FILED

Jan. 19, 1996

Cecil Crowson, Jr.

Appellate Court Clerk

BENNY SMITH, ET UX, GERALDINE )

SMITH, )

)

Petitioners/Appellees, )

) Overton Chancery

) No. 02-192

VS. )

) Appeal No.

) 01-A-01-9508-CH-00354

BOBBIE JO SMITH (McCLINTOCK), )

)

Respondent/Appellant. )

IN THE COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEAL FROM THE CHANCERY COURT OF OVERTON COUNTY

AT LIVINGSTON, TENNESSEE

HONORABLE VERNON NEAL, CHANCELLOR

BRIEFS ON BEHALF OF THE APPELLEES

WERE NOT FILED.

Michael J. Love

ZELLAR, CARTWRIGHT & LOVE

139 South Third Street

Clarksville, Tennessee 37040

ATTORNEY FOR RESPONDENT/APPELLANT

REVERSED, VACATED, DISMISSED AND REMANDED

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

SAMUEL L. LEWIS, JUDGE

BEN H. CANTRELL, JUDGE
-2-

BENNY SMITH, ET UX, GERALDINE )

SMITH, )

)

Petitioners/Appellees, )

) Overton Chancery

) No. 02-192R

VS. )

) Appeal No.

) 01-A-01-9508-CH-00354

BOBBIE JO SMITH (McCLINTOCK), )

)

Respondent/Appellant. )

O P I N I O N

The captioned respondent has appealed from an order entered by the Trial Court

regulating visitation of the two children of respondent with the captioned petitioners, parents

of respondent's deceased husband. Respondent-mother has remarried, and her husband,

David McClintock, has adopted the children. However, he is not a party to this proceeding.

The respondent-appellant filed a brief in this Court requesting oral argument. The

petitioners-appellees filed no brief within the permissible time for doing so.

On December 14, 1995, the following order was entered and served on all parties:

 On November 28, 1995, this court ordered the appellees to

show cause within ten days why this appeal should not be

submitted for a decision on the record and appellant's brief

pursuant to Tenn. R. App. P. 29(c). The appellees have failed

to respond.

 It is, therefore, ordered that this appeal be submitted for a

decision on the record and appellant's brief pursuant to Tenn.

R. App. P. 29(c).

By failure to object to said order, the respondent-appellant is presumed to have waived her

request for oral argument.
-3-

On January 8, 1992, petitioners filed a "Petition for Visitation" pursuant to T.C.A.

§36-6-301. On April 24, 1992, an "Agreed Order of Visitation" was entered, allowing

visitation as set out therein.

On March 25, 1994, respondent filed a "Motion to Modify Visitation" asserting that

the petitioner, Geraldine Smith, had assaulted respondent and improperly disciplined the

children.

On September 14, 1994, petitioners filed against respondent a petition for contempt

for refusing to allow petitioners to visit.

On November 29, 1994, respondent filed a "Motion for Continuance and

Consolidation," stating the following:

 2. As grounds for the Motion to Consolidate, Respondent

would show to this Court that each of the actions involve the

following common, actual and legal issues:

a. The visitation of the two minor children namely,

Cara Beth McClintock and Charlie Renea McClintock, date of

birth May 30, 1990.

b. The manner that the Petitioners have conducted such

visitation in the past.

c. The need to modify visitation by the Petitioners.

d. That the Petitioners have not exercised visitation as

it was set out in this Court's original order entered upon

agreement of the parties on the 20th day of April, 1992.

e. That the legal basis of the Agreed Order for

visitation of the minor children by the grandparents of the

deceased father violates the constitutional rights to privacy in

parenting decisions, under Article I, Section 8 of the Tennessee

Constitution.

On December 2, 1994, the Trial Court entered the following order:

Agreed Order for Christmas Visitation

 Comes now the parties and would agree as follows with

regard to plaintiff's motion for holiday visitation:

 1. The plaintiffs will have visitation with the children in

Montgomery County from 10:00 a.m. until 4:00 p.m. on

December 23rd, 1994 and from 8:00 a.m. until 2:00 p.m. on

December 24th, 1994;
-4-

 2. Plaintiff, Benny Smith, will meet the defendant at the

McDonald's located on Highway 41A (next to Super WalMart)

in Clarksville for the pick up and delivery of the children, and

plaintiff, Geraldine Smith, will not be present for same;

 3. Plaintiffs' notice for temporary holiday visitation will be

dismissed, and plaintiffs' petition for contempt and defendant's

motion to modify visitation are presently set for trial on

January 17th, 1995; . . . .

On February 28, 1995, the Trial Court entered the following order:

 This cause came on to be heard on the 17th day of January

1995, before the Honorable Vernon Neal, Chancellor, upon the

testimony of the parties and witnesses, argument of counsels

and the entire record herein; from all of which the court finds

that David and Bobbie Jo McClintock, who are respectively the

adoptive and natural parents of the minor children, Cara Beth

McClintock and Charlie Renea McClintock, date of birth May

30, 1990, are loving and proper parents, however, the court

finds it is in the best interest of the minor children to have a

relationship with their paternal grandparents, Benny and

Geraldine Smith, and, therefore, this court's Order of April 20,

1992, which grants certain visitation rights to the paternal

grandparents shall be maintained albeit modified. Therefore,

the respondent's Motion to Modify Visitation is granted and

costs shall be shared equally by the parties. The petition for

contempt filed by the grandparents is dismissed with costs

assessed to the petitioners, Benny and Geraldine Smith.

 It Is, Therefore, Further Ordered and Adjudged as Follows:

 1. That weather and health of the children permitting, the

grandparents shall have visitation with the minor children once

a month of the fourth weekend of each month beginning

January 27, 1995. Said period of visitation shall be from

Friday at 5:00 p.m. to Sunday at 5:00 p.m. The parties shall

make alternative arrangements for visitation should inclement

weather or illness of the children prevent visitation with the

children on a given weekend. Only Benny Smith shall be

present for the pick-up or drop-off of the children and the

transfer shall be made in a public place as agreed to by the

parties.

 2. That upon Mr. McClintock's career related transfer out of

state, all grandparent visitation with the children shall be in the

vicinity of the McClintock's new residence with the same hours

and days per month. The grandparents may visit with the

children in a hotel, motel or by other arrangements in the

vicinity of the McClintock's new residence, but the

grandparents shall not be so restricted in visitation if the

transfer of Mr. McClintock is within THREE (3) hours driving

time of the Smith's residence. If the McClintocks move in

excess of the hours of driving time herefore set out, the Smiths
-5-

shall be able to see the children when the McClintocks visit in

the Overton County area.

 3. That the respondent shall keep the petitioners informed of

their permanent address and telephone number, however, there

shall be no more unnecessary phone calls to the respondent by

the petitioners.

 4. That the grandparents shall not discipline the children by

means of corporal punishment.

 5. That the grandparents shall make no derogatory remarks

about the parents in the presence of the children.

 6. The children shall be properly restrained either by a seat

belt or car seat as required by law when transported by the

grandparents.

 7. That the April 20, 1992, Order of the Court shall be

maintained in all other aspects not herein modified.

On appeal from the last quoted order, the respondent presents the following issue for

review:

 That the Chancery Court's order requiring the parents of the

minor children to submit to paternal grandparent visitation

violates the parents' rights under Article 1, Section 8 of the

Tennessee Constitution and the Fourteenth Amendment of the

United States Constitution.

On the date of the entry of the judgment under review the pertinent statute was T.C.A.

§ 36-6-301, subsection (a) of which read as follows:

Grandparents' visitation rights. - (a) The natural or legal

grandparents of an unmarried minor child may be granted

reasonable visitation rights to the 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. The provisions of this subsection shall not apply

in the case of any child who has been adopted by any person

other than a relative of the child or a stepparent of the child.

The quoted statute was re-designated § 36-6-302 by 1995 Public Acts Chapter 428, effective

June 12, 1995.

Simmons v. Simmons, Tenn. 1995, 900 S.W.2d 682, involved visitation with a five

year old child by its paternal grandparents under the following circumstances:
-6-

 The natural father abandoned the child's mother, the appellant,

prior to the child's birth on February 28, 1990. Soon after the

child's birth, the trial court awarded the mother a divorce and

custody of the child. The father's right to visitation was

conditioned upon his having one of his parents, the respondents

in this case, transport the child between the mother and the

father. Subsequently, upon respondents' petition, they were

granted visitation privileges pursuant to Tenn.Code Ann. § 36-

6-301 (1991), and, in the same proceeding, upon the appellant's

petition, the court terminated the natural father's parental rights

on the ground of abandonment.

 On September 18, 1992, the mother married Loyall F. Jones,

who, in a separate proceeding, adopted the child. The final

order of adoption was entered on February 23, 1993.

 The appellant responded to the respondents' motion that she

be held in contempt for refusing to allow visitation as provided

in the court order, with a petition that the respondents' 

visitation privileges be terminated. . . .

Simmons, 900 S.W.2d at 682-83.

The Trial Court entered judgment for the grandparents, and this Court affirmed. The

Supreme Court reversed and said:

 Resolution of the issue presented begins with a review of the

decision in Hawk v. Hawk, 855 S.W.2d 573 (Tenn.1993), in

which the Court held:

Article I, Section 8 of the Tennessee

Constitution protects the privacy interest of

these parents in their child-rearing decisions, so

long as their decisions do not substantially

endanger the welfare of their children. Absent

some harm to the child, we find that the state

lacks a sufficiently compelling justification for

interfering with this fundamental right. When

applied to married parents who have maintained

continuous custody of their children and have

acted as fit parents, we conclude that court

interference pursuant to T.C.A. § 36-6-301

constitutes an unconstitutional invasion of

privacy rights under the Tennessee Constitution.

Id. at 582.

. . . .

 After an extensive review of prior decisions of this Court and

cases from other jurisdictions, the Court in Hawk v. Hawk 

expressly rejected the proposition that the courts may engage in

best interest analysis without first determining the threshold
-7-

issue - substantial danger of harm to the child. The court

stated:

In light of [the constitutional right of privacy

acknowledged in Davis v. Davis, 842 S.W.2d

588 (Tenn. 1992)], we believe that when no

substantial harm threatens a child's welfare, the

state lacks a sufficiently compelling justification

for the infringement on the fundamental right of

parents to raise their children as they see fit. 

Thus, we find the statute to be unconstitutional

under Article I, Section 8 of the Tennessee

Constitution, as applied to this married couple,

whose fitness as parents is unchallenged.

855 S.W.2d at 577.

. . . .

 The trial court did not find that the child was in danger of

substantial harm. . . .

 Since the record shows that the threshold issue - danger of

substantial harm - has not been established, the appellant and

the adoptive father are entitled to constitutional protection of

their parental rights.

Simmons, at 683-85.

The only discernable difference between the facts of this case and those of Simmons is

that, in Simmons, the parental rights of the natural father had been judicially terminated and,

in the present case, the natural father had died. This is not deemed to be a distinguishing

difference.

In Hawk v. Hawk, Tenn. 1993, 855 S.W.2d 573, the two children were initially

permitted to visit in the home of their paternal grandparents. When visitation was terminated

by the joint decision of the parents, the grandparents sued to enforce the visitation provided

by T.C.A. § 36-6-301. The parents resisted the suit asserting that to enforce visitation over

their objection would violate their parental rights and the Fourteenth Amendment of the

Constitution of the United States. The Trial Court granted visitation, and this Court affirmed. 

The Supreme Court reversed and said:

 . . . This Court has asked that the parties also address the

constitutionality of the statute under the Tennessee
-8-

Constitution, with particular reference to Davis v. Davis, 842

S.W.2d 588 (Tenn.1992), the case which acknowledged a right

to privacy under the Tennessee Constitution. In light of this

right to privacy, we believe that when no substantial harm

threatens a child's welfare, the state lacks a sufficiently

compelling justification for the infringement on the

fundamental right of parents to raise their children as they see

fit. Thus, we find the statute to be unconstitutional under

Article I, Section 8 of the Tennessee Constitution, as applied to

this married couple, whose fitness as parents is unchallenged. 

This result relieves us of the necessity of addressing the

constitutionality of the statute under the federal constitution

and, accordingly, we pretermit this issue.

 . . . Tennessee law has long held that

. . . a parent is entitled to the custody,

companionship,, and care of the child, and

should not be deprived thereof except by due

process of law. It is a natural right, but not an

inalienable one. The parents are trusted with the

custody of the child upon the idea that under the

instincts of parental devotion it is best for the

child.

State ex re. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W.

433, 435 (1898). This Court has further held that

 [t]he relations which exist between parent and

child are sacred ones . . . . The right to the

society of the child exists in its parents; the right

to rear it, to its custody, to its tutorage, the

shaping of its destiny, and all of the

consequences that naturally follow from the

relationship are inherently in the natural parents,

and they cannot be deprived of these rights

without notice, and upon some ground which

affects materially the future of the child.

In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098 (1917). 

Knott thus upheld the custodial rights of a natural father who

had not been proven unfit against prospective adoptive parents

in far "better financial condition." . . .

. . . .

 We hold that Article I, Section 8 of the Tennessee

Constitution protects the privacy interest of these parents in

their child-rearing decisions, so long as their decisions do not

substantially endanger the welfare of their children. Absent

some harm to the child, we find that the state lacks a

sufficiently compelling justification for interfering with this

fundamental right. When applied to married parents who have

maintained continuous custody of their children and have acted

as fit parents, we conclude that court interference pursuant to

T.C.A. § 36-6-301 constitutes an unconstitutional invasion of

privacy rights under the Tennessee Constitution. We therefore
-9-

reverse both the judgment of the trial court and that of the

Court of Appeals granting visitation in this case.

Hawk, 855 S.W.2d at 577-78, 582.

In Re: Knott, cited above, involved an adoption with the consent of the mother, but

over the objections of the father who was separated from the mother. The Supreme Court

denied the adoption and granted custody to the father.

In Hawk v. Hawk, both natural parents were alive, but only one parent survives in the

present case. It is fundamental that upon the death of one parent, the surviving parent

succeeds to sole control of the children of the parents. 67A C.J.S. Parent and Child, § 16,

p.202 n.50 and authorities there cited.

In Simmons v. Simmons, the mother had remarried and the new husband had adopted

the child. In the present case, the mother of the child has remarried and the new husband has

adopted the children, but is not participating in the present case. No reason occurs to this

Court why the rights of the surviving parent should not be enforced without the joinder of the

adoptive father. Custody and control of children by a surviving parent should never be

denied or interfered with except for the most cogent reasons. 67A C.J.S. - Parent and Child §

16 p.203 n.51 and authorities there cited.

It may be argued that the consent of the mother to the "agreed order" allowing

visitation by petitioners was a waiver of her right and power to control visitation, but this

Court does not find that such agreement waived the constitutional power of the mother to

control the associations of her children as circumstances from time to time influence her

decisions. 

For the reasons stated, the judgment of the Trial Court is reversed and vacated and the

suit of the grandparents is dismissed. All costs including costs of this appeal, are adjudged
-10-

against the petitioners. The cause is remanded for entry and enforcement of a judgment in

conformity with this opinion.

Reversed, vacated, dismissed and remanded.

_______________________________________

HENRY F. TODD

PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________

SAMUEL L. LEWIS, JUDGE

_____________________________________

BEN H. CANTRELL, JUDGE