1 Rule10 (Court of Appeals). Memoran dum Opin ion . -- (b) The Court, with the

concurrence

of all judges part

icipating in

the case, may af

firm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum op inion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 

# FILED

February 25, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

______________________________________________ IN THE MATTER OF: Davidson Juvenile No. 9719-38503 COURTNEY JADE CANOVA, C.A. No. 01A01-9803-JV-00113 MARY WITT LEVRAEA, Hon. Andrew J. Shookhoff, Judge LUKE LEVRAEA, BRENDA CANOVA RIDDLE, Petitioners, Vs. DISMISSED AND REMANDED JENNIFER CRUZ McKELL, Respondent. CAROL DOWNTON, N ashville, Attorne

y for Petitioners. ROSEMARY E. PHILLIP S, Goodlettsville, A

ttorney for Respo

ndent. MEMORANDUM OPINION 1

___________________________________________________________________________ TOMLIN, Sp. J.

This is a grandparents visitation rights case. Mary Witt Levraea, Luke Levraea, and Brenda Canova Riddle (“Petitioners”) filed suit in the Juvenile Court o f Davidson County against Jennifer Cruz McKell (“Respondent”) , seeking to establ ish visitation rights w

ith Courtney Jade Can ova. Th e Levraes are the great-grandparents and Ms. Riddle is the grandmother

of the minor child.

Respondent is the c

hild’s moth

e r and custodial parent. The child was born out of we

dlock to Resp ondent and Garth Bryan Canova, the son and grandson respectively

of the Petitioners.

While the parents never married, Garth legitimated the child and paid child support. Some eighteen months following the birth of the child, Garth was k illed in

an automobile

accident. Respondent responded and subsequently filed a motion for summary judgmentseeking to have thepetition dismissed. Both sides filed supporting a

ffidavits to their respectivepleadings. The trial judge granted Respondent’s mot ion for summary judgment.2

Although Petitioners have raised two issues on appeal, this Court does not reach either issue as raised. For the reasons as hereinafter stated, we dismiss and remand this case to the trial court for such other proceedings as are necessary. Petitioners brought this action pursuant to what ha

s been referre

d to as the “Grandpare

nts Visitation Rights Act,” entered into law by the legislature effective July 23, 1997, and codified as T.C.A. § 36-6-306 and 307. The pertinent pro

visions of these ap

plicable code se

ctions are as fol

lows: 36-6-306. Visitation rights of parents of deceased or divorced parents. - (a) If: (1) Either the father or mother of an unm arr ied minor child is deceased; (2) the child’s father and mother are divorced or legally separated; (3) The child’s father or mother has been missing for not less than six (6) months; or (4) The court of another state has ordered grandparent visitation; then, the parents of such

deceased person or the parents of either of such divorced or

separated pers

ons or the parents of the missing person may be granted reasonable visitation rights to the child during its min

ori ty by a court of competent jurisdiction upon a finding that such vi

sitation rights are

in the best interests of the minor child, based on the factors in § 36-6-307 (d)(2).

* * * The above code section

must be read in connection with T.C.A. § 36-6-307 (Supp. 1998), which reads as f

ollows: 36-6-307. Visitation rights of parents adopting relat ive or stepparent. - (a) If a relative or a stepparent adopts a ch ild, the general assembly finds that it is sound public policy to provide chil d ren with the stability and continuity of meaningful relationships in their lives. If grandparents have had a sufficient existing relationship with a child, a loss of that relati

onship would be a severe emotional and psychological blow to the child, and such a loss creates a

rebuttable presumption of substantial danger to the welfare of the child. (b) A grandparent w

hosechild is the absent biological parent may petition the court for reas onable visitation rights if a sufficient relationship exists between the grandparent and the child. (c) A grandparent sh

all be deemed to ha

ve a sufficient e

xisti n g relationship with a grandchild if: (1) The child has resided with the grandparent for at least six (6) consecutive months during the two (2) years preceding the filing of the petition for visitation right s an d neither of the child’s parents were living in the same household;3 (2) The child and the child’s parents have resided with the grandparents

for not less than one (1) year ending within the year preceding the fi

ling of the petition f

or visitation rights ; (3) The grandparent has been a full-time caretaker of the child for a period of not less than six (6) consecutive months in two (2) years preceding the filing of the petition for visitation rights; or (4) The grandparen

t has had freque

nt visi tation with the child who is the subject of the suit for a period of not less than one (1) year during thetwo (2) years preceding the filing of the petition for visitation righ

ts. (d)(1) In a hearing concerning a petition by a grandparent for reasonable

rights of visitation, the court shall make the following findings of fact: (A) The grandparent has a sufficient exi st ing relationship, as defined in subsection (c); and (B) The visitation is in the best interests of the child. (2) In determini ng th e best interests of the child under thi

s section, the court

shall consider a number

of factors, including but not limited to the following: (A) The length and quality of the prior relationship between the grandparent and the child; (B) The existing e

motional ties of the

child to the grandp

arent; (C) The preference of the child if the child is determined to be of sufficient maturity to express a preference; (D) The effect of

hostility between the grandparent and the parent on the child manifest

ed before the c

hild, and the willing

ness o f the grandpa

rent, e xcept in case of a

buse, to encoura

ge a close relationship

between thechild and the parent(s) or guardian(s) of the child; (E) The good faith of the grandparent in filing the petition; (F) If the parents are divorced or separated, the t im e-sharing arrangement

that exists betwe en the parents with respect to the child; and (G) If one (1) pare

nt is decease

d ormissing, the fact that the grandparents

requesting visitation are the parents of the deceased or missing person. On November 4, 1998, a panelof this Court, in an opinion authored by Presiding Judge W. Frank Crawford, styled Regina Ellison vs. Cherri Ellison , Obion Chan cery No. 20,443, C.A. No. 02A01-9803-CH-00054, declared T.C.A. § 36-6-306 to be an unconstitutional invasion of privacy righ ts under the Tenne ssee Constitution in th

at the statute allo

ws grandparents4

reasonable

visitation rights upon a finding that grandparent visitation was in the best interest of the minor child, without first having found the existence of a substantial danger or harm to the minor child, if there was a cessation o f the relationship between grandparents and said minor child. In so ruling, this

Court followedthe holding of our Supreme Court in Hawk v. Hawk , 855 S.W.2d 573 (Tenn. 1993) and Simmons v. Simmons , 900 S.W.2d 682 (Tenn. 1995). Under these circumstances, this Court has no option but to follow the earlier ruling by this Court in Ellison , anddismiss Petitioners’ suit. Therefore, we do not reach or consider the issues raised. This case is remanded to

the trial court for such other proceedings as may be necessary. Costs on appeal are ta

xed one-half

to petitioner and o

ne-half to respo

ndent, for which execution may issue, if necessary.

_________________________________ HEWITT P. TOMLIN, JR., SPECIAL JUDGE CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER,

JUDGE