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Chamberlain v. Brown

Court of Appeals of Tennessee, Knoxville

December 19, 2016

MONICA CHAMBERLAIN
v.
MYRA DANIELLE BROWN

          Session Date: August 9, 2016

         Appeal from the Circuit Court for Greene County No. 14CV465AEP Douglas Jenkins, Chancellor Sitting By Interchange

         Monica Chamberlain ("Grandmother") sued Myra Danielle Brown ("Mother") seeking to be awarded grandparent visitation with Mother's child Talan B. ("the Child") pursuant to Tenn. Code Ann. § 36-6-306. After a trial, the Circuit Court for Greene County ("the Trial Court") entered its judgment awarding Grandmother visitation with the Child after finding and holding, inter alia, that Grandmother had proven that Mother had denied visitation, that Mother had failed to rebut the presumption that denial of visitation may result in irreparable harm to the Child, that Grandmother and the Child had a significant existing relationship, and that visitation was in the best interest of the Child. Mother appeals to this Court. We find and hold that the evidence does not preponderate against the Trial Court's findings, and we affirm.

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

          Curt Collins, Greeneville, Tennessee, for the appellant, Myra Danielle Brown.

          Brent Hensley, Greeneville, Tennessee, for the appellee, Monica Chamberlain.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which CHARLES D. SUSANO, JR. and THOMAS R. FRIERSON, II, JJ., joined.

          OPINION

          D. MICHAEL SWINEY, CHIEF JUDGE

         Background

         Grandmother is the paternal grandmother of the Child. When the Child was born, Mother, the Child's father, Devin B. ("Father"), and the Child lived with Grandmother. Mother, Father, and the Child lived with Grandmother for more than two and a half years. In August of 2011, Mother, Father, and the Child moved out of Grandmother's house.

         Mother and Father were arrested in March of 2012. The Child was found to be dependent and neglected, and the Child's maternal grandparents were given custody of the Child. Grandmother intervened in that suit and was granted visitation with the Child. During the autumn of 2013, Mother regained custody of the Child. An order was entered, however, denying Father any contact with the Child.

         In November of 2014, Grandmother filed the instant suit alleging, in part, that Mother had denied Grandmother visitation with the Child and that Grandmother was entitled to visitation pursuant to Tenn. Code Ann. § 36-6-306. The case was tried without a jury in June of 2015. The Child was almost six years old at the time of trial.

         Grandmother testified that when the Child was born Mother, Father, and the Child lived with her. Grandmother stated: "I helped care for [the Child] and play with him and develop a realtionship with him. We bonded very closely." Grandmother stated that the Child and his parents lived with Plaintiff "[f]or over two and a half years." Grandmother testified that she would babysit and play with the Child. She admitted she never was the Child's sole caretaker.

         Grandmother admitted that she knew that Father had issues with drugs, but stated that she was unaware that Mother also had issues until both Father and Mother were arrested. Grandmother explained that when Father and Mother were arrested, the Child's maternal grandmother took custody of the Child. Grandmother intervened in that suit, was granted visitation with the Child, and exercised her visitation regularly. During the time that the Child was in the custody of the maternal grandmother, Grandmother would have visits with the Child every other week for a twenty-four hour period.

         In the autumn of 2013, Mother regained custody of the Child. Grandmother stated that Mother "allowed me to see [the Child] for a few times [after Mother regained custody], and then it stopped." Grandmother testified that she was unable to contact Mother because Mother's phone number had changed. Grandmother explained that when she was able to have visits with the Child, she set up the visits by texting Mother. Grandmother also attempted to text the Child's maternal grandmother, but received no reply. Grandmother then filed the instant suit. Grandmother testified that she is requesting one weekend a month visitation with the Child.

         Grandmother stated that initially the judge asked the parties to try to work things out. Grandmother stated:

Again, [Mother] allowed me to see him a couple of times, the first time at McDonald's, and it was supervised because [Mother] and her sister were there. It had been about five months since I had seen [the Child], and when he saw me, he ran to me and latched on and, you know, cried, "Mamaw, where have you been? I've missed you so much." It is very difficult not to be able to see him.

         Grandmother also stated:

And then as we were sitting there and playing, and [Mother] and her sister were sitting in the booth next to us, he said, "Mamaw, can I come live with you?" Of course, I wanted to say yes, but I said, "Well, wouldn't you miss your mom?", and he said, "Well, can't she come, too"?

         The last time Grandmother saw the Child was approximately one year before trial. Grandmother testified that since that time she has tried calling and texting Mother but has received no response. Grandmother also tried texting the Child's maternal grandmother but again received no response.

         Grandmother was unsure where her son, Father, was residing at the time of trial. She stated that the last place she knew of was at Greeneville Terrace where he had been living with his girlfriend. Grandmother testified that her son has not lived with her for more than a year. She stated "there has been time when he has stayed a night or two, but he does not - - has not lived in my home for quite some time." When asked if Father ever just showed up at her house, Grandmother stated: "No." She further stated:

He did once, asked if he could stay the night, and I told him yes. I didn't have any kids in the home. I didn't have - - there was no reason other than him just not having a place to sleep that night that I allowed him to. But I am in complete agreement that he does not need to see nor does he deserve to see [the Child].

         Grandmother was questioned about a text she sent to Mother asking when Father could see the Child, and Grandmother stated:

I think that was more in reference to when would he ever be allowed to see im [sic] again, not can he see him right away. I knew [Father] had drug issues for some time, and I am completely in agreement that he does not need to nor deserve to see him because of his own choices.

         With regard to this text, Grandmother further stated:

You know, it's a mother's hope that her son will do better and be better. . . . I mean it was a question to her of at some point is he ever going to be able to see his son, and that wouldn't have been, oh, just on a whim. It would have been through the Court. You know, I would have done things properly, but it's a mother's hope that her son will be better and be able to see his son.

         When asked if she could understand how such a text might cause Mother concern, Grandmother stated:

Well, yeah, sure. I can - - you know, hindsight is 20-20, but, you know, it -- when your son is in tears because he can't see his own son. Well, like I said, it's a mother's hope that her son will do better and be better, but he's proven otherwise. I'm in complete agreement with that he does not need to see him.

         Grandmother testified that the Child never saw Father when the Child was with Grandmother. Grandmother acknowledged that there was a no contact order prohibiting Father from having any contact with the Child. She stated: "There was one time I had - -I had told him I was going to get [the Child], and when I got home, he was there. Now [the Child] did not see him, but I said, 'You need to leave, ' and I thought he had left." This incident happened approximately a year and a half before trial. Grandmother explained further stating:

[Father] was home at that point, and I had [the Child] on my shoulder. I had a blanket over him. I don't know if it was cold or rainy or whatever it was, but when I saw him, I said, "You can't be here. You've got to go." . . . Well, he went down the steps. I have a split foyer. So he went down the stairs through the ...

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