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Harper v. Harris

Court of Appeals of Tennessee, Nashville

February 28, 2017

JONATHAN HARPER
v.
STEVE HARRIS, ET AL.

          Session January 18, 2017

         Appeal from the Juvenile Court for Robertson County No. 08-32042 Joel Perry, Judge.

         This appeal involves a father's petition to modify an order granting custody of his minor child to the maternal grandparents. The father alternatively requested an order granting him specific visitation. The juvenile court dismissed the petition on the grandparents' motion. After our review of the petition, we conclude the juvenile court appropriately dismissed father's request for a change of custody based solely upon the presumption of superior parental rights. But the court erred in dismissing the father's request for visitation. Accordingly, we affirm in part and reverse in part.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in Part; Reversed in Part; and Remanded

          B. Nathan Hunt, and Zachary L. Talbot, Clarksville, Tennessee, for the appellant, Jonathan Harper.

          Jennifer L.E. Williams, Springfield, Tennessee, for the appellees, Steve Harris and Faith Harris.

          W. Neal McBrayer, J., delivered the opinion of the court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

          OPINION

          W. NEAL McBRAYER, JUDGE.

         I. Factual and Procedural Background

         Stephanie Anne Harper ("Mother")[1] and Jonathan Harper ("Father") are the biological parents of a minor child, Lexi, born in 2005. Steve and Faith Harris ("Grandparents") are the child's maternal grandparents.

         On January 4, 2006, Grandparents filed an emergency petition for temporary custody of the child in the Juvenile Court for Robertson County, Tennessee. The petition alleged that Mother, Father, and Lexi had resided in Grandparents' home since May 2005 and that both parents had since moved out, leaving the child in Grandparents' care. It further alleged that the child was "in immediate risk of harm, " citing Father's violent history and Mother's instability.[2] On the same day, the juvenile court granted emergency temporary custody to Grandparents after finding probable cause to believe that the child was dependent and neglected.

         After a preliminary hearing on January 13, 2006, at which Mother, Father, Grandparents, and two additional witnesses testified, the court again found probable cause to believe that the child was dependent and neglected. The juvenile court ordered that temporary legal custody remain with Grandparents, granted separate visitation to the parents, and ordered both parents to pay child support. A final adjudicatory hearing was scheduled for February 15, 2007; however, the hearing never took place.

         On October 26, 2006, Grandparents filed a motion to change Father's visitation from unsupervised to supervised because, according to the motion, he had been charged with physically assaulting Mother. Grandparents also filed a motion for default judgment, asking the magistrate judge to grant them permanent custody because neither parent had responded or filed an answer to the petition. Both motions were scheduled to be heard on November 2, 2006. The certificate of service on the motion for default judgment indicated that a copy of the motion was mailed or hand-delivered to Father on October 24, 2006, at an address in Missouri where Father had allegedly moved.

         Father did not appear at the November 2, 2006 hearing. After hearing oral argument and reviewing the record, the magistrate judge granted a default judgment against both parents "due to their failure to file an answer to the petition, " granted custody to Grandparents, and suspended Father's visitation. The court further ordered the final hearing scheduled for February 15 to be removed from the docket. Again, according to the certificate of service, a copy of the order was mailed or hand-delivered to Father at the same Missouri address on November 14, 2006.[3]

         Father did not appeal the 2006 custody order. However, in the decade following its entry, Father made several filings seeking to modify the custody arrangement. First, on January 28, 2010, Father filed a notice of appearance and, on March 10, 2010, filed a petition to modify custody. After a hearing, the magistrate judge declined to modify custody because Father failed to establish a material change in circumstances sufficient to alter the primary residential parent. Father did not appeal the decision.

         Next, in June 2010, Father filed a motion seeking a specific visitation schedule. The magistrate judge awarded him a limited amount of visitation pending a hearing on his motion, but Father withdrew his motion before the hearing.

         Finally, on April 21, 2015, Father filed a new petition for custody, or in the alternative, for entry of a parenting plan setting specific parenting time. The petition did not assert a material change of circumstances had occurred. Instead, Father claimed that the magistrate judge should have granted him custody in 2010 based on his superior rights as the natural parent.

         Thereafter, Grandparents filed a motion to dismiss Father's petition for failure to state a claim upon which relief can be granted. Grandparents' motion asserted, among other things, that Father's claim of superior parental rights was barred ...


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