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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P. J., M. S., and W. NEAL MCBRAYER, 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.

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I. STANDARD OF REVIEW

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. ANALYSIS

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:

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[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”.

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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-brother ; Melinda

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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/StepGrandmother is trying to ‘steal’ Destin from her. Petitioner/StepGrandmother, for her part, sent a particularly ill-conceived and hurtful article

As discussed herein the August 16, 2012 order does not contain factual findings establishing

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Mother’s opposition to Grandparents’ visitation. 

 Mother and Jeffrey Redferrin are Grandfather’s children. 2

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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. Not only is our review

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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. See Smallwood, 205 S.W.3d at 361-63.

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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’stherapist, 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

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

In all actions tried upon the facts without a jury, the court shall find the facts specially and

shallstate 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).

For instance, in the discussion of the court’s lack of compliance with Tenn. R. Civ. P. 52.01, 4

Grandparents’ brief incorporates the discussion from a brief apparently filed in another case, one involving

a dispute between parents over parenting time. 

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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. Consequently, to the extent relied upon by Grandparents, the August

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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’srelationship. 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

Such a finding would have been inappropriate in any event as noted by Grandparents in their 5

response, inasmuch as the court was ruling on a motion to dismiss the petition, not on its merits. 

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Destin’s best interest. The order does not mention the testimony and recommendation of the

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Guardian ad litem.

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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. In addition, the trial court

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did not assess the credibility of the parties; given the strained relationship between Mother

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

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. 

The Guardian testified as well to the conflict between Mother and Grandmother and the 7

justification for Mother’s restrictions on Grandparents’ visitation with Destin; the Guardian recommended

that Grandparents’ visitation be at Mother’s discretion. 

We spoke in In re Estate of Oakley to the importance of findings of fact and credibility

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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 isthat 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). 

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and Grandmother which is apparent in the record, an independent review of the record would

be inappropriate in this instance.

III. CONCLUSION

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.

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________________________________

RICHARD H. DINKINS, JUDGE

 The record before us shows that Mother filed a Motion to Cease Visitation on October 2, 2013,

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which the court ordered to be set for hearing by agreement of the parties.

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