In Re Houston D.

08/16/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
June 28, 2022 Session
IN RE HOUSTON D.
Appeal from the Juvenile Court for Tipton County
No. 19-JV-37 William A. Peeler, Judge
___________________________________
No. W2021-00979-COA-R3-JV
___________________________________
This appeal involves a petition for grandparent visitation filed by the paternal grandparents.
The juvenile court granted the petition and the parents appeal. We reverse and dismiss the
case.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and J. STEVEN STAFFORD, P.J., W.S., joined.
Rachel K. Witherington, Covington, Tennessee, for the appellants, Randall H. D. and
Megan B. D.
Julie C. Bartholomew, Somerville, Tennessee, for the appellees, Randall D. and Holly D.
OPINION
I. FACTS & PROCEDURAL HISTORY
This is a dispute between a child’s parents and paternal grandparents regarding
grandparent visitation. The child’s parents are Randall H. D. and Megan B. D. (“Father”
and “Mother” or, collectively, “Parents”). The child’s paternal grandparents are Randall
D. and Holly D. (“Grandfather” and “Grandmother” or, collectively, “Grandparents”).
In July 2014, Houston D. was born to Parents, who were unmarried at the time.
From shortly after his birth until about August 2018, Grandparents provided care for the
child approximately two times per week. The child would stay with them all day on
Tuesdays and a half-day on Fridays. When the child was about ten months old, he began
staying overnight with Grandparents on occasion. However, Parents ceased these
particular visits in August 2018 after an argument about Father’s brother (“the paternal
uncle”). The paternal uncle, who was approximately 18 years old at the time and still
residing with Grandparents, had informed the family that he was gay. The paternal uncle
had met a paramour online who was from another state. Afterward, there was a “big
ordeal” when the paramour visited the paternal uncle in Grandparents’ home, although it
was not in the presence of the child. This led to the parties having a conversation about
the situation. Parents apparently did not want the child to be around the paramour, and
therefore the child was not allowed to be at Grandparents’ home when the paramour was
present. Grandmother later testified that at one point she asked Parents if the child could
stay downstairs in their home while the paternal uncle and his paramour remained upstairs,
but Father did not agree to this.
Grandmother admittedly understood why Parents had concerns because the
paramour was a stranger that the paternal uncle had met online. Thus, Grandparents agreed
to follow Parents’ wishes in order to continue their relationship with the child, but Parents
still did not allow the child to resume his visits at Grandparents’ home. On August 20,
2018, Parents sent a text message to Grandparents stating that the child would no longer
be going to Grandparents’ home. Around this time, the paternal uncle moved out of
Grandparents’ home in the hope that Parents would allow the child to continue to have a
relationship with Grandparents. Several days later, Grandparents were able to exercise
visitation when they took the child to soccer practice. Nevertheless, according to
Grandmother, the paternal uncle’s move caused a big disruption in the family and the
parties’ relationship worsened. According to Parents, Grandmother blamed Father for
causing the paternal uncle to move out. Mother testified that this was ultimately the reason
why she and Father decided that the child was not going to visit Grandparents’ home on
Tuesdays and Fridays anymore. Moreover, she stated that Grandparents did not attend
Parents’ wedding in December 2018.
In November 2018, Father had a verbal altercation with his brothers regarding their
presence at his upcoming wedding. This resulted in Father breaking a window at
Grandparents’ home. Afterward, a glass company sent Parents a bill for the broken
window, which caused further problems between the brothers. On December 5, 2018,
Grandfather sent a text message to Parents asking when he and Grandmother could visit
with the child. However, Parents responded with several comments: “he will be just fine
without y’all”; “he’s got enough grownups in his life”; “he won’t be coming around at all”;
and “he’ll do better without you in his life.” Despite the parties’ differences, Grandparents
were able to spend time with the child on December 23, 2018, to celebrate Christmas.
Grandparents also saw the child in January 2019, when he stayed overnight with them at
their home. Grandfather then sent a text message to Parents asking to keep the child during
the following week, but Parents responded by stating that “with all that has happened,
probably not. This is working for us.”
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In February 2019, Grandparents filed a petition for grandparent visitation. Parents
filed an answer to the petition in May 2019. Around this time, Grandmother sent a text
message to Father asking if she and Grandfather could see the child on the weekend, to
which Father replied, “Write me a check for 3k to pay my lawyer.” The parties attempted
mediation in May 2019, but they failed to reach an agreement. Despite failing to reach an
agreement, Grandparents were still allowed to visit with the child some during the summer
of 2019. They saw a movie with the child and attended his birthday party. Beginning in
September 2019, they were also allowed to attend the child’s weekly karate classes and
sometimes spend time with him afterward. In December 2019, however, Parents began to
limit Grandparents’ time with the child after karate classes. They then ended these visits
entirely in July 2020 after Grandparents took the child to their home when Parents asked
them not to do so.
The case ultimately proceeded to trial in September 2020. Grandmother,
Grandfather, and Mother testified at trial; however, Father elected not to testify.1 In July
2021, the juvenile court entered an order finding that Parents opposed grandparent
visitation. Additionally, the court found that the child had such a significant existing
relationship with Grandparents that severance or severe reduction of their relationship was
likely to occasion severe emotional harm to the child and posed a danger of substantial
harm to the child. After considering the factors set forth in Tennessee Code Annotated
section 36-6-307, the court found that it was in the best interests of the child to have
visitation with Grandparents. The court concluded that “it must balance the rights of the
grandparents to visit their grandson, as detailed in Tennessee Code Annotated [section] 36-
6-306, with the rights of the parents’ constitutional right to parent their child, pursuant to
Article I, Section 8 of the Tennessee Constitution.” Therefore, the court awarded visitation
to Grandparents, which allotted time for visitation during weekends, holidays, birthdays,
and summertime. The court also ordered that notice should be provided to Grandparents
of the child’s extracurricular and school activities and that Grandparents could exercise
additional visitation if the parties mutually agreed to it and reduced it to writing.
Thereafter, Parents timely filed their appeal.2
1
Upon conclusion of Grandparents’ proof, counsel for Parents made a motion for a “directed
verdict” and argued that Grandparents had failed to carry their burden of proof concerning specific
emotional harm to the child. However, the juvenile court denied the motion. Although the record reflects
that counsel for Parents moved for a “directed verdict,” we note that the motion should have been
characterized as a motion for dismissal pursuant to Tennessee Rule of Civil Procedure 41.02.
2
After their appeal was filed, Parents filed a motion for stay pending appeal. They argued that it
would be in the child’s best interests to stay the enforcement of the order granting specific visitation with
the child because the child had not seen Grandparents in over a year. Grandparents filed a response and
memorandum of law opposing the motion. They stated that they had attempted to contact and exercise
visitation pursuant to the court’s order, but their efforts were either disregarded or rebuffed by Parents.
They noted that Father had responded to one of their requests by stating, “Don’t ever show up over here
like that again. You ain’t welcome over here. You don’t have rights to s**t . . . . I’m the daddy of Houston
and that’s how it’s going to be. Don’t ever come over here again[.]” They also filed affidavits to support
their response. After a hearing on the matter, the juvenile court denied Parents’ motion.
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II. ISSUES PRESENTED
Parents present the following issues for review on appeal, which we have slightly
restated:
1. Whether the juvenile court correctly applied the legal standard as required by
Tennessee Code Annotated section 36-6-306(a) to find that Parents opposed
visitation between Grandparents and the child, or severely reduced visits between
Grandparents and the child; and
2. Whether the juvenile court correctly applied the legal standard as required by
Tennessee Code Annotated section 36-6-306(b)(1) to find that cessation or severe
reduction of the relationship between Grandparents and the child would cause
substantial harm or severe emotional harm to the child.
For the following reasons, we reverse the decision of the juvenile court and dismiss the
case.
III. STANDARD OF REVIEW
On appeal, “[w]e review the trial court’s findings of fact de novo upon the record
with a presumption of correctness unless the preponderance of the evidence is otherwise.”
Coleman v. Olson, 551 S.W.3d 686, 694 (Tenn. 2018) (citing Tenn. R. App. P. 13(d)).
Furthermore, “[w]e defer to the trial court’s determination of witness credibility because
the trial judge could observe the witnesses’ demeanor and hear in-court testimony.” Id.(citing King v. Anderson Cnty., 419 S.W.3d 232, 245-46 (Tenn. 2013)).
IV. DISCUSSION
A. Jurisdiction
This appeal involves the application of Tennessee Code Annotated section 36-6-
306, i.e., the Grandparent Visitation Statute. As a threshold issue, we address sua sponte
whether the juvenile court properly exercised subject matter jurisdiction to consider the
petition for grandparent visitation in this case. See Clark v. Johnson, No. E2017-01286-
COA-R3-CV, 2018 WL 2411203, at *5 (Tenn. Ct. App. May 29, 2018) (addressing sua
sponte whether the chancery court properly exercised subject matter jurisdiction to
consider the grandparents’ petition upon transfer from the juvenile court when the petition
alleged dependency and neglect and no resolution of such an allegation had been
adjudicated in the juvenile court). “Appellate courts must consider subject matter
jurisdiction even if parties fail to raise or preserve the issue.” Lovlace v. Copley, 418
S.W.3d 1, 17 (Tenn. 2013); see Tenn. R. App. P. 13(b).
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Although it was not presented as an issue by either party on appeal, jurisdiction was
a question briefly raised by the juvenile court judge at the beginning of trial. Counsel for
Grandparents and the judge discussed the issue at length. The judge stated, “the Juvenile
Court normally is not involved in this. And it’s sort of a unique issue here where we had
a child born out of wedlock, then the [parents] got married. And what that does, that sort
of wipes all that away. The child is legitimated by virtue of the marriage, and that’s . . . a
twist . . . .” Counsel for Grandparents responded, “we specifically filed this in Juvenile
Court . . . because we thought that the statute was directing us to do that because it doesn’t
talk about a child born out of wedlock that has not been legitimated.” The judge then
stated, “Okay. Well, I think chancery or circuit could have heard it, but it’s here. And . . .
the reason I was raising the issue is because I didn’t want all of us to spend the afternoon
arguing about this, and then if there’s an appeal,” the Court of Appeals may determine that
the juvenile court did not have jurisdiction. The judge concluded that “[i]t’s muddy
enough” and determined that it should go ahead and proceed with the trial.
On appeal, this Court raised the question again at oral argument. We requested
additional briefing on the issue, and both parties have since submitted their briefs. Under
the circumstances of the case, the precise question is whether the juvenile court properly
exercised subject matter jurisdiction, pursuant to the Grandparent Visitation Statute, to
consider the petition for grandparent visitation when the child was born out of wedlock and
the child’s parents subsequently married.
i. Subject Matter Jurisdiction
It is well-established that “[s]ubject matter jurisdiction relates to a court’s authority
to adjudicate a particular type of case or controversy brought before it.” In re Estate of
Trigg, 368 S.W.3d 483, 489 (Tenn. 2012) (citing Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000)); see Standard
Sur. & Cas. Co. of New York v. Sloan, 173 S.W.2d 436, 440 (Tenn. 1943) (“Jurisdiction is
tersely defined . . . as, ‘the power to hear and determine a cause.’ Or ‘the right to adjudicate
concerning the subject-matter in the given case.’”) (citation omitted). “Subject matter
jurisdiction depends on the nature of the cause of action and the relief sought, see Landers
v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994), and can only be conferred on a court by the
constitution or legislative act.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn.
2012); see Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977). Without jurisdiction, the
orders and judgments entered by courts over the subject matter of a dispute are void. In re
Estate of Trigg, 368 S.W.3d at 489 (citing Brown v. Brown, 281 S.W.2d 492, 497 (Tenn.
1955)). As such, an issue concerning a court’s subject matter jurisdiction is considered a
threshold inquiry and should be resolved at the earliest possible opportunity. Id. (citing
Redwing v. Catholic Bishop for the Diocese of Memphis, 363 S.W.3d 436, 445 (Tenn.
2012)). “A determination of subject matter jurisdiction involves questions of law;
therefore, rulings on such questions are reviewed de novo on appeal, without any
presumption of correctness.” Johnson v. Hopkins, 432 S.W.3d 840, 844 (Tenn. 2013)
-5-
(citing In re Estate of Trigg, 368 S.W.3d at 489); see also Lovlace, 418 S.W.3d at 17;
Chapman, 380 S.W.3d at 712-13.
Here, the question of whether subject matter jurisdiction exists in the juvenile court
depends upon statutory construction. “Unlike circuit or chancery courts, which are courts
of general jurisdiction, juvenile courts in Tennessee are courts of limited jurisdiction.” In
re D.Y.H., 226 S.W.3d 327, 330 (Tenn. 2007) (footnote omitted) (citing Stambaugh v.
Price, 532 S.W.2d 929, 932 (Tenn. 1976)). Given that the juvenile courts did not exist at
common law and are not included in Tennessee’s Constitution, “[t]hey are entirely
creatures of statute.” State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 830 (Tenn. Ct. App.
2007); see Tenn. Code Ann. § 37-1-101, et seq. Therefore, “[j]uvenile courts may exercise
only such jurisdiction and powers as have been conferred on them by statute.” In re D.Y.H.,
226 S.W.3d at 330 (citing In re S.L.M., 207 S.W.2d 288, 296 (Tenn. Ct. App. 2006)
(citation omitted)). Like the determination of subject matter jurisdiction, “[s]tatutory
construction is also a question of law to which de novo review applies on appeal.” Hopkins,
432 S.W.3d at 844 (citing Mills v. Fulmarque, Inc., 360 S.W.3d 362, 366 (Tenn. 2012);
Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn. 2011)).
ii. Statutory Construction
We now set forth the rules of statutory construction. Foremost, “[t]he cardinal rule
of statutory construction is to effectuate legislative intent, with all rules of construction
being aides [sic] to that end.” Spires v. Simpson, 539 S.W.3d 134, 143 (Tenn. 2017)
(quoting Browder v. Morris, 975 S.W.2d 308, 311 (Tenn. 1998)); see Beard v. Branson,
528 S.W.3d 487, 496 (Tenn. 2017). The rules for statutory construction have been
summarized by our Supreme Court as follows:
When interpreting a statute, courts must ascertain and give effect to the
legislative intent without restricting or expanding the statute’s intended
meaning. Our task is to examine the text of the statute and, if the language
used is unambiguous, we simply apply the plain meaning of the words used
in the statute. As we recently observed, courts must (1) give these words
their natural and ordinary meaning, (2) consider them in the context of the
entire statute, and (3) presume that the General Assembly intended to give
each of these words its full effect. Every word in a statute is presumed to
have meaning and purpose. If, after examining the text of the statute, it
becomes clear the statute is ambiguous, we may reference the broader
statutory scheme, the history of the legislation, or other sources to discern its
meaning. However, these non-codified external sources cannot provide a
basis for departing from clear codified statutory provisions.
Lovlace, 418 S.W.3d at 18 (quoting Garrison v. Bickford, 377 S.W.3d 659, 663 (Tenn.
2012) (citations and internal quotation marks omitted)).
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However, our Supreme Court has noted that “there is no reliable tool for
determining whether a statute is ambiguous.” Coffee Cnty. Bd. of Educ. v. City of
Tullahoma, 574 S.W.3d 832, 845 (Tenn. 2019); see Bryant v. HCA Health Servs. of N.
Tenn., Inc., 15 S.W.3d 804, 809 (Tenn. 2000) (“A statute is ambiguous if the statute is
capable of conveying more than one meaning.”). “[T]here are theories that say what to do
when a statute is ambiguous, but there are no theories that help determine whether a statute
is ambiguous . . . . The ‘magic wand of ipse dixit’ is the standard tool for deciding such
matters . . . .” Id. (quoting Ward Fansworth et al., Ambiguity About Ambiguity: An
Empirical Inquiry into Legal Interpretation, 2 J. Legal Analysis 257, 275-76 (2010). On
this subject, it has been observed that “there is often no good or predictable way for judges
to determine whether statutory text contains ‘enough’ ambiguity to cross the line beyond
which courts may resort to . . . legislative history [or other tools of construction] . . . .” Id.(quoting Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118,
2136-37 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014))) (footnote
omitted). Our Supreme Court has expounded on the topic of ambiguity by stating the
following:
In determining whether statutory language is ambiguous, courts are not to
put on blinders to all considerations outside the specific text in question. In
all cases involving statutory construction, judges must look not only at “the
language of the statute,” but also “its subject matter, the object and reach of
the statute, the wrong or evil which it seeks to remedy or prevent, and the
purpose sought to be accomplished in its enactment.” Spires, 539 S.W.3d at
143 (quoting [State v.] Collins, 166 S.W.3d [721,] 726 [(Tenn. 2005)])
(citation omitted) (internal quotation marks omitted). Furthermore, statutes
should not be interpreted in isolation. The overall statutory framework must
be considered, and “[s]tatutes that relate to the same subject matter or have a
common purpose must be read in pari materia so as to give the intended
effect to both.” In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015).
Depending on the circumstances of a given case, consideration of the
statute’s purpose, its evolution over the course of time, and a longstanding
interpretation by the affected parties may be needed to properly evaluate
whether a proffered alternate interpretation is “a nonsensical or clearly
erroneous interpretation of a statute.” Powers v. State, 343 S.W.3d 36, 50
n.20 (Tenn. 2011) (discussing ambiguity).
Id. at 845-46. As such, “[a]ny initial perception on whether a statute appears ambiguous
should not be used in a mechanistic manner that disregards interpretive information.” Id.
at 845.
iii. Statutory Authority
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As previously stated, a juvenile court “may exercise only such jurisdiction and
powers as have been conferred on [it] by statute.” In re D.Y.H., 226 S.W.3d at 330 (citing
In re S.L.M., 207 S.W.2d at 296 (citation omitted)). The Legislature has provided the
juvenile court with exclusive original jurisdiction over certain matters, which are
enumerated in Tennessee Code Annotated section 37-1-103. Furthermore, the Legislature
has provided the juvenile court with concurrent jurisdiction over certain matters, which are
enumerated in Tennessee Code Annotated section 37-1-104. Particularly, section 37-1-
104 provides:
(f) Notwithstanding any law to the contrary, the juvenile court has concurrent
jurisdiction with the circuit and chancery court of proceedings to establish
the paternity of children born out of lawful wedlock and to determine any
custody, visitation, support, education or other issues regarding the care and
control of children born out of wedlock. The court further has the power to
enforce its orders. Nothing in this subsection (f) shall be construed as vesting
the circuit and chancery court with jurisdiction over matters that are in the
exclusive jurisdiction of the juvenile court under § 37-1-103.
Tenn. Code Ann. § 37-1-104(f) (emphasis added). Aside from these provisions, the
Legislature has specifically provided the juvenile court with jurisdiction in Tennessee Code
Annotated section 36-6-306 to consider petitions for grandparent visitation. The current
version of the statute provides in pertinent part as follows:
(a) Any of the following circumstances, when presented in a petition for
grandparent visitation to the circuit, chancery, general sessions courts with
domestic relations jurisdiction, other 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 . . . or if the grandparent visitation has been
severely reduced by the custodial parent or parents . . . [.]
Tenn. Code Ann. § 36-6-306(a) (emphasis added). This limitation set out in section 36-6-
306(a) governs the jurisdiction of the juvenile court to consider petitions for grandparent
visitation. See Smallwood v. Mann, 205 S.W.3d 358, 364 (Tenn. 2006) (holding that the
juvenile court lacked jurisdiction under a previous version of the statute). Therefore, in
order for a juvenile court to properly exercise jurisdiction to consider a petition for
grandparent visitation, the child(ren) involved in the matter must be “born out of wedlock.”
Tenn. Code Ann. § 36-6-306(a).
iv. Application
Grandparents contend that the language “children born out of wedlock” is plain and
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unambiguous. Parents argue that both the chancery court and the juvenile court would
have concurrent jurisdiction under the circumstances. Parents contend that one could
reasonably analyze this statute and determine that the juvenile court was the proper forum
and had subject matter jurisdiction because the fact is the child was born out of wedlock.
Yet, they equally contend that one could reasonably analyze this statute and come to the
different conclusion that the chancery court was the proper forum because the parents
subsequently married. Given that Parents’ argument proposes two different interpretations,
it suggests that the statute is ambiguous.
The supplemental briefs filed by both parties also discuss the Grandparent Visitation
Statute’s prior amendment relative to jurisdiction and the Tennessee Supreme Court’s
holding from Smallwood. In Smallwood, our Supreme Court was faced with a prior version
of the Grandparent Visitation Statute, which provided that a petition for grandparent
visitation could be heard in “circuit or chancery court.” Smallwood, 205 S.W.3d at 364.
In a footnote, the Court expressed concern over the fact that the statute did not give the
juvenile court jurisdiction to consider a petition for grandparent visitation, particularly
when “[j]uvenile courts are generally deemed not only the court with jurisdiction over all
matters involving children whose parents are not married, but also the court most suited to
preside over such issues.” Id. at 365 n.8. The Court noted that “considerations of judicial
economy and the avoidance of the duplication of proceedings appear compromised by the
removal of grandparent visitation petitions from juvenile court when concurrent
jurisdiction of other matters relating to the child’s custody and visitation remains there
under section 37-1-104(f).” Id.; see Tenn. Code Ann. § 37-1-104(f) (2005) (giving juvenile
court concurrent jurisdiction over paternity, custody, visitation, support, education, and
“other issues regarding the care and control of children born out of wedlock”). The Court
further noted that it was “not at liberty to ignore the plain meaning of a statute; however,
if the Legislature did not intend to remove jurisdiction for grandparent visitation from
juvenile courts in these cases, it may want to revisit this issue.” Id.; see, e.g., In re C.K.G.,
173 S.W.3d 714, 730 n.9 (Tenn. 2005) (“[C]oncerning a variety of issues, this Court has
invited legislative action or has reserved lawmaking as more appropriate for the
legislature.”). Perhaps in response to this comment in Smallwood, the Legislature amended
the Grandparent Visitation Statute effective July 1, 2007, to substitute “circuit or chancery
court” with the following language: “circuit, chancery, general sessions courts with
domestic relations jurisdiction or juvenile court in matters involving children born out of
wedlock.” See 2007 Pub. Acts., ch. 22 § 1 (emphasis added). It is clear from this
amendment that the Legislature intended for the juvenile court to have jurisdiction over
petitions for grandparent visitation involving children born out of wedlock. In this case,
what appears to be disputed is whether that jurisdiction remains when a child is born out
of wedlock and the child’s parents subsequently marry.3
3
Following the 2007 amendment to the Grandparent Visitation Statute, this Court decided a case
involving a petition for grandparent visitation filed in juvenile court in 2013, where the subject child was
born out of wedlock in 2004 and legitimated in 2008. In re Camryne B., No. M2014-00801-COA-R3-JV,
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After examining the text of the Grandparent Visitation Statute, we conclude that it
is unambiguous. “[T]his Court must presume that the legislature says in a statute what it
means and means in a statute what it says.” Kyle v. Williams, 98 S.W.3d 661, 664 (Tenn.
2003) (citing Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 803 (Tenn. 2000)).
Adhering to that presumption, the Legislature, by using the language “children born out of
wedlock,” and nothing more or less, was clear. The Grandparent Visitation Statute does
not indicate that a subsequent marriage alters the child’s circumstance at his birth for
purposes of jurisdiction in the juvenile court. See Tenn. Code Ann. § 36-6-306(a). The
Grandparent Visitation Statue does not reference the marital status of a child’s parents other
than at the time the child was born. See id. We have referred to a child who is not born
out of wedlock as one who is born “inside the bounds of marriage.”4 McVay v. Blen, No.
02A01-9508-JV-00183, 1996 WL 729911, at *3 (Tenn. Ct. App. Dec. 19, 1996) (citations
omitted). Here, this child was not born inside the bounds of marriage because Parents were
not married when he was born, and therefore the child was “born out of wedlock.”5 Thus,
2014 WL 7181345, at *1 (Tenn. Ct. App. Dec. 16, 2014). Unlike the case at bar, the child’s parents in In
re Camryne B. never married; rather, the child was later legitimated after father filed a petition for
legitimation. Id. Regardless, this Court did not address the issue of whether the juvenile court retained
subject matter jurisdiction when the child was born out of wedlock but later legitimated, and we proceeded
to decide the case on the merits. Id. at *4-6. Though we did not address the issue of the juvenile court’s
jurisdiction in In re Camryne B., we think that the case is at least noteworthy for that very reason. We keep
in mind, however, that “we should not assume that subject matter jurisdiction existed based on the fact that
the issue was not addressed.” Memphis Bonding Co., Inc. v. Crim. Ct. of Tenn. 30th Dist., 490 S.W.3d 458,
467 (Tenn. Ct. App. 2015).
4
We have also referred to a child not born out of wedlock as a “marital child” and a child born out
of wedlock as a “non-marital child.” See In re Paisley H., No. E2020-00174-COA-R3-JV, 2020 WL
5496679, at *3 (Tenn. Ct. App. Sept. 10, 2020) (explaining that the Grandparent Visitation Statute provides
that a petition for grandparent visitation may be filed in the juvenile court in matters involving “non-marital
children”); In re Lachlan B., No. E2019-01698-COA-R3-CV, 2020 WL 3542176, at *1 (Tenn. Ct. App.
June 30, 2020) (addressing a trial court’s decision to change the “non-marital children’s” surname); In re
Donovyn B.H., No. W2013-02268-COA-R3-JV, 2014 WL 2069339, at *2-3 (Tenn. Ct. App. May 16, 2014)
(discussing the differences in the juvenile court’s jurisdiction when marital children versus non-marital
children are involved).
5
Although chapter 6 of Title 36 does not define “children born out wedlock,” we note that
Tennessee Code Annotated section 36-2-302, which concerns parentage and legitimation, defines “[c]hild
born out of wedlock” as “a child born to parents who are not married to each other when the child was
born[.]” Tenn. Code Ann. § 36-2-302(1) (emphasis added). However, the definition’s usage is limited to
chapter 2 of Title 36 by the language “[a]s used in this chapter . . . .” Tenn. Code Ann. § 36-2-302.
Additionally, Tennessee Code Annotated section 31-2-105 defines “a person born out of wedlock” for the
purposes of intestate succession, but there is no correlation between this statute and the Grandparent
Visitation Statute.
We have construed the intent of the legislature in its use of the phrase “child not born in lawful
wedlock” in the past, but it was in the context of legitimation and whether that phrase applied to just a child
born to an unmarried woman or to both a child born to an unmarried woman and a child born to a woman
who was married to someone other than the child’s biological father. See State ex rel. Cihlar v. Crawford,
39 S.W.3d 172, 183 (Tenn. Ct. App. 2000); Cunningham v. Golden, 652 S.W.2d 910, 912-13 (Tenn. Ct.
App. 1983) (superseded by statute).
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this was a matter where the petition for grandparent visitation could be filed in juvenile
court. See Tenn. Code Ann. § 36-6-306(a). Concluding otherwise would be “a forced
interpretation that would extend[, or restrict,] the meaning of the language . . . .” State v.
Welch, 595 S.W.3d 615, 621-22 (Tenn. 2020) (quoting Carter v. Bell, 279 S.W.3d 560,
564 (Tenn. 2009)). Here, we would frustrate legislative intent and restrict the meaning of
the language by holding that the juvenile court lacked jurisdiction to consider the subject
petition when the child was born out of wedlock and then Parents subsequently married.
Because we find that the statute is clear, “we apply the plain meaning without
complicating the task.” State v. McNack, 356 S.W.3d 906, 909 (Tenn. 2011) (citing
Eastman Chem. Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004)). Accordingly, we
conclude that the juvenile court properly exercised its jurisdiction to consider the petition
for grandparent visitation in this case because it was a matter involving a child born out of
wedlock.
B. Grandparent Visitation
We now review whether the juvenile court correctly applied the legal standards as
required by Tennessee Code Annotated section 36-6-306. At the outset, we discuss the
conflicting rights involved. A dispute between a child’s parent(s) and grandparent(s) over
visitation presents “a conflict between the parent’s constitutional right to make decisions
about the care and custody of the child and the grandparent’s right to visitation under
Tennessee Code Annotated section 36-6-306.” Coleman, 551 S.W.3d at 697; see
Smallwood, 205 S.W.3d at 362-63. “The right of a parent to raise a child is a fundamental
liberty interest protected by the Fourteenth Amendment to the United States Constitution
and article I, section 8 of the Tennessee Constitution.” Id. at 697-98 (citing Hawk v. Hawk,
855 S.W.2d 573, 578-79 (Tenn. 1993) (citations omitted)). Parents possess “rights to the
care and custody of their children without undue government interference,” which “is
‘among the oldest of the judicially recognized liberty interests protected by the due process
clauses of the federal and state constitutions.’” Id. at 698 (quoting Lovlace, 418 S.W.3d at
30 (citation omitted)); see also State ex rel. Bethell v. Kilvington, 45 S.W. 433, 435 (Tenn.
1898). Parents also have “a privacy interest that protects them from unwarranted state
intervention in parental decision-making and prohibits the court from imposing its
subjective notion of what is in the ‘best interests of the child.’” Id. (quoting Hawk, 855
S.W.2d at 579-80).
However, “the state may interfere with these rights when there is a compelling state
interest.” Id. (citing Smallwood, 205 S.W.3d at 362-63). The Tennessee Supreme Court
has explained that “[t]he state has a role of parens patriae and a duty to protect minors,
and the state may intervene in parental decision-making when necessary to prevent
substantial harm to the child.” Id. (citing In re Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct.
App. 1983) (citation omitted)); see also Hawk, 855 S.W.2d at 581 (holding that “neither
the legislature nor a court may properly intervene in parenting decisions absent significant
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harm to the child from those decisions”). Parents are protected from unwarranted state
interference in the parenting process by this substantial harm requirement. Id. (citing
Hawk, 855 S.W.2d at 579-80).
i. Opposition
Parents contend that Grandparents did not carry their burden to demonstrate that
visitation was opposed or severely reduced.6 They ask this Court to find that the evidence
preponderates against a finding that visitation was opposed, which would render the
Grandparent Visitation Statute inapplicable. Again, the Grandparent Visitation Statute
provides in pertinent part:
(a) Any of the following circumstances, when presented in a petition for
grandparent visitation to the circuit, chancery, general sessions courts with
domestic relations jurisdiction, other 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 . . . or if the grandparent visitation has been
severely reduced by the custodial parent or parents . . . [.]
Tenn. Code Ann. § 36-6-306(a) (emphasis added). “[T]he Grandparent Visitation Statute
is not even implicated unless the grandparent can establish that visitation was opposed [or
severely reduced] by the custodial parent before the petition was filed.” In re Trinity P.,
No. M2020-01481-COA-R3-JV, 2021 WL 5816456, at *3 (Tenn. Ct. App. Dec. 8, 2021)
(quoting Uselton v. Walton, No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *12
(Tenn. Ct. App. June 21, 2013)) (footnote omitted). As such, if the petitioning
grandparents are unable to prove either opposition to visitation or severe reduction in
visitation, “a trial court has no basis for engaging in substantial harm analysis or awarding
the petitioner any relief.” Id. at *4 (quoting Morisch v. Maenner, No. W2020-00362-COA-
R3-JV, 2021 WL 1102364, at *3 (Tenn. Ct. App. Mar. 23, 2021) (citing Manning v.
Manning, 474 S.W.3d 252, 257-58 (Tenn. Ct. App. 2015); Tenn. Code Ann. § 36-6-306(b)-
(c))).7
6
For this issue, Parents only challenge whether Grandparents carried their burden to demonstrate
that visitation was opposed or severely reduced. They do not specifically challenge whether one of the six
enumerated statutory circumstances applied. See Tenn. Code Ann. § 36-6-306(a)(1)-(6).
7
In 2016, the Legislature amended the Grandparent Visitation Statute changing “the threshold
requirements for application of the . . . Statute insofar as the trial court may now consider ordering visitation
upon a showing by the petitioning grandparent that visitation, and as a result the grandparent-grandchild
relationship, was severely reduced rather than requiring that visitation must have been opposed or denied
by the custodial parent.” In re Trinity P., 2021 WL 5816456, at *3 n.6 (quoting Horton v. Cooley, No.
M2019-00945-COA-R3-CV, 2020 WL 2731235, at *4 n.3 (Tenn. Ct. App. May 26, 2020) (citation
omitted)).
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The term “opposed,” includes “situations both where visitation is denied totally and
where visitation is technically not opposed, but the frequency and/or conditions imposed
by the parents on visitation are such that it equates to a denial of visitation.” Lovlace, 418
S.W.3d at 21 (quoting Huls v. Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219,
at *8 (Tenn. Ct. App. Oct. 22, 2008)); see also Angel v. Nixon, No. M2010-00554-COA-
R3-CV, 2010 WL 4483915, at *3 (Tenn. Ct. App. Nov. 8, 2010); Wilson v. Gladden, No.
E2008-02283-COA-R3-CV, 2009 WL 2176460, at *2 (Tenn. Ct. App. July 22, 2009).
Additionally, “the Legislature’s use of the words, ‘is opposed by,’ means actual existing
opposition—not likely future opposition.” Coleman, 551 S.W.3d at 699. Opposition may
be proven “by presenting evidence of actual or constructive denial of visitation.” Id.
The juvenile court found that Parents opposed Grandparents having any visitation
with the child. The court noted that Mother testified she was not opposed to visitation, but
she did not want any specific time for visitation in place. The court also noted that Father
elected not to testify.
At trial, Grandfather testified that they filed the petition because they had gone
“seven months” without seeing the child. He stated that Father did not indicate to him that
they were no longer going to be able to see the child. Rather, their requests for time with
the child were simply fruitless. He clarified that he asked Father personally for time with
the child, but Father would respond, “No, not at this time.” Indeed, Parents insinuated in
their text messages that Grandparents were no longer allowed to see the child. Parents sent
a text message to Grandparents in August 2018 stating that the child would no longer be
going to Grandparents’ home. Parents sent text messages to Grandparents in December
2018 implying that they would be excluded from the child’s life. In response to a texted
request for visitation in January 2019, Parents stated “probably not.” Despite Parents’
sentiments expressed in these text messages, Grandparents were able to see the child in
August 2018, December 2018, and January 2019, which was contrary to Grandfather’s
testimony that they had gone seven months without seeing the child. Before filing their
petition in February 2019, the last time Grandparents were able to visit with the child was
just a month prior on January 12, 2019. Although he and the child still maintained a close
relationship at the time of trial, Grandfather testified that it was not as close as it was two
years ago.
Grandmother admitted that they had still been able to see the child some since their
visits were stopped in August 2018. However, she described their time with the child
during the remainder of 2018 as “sporadic.” Similar to Grandfather’s testimony, she
testified that their relationship still was not as close with the child as it had been in the past.
She disagreed that they were still permitted to see the child regularly. They had been
permitted two days per week with the child in the past, and now they had approximately
30 minutes per week with the child.
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Mother testified that she was not opposed to the child visiting Grandparents and
disagreed that Grandparents did not get to see the child for seven months. She explained
that she and Father shared the child’s school activities and t-ball schedules with them,
invited them to the child’s birthday parties, and even saw them at family events. During
those occasions, she never prevented the child from interacting with Grandparents, or vice-
versa. She also testified that the parties agreed to once-a-week visits beginning in
September 2019. The parties mutually decided that the once-a-week visit would be the
child’s karate class on Mondays. From September 2019 until December 2019,
Grandparents saw the child at karate and were allowed to spend time with afterward.
Beginning in December 2019, however, Parents limited Grandparents time with the child
after karate because they were upset that Grandparents were taking them back to court.
While Mother admitted that the karate visits were nothing more than allowing
Grandparents to lay eyes on the child, she had concerns about the child visiting regularly
with Grandparents. She and Father felt that Grandparents’ home was a “toxic
environment.” She explained that this was the very reason the visits on Tuesdays and
Fridays with Grandparents had been stopped; she did not want the child to be around the
negativity in Grandparents’ home. She concluded by stating, “I’m okay with public events
and things of that nature, but at this time I don’t feel comfortable with him going over
there.”
Grandparents alleged in their petition that they believed that Parents would refuse
or deny visitation unless allowed such visitation at specific times and places. However,
“likely future opposition” is not our concern. See Coleman, 551 S.W.3d at 699 (explaining
that the Grandparent Visitation Statute requires evidence of parental opposition when the
petition is filed and requires evidence of existing opposition, not future opposition).
Instead, we focus on whether there was opposition prior to the filing of the petition. In re
Trinity P., 2021 WL 5816456, at *4; see Uselton, 2013 WL 3227608, at *13. Although
Grandparents were able to exercise visitation between August 2018 and February 2019, we
find that there was sufficient evidence of opposition. After visiting with the child two times
every week for approximately four years, Grandparents were only able to visit with the
child three times between August 2018 and February 2019. While they did have these few
visits, Parents were consistently communicating that they were opposed to visitation.
Parents sent a text messages to Grandparents stating that the child would no longer be going
to their home, would be fine without them, had enough grownups in his life, would not be
coming around at all, and would do just fine without them in his life. Grandparents were
denied time with the child at least once in December 2018. A month before the petition
was filed, Grandparents were denied time with the child again in January 2019, and Parents
indicated that “[t]his is working for us.”
We emphasize that Parents desire to not allow the child to have contact with the
paternal uncle’s friend, who was a stranger to the family, was a reasonable limitation.
Further, this restriction, in and of itself, does not constitute opposition to the child visiting
with Grandparents. See Green v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL
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1107887, at *10 (Tenn. Ct. App. Mar. 30, 2012) (holding that a parent’s desire to limit the
individuals to who her child is exposed when visiting with a grandparent “cannot be
considered opposition to visitation.”). However, notwithstanding that limitation, the
evidence demonstrates Parents opposed grandparent visitation by both “word [and] deed”
prior to the petition being filed. In re Trinity P., 2021 WL 5816456, at *4; see Uselton,
2013 WL 3227608, at *13.
Accordingly, we conclude that the juvenile court correctly applied the legal standard
as required by Tennessee Code Annotated section 36-6-306(a) to find that Parents opposed
visitation between Grandparents and the child, or severely reduced visits between
Grandparents and the child.
ii. Substantial Harm
Parents also contend that there was no evidence that the child was suffering
substantial harm or severe emotional harm due to Parents’ decision to limit his interaction
with Grandparents. Here, we begin by addressing the juvenile court’s compliance with the
mandate in Tennessee Rule of Civil Procedure 52.01. Rule 52.01 provides in part:
In all actions tried upon the facts without a jury, the court shall find the facts
specially and shall state separately its conclusions of law and direct the entry
of the appropriate judgment. . . . . If an opinion or memorandum of decision
is filed, it will be sufficient if the findings of fact and conclusions of law
appear therein.
Tenn. R. Civ. P. 52.01. “The underlying rationale for this mandate is that it facilitates
appellate review by ‘affording a reviewing court a clear understanding of the basis of a trial
court’s decision . . . .’” Gooding v. Gooding, 477 S.W.3d 774, 782 (Tenn. Ct. App. 2015)
(quoting In re Estate of Oakley, No. M2014-00341-COA-R3-CV, 2015 WL 572747, at *10
(Tenn. Ct. App. Feb. 10, 2015) (citation omitted)). “[I]n the absence of findings of fact
and conclusions of law, ‘this court is left to wonder on what basis the court reached its
ultimate decision.’” Id. (quoting In re Estate of Oakley, 2015 WL 572747, at *10 (citation
omitted)). Additionally, “findings of fact that are both sufficient and supported by the
record ‘enhance the authority of the trial court’s decision by providing an explanation of
the court’s reasoning.’” Id. (quoting In re Zaylen R., No. M2003-00367-COA-R3-JV, 2005
WL 2384703, at *2 (Tenn. Ct. App. Sept. 27, 2005)).
There is no bright-line test for assessing the sufficiency of the trial court’s factual
findings. Id. Generally, however, “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.” Id. (quoting In re Estate
of Oakley, 2015 WL 572747, at *11). Therefore, “[s]imply stating the trial court’s decision,
without more, does not fulfill [the Rule 52.01] mandate.” Id. (quoting Barnes v. Barnes,
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No. M2011-01824-COA-R3-CV, 2012 WL 5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012).
Regarding substantial harm, the juvenile court’s order only stated, “The Court finds the
grandchild had such a significant existing relationship with [Grandparents] that severance
or severe reduction of their relationship with [them] is likely to occasion severe emotional
harm to the grandchild and poses a danger of substantial harm to the grandchild.” This
does not fulfill the Rule 52.01 mandate because the juvenile court stated a legal conclusion
but failed to explain any factual basis for its decision.
The importance of the trial judge performing his or her duties as a finder of fact
cannot be overstated. Likewise, the potential consequences for the parties when a trial
judge fails to perform those duties cannot be overstated. As we explained in Gooding,
“[w]hen the trial court fails to explain the factual basis for its decisions, we may conduct a
de novo review of the record to determine where the preponderance of the evidence lies or
remand the case with instructions to make the requisite findings of fact and conclusions of
law and enter judgment accordingly. Id. at 783 (emphasis added); see Lovlace, 418 S.W.3d
at 36; Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997); Nashville Ford Tractor,
Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 424 (Tenn. Ct. App. 2005). Normally, “the
appropriate remedy when a trial court fails to make appropriate findings of fact and
conclusions of law pursuant to Rule 52.01 is to ‘vacate the trial court’s judgment and
remand the cause to the trial court for written findings of fact and conclusions of law.’”
Manning, 474 S.W.3d at 260 (quoting Lake v. Haynes, No. W2010-00294-COA-R3-CV,
2011 WL 2361563, at *1 (Tenn. Ct. App. June 9, 2011)). Yet, in some cases, “we may
‘soldier on’ with our review despite the trial court’s failure to comply with Rule 52.01.”
Id. (quoting Pandey v. Shrivastava, No. W2012-00059-COA-R3-CV, 2013 WL 657799(Tenn. Ct. App. Feb. 22, 2013)). When faced with this difficult problem in the past, we
have made the determination to soldier on “for the sake of judicial economy,” Burse v.
Hicks, No. W2007-02848-COA-R3-CV, 2008 WL 4414718, at *2 (Tenn. Ct. App. Sept.
30, 2008), or in order “to resolve the litigation between the parties,” Hanson v. J.C. Hobbs
Co., Inc., No. W2011-02523-COA-R3-CV, 2012 WL 5873582, at *10 (Tenn. Ct. App.
Nov. 21, 2012). Likewise, we deem it appropriate to conduct a review of this issue in spite
of the deficiencies in the juvenile court’s order.8
In making this decision, we emphasize the important consideration of the stability
in the child’s life involved in this case. Vacating and remanding for further proceedings
would only delay that stability. See Richardson v. Richardson, No. M2020-00179-COA-
R3-CV, 2021 WL 4240831, at *9 (Tenn. Ct. App. Sept. 17, 2021) (emphasizing that the
subject children have been “subjected to fairly continuous upheaval as a result of [the]
litigation” and “remanding for further proceedings would only delay the stability that this
Court has repeatedly emphasized is an important consideration for the lives of children.”).
8
We reiterate that this is generally not the appropriate remedy where a trial court fails to comply
with Rule 52.01, and therefore we caution that this Court “may not be so forgiving and accommodating in
future appeals.” Ellis v. Duggan, 644 S.W.3d 85, 96 n.9 (Tenn. Ct. App. 2021).
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The child is now eight years old and this litigation has been ongoing since he was four
years old.9 The child will not benefit from years of further litigation between family
members.
By choosing to soldier on, we conduct a de novo review of the record to determine
where the preponderance of the evidence lies. Gooding, 477 S.W.3d at 783 (citations
omitted). In section 36-6-306(b), the Grandparent Visitation Statute provides in part:
(b)(1) In considering a petition for grandparent visitation, the court shall first
determine the presence of a danger of substantial harm to the child. Such
finding of substantial harm may be based upon cessation or severe reduction
of the relationship between an unmarried minor child and the child’s
grandparent if the court determines, upon proper proof, that:
(A) The child had such a significant existing relationship with the
grandparent that loss or severe reduction of the relationship is likely
to occasion severe emotional harm to the child;
(B) The grandparent functioned as a primary caregiver such that
cessation or severe reduction of the relationship could interrupt
provision of the daily needs of the child and thus occasion physical or
emotional harm; or
(C) The child had a significant existing relationship with the
grandparent and loss or severe reduction of the relationship presents
the danger of other direct and substantial harm to the child.
(2) For purposes of this section, a grandparent shall be deemed to have a
significant existing relationship with a grandchild if:
(A) The child resided with the grandparent for at least six (6)
consecutive months;
(B) The grandparent was a full-time caretaker of the child for a period
of not less than six (6) consecutive months; or
(C) The grandparent had frequent visitation with the child who is the
subject of the suit for a period of not less than one (1) year.
(3) A grandparent is not required to present the testimony or affidavit of an
expert witness in order to establish a significant existing relationship with a
grandchild or that the loss or severe reduction of the relationship is likely to
occasion severe emotional harm to the child. Instead, the court shall consider
9
The juvenile court held trial on Grandparents’ petition occurred in September 2020, but the order
from the hearing was not entered until July 2021. The record does not reveal the reason for the delay in the
entry of the order.
- 17 -
whether the facts of the particular case would lead a reasonable person to
believe that there is a significant existing relationship between the
grandparent and grandchild or that the loss or severe reduction of the
relationship is likely to occasion severe emotional harm to the child.
Tenn. Code Ann. § 36-6-306(b)(1)-(3).10 The juvenile court found that Grandparents
maintained a significant existing relationship with the child and had assisted as caretakers
of the child. Parents do not dispute that the child and Grandparents had a significant
existing relationship within the meaning of the law. Regardless, we have held that “[t]he
mere fact that a significant existing relationship exists will not suffice for a showing of
substantial harm.” In re Gracelyn H., No. W2021-00141-COA-R3-JV, 2022 WL 1008312,
at *4 (Tenn. Ct. App. Apr. 4, 2022) (quoting Huffman v. Huffman, No. E2012-02164-COA-
R3-CV, 2013 WL 4715042, at *7 (Tenn. Ct. App. Aug. 30, 2013)). We also note that we
must avoid the assumption that a grandparent-grandchild relationship always benefits the
grandchild. McGarity v. Jerrolds, 429 S.W.3d 562, 570 (Tenn. Ct. App. 2013) (quoting
Green, 2012 WL 1107887, at *8).
As stated before, the juvenile court found that severance or severe reduction of the
relationship between Grandparents and the child was likely to occasion severe emotional
harm to the child and posed a danger of substantial harm to the child. However, our review
of the record reveals that the evidence was insufficient to support this conclusion. There
was very little testimony on whether the child was actually suffering harm or was likely to
suffer harm in the future. Grandmother testified that the child was still happy and healthy
and did not show anger or aggression when she did get to see him. She stated that he would
cry sometimes when they dropped him off after visits because he felt that he did not have
enough time with them. She also stated that he would ask questions and express emotions
regarding his limited interaction with them.11 Yet, she admitted that the child was doing
great, and she testified that there was no specific evidence that he was suffering severe
harm. Mother also testified that she had not noticed any anger or aggression and had no
concerns with the child’s behavior. Contrary to Grandmother’s testimony, she stated that
she never saw the child cry, become upset, or have a hard time leaving Grandparents when
they dropped him off after visits. Both Grandfather and Grandmother testified that their
relationship with the child was not as close as it had been in the past, but they did not testify
as to any harm that had come to the child as a result.
We reiterate that Parents are protected from unwarranted state interference in the
10
Grandparents did not present any testimony or affidavit of an expert witness, but we emphasize
that this is not required and “[t]he court need only ‘consider whether the facts of the particular case would
lead a reasonable person to believe that there is a significant existing relationship between the grandparent
and grandchild or that the loss or severe reduction of the relationship is likely to occasion severe emotional
harm to the child.’” Angel, 2010 WL 4483915, at *4 (quoting Tenn. Code Ann. § 36-6-306(b)(3)).
11
Grandmother did not elaborate on what emotions the child expressed due to an objection by
opposing counsel.
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parenting process by the substantial harm requirement. Coleman, 551 S.W.3d at 698
(citing Hawk, 855 S.W.2d at 579-80). Grandparents bear the burden of proving substantial
harm or severe emotional harm. See McGarity, 429 S.W.3d at 579 (“Without a showing
of either ‘substantial harm’ or ‘severe emotional harm,’ Grandparents have not met their
burden to justify intrusion into [Parents’] decision to terminate visitation . . . .”). “Proving
a likelihood of ‘severe emotional harm’ requires ‘evidence to support a finding that the
child is likely to suffer . . . harm that could reasonably be categorized as severe, grave,
distressing, or extreme.” In re Gracelyn H., 2022 WL 1008312, at *4 (quoting McGarity,
429 S.W.3d at 579 (citing Severe, Black’s Law Dictionary (5th ed. 1979))). Substantial
harm “connotes a real hazard or danger that is not minor, trivial, or insignificant.” Id.
(quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).
Grandparents argue that the evidence of harm in this case is “virtually identical” to
the evidence of harm in Cupples v. Holmes, No. W2021-00523-COA-R3-CV, 2022 WL
970731, at *7-12 (Tenn. Ct. App. Mar. 31, 2022). Yet, unlike the Cupples case, there was
no evidence here that the child’s personality or disposition had changed. Grandmother’s
own testimony revealed that the child was still happy and healthy and that there was no
specific evidence of harm due to the limited interaction he was having with Grandparents.
Mother concluded the same in her testimony. Other than the child’s teary episodes when
he was dropped off by Grandparents after visits, which was disputed by Mother, there was
no evidence that the he “suffered any ill effects” due to his limited interaction with
Grandparents. McGarity, 429 S.W.3d at 580. Grandmother testified that the child asked
questions and expressed emotions about his time with Grandparents, but there was no
evidence of harm that could be categorized as “severe, grave, distressing, or extreme” or
“a real hazard or danger.” In re Gracelyn H., 2022 WL 1008312, at *4 (citations omitted).
The evidence in the record before us was insufficient to support a showing of substantial
harm or severe emotional harm.
Proving harm was Grandparents’ burden to bear, and the record demonstrates that
they failed to carry that burden. Based on the lack of evidence regarding harm, we find
that the evidence preponderates against the juvenile court’s finding that the child was likely
to suffer substantial harm or severe emotional harm. Consequently, we reverse the decision
of the juvenile court awarding grandparent visitation and dismiss the case.
V. CONCLUSION
For the aforementioned reasons, we reverse the decision of the juvenile court and
dismiss the case. Costs of this appeal are taxed to the appellees, Randall D. and Holly D.,
for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
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