                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                         Assigned on Briefs September 02, 2014

                                    IN RE DESTIN R.

                   Appeal from the Juvenile Court for Wilson County
                       No. 2009DC148      John T. Gwin, Judge




                  No. M2013-02156-COA-R3-JV - Filed April 8, 2015


In this grandparent visitation case the mother of the child appeals the grant of the petition to
establish grandparent visitation privileges. We vacate the judgment and remand the case for
entry of an order in compliance with Tenn. Rule Civ. P. 52.01.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., P. J., M. S., and W. N EAL M CB RAYER, J. joined.

Patty Stolinsky, Lebanon, Tennessee, for the appellant, Amy Norman.

Kimberly K. Schreiber and J. Ray Akers, Mt. Juliet, Tennessee, for the appellee, Roy
Redferrin and Shuwanna Redferrin.

                                          OPINION

        Destin R. was born to Amy Redferrin (“Mother”) in April 2007. At the time of his
birth Mother was living with her father and step-mother (“Grandfather” and “Grandmother”
or collectively “Grandparents”); she and Destin continued to live with them until Destin was
two years old. During that time Grandfather took care of Destin while Mother was at work
or attending school.

        When Destin was two, he and Mother moved into their current home with Daniel
Norman, who was to become her husband; Destin was enrolled in daycare. In time Destin
began exhibiting aggressive behavior, to the extent that he was dis-enrolled from the daycare
facility. At the suggestion of his pediatrician, Mother took Destin to a doctor who prescribed
medication to help with his aggression. Destin also began seeing Dr. Eboni Webb, a clinical
psychologist, who took him off the medication and developed a behavioral modification plan
to which all family members and caregivers were to adhere while Destin was in their care.
The plan included specific guidelines and a notebook in which the caregiver was to record
Destin’s activities, food, any behavior problem and how that problem was dealt with at that
time. The main focus of the plan was consistency and structure for Destin.

       As things progressed, Mother became concerned that the Grandparents were not
following the plan when Destin was with them and began restricting his visits with them; the
implementation of her restrictions, over time, led to deterioration of the relationship between
Mother and Grandparents, particularly Grandmother. On February 15, 2012, Mother
informed Grandfather that if he wanted to see Destin “[Grandfather] could come to my house
or I would meet him somewhere, but that [Grandmother] wasn’t welcome due to a text
message of an article that I received.”

        On April 13, 2012, Grandparents filed a Petition to Establish Grandparent Visitation;
a Guardian ad Litem was appointed on January 23, 2013 and submitted a report on February
14. The case came to trial on July 19, 2013. In an order entered August 20, 2013, the court
found that Mother “effectively terminated Petitioners’ visitation” and ordered specific
visitation privileges for the Grandparents with Destin.

       Mother appeals, articulating the following issues:

       1. Did the trial court err in applying T.C.A. 36-6-306(a)(5) in finding that as
       Mother lived in Plaintiffs home while the child was in her custody that the
       statute would apply thus creating a rebuttable presumption that denial of
       visitation may result in irreparable harm to the child;
       2. Did the trial court err in applying T.C.A. 36-6-306(b)(1)(A) and making a
       finding that maternal grandfather had served as primary caregiver for the child
       while the child was in Mother’s custody and living in his home with Mother;
       3. Whether the trial court erred in finding that there was an effective denial of
       visitation or severance of a relationship between the minor child and Plaintiffs
       occurred so as to implicate the provisions of Tenn. Code Annotated 36-6-306;
       4. Did the trial court err in finding risk of substantial harm to the minor child
       if the request for visitation was denied.
       5. Did the trial court err in finding that ordering Grandparent Visitation is in
       the best interest of the minor child.




                                              2
I.     S TANDARD OF R EVIEW

       Grandparent visitation cases are reviewed by applying the abuse of discretion
standard, “with the child’s welfare given paramount consideration. Review of questions of
law, including issues of statutory construction, is de novo with no presumption of correctness
attached to the judgment of the trial court.” Smallwood v. Mann, 205 S.W.3d 358, 361
(Tenn. 2006) (internal citations omitted). We review the trial court’s findings of fact de novo
with a presumption of correctness, unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). For the evidence to preponderate against a trial court’s finding of fact, it must
support another finding of fact with greater convincing effect. 4215 Harding Road
Homeowners Ass’n. v. Harris, 354 S.W.3d 296, 305 (Tenn. Ct. App. 2011); Walker v. Sidney
Gilreath & Assocs., 40 S.W.3d 66, 71 (Tenn. Ct. App. 2000).

II.    A NALYSIS

       Tenn. Code Ann. § 36-6-306 provides the framework by which grandparents may
petition a court for visitation with their grandchildren and upon which Grandparents petition
was based; the portion of the statute pertinent to this case states:

       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);

Tenn. Code Ann. § 36-6-306(a)(5). As is clear from the wording of the statute, visitation by
grandparents must be opposed before the court is empowered to act; accordingly, we first
address Mother’s contention that the court erred in finding that she denied visitation to
Grandparents. We consider this issue in light of the unique procedural posture in which it
is presented by the record.

      At the beginning of the hearing, the following dialogue took place between
Grandparents’ counsel and the court:

                                               3
       [COUNSEL FOR GRANDPARENTS]: Your Honor, the only statement I’d
       make on the statement that you’ve ‘read the file’ and you know what the issues
       are, based on the pleadings filed by the parties [and] Your Honor’s order that
       was entered on August 15, 2012 [sic], the - - the rebuttable presumption has
       been met under 36-6-306. So the burden - - my argument is the burden shifts --
        ***
       THE COURT: And the burden does shift.

The court then called upon Mother to present her first witness. The court did not specify
what burden it was imposing on Mother or why it was necessary for her to proceed first. A
finding that Mother opposed visitation was a prerequisite to proceeding further and
Grandparents had the burden of showing same; there was no proof before the court at the
time the court ruled that “the burden does shift”.1

        Mother did not raise a concern as to the ruling and proceeded to call Grandfather to
testify. In addition to Grandfather and herself, Mother’s proof consisted of the testimony of
Lynn Etherly, the owner of the child care center Destin attended from October 2009 to
September 2010; Daniel Norman, Mother’s husband; Jill Norman, Daniel’s mother; and the
deposition of Dr. Webb. Upon the close of Mother’s proof, the court made no ruling and
Grandparents began to put on their proof, consisting of the testimony of Marie Ruskin, a
friend of Grandparents; Grandparents; Jeffrey Redferrin, Mother’s half-brother2 ; Melinda
Waldrop, a friend of Grandmother; and Ensley Hagan, the guardian ad litem. Most of the
proof related to Destin’s behavioral issues, the circumstances leading to Mother’s restricting
Grandparents’ visits with Destin, their reactions to the restrictions, and to the nature and
effect of the deteriorating relationship between Mother and Grandmother; the testimony of
Mother and Grandmother, in particular, conflicted greatly.

       In the order granting the petition, the court stated the following with respect to the
issue of Mother’s opposition to Grandparents’ visitation:

       3. Respondent/Mother has, effectively, terminated Petitioners’ visitation with
       Destin. The Court finds that Respondent and Petitioner/Step-Grandmother, in
       particular, have a terrible relationship. Respondent believes Petitioner/Step-
       Grandmother is trying to ‘steal’ Destin from her.              Petitioner/Step-
       Grandmother, for her part, sent a particularly ill-conceived and hurtful article


       1
          As discussed herein the August 16, 2012 order does not contain factual findings establishing
Mother’s opposition to Grandparents’ visitation.
       2
           Mother and Jeffrey Redferrin are Grandfather’s children.

                                                    4
        to Respondent, which the Court finds was calculated to hurt respondent’s
        feelings. See, Trial Exhibit 6 entitled ‘Sociopathic Parenting’.

        As noted earlier, when the trial court has set forth its factual findings in the record,
we will presume the correctness of those findings unless the evidence preponderates against
them. The quoted statement, however, is conclusory, and does not constitute a finding of fact
relative to the actions, inactions or behaviors which the court deemed to constitute the
termination of Grandparents’ visitation; at no place elsewhere in the order are the findings
of fact upon which the court bases its determination that Mother “effectively terminated”
Grandparents’ visitation, as required by Tenn. R. Civ. P. 52.01.3 Not only is our review
hampered by the court’s failure to make specific findings of fact, but the briefs of the
parties–each in its own way–are deficient in guiding this court to the evidence and other
considerations which show that Mother opposed visitation by Grandparents, the threshold
finding to invoke the court’s intervention in Mother’s fundamental right to control with
whom Destin interacts.4 See Smallwood, 205 S.W.3d at 361-63.

       As we review the record, we first address Grandparents’ counsel’s reference at the
hearing to the order entered August 16, 2012, which was entered on Mother’s motion to
dismiss for lack of standing. The motion also asserted in support of dismissal that Mother
“never denied Petitioner visitation with the child; she has structured it in such a manner
which [Mother] believes, after consultation with the child’s therapist, to be in the best interest
and Petitioner has refused said visitation as offered by respondent.” In their response
Grandparents stated:

        Mother would like the court to grant her Motion to Dismiss based upon factual
        arguments that are in dispute. However, that defeats the purpose of a Motion
        to Dismiss pursuant to Rule 12.03 of the Tenn. Rules of Civ. P. The purpose



        3
            Tenn. R. Civ. P. 52.01 states:

        In all actions tried upon the facts without a jury, the court shall find the facts specially and
        shall state separately its conclusions of law and direct the entry of the appropriate judgment.
        The findings of a master, to the extent that the court adopts them, shall be considered as the
        findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient
        if the findings of fact and conclusions of law appear therein. Findings of fact and
        conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any
        other motion except as provided in Rules 41.02 and 65.04(6).
        4
           For instance, in the discussion of the court’s lack of compliance with Tenn. R. Civ. P. 52.01,
Grandparents’ brief incorporates the discussion from a brief apparently filed in another case, one involving
a dispute between parents over parenting time.

                                                       5
       of a Motion to Dismiss is to test the legal sufficiency of the complaint, not the
       strength of the plaintiff’s evidence.

In denying the motion, the court stated the following with regard to Mother’s assertion:

       In regards to the respondent’s Motion to Dismiss, the court finds that pursuant
       to T.C.A. § 36-6-306, the grandparents do have standing to assert a claim. The
       court further finds that in her Answer, the Respondent admits that she and the
       minor child resided with the grandparents for two and a half years, therefore,
       creating a rebuttable presumption that denial of visitation may result in
       irreparable harm to the child pursuant to T.C.A. § 36-6-306(a)(5).

There was no holding as to the threshold issue as to whether Mother opposed visitation; the
fact that Mother admitted that she and Destin lived with Grandparents does not establish that
she opposed visitation.5 Consequently, to the extent relied upon by Grandparents, the August
16 order does not relieve them of any burden they have as Petitioners.

        While the court notes in various parts of its order that Grandfather and Destin
maintained a close relationship, there is no proof that Mother opposed Grandfather’s
visitation with Destin or “effectively terminated” Grandfather’s relationship with him; the
evidence preponderates against the finding that Mother “effectively terminated”
Grandfather’s relationship. Similarly, while the court made reference to the conflict between
Mother and Grandmother, the court makes no reference or finding as to Mother’s testimony
that one reason she restricted Grandmother’s contact with Destin was because of Mother’s
belief that Grandmother was not following the behavior modification program instituted by
Dr. Webb.

        Were we to proceed to consider the application of Tenn. Code Ann. § 36-6-306(a)(5)
to the record, the absence of findings of fact would likewise impede our inquiry. The court
made no findings, specifically with reference to the effect of Destin’s behavior modification
program, on whether the denial of visitation with either Grandmother or Grandfather would
result in irreparable harm to Destin, as required by § 36-6-306(a)(5), or in its discussion of




       5
           Such a finding would have been inappropriate in any event as noted by Grandparents in their
response, inasmuch as the court was ruling on a motion to dismiss the petition, not on its merits.

                                                  6
Destin’s best interest.6 The order does not mention the testimony and recommendation of the
Guardian ad litem.7

        We do not find it appropriate to “soldier on” to conduct an independent review of the
record and address the other issues presented by Mother. As noted above, there was no
evidence that Mother opposed Grandparents’ visitation at the time the court ruled that she
had the burden of going forward. The evidence we have reviewed preponderates against a
finding that Mother opposed Grandfather’s visitation and shows that Mother restricted, but
did not oppose, Grandmother’s visitation. Moreover, it is necessary for the trial court to
make specific findings of fact relative to Mother’s opposition to both Grandparents’
visitation and to the effect of any denial of visitation on Destin.8 In addition, the trial court
did not assess the credibility of the parties; given the strained relationship between Mother




        6
            In this regard, the court notes in the order:

        The Court finds that there are facts, which would cause a reasonable person to believe that
        there is a significant existing relationship between Petitioners and Destin; and that the loss
        of the relationship is likely to occasion severe emotional harm to Destin.

Again, this is conclusory and not a finding of fact with the contemplation of Tenn. R. Civ. P. 52.01. In
addition, we have not been directed to the evidence upon which the court relies in making this statement.
        7
            The Guardian testified as well to the conflict between Mother and Grandmother and the
justification for Mother’s restrictions on Grandparents’ visitation with Destin; the Guardian recommended
that Grandparents’ visitation be at Mother’s discretion.
        8
           We spoke in In re Estate of Oakley to the importance of findings of fact and credibility
determinations, particularly as we strive to give the trial court the deference required by Tenn. R. App. P.
13(d) in our review :

        The underlying rationale for this mandate is that it facilitates appellate review by “affording
        a reviewing court a clear understanding of the basis of a trial court's decision.” Id. (internal
        citations omitted). In the absence of written findings of fact and conclusions of law, “this
        court is left to wonder on what basis the court reached its ultimate decision. . . .While there
        is no bright-line test by which to assess the sufficiency of the trial court's factual findings,
        the general rule is that “the findings of fact must include as much of the subsidiary facts as
        is necessary to disclose to the reviewing court the steps by which the trial court reached its
        ultimate conclusion on each factual issue.”

In re Estate of Oakley, No. M201400341COAR3CV, 2015 WL 572747, at *10-11 (Tenn. Ct. App. Feb. 10,
2015)(internal citations omitted).



                                                        7
and Grandmother which is apparent in the record, an independent review of the record would
be inappropriate in this instance.

III. C ONCLUSION

        For the foregoing reasons, we vacate the judgment of the trial court and remand the
case for the entry of an order in compliance with Rule 52.01. Pending entry of the trial
court’s order on remand and subject to such proceedings as may be taking place in the trial
court, the order of August 20, 2013 shall remain in effect.9




                                                       ________________________________
                                                       RICHARD H. DINKINS, JUDGE




       9
          The record before us shows that Mother filed a Motion to Cease Visitation on October 2, 2013,
which the court ordered to be set for hearing by agreement of the parties.

                                                  8
