - - on two different occasions where I picked him up at Walmart
and he was either not in his car seat or he wasn‟t buckled into his car seat.
He was also not bathed and very whiny. He looked like he didn‟t have - -
like he hadn‟t had a nap. And at home his behavior after coming back from
her house was, was very bad. I had to - - it took, you know, a few days to
get him back in - - you know, to mind. . . . He is in kindergarten. So
behavior is a big part of school and parenting. So when he would have to
come - - he was in preschool at the time. So when he would come back,
you know, his attitude towards me was very different. It was almost like he
got to do whatever he want. He didn‟t get his way, you know, with me all
the time. It was like he just come back just unruly.
5
Mother testified that despite this, she did not deny Grandmother visitation. Mother did
state, however, that she had problems with allowing the Child to stay overnight with
Grandmother. Mother explained:
[O]ne of the biggest issues overnight is his father, [Father]. He might not
be allowed to stay there, but he has came and gone, and him being in the
house at the same time as [the Child] is - - was not supposed to be allowed.
I was not allowed to see him or have any kind of contact or even be near
him, and his father wasn‟t either, and that was a big concern of mine as he
could come in, and, you know, she couldn‟t stop him.
Mother testified that she also had other concerns, and she explained:
At the time she told me she was taking care of the children at
SteppenStone, and to my knowledge, they‟re not allowed to be around
small children. So that was a big concern of mine, of, you know, when - -
he can‟t be there when these children are present.
Mother testified that Father has not been allowed any contact with the Child since
March of 2012. Mother stated that she had concerns about Father being around the
Child, and she described an incident stating:
When [Father] called me, he was very upset, crying . . . . He was upset
because he was in the basement, and he could hear [the Child] upstairs
playing, and he wanted to see him, and obviously he couldn‟t, and he was
just upset that he was there that close to him and couldn‟t see him.
Mother agreed that this telephone conversation occurred before Mother regained custody
of the Child.
Mother admitted that Grandmother had given her no other reasons for concern
about Father coming into contact with the Child. Mother agreed, however, that she
worried that Grandmother might allow Father to see the Child if Grandmother thought
that Father was doing better.
Mother expressed concern over the text message from Grandmother asking when
Father could see the Child. Mother stated:
[T]o my knowledge, the text message, it‟s not up to me and when I would
let him - - you know, let her see him. It was up to the Court, and he had to
6
follow, you know, all the rules and like go through all the hoops that I went
through to [the Child]. It wasn‟t up to me.
Mother testified that she has had the same phone number since June of 2014, and
that Grandmother had that number. Mother stated that the last time Grandmother saw the
Child was in July of 2014, and that this visit was set up via text using Mother‟s current
phone number. Mother testified that her phone number has not changed since that time.
Mother was asked if Grandmother had contacted her since that time, and she stated: “I
remember maybe once. I was pregnant at the time and working, and I may have forgot,
but there was just one time that I remember. I don‟t remember getting any phone calls,
no voice mails, just texts.” Mother testified that the Child has not shown any confusion
about why he hasn‟t seen Grandmother since the last visit.
After trial, the Trial Court entered its Final Judgment on August 27, 2015 granting
Grandmother visitation with the Child after finding and holding, inter alia:
2. That T.C.A. § 36-6-306 is controlling in this matter and is the
appropriate law to be applied in this matter as the same is a request for
Grandparent‟s Visitation. That [Grandmother] is the paternal grandmother
of the minor child and her son is divorced from [Mother], the mother of the
minor child. [Mother] has primary parenting responsibility and the child‟s
father is under a “no contact” order with the minor child, such that the
father of the child enjoys no parenting time or visitation with the minor
child.
3. That [Grandmother], [Mother] and [the maternal grandmother] testified
and the Court finds all those who testified to be credible.
4. That in application of the statute to the testimony presented and the facts
the Court finds to be relevant and applicable [Mother] has denied
[Grandmother] visitation pursuant to T.C.A. § 36-6-306. That further the
minor child resided with [Grandmother] as a nuclear family unit for about
two and one-half (2 1/2) years such that T.C.A. § 36-6-306(a)(5) is
applicable and the denial of visitation as between the minor child and
[Grandmother] establishes a rebuttable presumption that the denial of
visitation may result in irreparable harm to the child.
5. That further T.C.A. § 36-6-306(a)(6) is applicable and [Grandmother]
and the minor child maintained a significant existing relationship for a
period of twelve months or more immediately preceding the severence of
the relationship and that the relationship was severed by [Mother] for
reasons other than abuse or a presence of danger substantial harm [sic] and
the severance of this relationship is likely to occasion substantial emotional
harm to the minor child.
7
6. That further the facts set forth in T.C.A. § 36-6-306(b)(1)(A) and T.C.A.
§ 36-6-306(b)(1)(C) exist as to further justify grandparent visitation.
7. That with regard to the determination as to whether [Grandmother] and
[the Child] had a significant existing relationship the Court finds that
T.C.A. § 36-6-306(b)(2)(A), T.C.A. § 36-6-306(b)(B)(2) [sic] and T.C.A. §
36-6-306(b)(2)(C) all apply and are found to exist and establish that
[Grandmother] and [the Child] are deemed to have had a significant
existing relationship.
8. That as set forth in T.C.A. § 36-6-306(b)(3) [Grandmother] is not
required to present the testimony or affidaivit [sic] of an expert witness but
rather the Court shall consider whter [sic] the facts of this particular case
would lead a reasonable person to believe that there is a significant existing
relationship between the child and the grandparent or that the loss of the
relationship is likely to occasion severe emotional harm to the child.
9. That in the instant matter the Court finds that application of the facts to
the appropriate law as set forth above mandate that some grandparent
visitation is appropriate.
10. That further the Court has considered those factors set forth in T.C.A. §
36-6-307 in ordering the amount of time to be awarded to [Grandmother].
Mother appeals the Trial Court‟s Final Judgment to this Court.
Discussion
Although not stated exactly as such, Mother raises four issues on appeal: 1)
whether the Trial Court erred in finding a rebuttable presumption that denial of visitation
may result in irreparable harm to the Child; 2) whether the Trial Court erred in finding
that the Child had such a significant existing relationship with the grandparent that loss of
the relationship is likely to occasion severe emotional harm to the child; 3) whether the
Trial Court erred in finding that the relationship between Grandmother and the Child had
been severed; and, 4) whether the Trial Court erred in finding that allowing Grandmother
visitation would be in the best interest of the Child.
Our review is de novo upon the record, accompanied by a presumption of
correctness of the findings of fact of the trial court, unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727
(Tenn. 2001). A trial court‟s conclusions of law are subject to a de novo review with no
presumption of correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58
S.W.3d 706, 710 (Tenn. 2001).
8
As pertinent to the case now before us, Tenn. Code Ann. § 36-6-306 (“the
Grandparent Visitation Statute”) provides:
(a) Any of the following circumstances, when presented in a petition for
grandparent visitation to the circuit, chancery, general sessions courts with
domestic relations jurisdiction or juvenile court in matters involving
children born out of wedlock of the county in which the petitioned child
currently resides, necessitates a hearing if such grandparent visitation is
opposed by the custodial parent or parents:
***
(5) The child resided in the home of the grandparent for a period of
twelve (12) months or more and was subsequently removed from the
home by the parent or parents (this grandparent-grandchild
relationship establishes a rebuttable presumption that denial of
visitation may result in irreparable harm to the child); or
(6) The child and the grandparent maintained a significant existing
relationship for a period of twelve (12) months or more immediately
preceding severance of the relationship, this relationship was severed
by the parent or parents for reasons other than abuse or presence of a
danger of substantial harm to the child, and severance of this
relationship is likely to occasion substantial emotional harm to the
child.
(b)(1) In considering a petition for grandparent visitation, the court shall
first determine the presence of a danger of substantial harm to the child.
Such finding of substantial harm may be based upon cessation of the
relationship between an unmarried minor child and the child‟s grandparent
if the court determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the
grandparent that loss of the relationship is likely to occasion severe
emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that
cessation of the relationship could interrupt provision of the daily
needs of the child and thus occasion physical or emotional harm; or
(C) The child had a significant existing relationship with the
grandparent and loss of the relationship presents the danger of other
direct and substantial harm to the child.
9
(2) For purposes of this section, a grandparent shall be deemed to have a
significant existing relationship with a grandchild if:
(A) The child resided with the grandparent for at least six (6)
consecutive months;
(B) The grandparent was a full-time caretaker of the child for a
period of not less than six (6) consecutive months; or
(C) The grandparent had frequent visitation with the child who is the
subject of the suit for a period of not less than one (1) year.
(3) A grandparent is not required to present the testimony or affidavit of an
expert witness in order to establish a significant existing relationship with a
grandchild or that the loss of the relationship is likely to occasion severe
emotional harm to the child. Instead, the court shall consider whether the
facts of the particular case would lead a reasonable person to believe that
there is a significant existing relationship between the grandparent and
grandchild or that the loss of the relationship is likely to occasion severe
emotional harm to the child.
***
(c) Upon an initial finding of danger of substantial harm to the child, the
court shall then determine whether grandparent visitation would be in the
best interests of the child based upon the factors in § 36-6-307. Upon such
determination, reasonable visitation may be ordered.
Tenn. Code Ann. § 36-6-306 (2014).
This Court discussed the Grandparent Vistiation Statute in McGarity v. Jerrolds
stating:
Because of the great deference that courts give to parental decisions, when
the court addresses grandparent visitation rights, it must perform a lengthy
and complex three-pronged analysis. First, the grandparent seeking the
court‟s intervention must show that one of six situations exists pursuant to
Tenn. Code Ann. § 36-6-306(a). Second, the court must determine whether
there is a danger of substantial harm to the child if the child does not have
visitation with the grandparent. The foregoing is based on three factors set
out in Tenn. Code Ann. § 36-6-306(b)(1). In conjunction with this analysis,
the court must also determine if the relationship between the child and
grandparent is significant based on three more factors set out in Tenn. Code
10
Ann. § 36-6-306(b)(2). Third, if the court finds that there is danger of
substantial harm if the child does not have visitation with the grandparent,
it must decide whether the visitation would be in the child‟s best interest
based on seven factors under Tenn. Code Ann. § 36-6-307.
McGarity v. Jerrolds, 429 S.W.3d 562, 572 (Tenn. Ct. App. 2013) (quoting Marlene
Eskind Moses and Jessica J. Uitto, The Current Status of Tennessee’s Grandparent
Visitation Law, Tenn. B.J., Jan 2010, at 46, 24).
We first consider whether the Trial Court erred in finding a rebuttable presumption
that denial of visitation may result in irreparable harm to the Child. The Trial Court
found that Grandmother had proven that the Child had resided in her home for a period of
more than twelve months and had subsequently been removed from her home by his
parents. The evidence in the record on appeal does not preponderate against these
findings. Pursuant to Tenn. Code Ann. §36-6-306(a)(5), these findings give rise to a
rebuttable presumption that denial of visitation may result in irreparable harm to the
Child.
Mother argues in her brief on appeal that the Trial Court erred in finding that this
rebuttable presumption arose because Mother and Father also resided with Grandmother
during that time period, and Grandmother was not the Child‟s primary caregiver.
Mother, however, has cited us to no law which states that the grandparent in such a
situation must be the primary or only caregiver of the child at issue, nor has our research
revealed any such law.
Grandmother proved the two statutorily mandated criteria pursuant to Tenn. Code
Ann. § 36-6-306, and thus, the presumption arose. The Trial Court found that Mother
failed to rebut this presumption, and the record on appeal does not preponderate against
this finding. We find no error in the Trial Court‟s determination that Grandmother was
entitled to a rebuttable presumption that denial of visitation may result in irreparable
harm to the Child and that this presumption was not rebutted.
We next consider whether the Trial Court erred in finding that the Child had such
a significant existing relationship with the grandparent that loss of the relationship is
likely to occasion severe emotional harm to the child. The evidence in the record on
appeal shows that the Child resided with Grandmother for more than six consecutive
months and that Grandmother had frequent visitation with the Child for a period of not
less than one year. Given these facts, we find no error in the Trial Court‟s determination
that Grandmother and the Child had a significant existing relationship. The Trial Court
also found that loss of that relationship is likely to occasion severe emotional harm to the
Child. As discussed above, a rebuttable presumption that denial of visitation may result
11
in irreparable harm to the Child arose, and Mother failed to rebut that presumption.
Furthermore, the evidence in the record on appeal does not preponderate against the Trial
Court‟s finding that the loss of the Child‟s relationship with Grandmother is likely to
occasion severe emotional harm to the Child. As the evidence does not preponderate
against the Trial Court‟s findings relative to this issue, we find no error.
Next, we consider whether the Trial Court erred in finding that the relationship
between Grandmother and the Child had been severed. The Trial Court found that
“[Mother] has denied [Grandmother] visitation pursuant to T.C.A. § 36-6-306.” The
evidence in the record on appeal shows that while Mother never specifically stated that
Grandmother could not have visitation, Mother denied Grandmother visitation by
ignoring or avoiding the text messages sent by Grandmother, which previously had been
used as the method for setting up visitation. The end result was that Grandmother was
denied visitation. The evidence in the record on appeal does not preponderate against the
Trial Court‟s finding that Mother denied Grandmother visitation.
Finally, we consider whether the Trial Court erred in finding that allowing
Grandmother visitation would be in the best interest of the Child. After making a finding
of danger of substantial harm to the child, a trial court then must consider the best interest
of the child based upon the non-exclusive list of factors contained in Tenn. Code Ann. §
36-6-307, which provides:
In determining the best interests of the child under § 36-6-306, the
court shall consider all pertinent matters, including, but not necessarily
limited to, the following:
(1) The length and quality of the prior relationship between the child and
the grandparent and the role performed by the grandparent;
(2) The existing emotional ties of the child to the grandparent;
(3) The preference of the child if the child is determined to be of sufficient
maturity to express a preference;
(4) The effect of hostility between the grandparent and the parent of the
child manifested before the child, and the willingness of the grandparent,
except in case of abuse, to encourage a close relationship between the child
and the parent or parents, or guardian or guardians of the child;
(5) The good faith of the grandparent in filing the petition;
(6) If the parents are divorced or separated, the time-sharing arrangement
that exists between the parents with respect to the child;
(7) If one (1) parent is deceased or missing, the fact that the grandparents
requesting visitation are the parents of the deceased or missing person;
12
(8) Any unreasonable deprivation of the grandparent‟s opportunity to visit
with the child by the child‟s parents or guardian, including denying
visitation of the minor child to the grandparent for a period exceeding
ninety (90) days;
(9) Whether the grandparent is seeking to maintain a significant existing
relationship with the child;
(10) Whether awarding grandparent visitation would interfere with the
parent-child relatinship; and
(11) Any court finding that the child‟s parent or guardian is unfit.
Tenn. Code Ann. § 36-6-307 (2014).
The Trial Court considered the relevant factors contained in Tenn. Code Ann. §
36-6-307 when making its determination that visitation with Grandmother would be in
the Child‟s best interest. The evidence in the record on appeal does not preponderate
against the Trial Court‟s finding. As such, we find no error with regard to this issue.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellant, Myra Danielle Brown, and her surety.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
13