# FILED Dec. 11, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) LOIS SMITH and C ECIL SMITH, ) Hender son County Chancer y Court ) No. 7166 Appellan

ts, ) ) VS. ) C. A. NO. 02A01-9608-CH-00193 ) BETHEL MARIE (SMITH) ) SCHNEIDER, ) ) Appellee, ) ) VS. ) ) ROGER ALL EN SMITH, ) ) Appellee. )

______________________________________________________________________________ From the Chancery

Court of Henderson County a t Lexington. Honorable Joe C. Morris, Chancellor
Lloyd R. Tat

um , TATUM & TATUM, Henderson, Tennessee Attorney for Appe llants.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J.

CRAWF ORD, P. J., W.S : (Concur s) LILLARD, J. : (Concur s)1 The petit ion was fi led in ac cordanc e with T.C. A. § 36-6- 301 which states: Grandparents’ visitation rights . -- (a) The natural or leg al grandparents of an unmarried minor ch

ild may be gra nted rea sonable v

isitation r ights to th

e child during such child’s minority by a court of competent jurisdiction upon a finding that such visitation rights would be in the best interests of the minor child. Loi s Smith and Ce cil Smith ap peal fr om the tria

l court’sdenial of

their pe titi o n seeking visitation

rights with their grandson, Jonathon Allen Smith, pursuant to T.C.A. § 36-6-301. 1 T he appellants are the parents of Roger Allen Smith whose marriage to Bethel Marie Smith (no w Schneider) ended in d

ivorce i n April

1990. Jonathon Allen Smi th was bor

n to that marriage and was age 7 at the tim

e of the h

earing which is th

e subjec t of this ap

peal. Cus to dy of Jonatho n was awarded to his mother.

According to the statement of the e vidence, Lois Smith testified that she visited weekly with Jonathon until the summer of 1994 when Jonathon’s mother “just said I couldn’t see him” with no explanation given. She further testified that Cecil Smith is the child’s only living grandfather

and he and

Jonathon have a

good relationship. They

live about 20 miles from Jonathon and his mother

and Jonathon enjoys fishing in the pond on their property a

nd visiting with another grandson, age 12.

Appellan ts contend that the trial court erred in rely ing upon our supr eme court’s rulin gs in Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993) and Simmons v. Simmons , 900 S.W.2d 682 (Tenn. 1995). They

contendthat in Hawk the court merely held that the appli cation of

the statut e was unconstitutional where married parents , whose f

itness as p arents is unchallenged, object to the grandparent

visitation . It istheir co ntention th at the tes t to be app lied in thisc ase should be what is in the best interest of the child. We disagree. Hawk concluded that “Te nnessee ’s histori c all y strong protection of parental rights and the rea soning of federal constitutional cases convince us that parental rights constitute a fundamentalliberty interest under Article I, Section 8 of the Tennessee Constitution.” Hawk held T.C.A. § 36-6-30 1 to be an unconstitutional invasion of parents’ privacy rights as afforded

under the Tennessee Constitution when applied to the facts presented. That cas e involved a petition for gran dparent al v isitation filed by the paternal g randparents against married parentswho had maintained continuous custody of their children and whose fitness as parents went unchallenged. Hawk , 855 S.W.2d at 577, 582. Hawk determin ed th at the parents possessed aconstitutional right of privacy in parenting decisions not subject to interference from the state absent
a showing of “substantial harm” to a child’s welfare
. Id. at 577. Hawk reasoned that there was no compelling state interest justifying inter ference with such right of par ents absent this showing. Id
. at 582. Hawk stated that wi thout a show ing of substantial harm to the child, “a court may not constituti onally

impose its own subjective notions of the ‘best interest of the child’ when an intact, nuclear family with fit, mar ried parents is involved.” Id . at 579. To this end, Hawk decline d to proceed with a “best interests of the child” analy sis until and aft er the required showing of harm which the cour

t viewed a s the “sol e protection that parents have against pervasive sta te interference in the parenting process.” Id . at 580-81. Moreover, Hawk refuse d to assume that the gra ndparentgrand child relationship always pr

oves beneficial to the ch il d as such assumption, “overlooks the necessi ty of a thres hold finding of ha rm before the state

can inte rvene in the pare nt-child relationship.” Id . at 581.

Simmons v. Simmons involved a mother and adoptive father of a minor child who sought to terminate the court ordered v i sitation pr ivilege s of the child’s pa ternal g randpar ents. Simmons concluded that the record before it contained no evidence that a substantial dang er of harm threatened

the child and, thus, found no compelling state interest justify ing court intrusion upon the natural mother’s and adoptive father’s rights as pa rents to preclude a relationship between their ch ild and the paternal grandpare nts. Simmons , 900 S.W.2d at 685.

This cou r t recently a

ddressed grandparent visitation in Floyd v. McNeeley , No. 02A01-9408-CH-00187 (Tenn. App. July 5, 1995), w herein the natural father of the children died and the paternal grandmother soug ht visitation. We stated:

In view of the reasonings extended by our supreme court

in Simmons and Hawk , we are con vince d that [the mother’s] right to parent her children as she se es fit, including a decisionregar ding a r elationsh ip betweenthemand their

grandmother, is no less greater than the right afforded to the married natural parents under Hawk . We conclude that the rights afforded

to the parents in Hawk extend equally to [the mother] despite the death of her children’s father and her subsequent remarriag e. To this end, we do not view the breakup of the nuclear fa mi ly, in and o f itself, to constitu te a subst antial ha rm to a ch

ild sufficient to justify state inte rfere nce with a

fit p arent’ s decisio n to preclud e a rela tionship be

tween tha t child an d his/her

grand parents .Floyd , slip op. at 5.

In Nale v. Robertson , 871 S.W.2d 674 (Tenn. 1994), the court stated “the [plaintiffs’] position that this court in Hawk limited the protection of parental rights to ‘an intact, n uclear family with fit parents’ is untenable.” Nale , 871 S.W.2d at 680.

We find no ev

id ence i n the record before us of substantial harm to the child. Therefore, there is no compelling stat e interest sufficient to justify state interfe rence with the right of the child’s mother as a parent to prevent contact between he r child and the paterna

l grand parents .
While this cour

t can fully apprec iate the w ants and d esires o f the pet

itioners in this
cause to con tinu e thei r relat ions hip wi th th eir gr andson, we are governed by the law. We would, however, encou rage the mother on her own initiative to endorse a relationship between her son and his grandparents if she determines that it would best serve the child.

The judgmen

t of the tr ial cour t is affirme d and the c osts of thiscause are taxed to the ap pe ll an ts , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

_______________________________ FAR MER , J.

______________________________ CRAWFORD, P. J. (Concur s)

______________________________ LI LL ARD, J. (Conc

urs)