In Re Houston D.
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.
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
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
Parents present the following issues for review on appeal, which we have slightly restated:
- 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 - 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
IV. DISCUSSION
A. Jurisdiction
This appeal involves the application of
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
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) (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
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)).
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
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
(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.
(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 . . . [.]
iv. Application
Grandparents contend that the language “children born out of wedlock” is plain and 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
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
this was a matter
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
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
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 . . . [.]
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.
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
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 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
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
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.
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
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
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.“).
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
(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 such 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
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.
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
We reiterate that Parents are protected from unwarranted state interference in the
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
Notes
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).