                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                        August 8, 2008 Session

                         IN RE C.M.C.
        MICHELLE MARIE CHAFFIN v. CHERYL LEATHERS ET AL.

                       Appeal from the Juvenile Court for Davidson County
                           No. 00071992    Betty Adams Green, Judge



                    No. M2008-00329-COA-R3-JV - Filed September 30, 2008


Mother of minor child appeals a juvenile court order rejecting her challenge to the validity of a 2004
order awarding custody of the child to maternal grandparents. Mother argues that the 2004 order is
void because she did not receive notice of the proceedings and the order does not contain necessary
findings. Mother further argues that the juvenile court erred in failing to give her a full hearing. We
have determined that the appealed order arose out of dependency and neglect proceedings and,
therefore, must be appealed to the circuit court.

            Tenn. R. App. P. 3 Appeal as of Right; Appeal Transferred to Circuit Court

ANDY D. BENNETT , J., delivered the opinion of the court, in which FRANK G. CLEMENT , JR. and
RICHARD H. DINKINS, JJ., joined.

Mary B. Langford, Nashville, Tennessee, for the appellant, Michelle Marie Chaffin.

James C. Bradshaw III, Nashville, Tennessee, for the appellees, Cheryl Leathers and Roy Leathers.

Linda Morgan Anderson, Guardian Ad Litem.


                                                  OPINION

        Michelle Marie Chaffin (“Mother”) is the mother of a minor child born in October 2001. A
paternity action was filed in the Juvenile Court for Robertson County, and in February 2004, an order
was entered establishing paternity and setting the father’s child support.1



        1
          None of the filings from the parentage action are included in the record on appeal. The contents of the
February 2004 order were summarized by the Robertson County Juvenile Court in an order entered on July 14, 2004
regarding the instant custody dispute.
        In May 2004, Cheryl Leathers and Roy Leathers, the child’s maternal grandmother and
grandfather (“Grandparents”), filed a Petition for Custody regarding the minor child. In an Amended
Petition for Custody filed on June 29, 2004, Grandparents alleged that “there has been a substantial
and material change of circumstances affecting the minor child” and that “the mother of the minor
child has abandoned the child [at] the home of the Petitioners.” On September 10, 2004, the
Juvenile Court of Robertson County entered an order awarding custody of the child to Grandparents.2
Mother did not appear at the hearing. The court’s findings of fact included the following:

                Both of the minor child’s natural parents . . . have been served with process
         and are properly before the Court.
         ....
                [Grandparents] have cared for the minor child since the Mother’s
         abandonment on May 26, 2004 and have provided her with a stable home
         environment since her birth.

       In April 2007, the child’s father requested that the case be transferred to Davidson County
based upon allegations that neither he, nor the child, nor Grandparents resided in Robertson County
and that the child and Grandparents lived in Davidson County. The Juvenile Court for Robertson
County ordered that the case be transferred to the Juvenile Court for Davidson County.

        In May 2007, Mother filed a petition for temporary custody alleging that the minor child was
a dependent and neglected child and requesting that Mother be granted sole custody of the child.
Grandparents opposed Mother’s petition. At an initial appearance before a juvenile court referee
in June 2007, Referee O’Neil transferred the case to Referee Carlton Lewis. In his order, Referee
O’Neil made the following notation:

         This Court has reviewed the filing and finds that the initial order of custody placing
         the child with the grandmother failed to find that the child was [in] imminent risk of
         harm. There was no allegation of abuse or neglect or prayer that the child be found
         neglected or dependent.

Mother thereafter filed a Motion to Determine Validity of Order asserting that Mother was not
properly served with the Grandparents’ petition and had no actual notice of the hearing in August
2004, and that the Robertson County order did not find the child to be dependent and neglected or
at risk of substantial harm. The motion was heard on August 3, 2007. In an order entered on
September 5, 2007, Referee Lewis stated that “the Davidson County Juvenile Court has previously
held that the initial order of custody failed to make specific findings of dependency, neglect, or a risk
of substantial harm.” Referee Lewis ordered that custody of the child be placed with Mother.
Grandparents filed a request for rehearing by the juvenile court judge pursuant to Tenn. Code Ann.
§ 37-1-107(1)(e).


         2
          The child’s father appeared at the hearing and had no opposition to Grandparents’ petition for custody. The
court’s order set visitation and child support for the father.

                                                        -2-
       The juvenile court judge heard the case on January 24, 2008. The court’s order entered on
January 25, 2008, includes the following findings:

        The Court . . . finds that the September 10, 2004, Custody Order of the Robertson
        County Juvenile Court placing custody of the minor child . . . with the Respondent
        Cheryl Leathers [grandmother] is valid and is in full force and effect, for the
        following reasons:

               (a) Although a paternity action was commenced in Robertson County . . . and
        an Order of Paternity was entered on February 17, 2004 in that action, the Order did
        not address custody or visitation. Therefore, Judge Fagan’s Order of September 10,
        2004, was a valid custody determination in the initial parentage action in Robertson
        County, Tennessee.

                (b) The Court further finds that Judge Fagan clearly found that the 31 month
        old child had been left without parental supervision and abandoned by her Mother,
        Michelle Chaffin, and that Michelle Chaffin knew about the custody hearing and had
        been served with process . . . .

The court ordered that Referee Lewis’s order be vacated and that custody of the minor child be with
her grandmother, Ms. Leathers.3 Mother filed a notice of appeal to this court.

                                          Jurisdiction over appeal

        Although not raised by the parties in their briefs, we have determined that there is a threshold
issue as to the appropriate court to hear this appeal. The resolution of this issue depends upon the
basis for the juvenile court’s jurisdiction to enter the original September 2004 order awarding
custody to Grandparents.

        Juvenile courts are courts of limited jurisdiction. In re D.Y.H., 226 S.W.3d 327, 330 (Tenn.
2007). As discussed by the Davidson County Juvenile Court in its order of January 2008, there are
two possible jurisdictional bases for the Robertson County Juvenile Court’s September 2004 custody
determination: a continuation of its paternity jurisdiction, or dependency and neglect jurisdiction.
 Cases decided under the juvenile court’s parentage jurisdiction are appealable to this court, whereas
orders arising out of dependency and neglect cases are appealable to the circuit court. See Tenn.
Code Ann. §§ 37-1-159(a), (g); 36-2-315; Dept. of Children’s Servs. v. Owens, 129 S.W.3d 50, 55
(Tenn. 2004) (any custody decision arising out of dependency and neglect proceedings must be
appealed to circuit court); In re Z.M.B., No. E2004-00380-COA-R3-JV, 2005 WL 94466, * 4 (Tenn.
Ct. App. Jan. 11, 2005) (with the exception of dependency and neglect and delinquency cases, an
appeal from juvenile court is to the Court of Appeals).


        3
         Although it is not entirely clear from the record, it appears that Cheryl Leathers and Roy Leathers were
divorced at the time of this order. Mr. and Ms. Leathers filed a joint brief as appellees in this appeal.

                                                      -3-
        Tenn. Code Ann. § 37-1-104(f) provides that “the juvenile court has concurrent jurisdiction
with the circuit and chancery courts of proceedings to establish the paternity of children born out of
lawful wedlock and to determine any custody, visitation, support, education or other issues
regarding the care and control of children born out of wedlock.” (Emphasis added). Prior to the
enactment of this provision in Tenn. Code Ann. § 37-1-104(f), when juvenile courts had exclusive
original jurisdiction over paternity cases, this court interpreted Tenn. Code Ann. § 37-1-103(c)4 to
give the juvenile courts continuing jurisdiction to decide later custody issues arising between the
child’s parents.5 In re Z.M.B., 2005 WL 94466, at *4. The current case, however, presents a
different situation. Here, we are dealing with a custody dispute involving the child’s grandparents.

        In Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006), our Supreme Court dealt with the
issue of a juvenile court’s authority to adjudicate a petition for grandparent visitation. The juvenile
court had established the father’s paternity in August 2001. Smallwood, 205 S.W.3d at 360. In
February 2003, the grandparents of the minor child at issue filed a petition requesting visitation for
themselves as well as for the father (who had given the grandmother a general power of attorney).
Id. The court set out the juvenile court jurisdictional provision in effect at the time the visitation
petition was filed in February 2003 as well as the language of Tenn. Code Ann. § 37-1-104(f), which
took effect on July 1, 2003. Id. at 364. The court then stated: “At issue is whether this provision
extends the concurrent jurisdiction of the juvenile court beyond establishing visitation for parents,
guardians, and legal custodians.” Id. Because the grandparent visitation statute6 had been amended
to provide that petitions under the statute were to be filed in circuit or chancery court, the court
concluded that the juvenile court lacked jurisdiction. Id. at 365.

       In a previous decision of this court consistent with the result reached by the Supreme Court
in Smallwood, this court reasoned:

         It is unnecessary and illogical for the juvenile court to maintain jurisdiction over such
         persons [those brought into court for the purposes of legitimation proceedings
         without any question of dependency or neglect] for the determination of Grandparent
         Visitation Rights, which is an issue independent of the paternity proceeding and one


         4
           Tenn. Code Ann. § 37-1-103(c) states, in part: “W hen jurisdiction has been acquired under the provisions of
this part, such jurisdiction shall continue until the case has been dismissed, or until the custody determination is
transferred to another juvenile, circuit, chancery or general sessions court exercising domestic relations jurisdiction, or
until a petition for adoption is filed regarding the child in question as set out in § 36-1-116(f).”

         5
           Prior to July 1, 2003, Tenn. Code Ann. § 37-1-103(a)(2) gave the juvenile court exclusive original jurisdiction
over all paternity cases. Effective July 1, 2003, the provision of subsection (a)(2) of Tenn. Code Ann. § 37-1-103
establishing jurisdiction over paternity cases was deleted, and Tenn. Code Ann. § 37-1-104(f) was amended to add the
language at issue here: “Notwithstanding any provision of law to the contrary, the juvenile court has concurrent
jurisdiction with the circuit and chancery court of proceedings to establish the paternity of children born out of wedlock
and to determine any custody, visitation, support, education or other issues regarding the care and control of children
born out of wedlock.”

         6
             Tenn. Code Ann. § 36-6-306(a).

                                                           -4-
         that is between adults. . . . Even though the children are the heart of the lawsuit [for
         grandparent visitation], the parties actually involved are adults, as it is the
         constitutional rights of the parents potentially being affected, not those of the
         children.

Terry v. Botts, No. 2000-01288-COA-R3-CV, 2001 WL 173207, *6 (Tenn. Ct. App. Feb. 22, 2001).

        Grandparent custody, even more than grandparent visitation, implicates the constitutional
rights of the parents. Our Supreme Court has held that “a natural parent may only be deprived of
custody of a child upon a showing of substantial harm to the child.” In re Askew, 993 S.W.2d 1, 4
(Tenn. 1999) (citing Bond v. McKenzie, 896 S.W.2d 546, 548 (Tenn. 1995)). Based upon the
reasoning applied by the Supreme Court in Smallwood and the nature of the parentage proceedings,
we have concluded that a juvenile court’s continuing parentage jurisdiction would not apply to a
petition for custody by grandparents.7 Moreover, the September 2004 order of the Robertson County
Juvenile Court in this case does not make any reference to the previous parentage determination or
to a modification of any previous order.8 It appears, therefore, that the juvenile court was not relying
upon its exercise of jurisdiction in the parentage action to give custody to Grandparents.

         In awarding custody of the minor child to Grandparents, the Robertson County Juvenile
Court found that Mother had abandoned the child. The statutory definition of a dependent and
neglected child includes a child “who is without a parent, guardian, or legal custodian.” Tenn. Code
Ann. § 37-1-102(b)(12)(A). Given the reasoning used by the Robertson County Juvenile Court to
give Grandparents custody and the absence of any other basis for jurisdiction, we have concluded
that the juvenile court was exercising its authority to determine dependency and neglect matters. See
Tenn. Code Ann. § 37-1-103(a)(1). Mother’s current dependency and neglect petition and the
Davidson County Juvenile Court order ruling upon Mother’s challenge to the validity of the
September 2004 order arise out of the juvenile court’s continuing dependency and neglect
jurisdiction. See In re D.Y.H., 226 S.W.3d at 331 (juvenile court retains continuing jurisdiction over
subsequent modification of custody order from dependency and neglect action). It follows, then, that
Mother’s appeal of the Davidson County Juvenile Court decision should have been to the Circuit
Court for Davidson County.

       Tenn. Code Ann. § 16-4-108(a)(2) provides that, when a case has been appealed to the wrong
appellate court, it should be “transferred to the court having jurisdiction thereof.” See In re Estate




         7
           The situation before this court is distinguishable from a parentage action brought by the grandparents under
Tenn. Code Ann. § 36-2-305(b)(1)(B) & (C), where the parents of the mother may file a complaint to establish paternity
of the child if the mother is a minor or where the parents of the male claiming to be the father may file a complaint to
establish paternity if the purported father is a minor.

         8
          In a July 2004 order extending an emergency order giving Grandparents temporary custody, the court modified
the order of paternity regarding the father’s child support obligation.

                                                          -5-
of White, 77 S.W.3d 765, 769 (Tenn. Ct. App. 2001). Therefore, this appeal shall be transferred to
the Circuit Court for Davidson County. Costs of this appeal are taxed equally against appellant and
appellees.


                                                      ___________________________________
                                                      ANDY D. BENNETT, JUDGE




                                                -6-
