                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 13, 2002 Session

           WALTER FLETCHER v. DEANNA M. FLETCHER, ET AL.
                      IN RE: K.B.F. and K.S.F.


                     Appeal from the Circuit Court for Hawkins County
                            No. 10303    John K. Wilson, Judge

                     Appeal from the Juvenile Court for Hawkins County
                        No. HJ-99-0997     Herbert Holcomb, Judge

                                    FILED MARCH 26, 2002

                                 No. E2001-01223-COA-R3-JV
                                        Consolidated



This appeal concerns a custody dispute between the biological father, Walter Fletcher (“Father”),
and the maternal grandparents, David and Debra Fleenor (“Grandparents”), of two minor children
(“Children”). The Grandparents initiated this matter by filing a petition for emergency custody in
juvenile court, essentially alleging that the Children were dependent and neglected. Thereafter,
Father sought custody of the Children, but his petition was denied by the juvenile court. Father
appealed the juvenile court order to circuit court in accordance with Tenn. Code Ann. § 37-1-159(a).
The circuit court dismissed his appeal, holding it did not have jurisdiction. Father appeals both the
juvenile court order and the circuit court order. We vacate the circuit court order and remand.
Father’s appeal of the juvenile court order is dismissed.


      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated;
        Appeal of the Judgment of the Juvenile Court Dismissed; Case Remanded.


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.

Douglas T. Jenkins, Rogersville, Tennessee, for the Appellant, Walter Fletcher.

Phillip L. Boyd, Rogersville, Tennessee, for the Appellees, David and Debra Fleenor.
                                                       OPINION

                                                      Background


               The maternal Grandparents of the Children filed a Petition for Emergency Custody
of the Children with the Juvenile Court in October 1999.1 In their petition, the Grandparents stated
they had kept the Children for the past month and that during that time, the Children’s biological
mother, Deanna Fletcher (“Mother”), had minimal contact with the Children. The Grandparents also
alleged that Mother had moved to a new residence but had refused to tell them her new address. No
mention of Father was made in the petition other than that Father resided in Kokomo, Indiana. The
record on appeal shows the Children’s biological parents previously were divorced and had joint
custody of the Children.

               On the same day the Petition for Emergency Custody was filed, the Juvenile Court
entered an ex parte Emergency Custody Order, in which it granted the Grandparents’ petition,
finding that the Children were “in need of immediate emergency protection of this Court.” The
Juvenile Court entered two subsequent Orders holding that custody should remain with the
Grandparents and granting Mother visitation.

                The Juvenile Court entered a Temporary Order in March 2000 granting visitation to
Father. Sometime before that, Father apparently requested that the Juvenile Court grant him custody
of the Children. The technical record, however, contains no pleading from Father which preceded
the Temporary Order. The Juvenile Court, in the Temporary Order, held that Father’s request for
custody would be reserved until April 2000. The Juvenile Court entered a second Temporary Order
in April 2000, in which it again reserved the issue of Father’s request for custody and granted Father
visitation.

                Mother filed an Intervening Petition for Child Custody in May 2000. Thereafter, the
Juvenile Court held a hearing in May 2000, and entered an order in June 2000, regarding Mother’s
and Father’s competing petitions for custody.2 The Juvenile Court held in this order that the best
interests of the Children would be served by leaving them in the custody of the Grandparents “at
least until such time as a home study is presented to the Court.”

              Father filed a Petition in December 2000, in which he argued that both Mother and
Grandparents were in contempt for non-compliance with the Juvenile Court’s orders regarding


         1
            The Petition for E me rgen cy C ustod y w as actu ally executed by the m aternal grandmo ther, Debra Fleenor,
only. T his ma tter at the trial level and on appea l, howe ver, invo lves both matern al Gran dparents.

         2
            The technical record on appeal does not contain a petition seeking custody filed by Father at this stage in
the proceed ings. Neverth eless, in th e Jun e 2000, O rder, the Juven ile Court stated that, along with Mother’s intervening
petition for cu stody , it was adjud icating “Fath er’s Pe tition for Custody .”

                                                            -2-
Father’s visitation and telephone access to the Children. Father also requested the Children be
placed in his custody, or in the alternative, requested extended visitation at his home in Indiana. In
response, Mother filed an Answer and Counter-Complaint in which she argued the Children would
suffer substantial harm if placed in Father’s custody and requested that the Children be placed in her
custody.

               The Juvenile Court held a hearing in March 2001, on Father’s Petition and Mother’s
Answer and Counter-Complaint, and entered an Order (“Juvenile Court Order”) in April
2001containing its findings. The Juvenile Court held in this order that custody of the Children
should remain with the Grandparents and awarded visitation to Father and Mother. Despite
receiving custody, the Grandparents had not filed any further pleadings since their Petition for
Emergency Custody filed in October 1999.

                Father timely filed an appeal from the Juvenile Court to the Circuit Court of Hawkins
County (“Circuit Court”), arguing that his appeal to the Circuit Court was proper because the subject
matter of the Juvenile Court Order was dependency and neglect. Thereafter, upon the oral motion
of the Grandparents, the Circuit Court entered an Order (“Circuit Court Order”) dismissing Father’s
appeal to Circuit Court. In the Circuit Court Order, the Circuit Court stated as follows:

               The Court finds that although this matter was originally instituted on
               a petition for emergency custody, the subject matter of the order from
               which the father appeals is custody, visitation and contempt, and
               therefore the appeal should be directly to the Court of Appeals.

               Father appeals both the Circuit Court Order and, if necessary, the Juvenile Court
Order.


                                             Discussion

                On appeal and although not exactly stated as such, Father raises the following issues:
(1) whether the Circuit Court erred in dismissing his appeal of the Juvenile Court Order; and (2) if
the Circuit Court properly dismissed Father’s appeal of the Juvenile Court Order, whether the
Juvenile Court erred in denying Father’s petition for custody and awarding custody to the
Grandparents without first finding the Children would suffer substantial harm if placed in Father’s
custody. The Grandparents do not raise any further issues on appeal. Mother is not participating
in this appeal.

                Our review is de novo upon the record, accompanied by a presumption of correctness
of the findings of fact of the Juvenile Court, unless the preponderance of the evidence is otherwise.
Tenn. Rule App. P. 13(d); Alexander v. Inman, 974 S.W.2d 689, 692 (Tenn. 1998). The Juvenile
Court’s conclusions of law are subject to a de novo review with no presumption of correctness.
Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

                                                 -3-
                We first address Father’s argument on appeal that the Circuit Court erred in
dismissing his appeal of the Juvenile Court Order. Tenn. Code Ann. § 37-1-159 addresses the issue
of jurisdiction for appeals from juvenile court and states, in pertinent part, as follows:

                   (a) The juvenile court shall be a court of record; . . . and any appeal
                   from any final order or judgment in [a] . . . dependent and neglect
                   proceeding, filed under this chapter, may be made to the circuit court
                   which shall hear the testimony of witnesses and try the case de novo.
                   ...
                   (g) Appeals in all other civil matters heard by the juvenile court shall
                   be governed by the Tennessee Rules of Appellate Procedure. . . .

See also Tenn. R. Juv. P. 36(a) and (d) (providing procedure for de novo appeals to circuit court in
accordance with Tenn. Code Ann. § 37-1-159(a)).

               In Tennessee, juvenile courts have exclusive original jurisdiction over a minor child
alleged to be dependent and neglected until the child reaches age eighteen except as otherwise
provided by statute. Tenn. Code Ann. § 37-1-103(a)(1) & (c); State Dep’t of Human Serv. v.
Gouvitsa, 735 S.W.2d 452, 455-56 (Tenn. Ct. App. 1987); State v. George, 968 S.W.2d 896, 898
(Tenn. Crim. App. 1997).3 Tenn. Code Ann. § 37-1-103(a)(1) provides, in pertinent part, as follows:

                   (a) The juvenile court has exclusive original jurisdiction of the
                   following proceedings, which are governed by this part:

                          (1) Proceedings in which a child is alleged to be . . dependent
                   and neglected. . . .

               The Grandparents initiated this matter when they filed their Petition for Emergency
Custody. The Grandparents did not state specifically in their petition that they were seeking a
determination the Children were dependent and neglected as defined by Tenn. Code Ann. § 37-1-
102(b)(12), nor does the Emergency Custody Order use this language. The substance of the
Grandparents’ petition, however, sets forth grounds for a finding that the Children were dependent
and neglected. Their petition provided the Children had been staying with them for approximately
one month and that Mother had minimal contact with the Children and had refused to provide the
Grandparents with her new address. See Tenn. Code Ann. § 37-1-102(b)(12)(B), (F) & (G).4


         3
            Tenn. Code Ann. § 37-1-103(c) provides that, in cases outlined by Ten n. Code A nn. § 37-1-1 03(a), which
include depen dency and neglect cases, the juvenile court’s jurisdiction continues until the child at issue reaches age 18
“except that the court may extend jurisdiction for the limited purposes set out in § 37-1-102(b)(4)(B) until the person
reach es the a ge of [19].”

         4
             Tenn . Code Ann . §§ 37 -1-10 2(b)(1 2)(B), (F) & (G), pro vide as follows:
                                                                                                            (con tinued...)

                                                            -4-
Furthermore, the procedure followed by the Juvenile Court in granting the Grandparents’ petition
and conducting the hearing regarding the petition parallels the dependency and neglect procedure
outlined by Tenn. Code Ann. § 37-1-130 and Tenn. R. Juv. P. 5(d)(1) and 6(c).5 Accordingly, we

       4
           (...continued)
                    (12) “Dependent and neglected child” means a child:

                              (B) Whose parent, guardian or person with w hom the child lives,
                              by reason of cru elty, m ental in capacity, im mo rality or dep ravity
                              is unfit to properly care fo r the ch ild;. . .

                              (F) Who is in such condition of want or suffering or is under
                              such improper guardianship or control as to injure or endanger
                              the m orals or health of such child or others;

                              (G) Who is su ffering from a buse or n eglec t. . . .

       5
            Tenn. Code Ann. § 37-1-130 provides, in pertinent part, the following:

                  (a) If the child is found to be dependent or neglected, the court may make any of
                  the following orders of disposition b est suited to the p rotection and p hysical,
                  me ntal an d m ental w elfare of the child: . . .

                    (2) Su bject to the restrictions of § 37-1-129(e), and subject to conditions and
                  limitations as the court prescribes, transfer temporary legal custody to any of the
                  following:

                     (A) Any individual who, after study by the probation officer or other person or
                  agency designated by the court, is found by the court to be qualified to receive and
                  care for the child. . . .

       Tenn. R. Juv. P. 5(d)(1) p rovides, in pertinent pa rt, as follows:

                  (d) P R O C E D U R E S   I N D EP E N D E N T A N D N E G L E C T E D A N D A B U S E C A SE S .


                  (1) G ROUN DS F O R E M E R G E N C Y R E M O V A L B Y C O U R T O R D E R . The juvenile court
                  may, without formal hearing, order that a child be removed from the custody of the
                  child’s parent . . . pending further investigation and hearing, when the court finds
                  that there is probable cause to believe that the conditions specified in T.C.A. § 37-
                  1-114 exist and that the child is in need of the immediate protection of the court.
                  How ever, any such findings and order shall be based upon a sworn petition or
                  sworn testimony co ntaining sp ecific allegations.

       Tenn. R. Juv. P. 6(c) provides, in pertinent part, as follow s:

                  (c) D E P E N DE N T A N D N E G L E C TE D C ASE S . If a child alleged to be dependent and
                  neglected is removed from the custody of the child’s parent . . . prior to a hearing
                  on the petition, a preliminary he aring shall be held no later than three (3) days
                  excluding nonjudicial days but no longer than eighty-four (84) hours after the
                                                                                                                      (con tinued...)

                                                                         -5-
hold this matter began as a dependency and neglect proceeding filed in accordance with Tenn. Code
Ann. § 37-1-101, et seq., whereby the Children became subject to the Juvenile Court’s jurisdiction
under Tenn. Code Ann. § 37-1-103(a)(1).

                The technical record on appeal shows that after the Petition for Emergency Custody
Order was filed, the matter evolved into a custody dispute between the Children’s biological parents.
In fact, the Juvenile Court Order that Father attempted to appeal de novo to Circuit Court primarily
involved the Juvenile Court’s determination of custody. Father contends the Circuit Court erred in
dismissing his appeal of the Juvenile Court Order because this matter was instituted as a dependency
and neglect case when the Grandparents filed their Petition for Emergency Custody. The
Grandparents argue the Circuit Court correctly dismissed Father’s appeal because the Juvenile Court
Order was a custody matter and did not involve issues of dependency and neglect. The Grandparents
contend the jurisdiction of Father’s appeal of the Juvenile Court Order is governed by Tenn. Code
Ann. § 37-1-159(g) and is, therefore, properly before this Court.

               Whether the circuit court has jurisdiction to hear an appeal de novo of a final order
from juvenile court where the order does not involve issues of dependency and neglect, but where
the order originated out of dependency and neglect proceedings, is not clear from the applicable
statute, Tenn. Code Ann. §§ 37-1-159(a) and (g). Neither of the parties have cited any authority
besides Tenn. Code Ann. §§ 37-1-159(a) and (g) in support of their respective positions. Tenn. Code
Ann. § 37-1-159(a) provides only that an appeal from a “final order or judgment in. . . [a] dependent
and neglect proceeding, filed under this chapter . . .” may be made to circuit court to try the case de
novo.

                This Court addressed this issue in In re McBee, No. 88-129-II, 1988 Tenn. App.
LEXIS 535, at * 6 (Tenn. Ct. App. Aug. 24, 1988), no appl. perm. app. filed. In In re McBee, this
Court held the circuit court erred in dismissing the biological father’s appeal de novo of the juvenile
court’s final order regarding his petition for custody. Id. The minor child at issue was alleged to be
dependent and neglected in a petition filed in juvenile court by the Department of Human Services.
Id., at * 1. The child’s biological parents were previously divorced, and the child’s biological
mother had been awarded custody of the child. Id., at * 1-2. After the hearing on DHS’s petition
at which the juvenile court apparently determined the issue of dependency and neglect, the biological
father and mother both filed petitions seeking custody of the child. Id., at * 2. The juvenile court
denied both petitions and ordered the child to remain a ward of the court. Id. Thereafter, the father




       5
           (...continued)
                    child’s removal, to determine whether the removal is required under T.C.A. § 37-1-
                    114. If the court determines that the child’s removal is required under T. C. A.
                    §37-1-114, the court ma y order th at the child be placed in the custod y of a suitab le
                    perso n, persons or ag ency, as sp ecified in T.C .A. § 37-1-116. . . .



                                                             -6-
appealed de novo to circuit court. Id. The circuit court dismissed the father’s appeal, in part,
because it found that it lacked jurisdiction. Id., at * 3.6

                This Court in In re McBee examined the procedural history of the matter and found
that the case was a dependency and neglect matter initiated by DHS’s petition. Id., at * 5. In
holding that the circuit court erred in dismissing the father’s de novo appeal under Tenn. Code Ann.
§ 37-1-159(a), we stated as follows:

                  [T]he [father’s] petition was actually part of the dependent and
                  neglect proceedings, and not a petition to change custody in a divorce
                  case. The Juvenile Court and this Court must look to the substance
                  rather than to the form of the pleadings. Usrey v. Lewis, 553 S.W.2d
                  612, 614 (Tenn. App. 1977). The Juvenile Court in this case was
                  exercising its exclusive jurisdiction over [sic] and neglect
                  proceedings and was not acting as a domestic relations tribunal. [The
                  father’s] petition was properly before the Juvenile Court pursuant to
                  the dependent and neglect proceedings. See Department of Human
                  Services v. Gouvitsa, 735 S.W.2d 452 (Tenn. App. 1987).

                  Since the Juvenile Court’s final order was in a dependent and neglect
                  proceeding, the appeal by [the father] was properly filed in the
                  Circuit Court.

Id., at * 6 (emphasis added).

                The procedural history of this case is very similar to that found in In re McBee. As
discussed, the Grandparents’ Petition for Emergency Custody involved the issue of the Children’s
dependency and neglect and triggered the Juvenile Court’s exclusive original jurisdiction. While
the issues before the Juvenile Court evolved from strictly the issue of dependency and neglect to the
issue of custody, the Juvenile Court Order which Father attempted to appeal de novo to Circuit Court
was part and parcel of the dependency and neglect proceeding. Accordingly, in light of this Court’s
holding in In re McBee, we hold that the Circuit Court had jurisdiction to hear Father’s appeal of the
Juvenile Court Order under Tenn. Code Ann. § 37-1-159(a) and that Father’s appeal was properly
made to Circuit Court. See id. Therefore, we vacate the Circuit Court Order which dismissed
Father’s appeal and remand this matter to Circuit Court for a determination of Father’s appeal de
novo of the Juvenile Court Order in accordance with Tenn. Code Ann. § 37-1-159(a).




         6
            In In re McBee, the circuit court also d ismissed the father’s appeal because it found that father lacked
stand ing. In re McBee, 198 8 Tenn . App. LEX IS 53 5, at * 2 .

                                                        -7-
               With respect to Father’s remaining issue on appeal regarding the Juvenile Court
Order, we dismiss this appeal of the Juvenile Court’s Order since the Circuit Court has jurisdiction
to hear Father’s appeal de novo of the Juvenile Court Order.

                                            Conclusion

                The judgment of the Circuit Court of Hawkins County is vacated, and this cause is
remanded to the Circuit Court for a hearing de novo of Father’s appeal of the judgment of the
Juvenile Court of Hawkins County entered April 12, 2001, consistent with Tenn. Code Ann. § 37-1-
159(a), and such further proceedings as may be required, if any, consistent with this Opinion and for
collection of the costs below. The appeal of the judgment of the Juvenile Court is dismissed. The
costs on appeal are assessed against the Appellees, David and Debra Fleenor.




                                                      ___________________________________
                                                      D. MICHAEL SWINEY, JUDGE




                                                -8-
