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Seibers v. Latimer

Court of Appeals of Tennessee, Knoxville

May 25, 2018

MARVIN SEIBERS, ET AL.
v.
CAROL LATIMER

          Session February 20, 2018

          Appeal from the Chancery Court for Campbell County No. 2016-CV-127 Elizabeth C. Asbury, Chancellor

         This appeal involves a request for visitation by the maternal grandparents. The paternal grandmother had been awarded legal custody when the petition was filed. Before the trial, the children were adopted by the paternal grandmother. The trial court granted visitation pursuant to Tennessee Code Annotated section 36-6-302. We affirm the decision of the trial court.

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

          Jennifer Schrader Bjornstad, Knoxville, Tennessee, for the appellant, Carol Latimer.

          Kevin C. Angel, Clinton, Tennessee, for the appellees, Marvin Seibers and Donna Seibers.

          John W. McClarty, J., delivered the opinion of the court, in which D.Michael Swiney, C.J., and W. Neal McBrayer, J., joined.

          OPINION

          JOHN W. MCCLARTY, JUDGE

         I. BACKGROUND

         On August 5, 2016, Marvin and Donna Seibers ("Petitioners") filed a Petition for Grandparent Visitation seeking rights to visit two of Marvin Seibers' grandchildren, Milli (born in July, 2009) and Madin (born in August, 2012) (collectively, the "Children"). The Children were then in the custody of Carol Latimer ("Respondent"), the Children's paternal grandmother. With the involvement of the Tennessee Department of Children's Services ("DCS"), the Children were previously removed from the care of their biological mother, who had unresolved substance abuse issues. Respondent had been awarded custody of the Children in 2010 and 2013, respectively. Since then, the Children have dealt with significant health issues, including anxiety and Encephalopathy secondary to in utero drug exposure. Both Children had improved in the years since being in Respondent's custody. At the time the petition was made, Respondent remained their legal custodian.

         Petitioners' request for visitation stated that they had a previous relationship with the Children as maternal grandparents, but Respondent had purposely limited any interactions between them. Respondent denied those allegations in a later response and stated that she was in the process of adopting the Children. Respondent further alleged that Donna Seibers was not the Children's biological grandmother. On December 16, 2016, the Children were formally adopted by Respondent in a separate proceeding.

         The trial court held a hearing concerning the Petition for Grandparent Visitation on February 27, 2017. Respondent testified that Petitioners supported her gaining custody of the Children, spoke with them occasionally on the telephone, and visited them three to four times a year. Mr. Seibers testified that he supported Respondent having custody but that Respondent only allowed Petitioners to visit the Children on her terms. Communications between Petitioners and the Children were halted after a video call where Milli called Mr. Seibers by his given name and began crying after Mr. Seibers repeatedly told her to call him "Paw." Respondent ended the call and refused to answer future calls from Mr. Seibers. Additional testimony established that Mrs. Seibers was not the Children's biological grandmother. Respondent and another witness also described tensions between Mrs. Seibers and Respondent when they were at Petitioners' home for Christmas in 2015. Respondent argued that the court should dismiss the motion for Petitioners' failure to establish any proof of danger of substantial harm to the Children pursuant to Tennessee Code Annotated section 36-6-306. The court denied the motion and instead considered the best interests of the Children as outlined in Tennessee Code Annotated section 36-3-302. While Respondent said she was not "indefinitely opposed" to the Children visiting Petitioners, she said she was in the best position to determine what was in the best interest of the Children and would allow contact "when the [C]hildren are ready." The trial court granted the petition that allowed Mr. Seibers supervised visitation that would transition into unsupervised visitation in June 2017.

         Respondent filed a Motion to Alter or Amend the Judgment granting the visitation on April 13, 2017. In the motion, Respondent again argued that the trial court should have applied the standards of Tennessee Code Annotated section 36-6-306 to the case instead of Tennessee Code Annotated section 36-6-302. When the former statute was applied under a substantial harm standard, Respondent argued that Petitioners' request for visitation would fail and should be dismissed. Petitioners filed a response asking the court to uphold its judgment and apply the plain language of Tennessee Code Annotated section 36-6-302 in its ruling. The court denied Respondent's motion of June 8, 2017. This timely appeal followed.

         II. ISSUE

         We consolidate and restate the issues raised on appeal by Respondent as follows:

Whether the court erred in applying Tennessee Code Annotated section 36-6-302 as opposed to Tennessee Code Annotated section 36-6-306 and -307 when deciding an issue of grandparent visitation when the Children have been removed from their original home and into the custody of their paternal grandmother.

         III.STANDARD OF ...


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