### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE October 5, 2000 Sessi on TIP AND BARBARA TERRY v. SCOTT BOTTS Appeal from the Juvenile Court for Scott County No. 8642, Michael A. Davis, Judge FILED FEBRUARY 22, 2001
No. E2000-01288-COA-R3-CV

This appea l from th e Scott County Juvenile Court concerns whether the Trial Court exercised proper subject matter jur

isdiction in hearin

g a Petition to Establish Grandparent Visitation. Add iti ona lly, it concerns whether the Trial Court erred in granting visitation rights of minor grandchildren

to Tip and Barba

ra Terry, the maternal gr

andparents. The

Appellant, Scott B otts, appealsthe decis ion of the Juv enile Court. We rev erse the order o

f the Trial Court a

nd dismiss the Petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Dismissed; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the o pinion of the court

, in whic h D. M ICHAEL S WINEY , J., joined. C HARLES D. S USANO , J R ., J., filed a concurring opinion. Ricky A. W. Cur

tis, Knoxville, Tenne

ssee, for the Ape

llant, Scott Botts.
How ard R . El lis , On eid a, T enn ess ee, f or t he A ppe lle es, Tip and Barb ara T erry. OPINION
This appeal aris es from a Petition to Establish Grandparent Visitation filed by maternal grandparents , Tip and Barbara Terry, seeking visitation with their three grandchildren, Slone Morgan Botts, Cade Scot t Botts, and Jolie Megan Botts. The father of the three minor children, Scott Botts, presents for our rev iew four issues, which we restate: 1) whether the Trial Court exercisedproper subject matter jurisdiction in hearing a Petition to Establish Grandparent Visitation; 2) whether the Trial Court erred in relying on expert testimony; 3) whether the Trial Cour t’s finding that a substantial risk of harm exists with respect to all three minor childr e n preponderates against the evidence presented at trial; and 4) whether the application of T.C.A. 36-6-306 unconstitutionally interfered with the fundamental rig hts of the Appellan

t to rear his children.
We dismiss the order of the Trial Court and

remand for furt

her proceedin

gs, if a ny, consistent with this opinion.1 Slone Morgan Bo tts was born of the m

arriage of Sc

ott and Paula Botts

on May 4, 1995

(a date of birth of June 6, 1995 is also found in the record). 2 The Petition for L

egitimation and Cu

stody filed b

y Scott Botts m

akes referenc

e to a separate action in Union County Circuit Court in which he was granted custody of Slone on March 2, 1999, however the Union County order is not contained in the record.

-2- Scott and Paula Botts were divorced in Union County on March 9, 1998. There was one child, Slone Morgan Bo

tts, 1 born of that marriage. Approximately one week after the divorce was final, Paula Botts

discovered that s

he was pregna

nt. On October 21,

1998, she gave b

irth to a set of twi ns, Jolie Megan Bo tts and Cade Scott B otts. Scott Botts is lis ted on the birth certificates as the father of the twins. E ven th ough they d ivorced, Scott an

d Paula Botts maintaineda close relationship sharing their three children and occasionally cohabiting

. Unfortunatel y, shortl y after the birth of the twins, Paula Botts was diagnosed with cancer and died February 23, 1999.
On April 19, 1999, Scott Botts fi led a Pet ition for Leg itimation and Custody

of Jolie Megan B otts and Cad e Sc ott Bot ts i n th e Ju ven ile Cou rt f or S cot t Co unt y. 2 An order was entered on the same day declaring Scott Botts the natural and biologica l father of the twins and awarding him sole custody of these two children. Ther e is no issue on appeal as to the pa ternity of the children.
Mr. and Ms. Ter

ry, the parents of Pau

la Botts, were a

ctively invo

lved in the lives of

their grandchildren

prior to the deat

h of their daughter. Mr. and Ms. Terry were substantially more involved with Slone, the oldest grandchild, than the twins, as visitation and co mmunica tion with the grandc hildren drastica lly decrea sed following the

death of Paula Bo

tts. The twins were

only four mo nths old wh en their mother died. Mr. and Ms. Terry provided childcare a f ew hours almost every day for the oldest child, Slone. They picked her up from dayc are many afternoons andkept her until her

mother came home

from work. Mr. an

d Ms. Terry

assisted th

eir daught er withchildcare durin

g her illness as w

ell. It is evide

nt from the recor

d that Mr . and Ms. Terry were very close to the

ir granddau ghter, Slone, and provided physical as well as emotional support to their daughter and their grandchildren. Immediately

after the death of Paula Botts, some visitation did take plac e between Mr. andMs. Terry and the minor chi ldren, though it was less frequent than before her death. Prior to the death of Paula

Botts, an inciden

t occurred while

she was hospitalize

d. Scott Botts attemptedto pick hi s children up from the Terrys’ residence, as it was time for his visitation. Upon arrival, Ms. Terry resisted in tur ni ng the children

over to their fath

er. The facts a

re in dispute as to the details of the incident; however, it was obviously an antagonistic exchange.
There are several other incidents which occurred betwe en Scott Botts and t he Terrys

. The facts v ary as to the details of these incidents, also. Scott Botts alleges that Ms. Terry has made inappropriat e comments ab out him to his daughter, Slone. This was denied by Ms. Terry at t rial. Additionally, Scott Botts is concerned about Ms. Terry’ s ability to control her temper. Ms

. Terry also denied a

problem with her temper at trial, although it is evident from the record that Mr. Botts’ concerns are valid. It appears from the recor d that problems aros e atthe funeral home3 The Petition to Establish Grandparent Visitation Rights was based on T.C.A. 36-6-306, which

was in effect on May 10, 1999, the day the Petition was filed. It should be noted that T.C.A. 36- 6-306 was amended effective June 14, 2000 following this Court’s decision in Ellison v. Ellison , 994 S.W.2d 623 (Tenn. Ct. App. 1998). See , 2000 Tenn. Pub. Ac ts ch. 891. The hea

ring on this matter was Marc

h 2, 2000, and the or

der was entere

d March 7, 2000. Whil

e the actual statu

te the Petition was filed under has been amended, the Trial Court followed the new standard as set forth in T.C.A. 36-6-306 as it was amended effective June 14, 2000.

-3- immediately

followi ng the death of Paula Botts concerning the amount of Ms. Terry’ s contact withthe grandchi ldren at th e funeral ho me and her di spleasure a t not havin g t he opportunity to assist the children in the grieving pr ocess. Finally, Ms. Terry’s testimony was inconsistent about when an d how much visitation was taking place following the death of Paula Botts. However, wha tis most clear from this record is that Scott Botts and Ms. Terry have a strained r elationshi p at best. The unfortunate state of this relatio nship has resulted in Scott Botts’ decision to restrict and even tua lly e nd v isi tat ion bet ween his chi ldr en an d Mr . an d Ms . Te rry.
Mr. and Ms. Terry

filed a Petition to Es

tablish Grandpar

ent Vis itation in the Juvenile Courtfor Sco tt C oun ty. 3 Upon finding that a substantial risk o

f harm existed as to all three minor children should the y be denied visitation with their Grandparents, the Court determined that it was in the b est interest of the children that

Mr. and Ms. Terry

be granted “r

easonable visitation.” The Court stated:

the C ourt is go ing to find there’s a substantial risk to all three of the grandchildren sho uld they not ha ve visitation with the

ir grandparents

. And, the court fin ds that it is in the best interest of these three grandc

hildren, all three

, Slone, Cade, and Jol

ie, to vis i t withtheir grandparents, have reasonable visitation right s with them. And, as for establishing what those visitation rights are, . . . the reasonable visitation being the standard visitation of every other weekend, Friday at 6:00 to Sunda y at 6:00, and then the holidays, I’m going to see if counsel can agree about splitting that time and school time

when that age g

roup develops.
The Court further

ordered Ms. Ter

ry to attend

an anger mana

gement progr

am. As already

noted, Scott Botts’ appeal raises th e four (4) issues

heretofore set

out.
We review the Tria

l Court’s findings

of fact de novo upon the rec ord of the pr oceedings below, with a presumption of correctness “unless the preponderance o f the evidence is otherwise.” Tenn. R. App. P. 13(d). Conclusions of law are reviewed de novo with no presumption of correctness. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996).
The f irst issue on appea

l is whether the Juve

nile Court for Scott

County had su

bjec t matter jurisdiction in this case. In Brown v. Brown , 296 S.W. 356, 358 (T enn. 1927)( quoting4 T.C.A. 36-6-306 as cited herein refers to the statute effective July 23, 1997. 5 The record does

not contain the ord

er awarding c

ustody of Slon

e Botts to her fat

her, Scott Botts in t he C irc uit Cou rt f or U nio n Co unt y.

-4- Chambers

v. Sanford & Treadway , 2 89 S.W. 533, 534 (Tenn. 1926) overruled on other grounds , Five Star Express

, Inc. v. Davis , 866 S.W. 2d 944 (Tenn. 1993)), the cour t states:
Juris d iction of the subject-ma tter relates to th

e right of the co

urt to adjudicate

or to make an award through the remedies provided by law upon facts proved, or admi tted, in favor of or against persons who present them or who are bro ught b efore the court under sanctio n of law. Jurisdiction of the subject-matter is not waived by appearance

and may be taken advantage of a t any stage of t he proc eeding, for in such cases the judgment would be coram non judice.
Neither party rais

ed the issue of subj ect matter juris d iction before the Trial Court. “[W]henever it appears by suggestion of the parties or otherwise that the court lacks subject matter jurisdiction of the subject matter, the court shall dismiss the action.” Tenn. R. Civ. P . 12.08. “[J]urisdiction of the subject matter is conferred by the Constitution and statutes.” Turp in v. Con ner Bros. Excavating Co. , 76 1 S.W. 2d 296, 297 (Tenn. 1988), overruled on other grounds , Five Star Express, Inc. v. Davis , 866 S.W. 2d 944 (Tenn. 1993).
Scot tBotts argues on appeal that the Trial Court lacked subject matter jurisdiction t o adjudicate

this case in that neither T.C.A. 37-1-103, w hich provides for exclusive original jurisdiction in juvenile court, nor T.C.A. 37-1-104, which provides for concurrent ju risdiction in j u venile court, suggests that the juvenile court has jurisdiction to hear a grandparent visitation case. Additionally, the Grandpare nt Visita tion Statute, codified at T.C.A. 36-6-306, 4 does not pro vide juv enile court with subject matter jurisdiction over actions involving grandparent visitation rights.

The statute state

s: T.C.A. 36-6-306 Visitation right s of parents of deceased or divorcedp arents. (a) If: (1) Either the father or mother of an unmarried

minor child is deceased; then the parents of such deceased person . . . may be granted re asona ble visitation rig

hts to the child during its minority by a court of competent jurisdiction upon a finding that such visitation rights are in the best interests of the minor child, based on the factors in § 36-6-307(d)(2). Further, he argues that because the Circ uit Court for Union County awarded custody of Slone Botts to Scott Botts on March 2, 1999, 5 that court retains subject matter jurisdiction over acti ons involving visitation with respect to Slone.-5-

The Terrys maintain that as of February 24, 1999, when Paula Botts’ estate was ope ned for probate in the Scott County Probate Court, her three childre n were without a legal guardian. Specifically

, the Terry

s contend that:
upon the mother’s death and at the time a petition w as filed in Scott County Probat

e Court the father, Scott Botts, had little or no legalrelationship to his c hil d ren. He was not the physical or legal custodian, guardia

n, father or anything else to the twins, Cade and Jolie Botts.
The Terrys assert that the probate court ha d jurisdic tion to appoint a guardian for the children under T.C.A. 16-1 6-107(7), and T. C.A. 34-12-101(a ), which respec

tively state

as follows:
T.C.A. 16-16-107 Original jurisdiction. Th e county court has original jurisdiction in the following cases: (7) The appo i ntment andremoval of guardians for minor s a nd persons of unsound mind, andall contr

over sies as to the right of guardianship, and the settlement of gu

ardian account

s.
T .C.A. 3 4-12-101 Actions for appointment of guardian -- Where brought. (a) Actions for t he appointme

nt of only a guardian of the person may be brou ght in the juvenile court in the county in which the re is venu e. Actions for the appointment of a guardian of the pe rson or property or both may be broug ht in a court exercising probate jurisdiction or any other court of record in the cou

nty in which there is venue.
The Terrys conclude that it having been established that the probate c ourt hadjur isdiction over t he chil dren, it follows tha t juvenile court a

lso has jurisdiction

over the childre

n pursuant to T.C.A. 37-1-104 (

a)(2) which stat

es: T.C.A. 37-1-104 Concurr ent jurisdiction. (

a) The juvenile court has concurrent jurisdiction with the probate court of proceedings to: (2) Det ermine th e custody or appoint a guardian of the person of a child.
We are compelled to

disagree with

the Terrys and we h

old that the Juvenile C

ourt for Scott County did not have jurisdiction over the subject matter in this case.
There is nothing in the record to indicate that a guardian ship petit ion was filed in the probate court nor is there any evidence in the record that these c hildren were in ne ed of a legal guardian , it being evident that they have a father. Scott and Paula Botts were divorce d in th e Circuit Court for Union Coun

ty on March 9 , 1998. Sl one is a child born of that marriage. Determinations concerning custody and visitation were made in the marital dissolution-6-

agreement

regarding this child. There is no question that Scott Botts is and always has been the biological and le

gal father of Sl

one Botts.
Juvenile Courts are courts of limited jurisdiction. Stambaugh v. Price , 532 S.W.2d 929, 932 (Tenn. 1976). And

as such, their subj ect matter jurisd iction is d

efined by statute. Id . The statute setting forth the

exclusive origina

l subject matter ju

risdic tion of ju venile court state s in pertinent part:
T.C.A. 37-1-103 Exclusive original jurisdi ction. (a) the juv enile court has exclusive original j urisdiction of the following proceedings,

which are gove

rned by this p

art: (1) Pr

oce edings in which a child is alleged to be delinquent, unruly or dep end ent and neglected, or to have committed a juveni l e traffic offense as definedin § 37-1-146; (2) All cases to es tablish paternity of children born out o f lawfu l wedlock; to provide for the support and education of suc

h children, and to

enforce its orde

rs. Slone Bo t ts has never been the subject of a delinquency, unruly , dependent and neglect, or paternity proceeding in juvenile court

. The aforementioned statute does not include Grandparent Visitation Rights as a matter in which the juveni

le court has exclus

ive original ju

ri sdiction.

We thereforehold that the Juvenile Court for Scott County lac ked subjectmatter jurisdictio n to ent ertai n a Petition for Grandparent Visitation Rights with respect to Slone Morgan Botts. The judgment as to Slone Botts is accordingly reversed and the pe tition dismissed.
As for the twins, Jolie a

nd Cade, it is also ev

ident from t

he record that Scott Botts is and alw ays has been the father o f these two children. Scott Botts was presumed the father of the twins as they were born within three hundred (300) da ys of the date of the

divorce pursuan

t to T.C.A. 36-2-304. T

he statute states:
T.C.A. 3 6-2-304 Presumption of par entage. (a) A

man is rebuttably

presumed to be the father of a child if: (1) He and th e child ’s mother are married or have been married to each other a n d the child is bor n during the marriage or within three hundred (300) days after the marri

age is terminate

d by death, a

nnulment, declaration of invalidity, or divorce.
The date of divor ce was March 9, 1998, and the twins were born on October 21, 1998, which easily falls within the three hundred (300) day requirement as set forth in the statute. Ther efore, the argument that these children were without a parent or legal gua rdian is erroneous.
A Petition for Legitimation and Custody with regard to Jolie and Cade Botts was filed in the Juvenile Court for Scott County on April 19, 1999, a pproxi mately two (2) months after the death of Paula Botts. An order was entered on the same day dec laring that Sco tt Botts is the “natural and biological father of said children.” Fur ther, it ordered

that he be award

ed sole-7-

custody of the twins. According to T.C.A. 37-1 -103(a)(2), juvenile courts have exclusive original jurisdic

tion over matters o

f paternity . The statute state s in pertinent par

t:
T.C.A. 37-1-1 03 Exc lusive original ju risdiction. (a) T

he juvenile court has exclusive original juri sd iction of the following proceedings , which are governed by this part: (

2) All cases to establish paternity o

f children born ou

t of lawful wedloc

k; to provide for the support and educ ation of such children, and to enforce its orde

rs. Scott Botts volunt ar ily brought Jolie and Cade Botts under the jurisdiction of the juvenile court when he filed the leg

itimation and custod

y peti tion. Jolie and Cade were never a part of the divorce proceeding as

they were

born following th

e fin al de cree for divorce. Additionally, Slone Bott s was n ever part of the legitimation proc

eeding that took

place with respe

ct to the twins in juvenile court. Having adjudicated the legitimation and custody petition in juvenile court, has Scott Botts effect

ively sub jected Jolie and Cade Botts to the jurisdiction of the juvenile court for disposition of a Petition to Esta blish Grandpare

nt Visitation Rights

which is a wholly independent

proceeding fr

om the legitimatio

n and custody

proceeding? We thin

k not. There is a limited amount of law in Tennessee regarding this issue. However, we believe the distinction as set forth in American Jurisprudence regarding jurisdiction of juvenile courts vi s a ! vis ot her general civil courts should be adopted by the cou rts in Tennessee w hen the question a

rises as to whether juvenile court re

tains jurisdictio

n over cases independent of those falling within the statute governing exclusive original jurisdiction.

The line of demarcation between t he cour ts exercising ge

neral civil jurisdi cti on with respect to the care, custody, and control of minors andthe juve nile court is well defined. These courts, in dealing withthe welfare and interest of minors under a given age, are entirely independent of each other. Where the c ontest is between the parents, or betw

een a parent and a third person, as to who should have the control and care of the minor, the courtexercising general civil jurisdiction is

the proper and e

xclusive tribunal to de cide the issue. But where a child is neglected or delinquent, an d wherethe parent contr

ibutes to oris responsible for such neglect or del inq uen cy, then the s tate has the paramoun t right, in the inte

rest of the welfare of t

he child, to say

who shall have th

e care , cu sto dy, andcontrol of the child, and the juvenile court has been made the special and exclusive tribunal for determining such issue.
47 Am. Jur

. 2d Juvenile Courts and Delinquent and Dependent Children § 4 1995

. The twins were brought under the ju risdiction of the juvenile court for the limited purpose of a legit

imation proceeding. None of these children have ever been brought under the protective arm of the juvenile court for a determination of delinquency, f or adependent and-8-

neglec ted proceeding, or

unruly petit

ion. In Tenne

ssee, the statute

which determines

this issue is codified at T.C.A. 37-1-103(c), w hich states:
T.C.A. 37-1-103 Exclusive original jurisdi ct ion. (c) When jurisdiction h as been acquire d under the provis

ions of this part, such jurisdiction shall co ntin ue until a person reaches the age of eig hteen (18), except that t he court may

extend jurisdiction f

or th e limited pu rpose s set out in § 37-1-102(b)(4)(B) until the person reaches the age of nineteen (19).
It is well established under the aforementioned statute that once juvenile court has jurisdiction over a person, that pers on remains subject to the juvenile court jurisdiction until the age of eighteen (18). However,

we do not interpre

t the language

of this sta

tute and the case law in Tennesseeto include those persons brought into juvenile c ourt for the limited purpose of a legitimation proceeding wh ich was fully

adjudicated, with

out any ques

tion of delin

quency or dependency

and neglect. I

t is unnecessary

and illogical fo

r the juvenile cou

rt to maintain juri sdiction over such persons for the determination of Grandparent Visitation Rights, which i s an issue independen

t of the paternity

proceedin

g and on e that is between adults. While petitions for dependency and neglect, paternity , unruly behavi or and delinquency all involve the minor person directly, a

Grandparent Vis

itation Rights Petiti

on is a lawsuit involv

ing th e Grand parents andthe Parents of the minor children. Even though the children are the heart of the lawsuit, the parties actually in

volved are adults , as it i s the co nstitutional right s of the parents po

tentially b eing affect ed, not those of the children. Had these children been involved in the juvenile court for matters of delinqu

ency or de

pendency a

nd neglect, it is lo gical to conclud e that the juvenile court would maintain that jurisdiction to entertain a Grandparent Visitation Petition, b ut not in this instance.
Juvenile

Courts are courts

of limited jurisdic

t ion, see Stambaugh v. Price, 532 S.W.2d 929, 932 (Tenn. 1976), whose sub je ct matter ju risd iction is defined by statute. The General Assembly has given juvenile co u rts exclusive subject matter jurisdiction over ten sp ecific types of proceedings, including delinquency proceeding s , dependency

and neglect pr

oceedings, and

paternity p

roceedings. See Tenn. Code Ann. § 37 -1-10 3 (Supp. 1998). How ever, this statute does not explicitly or by necessary implication, give juvenile courts subject matter

jur isdiction over custody matters independent of one of the proceedings listed therein. Baltz v. Knight , an unreported o pinio n of thi s Cou rt, fi led in Nashv ille o n Nove mber 1 3, 199 8. In this case, one issue o

n appeal dealt

with whether the juvenile court had subject matter jurisdiction to m odi fy a custody decree. The appellant, Mr. Baltz, argue d that the juvenile court did, in fact, have such

jurisdi ction pursuant to T.C.A. 37-1-104(a)(2) which confers concurrent jurisdiction over matters involving the appointment of a gu ardian to a minor to the juvenile c ourt. T he Court disagre ed, stating that “ [o]nly circuit courts, chance

ry courts, a

nd courts whose juris diction has been otherwise conferred by gene ral or local act” have jurisdiction to hear-9-

matters of custody arising during these proceeding s. Id. In the case before us, the subject mat ter is the right of gr

andparents to visi

t their grandch

ildren. We believe

this subject matter

falls into the same category as visitation and custody matters and therefore t

he same reasoning

should apply here.
There fore, w e hold that the Juvenile Court for Scott County lacked subject matter jurisdiction to entertain a Petition to Establish Grandparent Visitation Rights w

ith respect to Jolie Megan Bo tts and Cad e Scott Botts. The judgment as to the twins is accordingly reversed a nd the petition dismissed.
Because the Petit ion to Establish Grandparent Visitation Rights has been dismissed, the other issues raised by Scott Botts need not be addressed. How ever, th ere is one remaining issue that should not be ignored. The Trial Court found that a s ubstantial dange

r of harm existed as

to all three of these c

hildren should they

be prohibited fro

m visiting with their grandparents. The proof in the record con

cerning the twi

ns and the test

i mony of the e

xpert witness reg

arding this standardis disturbing. The expert witness at the trial, Dr. Bernard Ly ons, t estifi ed that he had never met any of the children i nvolved in th

is matter, and that his knowledge of the situation concerning the childr en was obtai ned during s essions with Mr. and Ms. Terry. Further, he testifiedthat because the twins were only

four months old whe

n the visitation wit

h th e Ter rys endedhe coul d not t estify as to the effects lack of visitation with the grandparents might ha ve on them. More specif

ically, Dr. Lyons sta

ted at trial:
If the other children were four months old - - usual ly the first signs of attachment to a parenting figure are made obvious at around the age of six months, so I c an’t speak for the experience of the fourmonth-old’s, the tw

ins. According to the record, at this point in the tria

l, Dr. Ly ons’ testimony

was applicable onl y to S lone Botts, n ot the twins. Dr. L yons had nev

er met any o

f these children

and very sp

ecifically statedthat he could

not tes tif y a s to the twins because they were not old enough to form a bond wit h their grandparents. This being so, it is our determination that there is no basis for the T ria l Court’s findin g that a substanti al danger of ha

rm, or any ot

her findings be

made as to the twins , should they b

e denied visitation

with their grand

parents.
The judgment of the Trial Court is accordingly reversed, the pe tition d ismissed and the cause remanded for such further proceedings, if any , as may be necessary . Costs below, as we l l as co sts of ap peal , are adj udge d aga ins t th e Ap pel lee s, T ip a nd Ba rbar a Ter ry.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE