Graham Clark v. Timothy Curtis Johnson

05/29/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
January 18, 2018 Session
GRAHAM CLARK ET AL. v. TIMOTHY CURTIS JOHNSON
Appeal from the Chancery Court for Sullivan County
No. 16-CK-40744(M) John S. McLellan, III, Judge1
No. E2017-01286-COA-R3-CV
In this case involving grandparent visitation, the petitioners, Graham Clark and Marisa
Clark (“Grandparents”), filed a petition in the Sullivan County Juvenile Court (“juvenile
court”) in November 2016, approximately thirteen months after the death of their
daughter, Megan Clark Johnson (“Mother”), who was the mother of the four minor
children at issue here. Naming the children’s father, Timothy Curtis Johnson (“Father”)
as the respondent, Grandparents averred that the children were dependent and neglected
due to the death of Mother in October 2015 and an allegedly severe reduction in
Grandparents’ visitation with the children since December 2015. The case was
subsequently transferred to the Sullivan County Chancery Court (“trial court”), with
Grandparents having given notice to Father that they were seeking relief in the form of
grandparent visitation. The trial court thereafter treated the petition as one for
grandparent visitation. Following a hearing, the trial court entered a temporary order
directing that Grandparents would enjoy unsupervised visitation with the children on
alternate weekends. Following a subsequent bench trial, the trial court granted visitation
to Grandparents upon finding that, pursuant to Tennessee Code Annotated §§ 36-6-306
and -307 (2017) (collectively, the “Grandparent Visitation Statute”), their visitation and
relationship with the children had been severely reduced over several months prior to the
petition’s filing and that such reduction posed a risk of substantial emotional harm to the
children. Also finding that it was in the best interest of the children to grant
Grandparents a set visitation schedule, the trial court ordered overnight visitation one
weekend a month and two additional nights monthly, as well as one week’s uninterrupted
visitation in the summer and the sharing of major holidays. Father timely appealed.
Having determined that the evidence preponderates against a finding that the reduction in
Grandparents’ visitation and relationship with the children in the months preceding the
petition’s filing met the statutory definition of a severe reduction, we reverse.
1
Sitting by interchange.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and JOHN W. MCCLARTY, JJ., joined.
Nicholas A. Schaefer, Kingsport, Tennessee, for the appellant, Timothy Curtis Johnson.
Randall D. Fleming, Kingsport, Tennessee, for the appellees, Graham Clark and Marisa
Clark.
OPINION
I. Factual and Procedural Background
The facts underlying this action are essentially undisputed. Father and Mother
were married in 2006 and had four children either born to them or adopted by them:
M.J., who was ten years of age at the time of trial; E.J., who was six years of age; L.J.,
who was four years of age; and M.M.J., who was two years of age (collectively, “the
Children”). Although Mother had suffered from health problems spanning several years,
testimony during trial indicated that Mother’s death on October 21, 2015, came following
a sudden decline in Mother’s health that had not been expected by the parties.
At all times relevant to this case, Grandparents resided in Kingsport, Tennessee.
According to Grandmother’s testimony, Mother and Father initially resided in Dandridge,
Tennessee, and were living there when Mother underwent brain surgery in 2006. Mother
and Father then relocated to Knoxville, where Father had obtained employment, and
remained there until 2009. According to Father’s testimony, the adoption of the eldest
child, M.J., was finalized in 2009 while Father and Mother were living in Knoxville. It is
undisputed that when Father and Mother resided in Knoxville, Grandparents visited them
often, as well as welcoming them often to visit in Kingsport.
Mother became pregnant in late 2009, and Father, Mother, and M.J. subsequently
moved into Grandparents’ residence so that Grandparents could offer assistance to the
parents. During the pregnancy, Mother suffered complications that required her to
remain on bed rest for several months. During this time period, Father was initially
employed with a company in Dandridge, but he subsequently obtained employment with
Nyrstar, a mining company in Jefferson City, Tennessee, which required him to commute
approximately 100 miles between his work and Grandparents’ residence in Kingsport.
According to Grandmother, Mother and Father stayed with Grandparents for
approximately eight to nine months during Mother’s pregnancy and while she was
2
recovering from the birth of E.J., who was born in June 2010. Following E.J.’s birth,
Father, Mother, M.J., and E.J. returned to their former residence in Knoxville. Father and
Mother subsequently adopted L.J. and M.M.J., and Grandparents continued to visit back
and forth with the family.
In 2013, Father and Mother relocated to Dandridge, renting a home there.
Undisputed testimony demonstrated that Grandparents, especially Grandmother, spent a
great deal of time with the Children during this time period and maintained a close
relationship with Mother and Father as well. Grandmother testified that she was no
longer employed by 2013 and would “help out with” the Children “probably every day”
during the work week. She stated that Father, Mother, and the Children also visited at
Grandparents’ home often and that Father “was a very big part of our family.” Prior to
her death in October 2015, Mother was in a coma for several days, and Grandparents
undisputedly assisted Father in caring for the Children during this difficult time.
Grandmother also testified that Father, Mother, and the Children had moved into a home
they had newly purchased three weeks prior to Mother’s death, although the record is not
clear as to the location of this new home, where Father and the Children continued to live
at the time of trial.
Following Mother’s death, Grandmother provided care to the Children daily
during the work week to facilitate Father’s return to work after a short leave of absence.
Father acknowledged during trial that soon after Mother’s death and for a few weeks
thereafter, Grandparents cared for the Children overnight at Grandparents’ residence
approximately two nights a week. Father testified that although several people assisted
him in caring for the Children while he returned to work, Grandmother “was instrumental
in helping [him] with the kids during that time.” For his part, Grandfather, who was a
high school football coach, testified that as his work schedule allowed, he had “dropped
in” at Father’s home on many occasions to visit the Children in the months following
Mother’s death. Grandfather also interacted with M.J. regularly during football season
because M.J. volunteered as a ball boy for the team coached by Grandfather.
In December 2015, Father hired as a nanny a woman, S., who previously had
cared for the Children as a babysitter.2 S. moved in with Father and the Children in the
spring of 2016, and she and Father became engaged in July 2016. Father testified during
the May 3, 2017 trial that he and S. were to be married two weeks after trial. When
questioned regarding when he believed his relationship with Grandparents had begun to
deteriorate, Father stated that he believed it was when he and S. had become engaged.
2
Throughout the record, S. is referred to only by her given name. Because she is not a party and did not
testify at trial, we will refer to S. in this opinion solely by her first initial in an effort to protect her
privacy. No disrespect is intended.
3
Although Grandparents have acknowledged throughout these proceedings that
they continued to see the Children well after December 2015, they have asserted that the
nature of the visitation Father allowed them gradually changed from individual quality
time and overnight stays at Grandparents’ home to mere invitations to attend the
Children’s events and activities, such as M.J.’s football games, with many people present.
Grandparents also maintain that Father’s responses to inquiries regarding the Children
became increasingly delayed. Grandparents acknowledge that a compilation of text
messages they presented at trial demonstrated that one or both Grandparents visited with
one or more of the Children on more than forty occasions in the eleven months preceding
the petition’s filing. Grandmother and Grandfather each respectively testified that Father
had not refused a requested visit to either of them without providing a reason such as a
prior engagement.
In September 2016, Father received a letter, dated September 13, 2016, from
Grandmother’s former counsel, stating in substantive part:
Please be advised that I have been retained by [Grandmother] in
order to assist her in seeing her grandchildren. Please contact myself, or
[Grandmother], to arrange same so that we can avoid litigation in this
matter.
Included in the text message conversations presented during trial was the following
exchange between Father and Grandmother, dated September 25, 2016:
Father: I received a letter from your attorney, but I haven’t
heard from you in 2 months . . .
Grandmother: It says to call me so We can work out visitation.
Father: You’ve never been not allowed to see the kids . . . all
you have to do is ask.
Grandmother: Ok I would like to set up a schedule where I get all
four kids one day a week, one weekend a month, and
time with all of them on their birthdays and holidays,
and a week in the summer. I would like this in writing
as advised per my attorney. I would be glad to discuss
this over a telephone call or in person.
4
Father: If you would like to see the kids then let me know and
we’ll work out a time you can come visit them, but I’m
not going to have a schedule with you.
Grandmother: It’s obvious we’re having communication issues and I
would like to lay out a day a week I can have them
over to my house so I would like a schedule. I would
prefer to talk about this in person or on the phone.
Father: I understand what you are requesting, but it would be
better for our family to provide you our schedule so
that you could then find the best time for yourself to
come over and visit them.
Grandmother: I’ll be glad to work with your family to find what time
is best for you all, but I would like to take them to my
house to spend time with them with me and my family,
the way I always have.
Father: Your family is also welcome to come over here and
visit with them.
On November 1, 2016, Grandparents filed a petition in the juvenile court, alleging
that the Children were dependent and neglected due to Mother’s death and the
subsequent, purportedly severe reduction in Grandparents’ visitation. Pursuant to the
Grandparent Visitation Statute, Grandparents sought “a reasonable visitation schedule”
and “a rebuttable presumption of substantial harm to the [Children] based upon the
cessation or severe reduction of the relationship between the children and the
grandparents.” The juvenile court entered an order on November 2, 2016, appointing
attorney Kenneth E. Hill as guardian ad litem to represent the Children.
Upon Grandparents’ subsequent motion filed in the juvenile court, the action was
transferred to the trial court via an order entered December 22, 2016, which was signed
by both the juvenile court judge and the presiding chancellor. The transfer order does not
state a reason for the transfer, but email correspondence among court personnel,
Grandparents’ trial counsel, and the guardian ad litem, attached to the transferred juvenile
court file, indicates that a judicial conflict existed because the “3 judges/magistrates”
usually hearing cases in the juvenile court all knew Grandfather. Upon transfer, the trial
court treated the petition as one for grandparent visitation.
5
On January 20, 2017, Grandparents filed a notice of mediation set for February 6,
2017, but Father, who was not yet represented by counsel, did not appear for that
mediation. Grandparents then filed a notice of hearing set for March 1, 2017. Father’s
counsel subsequently filed a notice of appearance on February 28, 2017, as well as a
motion to continue. Following a hearing conducted on March 1, 2017, the trial court
entered an order on March 13, 2017, granting Father’s motion to continue the hearing on
the petition but also setting a temporary visitation schedule for Grandparents of
alternating weekends with the Children. The parties subsequently participated in
mediation in April 2017 but were unable to reach an agreement.
The trial court conducted a bench trial on May 3, 2017, hearing testimony from the
parties, as well as several witnesses who testified regarding the close and loving
relationship between Grandparents and the Children. The trial court subsequently entered
an order on May 31, 2017, granting Grandparents’ request for visitation and setting forth
a visitation schedule. In granting visitation, the trial court found that Father had severely
reduced Grandparents’ visitation and relationship with the Children. The court further
found that Grandparents had successfully raised and Father had failed to rebut the
statutory rebuttable presumption of substantial harm to the Children if visitation were not
granted. See Tenn. Code Ann. § 36-6-306(b)(4) (“[I]f the child’s parent is deceased and
the grandparent seeking visitation is the parent of that deceased parent, there shall be a
rebuttable presumption of substantial harm to the child based upon the cessation or severe
reduction of the relationship between the child and grandparent.”).
Having determined that a denial of visitation to Grandparents posed a danger of
substantial emotional harm to the Children, the trial court then considered the factors
delineated in Tennessee Code Annotated § 36-6-307 (2017) to determine that granting
Grandparents’ petition for a set visitation schedule would be in the best interest of the
Children. The trial court set the visitation schedule as follows:
[Grandparents] shall have overnight visitation with [the Children]
each month beginning June 2017 on the third weekend of each month, from
Friday at 5:00 p.m. until Sunday at 5:00 p.m. If the parties can agree, the
Court will consider an alternate weekend to permit flexibility due to the
parties’ and [the Children’s] activity schedules and plans.
[Grandparents] shall have two additional overnight visitations each
month at a time to be agreed upon by the parties consistent with the
children’s schedule of activities and school or by further Order of the Court
if agreement cannot be reached.
6
[Grandparents] shall have the [Children] for a minimum period of
seven days during their summer vacation in the month of June or July of
each year upon reasonable notice to [Father] this year, and notice by May 1
beginning 2018 and each year thereafter.
[Grandparents] shall share major holidays such as Thanksgiving and
Christmas with the [Children] as may be determined by agreement of the
parties, consistent with family traditions, or by further Order of the Court.
(Paragraph numbering omitted.) Father timely appealed.3
II. Issue Presented
Father presents one issue on appeal, which we have restated slightly as follows:
Whether the trial court correctly applied the legal standard required by the
Grandparent Visitation Statute to find that Grandparents’ visitation and
contact with the Children had been opposed or severely reduced by Father.
III. Standard of Review
We review a non-jury case de novo upon the record, with a presumption of
correctness as to the findings of fact unless the preponderance of the evidence is
otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
2000); Hadjopoulos v. Sponcia, No. E2015-00793-COA-R3-CV, 2016 WL 1728250, at
*5 (Tenn. Ct. App. Apr. 28, 2016) (explaining that the evidentiary standard in
grandparent visitation cases is a preponderance of the evidence). However, we review
questions of law de novo with no presumption of correctness. Bowden, 27 S.W.3d at 916
(citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)). “A determination
of visitation ‘often hinges on subtle factors such as the [parties’] demeanor and credibility
during the trial proceedings.’” Lovlace v. Copley, 418 S.W.3d 1, 16 (Tenn. 2013)
(quoting Battleson v. Battleson, 223 S.W.3d 278, 282 (Tenn. Ct. App. 2006)). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal
and shall not be disturbed absent clear and convincing evidence to the contrary.
See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
3
In a footnote in their appellate brief, Grandparents state that sixty days following entry of the trial
court’s order, Father informed them that he planned to relocate with the Children. Noting that
Grandparents have not filed a motion for consideration of post-judgment facts pursuant to Tennessee Rule
of Appellate Procedure 14, we decline to consider purported facts occurring after the judgment and
outside the record. See Tenn. R. App. P. 13(c).
7
We review issues of statutory interpretation de novo, adhering to the following
longstanding principles:
When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a
statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.”
Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any
interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at
the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d 610, 613-14 (Tenn. 2009).
IV. Subject Matter Jurisdiction
As a threshold issue, we address, sua sponte, whether the trial court, as a chancery
court, properly exercised subject matter jurisdiction to consider Grandparents’ petition
upon transfer from the juvenile court when Grandparents’ petition alleged dependency
and neglect and no resolution of such an allegation had been adjudicated in the juvenile
court. See Tenn. R. App. P. 13(b) (explaining that although “[r]eview generally will
extend only to those issues presented for review,” “[t]he appellate court shall also
consider whether the trial and appellate court[s] have jurisdiction over the subject matter,
whether or not presented for review . . . .”). Pursuant to Tennessee Code Annotated § 37-
8
1-103 (2017), exclusive, original subject matter jurisdiction over dependency and neglect
proceedings is vested solely in juvenile courts. This exclusive jurisdiction continues until
either “(1) the case is dismissed; (2) the custody determination is transferred to another
court; (3) a petition for adoption is filed; or (4) the child reaches the age of eighteen.” In
re D.Y.H., 226 S.W.3d 327, 330 (Tenn. 2007).
In the case at bar, we determine that Grandparents’ petition alleged dependency
and neglect in name only. In reviewing pleadings, we “must give effect to the substance,
rather than the form or terminology of a pleading.” Stewart v. Schofield, 368 S.W.3d
457, 463 (Tenn. 2012) (citing Abshure v. Methodist Healthcare–Memphis Hosp., 325
S.W.3d 98, 104 (Tenn. 2010)). In the petition, Grandparents specifically alleged in
relevant part:
The minor children are dependent and neglected in that [Mother
was] deceased on October 21, 2015 and the maternal grandparents[’] time
with the children has drastically been reduced. Prior to their daughter’s
deceasing, [Grandparents] were very active in raising the minor children.
***
[Grandparents] are seeking a reasonable visitation schedule with their
minor grandchildren pursuant to T.C.A. §36-6-306 [and] a rebuttable
presumption of substantial harm to the child based upon the cessation or
severe reduction of the relationship between the children and the
grandparents.
In substance, Grandparents asserted a cause of action based on the Grandparent Visitation
Statute and requested the sole relief of a “reasonable visitation schedule.”
The record demonstrates that once this case had been transferred from the juvenile
court to the trial court, the trial court treated Grandparents’ petition as one for
grandparent visitation. No allegations of dependency and neglect were heard during trial,
and Grandparents presented no evidence suggesting neglect or abuse of the Children by
any person involved in these proceedings. Inasmuch as chancery courts are authorized to
exercise non-exclusive subject matter jurisdiction over petitions for grandparent visitation
involving children born to or adopted by a married couple, see Tenn. Code Ann. § 36-6-
306(a), we conclude that the trial court properly exercised subject matter jurisdiction.
9
V. Severe Reduction in Grandparent Visitation and Relationship
Father contends that the trial court erred by finding that he had severely reduced
Grandparents’ visitation and relationship with the Children. He asserts that because
either a custodial parent’s opposition to a grandparent’s visitation or a custodial parent’s
severe reduction in such visitation is a condition precedent to application of the
Grandparent Visitation Statute, the trial court improperly applied Tennessee Code
Annotated § 36-6-306(b)(1) to find that the Children would be subjected to substantial
harm if visitation were not granted to Grandparents. He thereby also argues that the trial
court erred by proceeding to the best interest analysis. Grandparents acknowledge that
Father never directly opposed their visitation with the Children. However, they contend
that the trial court properly found that Father had severely reduced their visitation in the
months prior to the petition’s filing, prompting further analysis under the Grandparent
Visitation Statute and the trial court’s ultimate grant of visitation. Upon a thorough
review of the record and applicable authorities, we conclude that the evidence
preponderates against a finding that Grandparents’ visitation with the Children was
severely reduced according to the applicable statutory definition.
The applicable version of Tennessee Code Annotated § 36-6-306(a) (2017)
delineates the circumstances in which a hearing is necessary concerning a petition for
grandparent visitation, providing:
(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, 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 custodian or if the grandparent visitation has been
severely reduced by the custodial parent or parents or custodian:
(1) The father or mother of an unmarried minor child is deceased;
(2) The child’s father or mother are divorced, legally separated,
or were never married to each other;
(3) The child’s father or mother has been missing for not less
than six (6) months;
(4) The court of another state has ordered grandparent visitation;
10
(5) The child resided in the home of the grandparent for a period
of twelve (12) months or more and was subsequently
removed from the home by the parent, parents, or custodian
(this grandparent-grandchild relationship establishes a
rebuttable presumption that denial of visitation may result in
irreparable harm to the child); or
(6) The child and the grandparent maintained a significant
existing relationship for a period of twelve (12) months or
more immediately preceding severance or severe reduction of
the relationship, this relationship was severed or severely
reduced by the parent, parents, or custodian for reasons other
than abuse or presence of a danger of substantial harm to the
child, and severance or severe reduction of this relationship is
likely to occasion substantial emotional harm to the child.
(Emphasis added.)4
The underlined language above regarding a severe reduction in visitation was
added to the Grandparent Visitation Statute by the General Assembly in an amendment
that took effect on May 20, 2016. See 2016 Tenn. Pub. Acts, Ch. 1076 § 1 (H.B. 1476)
(“the 2016 Amendment”). Inasmuch as this action was commenced in November 2016,
the 2016 Amendment applies. This Court has previously noted the effect of the 2016
Amendment in providing that “grandparent visitation could be ordered not only in
situations where a custodial parent opposes visitation, but also where ‘visitation has been
severely reduced by the custodial parent[.]’” See Coleman v. Olson, No. M2015-00823-
COA-R3-CV, 2016 WL 6135395, at *16 n.6 (Tenn. Ct. App. Oct. 20, 2016), perm. app.
granted (Tenn. Mar. 9, 2017) (citing Tenn. Pub. Acts, Ch. 1076 § 1 (H.B. 1476)). In
Coleman, this Court applied the previous version of the Grandparent Visitation Statute
because the Coleman action was commenced prior to the effective date of the 2016
Amendment. Id. As of the date of the instant opinion’s filing, our research has revealed
no prior Tennessee appellate decision in which the 2016 Amendment to the Grandparent
Visitation Statute has been applied.
In this case, Grandparents averred in their petition that they had a significant
existing relationship with the Children, that their visitation had been severely reduced,
and that Mother was deceased. Grandparents therefore averred purported facts in the
4
We note that effective April 18, 2018, following commencement of the instant action, the General
Assembly amended Tennessee Code Annotated § 36-6-306(a) by adding the phrase, “other courts with
domestic relations jurisdiction” to follow “general sessions courts with domestic relations jurisdiction.”
See 2018 Tenn. Pub. Acts, Ch. 734 § 1 (S.B. 2002).
11
petition that necessitated a hearing pursuant to Tennessee Code Annotated § 36-6-
306(a)(1) and (6). Once the evidence had been presented, an award of visitation in this
case could not properly be made without a threshold finding that the Children were in
danger of substantial harm based on either a cessation of or a severe reduction of the
relationship between the Children and Grandparents prior to the petition’s filing. See
Tenn. Code Ann. § 36-6-306(b) (2017).
The trial court found that the relationship had been severely reduced pursuant to
Tennessee Code Annotated § 36-6-306(b), which provides as pertinent to the issue raised
on appeal:
(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.
***
(4) For the purposes of this section, if the child’s parent is deceased and
the grandparent seeking visitation is the parent of that deceased
parent, there shall be a rebuttable presumption of substantial harm to
the child based upon the cessation or severe reduction of the
relationship between the child and grandparent.
12
(Emphasis added.) The repeated underlined phrase, “or severe reduction,” was added by
the General Assembly as part of the 2016 Amendment. See 2016 Tenn. Pub. Acts, Ch.
1076 §§ 2-3 (H.B. 1476).
We note that Grandparents’ proof in this regard must have established that a
severe reduction in the relationship occurred prior to the petition’s filing. See Uselton v.
Walton, No. M2012-02333-COA-R3-CV, 2013 WL 3227608, at *13 (Tenn. Ct. App.
June 21, 2013) (holding under the previous version of the statute that “[i]f the custodial
parent did not oppose grandparent visitation before the petition for court-ordered
grandparent visitation is filed, evidence of the custodial parent’s conduct after the
petition is filed cannot establish the threshold element of opposition.”); see also Coleman,
2016 WL 6135395, at *18. Applying this precedent with the added language of the 2016
Amendment, we determine that any reduction in Grandparents’ relationship with the
Children subsequent to the petition’s filing would be outside the relevant time period for
the threshold finding of a severe reduction. Because Grandparents asserted that a
gradually increasing reduction in their visitation began in mid-December 2015, the
relevant time period for an analysis of whether a severe reduction occurred spans a little
less than eleven months, from mid-December 2015 through November 1, 2016, the date
of the petition’s filing.
The Grandparent Visitation Statute also provides criteria for analyzing whether a
grandparent and child have a “significant existing relationship” and clarifies that the
proof of such a relationship need not include expert testimony. See Tenn. Code Ann. §
36-6-306(b)(2)-(3). In the case at bar, Father does not raise an issue regarding the finding
of a significant existing relationship between Grandparents and the Children, having
acknowledged during his testimony that such a relationship had been established and
continued to be beneficial to the Children. When questioned regarding whether it was in
the Children’s best interest to continue to have visitation and contact with Grandparents,
Father responded, “Absolutely.” Instead, Father’s argument focuses on the trial court’s
threshold finding that triggered the rebuttable presumption of substantial harm to the
Children. Father argues that Grandparents failed to carry their initial burden of
establishing, by a preponderance of the evidence, that he had severely reduced
Grandparents’ visitation during the relevant time period. See Tenn. Code Ann. § 36-6-
306(b)(1). We agree with Father on this point.
It is well established in Tennessee that parents, barring a judicial finding of a risk
of substantial harm to the children involved, enjoy a fundamental constitutional right to
raise their children as they see fit. See Troxel v. Granville, 530 U.S. 57, 66-72 (2000);
Hawk v. Hawk, 855 S.W.2d 573, 577-82 (Tenn. 1993). As this Court has explained under
a previous version of the Grandparent Visitation Statute:
13
Some background on grandparent visitation is helpful. The
decisions of the U.S. Supreme Court and the Tennessee Supreme Court,
interpreting the federal and state constitutions, explicitly prohibit any
judicial assumption that grandparent/grandchild relationships always
benefit the child, as contrary to the parents’ fundamental right to raise their
children as they see fit. See Troxel v. Granville, 530 U.S. 57, 66-72, 120
S. Ct. 2054, 147 L.Ed .2d 49 (2000) (recognizing parents’ fundamental
constitutional right to make decisions on care, custody and control of
children, finding trial court erred in presuming grandparent visits are in best
interest of children); Hawk v. Hawk, 855 S.W.2d 573, 577-82 (Tenn. 1993)
(recognizing parents’ fundamental constitutional right, finding trial court
engaged in “sentimental” commentary on grandparents and erred in
“unquestioning judicial assumption” that grandparent-grandchild
relationship always benefits child, basing award of grandparent visitation
on that presumed benefit). To avoid such an assumption, the Tennessee
constitution and Tennessee’s grandparent visitation statute require a
grandparent seeking visitation to prove, as a threshold requirement, that the
child will be in danger of substantial harm if visitation is not ordered by the
court. Hawk, 855 S.W.2d at 581; Tenn. Code Ann. § 36-6-306(b)(1). Both
the federal constitution and Tennessee’s grandparent visitation statute
require the petitioning grandparent to show that visitation was opposed or
denied in order for the court to consider ordering visitation. Troxel, 530
U.S. at 71 (trial court erred in giving no weight to fact that parent had
assented to some grandparent visitation under certain conditions); Huls v.
Alford, No. M2008-00408-COA-R3-CV, 2008 WL 4682219, at *7-8 (Tenn.
Ct. App. Oct. 22, 2008) (in light of parents’ fundamental right, Tennessee
grandparent visitation statute “is not implicated” unless visitation is denied
or opposed). Under Troxel, pursuant to the federal constitution, in all
phases of a proceeding on grandparent visitation, there is a presumption
that a fit parent is acting in the child’s best interest, and the court must
accord special weight to the parent’s determinations. Troxel, 530 U.S. at
68, 70 (plurality opinion) (“there is a presumption that fit parents act in the
best interests of their children.”) (if a fit parent’s decision on grandparent
visitation “becomes subjected to judicial review, the court must accord at
least some special weight to the parent’s own determination.”).
Green v. Evans, No. M2011-00276-COA-R3-CV, 2012 WL 1107887, at *8 (Tenn. Ct.
App. Mar. 30, 2012). See generally Lovlace, 418 S.W.3d at 26 (“Showing substantial
harm is the specific and sole manner in which grandparents in this State may overcome
the constitutional deference initially afforded parental decisions regarding grandparent
visitation.”).
14
As relevant to this action, the 2016 Amendment changed the threshold
requirements for application of the Grandparent Visitation 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. See 2016 Tenn. Pub. Acts, Ch. 1076 §§ 1-3 (H.B. 1476).
The 2016 Amendment also provided the following statutory definition:
For purposes of this section, “severe reduction” or “severely reduced”
means reduction to no contact or token visitation as defined in § 36-1-102.
Tenn. Code Ann. § 36-6-306(f) (2017); Tenn. Pub. Acts, Ch. 1076 § 4 (H.B. 1476).
Tennessee Code Annotated § 36-1-102(1)(C) (2017), cross-referenced in the Grandparent
Visitation Statute’s definition of “severe reduction,” provides:
“[T]oken visitation” means that the visitation, under the circumstances of
the individual case, constitutes nothing more than perfunctory visitation or
visitation of such an infrequent nature or of such short duration as to merely
establish minimal or insubstantial contact with the child[.]”
Although the threshold element of a severe reduction in visitation and thus the
grandparent-grandchild relationship has not yet been addressed in Tennessee appellate
decisions applying the Grandparent Visitation Statute, Tennessee appellate courts have
applied the statutory definition of token visitation within the context of actions to
terminate parental rights. As this Court has noted, “[w]hether visitation is ‘token’ under
this definition is a fact-intensive inquiry to be decided on a case-by-case basis,” which
“requires that we examine the frequency, duration, and quality of the visits that
occurred.” In re Keri C., 384 S.W.3d 731, 748-50 (Tenn. Ct. App. 2010), perm. app.
denied (Tenn. Feb. 17, 2011). “‘[T]oken’ visitation means either perfunctory visitation or
visitation of such an infrequent nature as to establish minimal contact with the child.” In
re M.T., No. W2002-03050-COA-R3-CV, 2003 WL 22351012, at *4 (Tenn. Ct. App.
Oct. 14, 2003) (emphasis omitted).
In the context of parental rights termination, this Court has determined that visits
are “perfunctory” when the parent “was merely physically present at visits and
uninterested” in the child. In re Keri C., 384 S.W.3d at 750 (citing DCS v. L.L.T.,
No.E2003-00501-COA-R3-JV, 2003 WL 23094559, at *4 (Tenn. Ct. App. Dec. 30,
2003)). In the context of grandparent visitation allowed by a custodial parent, however,
we note that the perfunctory nature of a visit would more likely be characterized by
15
superficiality in the type of visit the grandparent is allowed. See In re Keri C., 384
S.W.3d at 750 n.9 (citing the Webster’s Dictionary definition of “perfunctory” in relevant
part as “characterized by routine or superficiality: done merely as a duty . . . .”).
In determining that the relationship between Grandparents and the Children had
been severely reduced, pursuant to Tennessee Code Annotated § 36-6-306(b), by a severe
reduction in Grandparents’ visitation, pursuant to subsection -306(a), the trial court made
the following specific findings of fact in pertinent part:
[W]hile [Mother] and [Father] resided in Kingsport, [Grandmother] saw the
children nearly every day and helped [Father] and his wife with the care of
their minor children and there developed a very tight bond between the
grandparents and the children.
That [Mother] continued to have health issues and major surgeries
over the years since her marriage to [Father], which often necessitated
[Grandparents’] assistance both in Knoxville and in their home in
Kingsport to their daughter, [Father] and their grandchildren over an
approximate nine year period.
That [Mother] had an onset of illness resulting in her being in a
coma for an extended period of time until she subsequently died on October
21, 2015.
[Father’s] employment was approximately 100 miles from his
residence in Kingsport which caused him to leave early in the morning and
not be available at home until later in the evening during the period of his
wife’s serious health issues and surgeries which necessitated
[Grandparents’] assistance prior to and subsequent to [Mother’s] death
when [Grandparents], along with [Father’s] parents, provided care in
Knoxville to allow [Father] sufficient time to make arrangements regarding
daily care of the children while maintaining his employment.
That approximately one month after [Mother’s] death, [S.] was hired
as a Nanny and moved in with the children and [Father] in Knoxville,
Tennessee.
That [S.] was 18 years old at the time of her employment and
[Grandparents] were concerned about the Nanny’s “maturity” which
became a point of controversy between [Grandparents] and [Father] who
was 33 years of age.
16
That shortly after moving in to [Father’s] home with the children,
[S.] and [Father] began dating, subsequently became engaged, and [Father]
testified at the hearing of this matter that they were to be married “. . . two
weeks from this Saturday.”
That [Grandparents] testified that around December, 2015, it became
more difficult to see their grandchildren and that there was a severe
diminution of [Grandparents’] time with the children, causing
[Grandparents] to secure the services of an attorney who on September 13,
2016, sent a letter to [Father] concerning the issue of [Grandparents’]
“visitation with the grandchildren” which [Father] considered to be a
“bullying” tactic.
In response, [Father] told [Grandmother] by telephone to be
grandparents that prayed for them and he would let her know when she
could see the kids after which texting became the main means of
communication between [Grandparents] and [Father] in an ever increasing
hostile relationship.
That when [Grandmother] would attempt to contact [Father], he
would either not respond to the calls or would take days to reply to her e-
mails concerning visitation with the children and other related matters.
That [Father] contends Collective Exhibit 2, which is a compilation
of texts from November 19, 2015 through October 17, 2016, reflects that
[Grandparents] saw one or more of the grandchildren twenty-eight times.
That [Father’s] text of September 25, 2016, which was in response to
the letter from [Grandparents’] attorney, states that all they had to do was
ask for time with the children and “I’m not going to have a schedule with
you” which reflects his stated position at the time of hearing and increase in
hostility between the parties observed by the Court during these
proceedings.
That Collective Exhibit 3 reflects texts from the period of February
25, 2016 through October 21, 2016 and Collective Exhibit 5 reflects texts
between [Father] and [Grandfather] from the period of January 28, 2016
through October 23, 2016, from all of which, including texts in Exhibit 2,
[Father] contends there are approximately forty visitations during an eleven
month period.
17
That [Grandparents] are requesting individual time with the
grandchildren rather than having time with their grandchildren along with a
crowd of individuals at events or fulfilling requests for assistance reflected
in several instances of their time with one or more of the grandchildren
reflected in Collective Exhibits 2, 3, and 5.
That [Father] removed the photos of [Mother] from the children’s
rooms which had been redone approximately three months prior to
[Mother’s] death, which “hurt” [Grandmother].
That the children are still grieving and devastated by the loss of their
mother as shown by the unrebutted testimony that at [Grandparents’] home
the children take books to show to [Mother’s] pictures, converse with
[Mother] through her pictures, take toys to show to [Mother’s] pictures, and
[E.J.] goes to bed with her mother’s picture.
That while [Grandfather’s] availability to have visitation with his
grandchildren was limited by his employment as a coach for . . . High
School, subsequent to his daughter’s death he would “drop by” [Father’s]
home unannounced to visit the children, which was never refused, but with
the Father’s request being that [Grandfather] would call to advise when he
was “dropping by” prior to his arrival.
That [Grandfather’s] visitation with the grandchildren increased
since his daughter’s death, his grandson [M.J.] was a “ball boy” for [the
high school’s] football games and the grandfather attended [M.J.’s] games
when he was available.
That the Father does not oppose [Grandparents’] visiting their
grandchildren, but due to his work schedule, the weekends are the only time
he has with his children and he does not want a “schedule” of timesharing.
That [Father] testified that it is in the children’s best interest to have
a relationship with [Grandparents] and that his children need and want to
see their grandmother.
That it is [Father’s] opinion that it is important for the children to
maintain continuity and meet their current personal activity schedules in
which [M.J.] plays baseball, [E.J.] plays softball, and [L.J.] plays soccer,
18
and that at times he needs a break and could use help from the
grandparents.
That it was [Father’s] opinion that “things did not go south until the
engagement” with [S.].
(Paragraph numbering and internal citations to record omitted.)
In its conclusions of law in the final order, the trial court cited Tennessee Code
Annotated § 36-6-306(a)(1) and (6) as applicable and found:
As stated by [Father], things went “south” upon his engagement to [S.];
however, prior to the engagement, severe reduction in grandparent
visitation began in December 2015, as [Father’s] and [S.’s] relationship
grew and animosity increased between the parties as there was less
“individual time” for the grandparents with their grieving grandchildren.5
The court then addressed the rebuttable presumption provided in subsection -306(b),
stating:
It is undisputed that the grandparents enjoyed a significant relationship with
their grandchildren, primarily through the grandmother, which was almost
daily time in assisting with the care and nurturing of their daughter’s family
during the many medical issues and surgeries [Mother] and her family
endured from the time of her marriage in 2006 until her death October 21,
2015.
Next, the court quoted the statutory definition of “severe reduction,” see Tenn. Code
Ann. § 36-6-306(f), and found in pertinent part:
That since December 201[5],6 the visitation of the grandparents has been
severely reduced, as heretofore found by the Court, and has become
insubstantial contact compared to the previous “individual” relationship
5
We note that the phrase, “going south,” was actually coined by Grandparents’ trial counsel during cross-
examination, rather than stated by Father. In answer to counsel’s question, “When did things start going
south between you and [Grandparents],” Father responded, “Probably around the time of mine and [S.’s]
engagement.”
6
The trial court appears to have inadvertently stated the year as 2016 after finding previously in the order
that visitation had been reduced since December 2015. We note also that the trial court’s quotation of
Tennessee Code Annotated § 36-6-306(f) begins on page 48 of the technical record and continues on page
50. Although the final order itself is not paginated, it is clear from the text of the order and the trial
court’s paragraph numbering that pages 49 and 50 were inverted when placed in the technical record.
19
between the grandparents and grandchildren. The father has failed to rebut
the presumption of substantial harm to the grandchildren which is
“sufficiently probable to prompt a reasonable person to believe that the
harm will occur more likely than not,” but it “need not be inevitable.” Ray
v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001). The record is ample
with unrebutted proof from the parties and [Grandparents’] witnesses of a
strong and emotional bond between the grandchildren and [Grandparents],
especially with their grandmother who has been one of the primary care
givers for a substantial period of the lives of the grandchildren.
(Emphasis added.) The trial court then proceeded to analyze whether awarding visitation
to Grandparents would be in the best interest of the Children pursuant to the statutory
factors provided in Tennessee Code Annotated § 36-6-307.7
7
Tennessee Code Annotated § 36-6-307 provides:
In determining the best interests of the child under § 36-6-306, the court shall
consider all pertinent matters, including, but not necessarily limited to, the following:
(1) The length and quality of the prior relationship between the child and the
grandparent and the role performed by the grandparent;
(2) The existing emotional ties of the child to the grandparent;
(3) The preference of the child if the child is determined to be of sufficient maturity
to express a preference;
(4) The effect of hostility between the grandparent and the parent of the child
manifested before the child, and the willingness of the grandparent, except in
case of abuse, to encourage a close relationship between the child and the parent
or parents, or guardian or guardians of the child;
(5) The good faith of the grandparent in filing the petition;
(6) If the parents are divorced or separated, the time-sharing arrangement that exists
between the parents with respect to the child;
(7) If one (1) parent is deceased or missing, the fact that the grandparents requesting
visitation are the parents of the deceased or missing person;
(8) Any unreasonable deprivation of the grandparent’s opportunity to visit with the
child by the child’s parents or guardian, including denying visitation of the minor
child to the grandparent for a period exceeding ninety (90) days;
(9) Whether the grandparent is seeking to maintain a significant existing relationship
with the child;
20
Upon our careful review of the final order and the record as a whole, we determine
that the trial court incorrectly interpreted the statutory definition of “severe reduction” to
include what the court termed, “insubstantial contact compared to the previous
‘individual’ relationship between the grandparents and grandchildren.” In this tragic
situation, Grandparents were undisputedly of great assistance to Father and to the
Children during Mother’s final illness and the weeks following her death. Grandparents
had undisputedly established a close relationship with the Children from the time of each
child’s birth or adoption into the family. Father also does not dispute that during the
relevant time period, Grandparents began to be offered less visitation time with the
Children. However, the statutory definition does not describe a reduction in visitation in
comparison to any visitation the grandparents may have enjoyed previously. The
statutory definition of a severe reduction is “reduction to no contact or token visitation as
defined in § 36-1-102.” Tenn. Code Ann. § 36-6-306(f) (emphasis added). Noting that
no evidence in this case would support a finding of no contact allowed by Father, we
further determine that the amount and quality of Grandparents’ visitation with the
Children was never reduced to “token” as that term is defined in Tennessee Code
Annotated § 36-1-102. See In re Estate of Tanner, 295 S.W.3d at 614 (“When a statute is
clear, we apply the plain meaning without complicating the task.”).
Grandparents presented evidence of text message conversations demonstrating that
at least one of them visited with one or more of the Children on more than forty
occasions during the relevant time period. Although Grandmother testified that she
began to see the Children less in December 2015, Grandmother also acknowledged that
during the 2015 Christmas holiday, the Children visited at Grandparents’ home and that
Father made them available during the holiday without her having to request a visit. Text
message conversations between Grandmother and Father; among Grandmother, Father,
and S.; and between Grandfather and Father, when reviewed collectively, reflect that at
least the following visits and contacts occurred from January through October 2016:
January 2016: On January 4, 12, 25, 28, and 29, Grandmother cared for the
Children.
On January 28, Grandfather took Father and the Children out to
lunch.
(10) Whether awarding grandparent visitation would interfere with the parent-child
relationship; and
(11) Any court finding that the child’s parent or guardian is unfit.
21
On January 30, Grandmother sent Father a message asking how the
Children were doing, and Father responded with a photograph.
February 2016: On February 3, 4, 10, and 25, Grandmother cared for the Children.
March 2016: On March 1, 2, 3, and 30, Grandmother cared for the Children.
On March 22, Grandmother transported the Children to an Awanas
program (described in testimony as a Christian program “something
like Boy Scouts”).
On March 23, Grandmother took some of the Children’s clothes that
she had laundered to them.
April 2016: On April 2 and 25, Grandmother cared for the Children.
On April 6, Grandmother transported the Children to Awanas.
On April 8, Grandmother cared for L.J.
On April 14, Grandmother sent Father a message, indicating that the
Children had sent a videotape of themselves singing “Happy
Birthday” to her over the telephone (Father also sent the birthday
video to Grandfather).
On April 16, Grandfather visited the Children.
May 2016: On May 1, Grandparents visited the Children at Father’s home.
On May 17, Father sent Grandparents a message with two
photographs showing two of the Children while Father and the
Children were on vacation.
On May 21, Grandfather sent Father a message inviting the Children
to Grandparents’ home for a swim; Father stated that two of the
Children had been sick but that the other two could visit.
Grandfather stated that he knew the Children had been to his home
for a swim a couple of times in 2016 but did not remember exactly
when.
22
On May 24, Grandmother indicated taking the Children to a movie
over the weekend.
On May 24, Father sent Grandparents an invitation to E.J.’s birthday
party.
On May 31, Father brought the two youngest of the Children to stay
with Grandmother while the two oldest were in summer camp.
June 2016: On June 2, Grandparents cared for the Children over the weekend.
On June 16, Father brought the Children to Grandparents’ home to
visit.
July 2016: On July 6 and 8, Father invited Grandfather to M.J.’s ballgames, but
Grandfather’s schedule would not allow him to attend.
On July 16, Grandmother cared for the Children.
August 2016: On August 4, Grandfather indicated to Father that he had enjoyed
seeing the family that night.
September 2016: On September 2 and 16, Father sent Grandfather messages inviting
him to M.J.’s ballgames, but Grandfather’s schedule did not allow
him to attend.
On September 6 and 19, Father sent Grandfather messages inviting
him to M.J.’s ballgames, and Grandfather did attend.
October 2016: On October 1, Grandparents attended a ballgame in which M.J. was
playing upon Father’s invitation prompted by Grandmother’s request
to see the Children.
On October 6, Grandfather ate lunch at Father’s home.
On October 8, Grandfather and Father exchanged messages
regarding M.J.’s ballgame that day.
On October 13, Grandmother visited the Children.
23
On October 14, Grandmother transported M.J. to a ballgame in
which he was playing. Grandfather noted that he had seen the
Children that day.
On October 15, Grandmother cared for M.J.
On October 22, Grandparents attended a ballgame in which M.J. was
playing upon S.’s invitation. Father sent Grandfather photographs of
M.J. in his uniform.
Grandfather also testified that he would sometimes drop by Father’s home to see the
Children and acknowledged that he did not always call or send a text message before
doing so. Although Grandmother and Grandfather each respectively testified that it was
emotionally difficult for them to visit the Children at the home that had been Mother’s
home before her death, they also each testified that Father had never refused a requested
visit to either of them without offering a reason such as a prior engagement.
We emphasize that “‘token’ visitation means either perfunctory visitation or
visitation of such an infrequent nature as to establish minimal contact with the child.” In
re M.T., 2003 WL 22351012, at *4 (emphasis omitted). In this case, the frequency of
Grandparents’ visits with the Children during the relevant time period cannot be
considered minimal contact. See, e.g., In re Jayden B.T., No. E2014-00715-COA-R3-PT,
No. 2015 WL 3876573, at *8 (Tenn. Ct. App. June 23, 2015), perm. app. denied, (Tenn.
Sept. 25, 2015) (determining that the father’s twice monthly visits with the child were not
token); In re E.M.P., No. E2006-00446-COA-R3-PT, 2006 WL 2191250 at *5 (Tenn. Ct.
App. Aug. 3, 2006) (determining that given the “sparse record” on appeal, the record did
not contain clear and convincing evidence that Mother’s one visit with the child in four
months could be characterized as token); In re K.C., No. M2005-00633-COA-R3-PT,
2005 WL 2453877 at *9 (Tenn. Ct. App. Oct. 4, 2005) (reversing the trial court’s
determination that the mother abandoned the child by engaging in only token visitation
when the child spent one or two weekends a month with the mother); cf. In re Keri C.,
384 S.W.3d at 751 (concluding that visitation during the determinative period of “once-a-
month half-hour contacts” with the two-year-old child “at large family gatherings [could]
not be viewed as a reasonable attempt to forge a meaningful relationship with the child”
and were thus token in nature); In re Audrey S., 182 S.W.3d 838, 867 (Tenn. Ct. App.
2005), perm. app. denied (Tenn. Nov. 7, 2005) (concluding that the mother’s one or two
visits with the children in the four months preceding the mother’s incarceration were
“nothing more than token visitation”).
In asserting that the nature of their visits with the Children had changed during the
relevant time period, Grandparents are essentially arguing that the visits they enjoyed
24
with the Children were perfunctory, or superficial in nature, due to their reduced ability to
spend individual time with the Children away from public events and activities and in
Grandparents’ home. We recognize the poignancy of Grandparents’ argument and the
fact that during the relevant time period, they were no longer able to spend as much
individual time with the Children as they had in the past. However, the extent and nature
of visits that Grandmother and Grandfather each enjoyed with the Children and their
engagement in the Children’s lives during the relevant time period cannot be
characterized as perfunctory or superficial. Grandmother testified that “what I was
asking for was time with them like I had spent with them prior to. I had been with them
every day. I’d read books, I’d rocked, I’d talked, I’d taken them places, I’d shared with
them in the car.” Grandfather acknowledged that Father “did a good job of keeping [him]
informed of what was going on with the [Children]” but stated that he and Grandmother
“just feel like . . . a schedule is better.”
Although the trial court found that Grandparents’ visitation and relationship with
the Children had been severely reduced in comparison to what it had been in the past, the
statutory definition does not call for a simple comparison of the visitation and
relationship during an earlier time period with the visitation and relationship during the
relevant time period. We conclude that the evidence preponderates against a finding that
Grandparents’ visitation and relationship with the Children during the relevant period
were severely reduced to the point of no contact or token visitation. See Tenn. Code
Ann. § 36-6-306(f). Inasmuch as no severe reduction in the grandparent-grandchild
relationship, as statutorily defined, had been proven by a preponderance of the evidence,
the trial court erred in finding a danger of substantial harm to the Children if visitation
were not awarded to Grandparents. See Tenn. Code Ann. § 36-6-306(b). Having
determined that the trial court’s finding of a danger of substantial harm to the Children
was not warranted, we further determine that any review of the statutory best interest
factors is pretermitted as moot. See Tenn. Code Ann. § 36-6-306(c) (“Upon an initial
finding of danger of substantial harm to the child, the court shall then determine whether
grandparent visitation would be in the best interests of the child based upon the factors in
§ 36-6-307.”) (emphasis added).
Considering also Father’s fundamental constitutional right at stake here to make
parental decisions, see Lovlace, 418 S.W.3d at 26, we reverse the trial court’s grant of
Grandparents’ visitation petition. We note that throughout the record in this case, the
close and loving relationship between Grandparents and the Children is evident, as are
Father’s positive statements concerning the Children’s relationship with Grandparents.
We urge the parties to continue lending their support to and encouragement of this
beneficial grandparent-grandchild relationship despite the absence of court-ordered
visitation.
25
VI. Conclusion
For the reasons stated above, we reverse the trial court’s grant of visitation to
Grandparents and dismiss Grandparents’ petition in its entirety. This case is remanded to
the trial court, pursuant to applicable law, for collection of costs assessed below. The
costs on appeal are assessed against the appellees, Graham Clark and Marisa Clark.
_________________________________
THOMAS R. FRIERSON, II, JUDGE
26