                                                                                                  02/26/2019
                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                               Assigned on Briefs December 3, 2018

                                  IN RE KESHAWN J., ET AL.1

                       Appeal from the Juvenile Court for Shelby County
                          No. AA4649         Dan H. Michael, Judge
                           ___________________________________

                                  No. W2017-02490-COA-R3-JV
                              ___________________________________

In this dependent and neglect proceeding, the maternal grandparents of four children
appeal an order entered in the Shelby County Juvenile Court dismissing a petition in
which they sought visitation with the children pursuant to the grandparent visitation
statute at Tennessee Code Annotated section 36-6-306. For the reasons set forth
hereinafter we affirm the juvenile court’s dismissal of the petition for lack of jurisdiction.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.

Warren P. Campbell, Memphis, Tennessee, for the appellants, Marvin J. and Cassandra J.

No brief was filed on behalf of appellee, Ezekiel S.

                                     MEMORANDUM OPINION2

       This proceeding began when Marvin J. and Cassandra J. (“Petitioners” herein),
filed an emergency petition in Shelby County Juvenile Court on June 3, 2014, alleging

1
  This Court has a policy of protecting the identity of children in dependent and neglect cases by
initializing the last names of the parties.
2
    Rule 10 of the Rules of the Court of Appeals states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
that their four grandchildren, who were in the custody and care of their father, Ezekiel S.
(“Father”), were dependent and neglected, and seeking custody of the children; the
magistrate entered a protective custody order, placing the children in the temporary
custody of Petitioners and ordering the Department of Children’s Services to investigate
and file a report with the court.3 Following a preliminary hearing on June 26, the
magistrate entered an order continuing custody with Petitioners and granting Father
temporary visitation “to be arranged by [Petitioners and Father] and to be supervised by
[Petitioners].” On July 14 the magistrate issued Findings and Recommendations:
adjudicating the children to be dependent and neglected; continuing the custody and
visitation as established in the prior order; setting the dispositional hearing for September
29; requiring Father to legitimate the children before the hearing and attend parenting and
anger management classes; and ordering that the children remain in counseling.
Following the hearing on September 29, the magistrate issued Findings and
Recommendations continuing the dispositional hearing until January 26, 2015, and
setting Father’s visitation from 6:00 p.m. Thursday to 6:00 p.m. on Sunday on the second
and fourth weekend of each month beginning October 9.

        On November 7, 2014, Petitioners moved to suspend Father’s unsupervised
visitation or to have his visitation supervised, asserting that Father “has failed to provide
a safe environment for the children during their last visit on October 9 through October
12,” that he “refuses to comply with the current court order or to provide a safe
environment for the children,” that the children “are at a substantial risk of harm if they
are allowed to visit the father unsupervised in his home,” and that the children “have
expressed anxiety and fear of Father for his actions.” On November 19 the magistrate
issued Findings and Recommendations continuing the hearing on the motion to January
26, 2015, and approving the parties’ agreement that Father would have supervised
visitation “to be arranged by the parties and to be supervised by [Petitioners]” pending
further orders.

       Following the dispositional hearing on January 26, 2015, the magistrate issued
Findings and Recommendations, ordering that the children remain in the custody of
Petitioners and that Father “shall receive reasonable supervised visitation at the Exchange
Club . . . on Saturdays to be arranged at a time through the visitation coordinator at the
Exchange Club”; the Findings and Recommendations were adopted, ratified and made
the order of the court by the juvenile judge on February 21. Father timely filed a Request
for Hearing before the juvenile court judge, which was granted on March 9.




3
 Unless otherwise stated, each of the orders or Findings and Recommendations entered by the magistrate
were confirmed and adopted by the juvenile court judge at or about the time of signature by the
magistrate.

                                                  2
     On November 12, 2015, the juvenile judge issued an order adjudicating the children
to be dependent and neglected and placing them in Petitioners’ custody; the order was
entitled “Final Order of Dependency and Neglect” and provided that it was “a final order
and intended to resolve all issues before the Court.” Father timely appealed the order to
Shelby County Circuit Court.

        On August 3, 2017, while the case was pending in the circuit court, the Petitioners
filed a pleading in the juvenile court, styled “Petition to Modify And For Injunction And
For Specific Visitation By Maternal Grandparent[s]”; Petitioners also filed a “Motion For
Temporary Visitation Pending Hearing” and “Motion for Transfer of Custody” on August
11 and September 22, respectively, in the juvenile court. The juvenile court order, from
which this appeal was taken, was entered on November 17 and states that it was entered
as a result of a hearing held in circuit court on November 16, with the juvenile judge
participating; the juvenile court’s order disposed of the petitions and motions thusly:

       A Petition to Modify and for Injunction and for Specific Visitation by
       Maternal Grandparent was filed in this Court on August 3, 2017, a Motion
       for Temporary Visitation Pending Hearing was filed in this Court on
       August 11, 2017, and a Motion for Transfer of Custody was filed in this
       Court on September 22, 2017. After a review of the entire record, the
       Circuit Court has issued several rulings involving the grandparents’
       visitation and a final order has not been entered in the dependency and
       neglect appeal to Circuit Court, and therefore, Circuit Court has jurisdiction
       in this matter. The Court finds that the Petition to Modify and for Injunction
       and for Specific Visitation by Maternal Grandparent, the Motion for
       Temporary Visitation Pending Hearing, and the Motion for Transfer of
       Custody should be dismissed due to lack of jurisdiction.

       IT IS THEREFORE ORDERED

       1. That the Petition to Modify and for Injunction and for Specific Visitation
       by Maternal Grandparent filed in this Court on August 3, 2017 be and is
       hereby dismissed.

       2. That the Motion for Temporary Visitation Pending Hearing filed in this
       Court on August 11, 2017 be and is hereby dismissed.

       3. That the Order on Temporary Visitation for Maternal Grandparents
       entered on August 30, 3017 be set aside.

       4. That the Motion for Transfer of Custody filed in this Court on September
       22, 2017 be and is hereby dismissed.

                                             3
        5. That the Order Granting Visitation entered on September 27, 2017 be set
        aside.

        6. That the Agreed Order for Continuance entered on October 20, 2017 be
        set aside.

       The record before us also contains a transcript of the circuit court hearing, wherein
the juvenile judge explains that the circuit judge “reached out to me back a week or so
ago about this case, asking us to have this meeting on the question of who had
jurisdiction.” The circuit court then recounts the history of circuit court proceedings
since it acquired jurisdiction of the dependent and neglect proceeding and explains that
the parties had a hearing on July 27, 2017, but that an order containing the court’s
disposition of the de novo hearing had not yet been entered.4

       Tennessee Code Annotated section 37-1-103 gives the Juvenile Court exclusive
original jurisdiction in proceedings where children are alleged to be dependent and
neglected. Pursuant to section 37-1-159, an appeal from the juvenile court in such a
proceeding is to the circuit court, where the case is to be tried de novo. From the record
in this case, it is clear that, at the time that Petitioners filed the petitions and motions
which led to the order under appeal, the circuit court had jurisdiction of the case,
specifically, the issues of custody of the children and visitation. The juvenile court
correctly held that the circuit court had jurisdiction and dismissed the petition on that
basis.

     For the foregoing reasons we affirm the decision of the Juvenile Court.



                                                          _________________________________
                                                          RICHARD H. DINKINS, JUDGE




4
  Petitioners have included as an appendix to their brief a certified copy of an order entered in the circuit
court case on February 15, 2018, reciting that the case came on to be heard on July 27, 2017 “for a final
hearing on the transition plan to Father’s custody,” with Petitioners and their counsel participating. While
we acknowledge the entry of the order, neither the circuit court proceeding nor the order are before us for
review.
                                                     4
