### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Septem ber 3, 2003 Session ALICE HALE v. WAY

NE CULPEPP ER Appeal from the Circuit Court for Coffee County No. 30713 L. Craig Johnson, Judge

No. M2002-01955-COA-R3-CV - Filed De cember 22, 2003
Following the deat

h of a chi ld’s mothe

r, the ma ternal g randmoth er filed

a petition

to establi sh grandparent

visitation with her grandson. After a hearing where the trial court heard testimony a nd after an indepe ndent psy cholog ical rep ort, the trial court awarded visitation to the grandmother. The father appeals , argu

ing that the evide nce pre pondera tes aga inst the tr ial cour t’s decis ion. Bec ause the record contains no evidence of dang er of substantial harm to the child, we reverse the decision of the tri al court

.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Reversed and Remanded
P AT RICIA J. C OTT RELL , J., delivered the opinion of the court, in which W IL LI AM B. C AIN , J. and James L. Weatherford, Sr. J., joined. Robert T. Carter, Tullahoma, Tennessee, for the a ppellant, Wayne Culpepper. H. Thomas Parsons, Manchester, Tennessee, for the appellee, Alice Hale.
OPINION
I. This appeal a

rises as a result of the trial court’s decision to award grand parent’ s visit ation to Alice Hale. Wayne

Culpepper, father of the child, appeals the g rant of visitation to Ms. Hale.
Mr. Culpeppe

r and his w

ife Tony a had a c hild in 1994 . Trag ic al ly, in Ma y o f 2000, Mrs. Culpepper

took her own life. Ms. Hale, Tony a’s mother, filed a petition several months after her daughter’s death to establish gra ndparent visitation.1 Mr. Greg Kilgore, the f uneral direct or, t esti fied t hat Ms. Hale was so disr uptiv e at t

he fune ral t

hat he t hreate ned to rem ove her fro m the p remise s. -2- The only testimony

in the case was taken by

the trial court shortly af

ter the petition was filed inDecemb er of 200 0. We do not have a tr anscrip t of those

procee din gs, bu t the Statement of the Evidenc e, submitte d accor dance w ith Tenn R. App. P. 24, summarize s the testi mony as follow s. Ms. Hale t

estified that at the

time of her daughter’s death, she f elt that Mr. Culpepper was responsible in some way. She a ccused Mr. Culpepper of

being responsible for Tony a’s death and even got visib ly d

isruptive at the fu neral. 1 After r

eflecti ng on he r action s, Ms. Hale testified that she no longer blames Mr. Culpepper for her da ughter’s death.
Ms. Hale testified that she had a significant existing relationship with her grandson and that prior to her da ughter ’s death , she spen

t signifi cant amo

unts of time

with her grandson; she said that he spent the

night at her house

about onc e a wee

k. Mr. Culp epper on

ly r emembers on e instance during an ice st

orm that hi s wife an

d son spen

t the nig ht at Ms. Hale’s home, but c oncede d that it may have occurred

onmore occasions when he was out of town on business. He also testified that he did not eve

r rememb er his son spending time alone with his grandmother prior to his wife’s death.
Mr. Culpepper

testified that aside from typica

l marital problems, he and Tonya Culpepper suffered from noth

ing unus ual durin g their marriage. He did, however, acknowledge his wife’ s extreme depress ion. He wa s the firs t person t o dis co ver his wife’s body after her suicide; im me di at el y, Ms. Hale went to the Culpepper residence and accused Mr. Culpepper of murdering his wife. She stated, “I know wha t happened, you w

ill not get away

with this.” M r. Culpepper remembered

that Ms. Hale was disruptive at the funeral and the g rave side service in f

ront of he r grandson. Since his wife’s death, Mr. Culpepper and his son

have move d in with

his parents. He stated that he made a decisi on as a pa rent at the time of h

is wife’ s death

to protect his son by

keeping him away from Ms. Hale and that

side of the family. He

did acknowledge, however, that it is likely that Ms. Hale had calmed down since the funera l. He testified that

his son is we ll adjusted and has done well in school since his mother’s death. The final witness to testify at the hea ring was Dr. Bethany

Lohr , a ch ild psychologist who knew Mr. Culpepper and his son. Although she had never seen the child in a clinical setting , Dr. Lohr testifie d that in he

r profe ssi o nal opinion the child would not suffer “any irremediable or substantial harm by the seve rance of his relationship with his grandmother.” After hearing the testimony , the trial court ord ered the part ies to meet with and be independ ently intervie wed b y Dr. David Ma

this, psychologist. The purpose of the independent evaluation

of the parties was to “make a determination as to whethe r or not visit

ation rig hts with the maternal grand

moth e r would be in the best interest of the child, pursuant to T.C.A. 36-6-306 and based on the factors in T.C.A. 36-6-307( d) (2).” The court ordered that copies of the respective2 The report indi cate s t hat the dates of s ervi ce occu rred i n 2002, but the tri al court order noting recei pt of the counseling report by t

he court was entered on March 19 , 2001. The 200 2 da te in the co unseling repo rt was ev idently in erro r. -3- statutes be sent to

Dr. Mathi s “to aid a

nd guide him in rega rd to rele vant factors to be considered.” According

to the re port, the parti es met with Dr. Mathis on various dates in February of 2001. 2 Dr. Mathis interviewed Ms. Hale, Mr. Culpepper, and the child independe ntly.
Dr. Mathis met

with the child

on two occasions and felt that therewas no evidence during his interview or

throu gh the child’s drawings that there was any type of psy

chological distress. Dr. Mathis f el t the child

to be a ve

ry reliable informan t who was a

ble to gi ve rele vant and a

ccurat e informationabout his background, surroundings, family , and activities. Dr. Mathis did not feel that the child had been coached or was under duress to re spond to the questions in any particular way because the child’s responses appear ed to be natural and of his own volition.
Dr. Mathis ask

ed the ch ild extensively about his feelings a nd wishes in rega

rd to the p ossible visitation with Ms. Ha

le. The r eport ind icates: When asked howhe wou ld feel if the judge decided for him to have visits

with his maternal grandmother, he responded that he would be “really mad.” When the ex aminer inquired as to his reasons, he reported that “I just don’t like her.” Upo n furth er i nquiry, he re

ported that “sometimes she is mean and won’t let me touch anything.” When asked as to his last contact with her, he responded that he wasn’t sure but maybe f

ive months ago or so.

. . . He was aware that Ms. Hale had a ccused his father of “shooting” his mother. He defended his father against this accusation. When asked about his knowledge of the accusation, he reported that his father had related this to him. He was also aware that his father and Ms. Hale did not like each other. The e xaminer a sked [the child] whether his father would be mad at him if he wa nt ed to see his maternal grandmother. He related: “No, he said it was my choice”

and further

stated that he would not be mad if it was [the child’s] choice. When the examiner inquired as to whether or not he would like to or felt a nee d to see his maternal grandmother he responded w ith “No.” When the examiner inquired as to his re asons for this he responded: “I just know it for some reason.” T h e examiner inquired as to his maternal aunts and uncles. He responded that he does not see them but related that he “used to see Joe Don” and that “he ’s my favorite.” He reported that he ha

d not seen

him mu ch s ince his maternal grandmother had “se nt him out and made him move out.” The examiner further inquired as to whether or notphone contact wit

h his gra ndmother would be s omething

he desir ed. He a gain stated no interest in this and then related that he talked to her wh en she ca

me over t o3 Earlier in t he int erview, the chi ld report ed that Ms. Hale had unexpect edly s hown up at hi s school on two occ asion s and that he ha d be en up set by this b ehav ior. -4- the school, 3 but thathe was bothered by this. He stated that “even when we tell her she is notsupposed

to, she ke eps doing

it.” He st

ated emphaticall

y that he “ would never want h er to co me ove r” in r ega rds to coming t o his schoo l. He then

also expressed some worry

that she might

again appear at his school. The examiner aske d [the child] wha

t he would

tell the ju

dge, if given the chanc e, about v isiting hi s maternal grandmother. He related: “I would tell him I wouldn’t want to go.” T he examiner then aske d what he

would tell

the judg e, if

aske d, if his maternal grandmother

could some

over to see him. He related: “No. I just wouldn’t want her to come over.”
Dr. Mathis als o met with M r. Culpep per on tw o occasi ons, and a dminister ed the Min

nesota Multiphase

Personality I

nventory- I

I, or MMPI -II

to Mr. Culpepper on a third occasion. Dr. Mathi s felt that Mr. Culpepper’s MMPI-I I score did not sugg est any sig nificant psychologic al disturbance or maladjustmen t, but did s uggest t hat he felt p ersecu ted. D r. Mat his o pined that t hese fe elings probably stemmed f

rom this liti g ation. They extensively discussed Mr. Culpepper’s background, including education, work hi story, and family relation ships. Mr. Culpeppe r repor ted extreme sadness a bout his wif

e’s dea th but also

anger toward Ms . Hale fo

r her ac cusation s. Dr. Mathis also met with and interviewed Ms. Hale on two occasions. Dr. Mathis expressed that Ms. Hale was very

tearful and at times emotional during the interv iew s. He also felt that she was defensive in her answers and exhibited some distress when questioned about statements made by Mr. Cu lp epp er. Dr. Mat hi s fe lt th at M s. H ale ’s M MP I-II results decreased her credibility a s an informan t. She told Dr . Mathis tha t she felt she had a great bond with the child and that he neede d her rel ationship . The re

port indic ates tha

t The examiner inquired as to her motivations for requesting visitation time with [the child ]. She expres sed her c oncern f or [th e child] as w ell as he r affe ction for

him. She views [the child] as an extension of her daughter and expressed her dee p grief over her daug hter and thus not wa

nting to a lso lose c ontact with[the child]. Ms. Hale then began to express concern about his safety and happiness. When the examiner inquired further about her safety concerns for [the child], she related her belief that Mr. Culpepper was responsible for her da ughter’s death.

. . . .

. . . Her thoughts regarding Mr. Culpeppe r’s involvement

in her daughter’s death are fixed. Yet she stated her belief that she could “respect

him as [the child’s] father.” She rejects the findings from previous investigations. The report’s summary

of the relevant background and inc ludes the statement that4 It is not clea r from the rec ord if this coun seling ses sion ev er too k plac e. -5- Ms. Hale was reported to have immediately begun accusing Mr. Culpepper of being culpable inher dau ghter’s death. Ms. Hale continues to hold the belief that Mr. Culpepper

is responsible for her death. Based on this belief, ther e has been a significant amount of hostility and a crimony betwee

n these two parties.
Dr. Mathis also submitted detailed conclusions as to each of the examinees. He concluded, in part, that

. . . the ris k exists that

Ms. Hale’ s behavior could be influenc ed by

her emot io n al reasoning and thus could be emotionally distressing to [the child]. I n addition, [the child] does not desire a relationship with her. His prior relationship with her was dependent

upon the presence of others, namely , his mother. He has not had overnight visits by h

imself with Ms. Ha

le and doe s not appe ar to hav e a bond w ith her de spite Ms . H al e’ s b el ie f t o t he co nt ra ry.

. . . . It ap pears that an abs ence of

visitation with his g

randmoth er will notbe harmf ul to [the c hild]. I

n fact, g iven the hostility

and suspic ion betwe en Ms. Ha le and Mr

. Culpepper, visitation with Ms. Hale would likely increas e th e stress for [the child] and thus could eve n be de trimental. Mr. Culpepper should be trusted to look after the emotiona

l wellbeing of his son, especia lly c onsideri

ng the lo ss of [the c

hild’s] mother.
InMarch of

2001, the trial cou rt order ed the pa rties to submit to mediation. Apparently, the attempt at mediation was unsuccessful, because the next, and final, order from the trial court appears to have been

entered on July 19, 2002, after a June 24, 2002 hearing. The trial court f ound at that time that: (1)Ms. Hale had standi ng to seek

grandparent visitation pursuant to Tenn. Code Ann. § 36-6-306; (2) visita

tion by Ms. Hale would be in t

he best in terest of the minor child based on the factors in Tenn. Code Ann. § 36-6-30 7(d)(2) in that pri or to the d

eath of her daug

hter, the re was a significant

existing r

elationsh ip betwee

n Ms. Hale

and th e child; (3) the total absence of a relation ship betwee

n the chil d and Ms. H ale and the materna l side of the child’ s family would re sult insubstantial harm to the child; and (4) there had been no significa nt hostility directed

by M s. Hale toward Mr. Culpepper in the presence of the c hild.
As a result of these findings, the trial court ordered that a six hour period of visitation take place on one weekend day per mo nth at eithe r the h ome of Ms. Ha le or a p lace of

her cho osin g. The trial court also ordered another c ounseling sessi on to take place six months from the date of the order 4 with Dr. Mathis and that Dr. Mathis sub mit a seal ed repor t from tha t session to

the court. At that time, the court wo

uld enter tain argument by

counsel on whether the visitation should continue.5 The statut e at issue in Elli son was the 1997 version of Tenn. Cod e Ann. § 36-6-306, and t he court found i t was essentia lly the same as earli er versions examined by the Supreme Court in Hawk and Simmons becaus e it all owed f

or a court- ordered vis itation on the basis of a best int erest s fi nding wi thout a danger of

harm pre- requis ite. -6- II.
A parent has a fundamental right to the ca re, custody a

nd control of his or her child. Stanley v. Illinois , 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Nash-Putnam v. McCloud , 921 S.W.2d 170, 174- 75 (Tenn . 1996); In Re Adoption o f a Female

Child, 896 S.W.2d 546, 547 (Tenn. 1995); Nale v. Robertson , 871 S.W.2d 674, 678 (Tenn. 1994). Parents are protected in the rearing of their children from unwarranted intervention by the United States Constitution and the Tennessee Constitution. This rig

ht is a fundamenta

l bu t not absol

ute rig ht, and the

state may

interfe re with parental rights only

if there is a compelling state interest. Santoskyv. Kramer , 455 U.S. 745, 747, 102 S. Ct. 1388, 1 391 (1982 ); N ash-Pu tnam , 921 S.W.2d a t 174-75. A

compellin

g state interest sufficient to justify judicial i nterfe rence w ith pare ntal dec isions is the

need to pr

otect the child from substantial harm. Hawk v. H awk , 855 S.W.2d 573, (Tenn. 1993). Parental decision s to limit a c hild’s rela

tionship with his or her grandparents, including preventingany persona

l interact io n, have been challenged in our c ourts by gr andparents asking courts to order visitation over the parents’ objections. The subject has also been addressed by the legislature. In Hawk

, the Tennessee Supreme Court held, “Articl e I, Section 8 of the Tennessee Constitution protec ts the pri vacy intere st of theseparents in their child- rearing dec isions, so long as their decisions do not substantially endang er the welfar e of the c hildren. Absent so me harm to the child, we find that t

he state lacks a sufficie ntly compellin

g justifi cation f

or interf ering w ith this funda mental ri ght. Hawk , 855 S.W.2d at 582. The court concluded that the then-exist ing gr andpare nt visitatio

n statute was unconstitutional as applied to parents whose fitness was unchalleng ed. Id . at 577. Courts cannot grant grandpar ent visitation solely on the basis of a best inter est of the child analy sis. Instead, the threshold require ment is a finding that the c hild is at r isk of substa ntial har m. Simmons v. Simmons , 900 S.W.2d 6 82, 685 (T enn. 1995 ). Le gislativ e enact ments that

allow cou

rts to order grandparent visitation upon a finding of the be st intere sts of the c hild have been fou nd to constitute “an un const itut ional invas ion o f priv acy righ ts under the Tennessee Constitution.” Ellison v. Ellison , 994 S.W.2d 623, 624 (Tenn. Ct. App. 1999). 5

In 2000, the legislature, in apparent recog nition of the Constitutional requiremen t s established

in the earlier cases, amended Tenn. Code Ann. § 36-6-306. Under the amended statute,-7-

the threshold determination to be made by the c ourt is whether there is a danger of substantial harm to the child. The procedure for a trial court to fo llow in considering a petition for grandpar ent visitation is set out: (b)(1) In c onsideri

ng a petition for

grand parent v isitation, the cour

t shall first determine the presence of a danger of sub stantial harm to the child. Such finding of substantial harm may be ba sed upon cessation of the re lationship between an unmarried

minor chil d and the c

hild’s g randpar ent if the court determines, upon proper proof, tha

t: (A ) The child

had such a signif icant exist

ing rel ationship

wit h th e grandparent

that loss of the relationship is likely to occasion severe emotional harm to the child; (B) The grandparent functioned a s a primary c aregiver such that cessation of the relationship could interrupt provision of t he da ily needs of the child and thus occasion physical or emotional harm; or (C) The c hild had a significant existing relationship with the grandparent

and loss of

the rela tionship present s the danger of other direct and substantial harm to the child. Tenn. Code Ann. § 36-6-306(b)(1).
A “significant existing relation ship” is established if the child either resided with the grandparent

for at least six (6) consecutive months, the grandparent wa s a full-time caretaker of the chil d for a period of not less than six (6) consecutive months, or the grandpa rent had frequen t visitation with the child for a period of not less than one (1) y ear. Tenn. Code Ann. § 36-6- 306(b)(2). Only

upon an initial finding of danger of substantia

l harm to the child, “

the cour t shall thendetermine whether grandparent visitation would be in the best interests of the child based upon the factors in § 36-6-307” and order re asonable visitation.
Tenn. Code Ann. § 36-6-307lists seve n factors and stat

es that the

court “shall cons ider all pertinent matters, including, but not ne cessari ly li mited to” t

hose fac tors in determining

the best interests of the child. Those factors are: (1) the l ength and quality of the prior relationship between the child and the grand parent a nd the rol e performed by

the gra ndparen t; (2) the e xisting emo tional tie s of the child to the g randpar ent; (3) the prefer

ence of the child if the ch ild is dete rmined to b e of suff

icient ma turity to express a preference; (4) the effect of hostility be tween the grandpare

nt and the pare

nt of the c

hild manifested

before the child, and the w illingne ss of the g

randpar ent, exce pt in case of6 M s. Ha le argu es that the statute cre ates a re buttab le pre sump tion that if t here were an existin g relatio nship

between gran dchil d and gr andpare nt t hat was s ign if

ican t en ough, the los s of that relatio nship would likely cause severe emotional harm to t

he chil d. Tenn. Code Ann. § 36- 6-306(b)(1)(A). Even if that were a corr ect and Const itu tional int erpre tat ion of the statu te, an issue which w e do not reach , Mr. Culpepper pres ented evi dence rebut tin g any s uch presumption.

7 We need no t decide that que stion, however, b ecause of our dis position on the facts of the case and because the father

has not challenged the val idity of the stat ute or the consti tutional ity of its appli cation herein.

-8- abuse, to encour

age a close re lationship

betwee n the chil d

and the pa

rent or p arents, or guardian or guar

dians of the child; (5) the good faith of the gra ndparent 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; and (7) if one (1 ) paren

t is deceas ed or m issi ng, the fact that the grandparents re questing visitation are the parents of the deceased or missing person. Tenn. Code Ann. § 36-6-307. The statute allows a court to proceed to a d e termination of whether grandpare nt visitation would be in the be st intere sts of the ch ild only after a finding of the da nger o f substan

tial harm

. However, the statute authorizes a finding of substantial harm to be based upon the cessation of the grand parent- grand

child re lationship

itself. 6 It is deb atabl e whet her ou r Supr eme Co urt’s hold ings onparenta

l rights could be read to sanction interference with decisions by fit parents base d upon the absence of a rel ationship

with a gran dparent

. 7 See Dugan v. Myer s , No. E2001-00281-COA-R3-JV, 2001 WL 1117514, at *2 (Tenn. Ct. App. Sept. 24, 2001) (no Tenn. R. App. P. 11 application filed) (Susano, J. concurr

ing); Terry v. Botts , No. E2000-01288-COA-CV, 2001 WL 173207, at *8 (Tenn. Ct. App. Feb. 22, 2001) (no Tenn. R. App. P. 11 applica tion filed ) (Susano , J. concur

ring). While in Hawk the Supreme Court stated that state interference with pare nting decisions must be based on significant

harm to the child resulting from those decisions, 855 S.W.2d at 58 1, it also sp ecifica lly rejected the “presumptive analy sis” and “unquestioni ng judic ial assumption” tha t grandparentgrandchild relationships alway s benefit children. Id . at 581-82. The trial court herein found tha t prior to the mother’s death there existed a significant relation ship between the child and his grandmother as defined in Tenn. Code Ann. § 36-6-306(b)(2). Regar dless of whether the evidence supports that finding, ther e is simply no evidence of the danger of substantial harmto the child because of the cessation of that re lationship

or other wise. The

re is no evidence that Mr. Culpepper is any thing but a fit parent or that the child is in any danger of harm fromhis living environment or from Mr. Culpepper’s parenting decisions. The court found tha t the total absence of

a relati onship with

the gra ndmother and the ma

ternal si de of hisfamily

would re sult insubstantial harmto the child. There is simply no proof of such harm. The psy

chologist appointed by the court, rely

ing in part on

the child ’s statements, re ported a conclusi on contra

ry to the fi ndin g.-9-

Ms. Hale asks us to give moreweight to the findings of the trial court than the testimony of Dr. Mathis. Of course, pursuant to the Tennessee Rules of Appellate Procedure , our review of this record is de novo upon the record of the trial court, accompanie d by a pres umpti on of cor

rectne ss of factua l finding s, unless t

he preponderanc e of the e vidence is otherw ise. Tenn . R. App. P. 13(d); Cross v. City of M

emphis , 20 S.W.3d 642, 643 ( Tenn. 2 000). Thus, we would presume the correctness of the trial court’s findings if the y are suppor

ted by evidenc e in the record. However, Ms. Hale does not direc t us to any te stimony

or other evidenc e that this child would be harme d by

loss of contact wit

h his gra ndmoth er . There is none in the Statement of the Evidence. We are a sked to simp ly presume that would b e the ef fect, a nd this we cannot do. S

ee Hawk , 855 S.W.2d at 581-82. In addition, where the applicable s tandard is a risk of substantial harm,

. . . the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or dang er that is

not minor, trivial, or insign ificant. Second, i

tindicates that the harm must be more than a theoretical possibility . While the harm need not be inevitable, it must be sufficien tly p robable to believ e that the

harm will

occur more likely than not. Ray v. Ray , 83 S.W.3d 726, 732 (Tenn. Ct. App. 2002).
Our review of

the record before us requires the c onclusion that the evidence preponderates agains tthe trial court’s findings of fact. The thr e shold determination of the danger of substantial harm has not been established. Thus, Mr. Culpepper is entitledto protection of his p arenta l rights.
Mr. Culpepper’s decision to remove

Ms. Hale f

rom his ch

ild’s life is one tha

t is extremely painful to Ms. Hale, especially in view of the loss of

her daughter. Regar

dless of whether someone else, including members of this court, might make a differ ent decision, or whether it might be better for the child to allow vi sitation, t

hose are simply not grou nds to allow the stat

e, throug h the cour ts, to interf ere with Mr. Culpep

per’s child-rea

ring de cisions.
We reverse the decision establishing gr andparent visitation and

remand the case. Thecosts of the appeal are taxed to the appellee, Alice H ale.

___________________________________ PATRICIA J. COTTREL L, JUDGE