# FILED Jan. 19, 1996 Cecil Crowson, Jr
. Appellate Court Clerk BENNY SMITH, ET UX, G ERALDI NE ) SMITH, ) ) Petitioner s/Appellees, ) ) Overton Chancery ) No. 02-192 VS. ) ) Appeal No. ) 01-A-01-9508-CH-00354 BOBBI E JO SMITH (McCLI

NTOCK), )

) Responde nt/Appell ant. )

IN THE COURT OF APPEALS OF TENNESSEE
MIDD LE S EC TION AT N AS HVILLE

APPEAL FROM THE CHANCERY COURT OF OVERTON COUN TY
AT LI VINGSTON, TENNESSEE

HONORABLE VERNON NEAL, CHANCEL

LOR

BRIEFS ON BE

HALF OF TH

E APPELLEES WERE NOT FIL

ED.

Michael J. Love ZELL AR, CARTWRIGHT & LOVE 139 South Third Street Clarksville, Tennessee 37040 ATTORNEY FOR RESPONDENT/APPELL ANT

REVERSED, VACATED, DISMI SSED AND REMANDED HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

BENNY SMITH, ET UX, G ERALDI NE ) SMITH, ) ) Petitioner s/Appellees, ) ) Overton Chancery ) No. 02-192R VS. ) ) Appeal No. ) 01-A-01-9508-CH-00354 BOBBI E JO SMITH (McCLI

NTOCK), )

) Responde nt/Appell ant. )

O P I N I O N
The captioned respondent has appealed fr om an order entered by

the Trial Court regula ting visit ation of th

e two chil dren of r

esponde nt with the

captione d petitione

rs, pare nts of respondent's deceased husba nd. Respondent-mother has remarried, and her husba nd, David McCl into ck, ha s adop ted th e chil dren. Howev er, he i s not a party to this procee ding.

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 Dece mber 14, 1 995, the f

ollowing order w as enter

ed and se rved on a ll partie s: On Novemb er 28, 19 95, this court orde red the a ppellee s to show cause within ten day s 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 fa iled to respond. It is, therefore, orde

red that this appeal be submitted for a decision on the record and appellant's brie f pursuant to Tenn. R. App. P. 29(c).
By fa ilure to object to said order, the respondent-appellant is presumed to have waived her request for ora l argum ent.-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 pe tition for contempt for ref using to a llow petiti oners to visit.

On November 29, 1994, respondent filed a "Motion for Continuance and Cons olid ation ," stat ing th e foll owing:

2. As grounds for the Motion to Consolidate, Respondent would show to this Court that each of the actions involve the following common, a

ctual an d legal

issues: a. Th e v is it at io n o f t he tw o m in or ch il dr en na me ly, 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 pas t. c. The need to modif

y vi sitation by

the Petitio ners. 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 Agr eed Order for visitation of the minor children by the g randparents of the deceas ed fathe

r violate s the cons titutional rights to privacy in parenting decisions, under Article I , Section 8 of the Tennessee Constitution.

On December 2, 1994, the Trial Court entered the f ollowing order: Agreed Order for Christmas Visitation
Comes now t

he parti es and would agr

ee as fo llows with regard to plaintiff's motion for holiday visitation: 1. The pla

intiffs wi ll have vi sitation w ith the ch ildren 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 defe ndant at the McDonal d's loca

ted on Hig

hway 41A (next to

Super WalM art) 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 dism issed , and p laint iffs' p etit ion fo r cont empt a nd def endan t'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 Ne al, Chancellor, upon the testimony of the pa rties and witnesse s, argu

ment of c ounsels and the entire record herein; from a ll of which the court finds that David and Bobbie Jo McClintock, who are respectively the adoptive and natur

al pare nts of the minor chil dren, Ca

ra Beth McClintock and Charlie Renea McClintock, date of birth May 30, 1990, are loving and proper pare nts, however, the court finds it is in the best interest of the minor children to have a relationship with their paternal grandpare nts, Benny a

nd Geraldine Smith, and, therefore, this court's Orde r of April 20, 1992, which grants certain visitation rights to the paterna l grandparents shall be maintained albeit modified. Ther efore, 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 gra ndparen ts is dismissed with cost s assessed to the petitioners, Benny and Geraldine Smith.
It I s, There

fore, F urther O rdered and Adjud

ged as Follows: 1. That weather and health of the children pe rmitting, the grandparents shall have visitation with the minor children once a month of the fourth weekend of each month beg inning January 27, 1995. Said period of visitation shall be from Friday at 5:00 p.m . to Sunday

at 5:00 p.m . The par

ties shall make alternative arrange

ments 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 c hildren and the transfer shall be made in a public place as a greed to by

the parties. 2. That upon Mr. McClintock's career rela ted transfer out of state, all grandparent visitation with the children shall be in the vicinity of the McClintock's ne w residence with the same hours and days per

month. The grandparents may visit with the children in a hotel, motel or by othe r arrangements in the vicinity of the McClintock's ne w 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 r esidenc e. If the McCl

intocks mo ve in excess of the hours of driving time herefore set out, the Smiths-5- shall be a ble to see the child ren whe n the McClintocks vis it in the Overton County are a. 3. That the respondent shall keep the petitioners informed of their permanent address and telephone number, how ever, there shall be no more unnecessary phone calls to the respondent by the petiti oners. 4. That the grandparents shall not discipline the children by means of corpora l punishme

nt. 5. That the grandparents shall make no der ogatory remarks about the parents in the presence of the childre n. 6. The children shall be properly restrained either by

a seat belt or car seat as required by law when transported by the grand parents

. 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 pr esents the following issue for review: That the Chancery Court's order requiring the par ents 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 wa s T.C.A. § 36-6-30 1, subsec tion (a) o f which r ead as f ollows: Grandparents' visitation rights. - (a) The natural or legal grandparents of an unmarrie d minor child may be g ranted reason able v isit ation rights to th e chil d duri ng 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 chil d. The pr

ovisions of

this subse ction sha

ll not apply in the case of any

child who has been adopted by any person other than a relative of the child or a steppare nt of the child.
The quoted statute was re-designated § 36- 6-302 by 1995 Public Acts Chapter 428, e ffective June 12, 1995.

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

ild by its pater nal gra ndparen ts under t he follow ing cir

cumstanc es:-6- The natu

ral fath er abandoned the

child'smother, th

e appell ant, 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 f ather's right to visitation was conditioned upon hi s having one of hisparents , the res pondents in this case, transport the child between the mother and the father. Subsequently, upon r espondents' petition, they were granted visitation privileges pursuant to Tenn.Code Ann. § 36- 6-301 (1991 ), and , in t he sam e proce eding, upon t he app ellan t's petition, t he court terminat ed the na tural fa ther'sparenta

l rights on the g round of a

bandonme

nt. On Septem

ber 18, 1 992, the mother mar ried L oya ll F. Jones, who, in a separate proceeding , adopted the child. The final order of adoption was entered on Febr uary 23, 1993. The appellant responded to the respondents' motion that she be held in contempt for refusing to allow visitation as provided in th e court order, with a peti tion that t he resp onden ts' visitation privileges be terminated. . . . Simmons, 900 S.W.2d at 682-83.
The Trial Court entered judgment for the g randparents, 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 57 3 (Tenn. 1993), in which the Court held: Article I, Section 8 of the Tenne ssee Constitution protects the privacy interest of these pa rents in th

eir child -rear

ing dec isions, so long as t heir dec isions do no t substanti ally endanger the welfare

of their children. Absent some har m to the ch

ild, 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 childre n and have acted as fit parents, we conclude that cour t interference pursuant to T.C.A. § 36-6-301 constitutes an unconstitutional invasion of privacy r ights 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 prop osition tha t the cour ts may engag e in best inter est anal ysi s without f

irst dete rmining the thre shold-7- issue - substantial danger of harm to the child. The cour t 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 rig ht 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 - dange r of substantial harm - has not been established, the appellant and the adoptive father are entitled to constitutional protection of their pa rental r ights. Simmons, at 683-85.
The only discerna

ble difference between the f acts of this case and those of Simmons is that, in Simmons, the parental rights of the natural fathe r had been judicially

terminated and, in the present case, the natural father ha d died. This is not deemed to be a distinguishing difference.

In Hawk v. H awk , Tenn. 19 93, 855 S.W.2 d 573, the two childr

en were initially permitted to visit in the home of their paternal grandparents. When visitation was terminated by the joint decision of the pare nts, the grandparents sued to enforce the visitation provided by T.C.A. § 36-6-301. The pa rents resisted the suit asserting that to enforce visitation over their objection would violate their parental rights and the Four teenth 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 Tenne ssee-8- Constitution, with particular reference to Davis v. Davis, 842 S.W.2d 588 (Tenn.1992), the case which acknowledged a right to privac y under the Tennesse e Constitut ion. I n light of this right to privacy , we believe that when no substantial harm threate ns a child 's welf

are, the state lac ks a suff iciently compelling justification for the infringement on the fundamental right of parents to raise their c hildren as they see fit. Thus, we find the statute to be unconstitutional under Article I, Se ction 8 of

the Tennessee Co nstitution, as applie d to this married couple, whose fitness as parents is unchalleng ed. This result relieves us of the necessity of addressing the constitutionality of the statute under the fe deral constitution and, accordingly , we pretermit this issue. . . . Tennessee law has long held that

. . . a pa re nt is en ti tl ed to th e c us to dy, companionship,, and care of the child, and should not be deprived thereof except by due process of law. It is a na

tural 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 Te nn. 22 7, 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 rig ht to the society of the c

hild exists in its parents; the right to rear it, to its custody, to its tutorage , the shaping of its destiny, a

nd all of the consequences that naturally follow from the relation ship are

inheren tly in the natu

ral par ents, and they cannot be

deprive d 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 be en prove

n unfit ag ainst pro spective adoptive parents in far "better financial condition." . . .

. . . . We hold that Article I, Section 8 of the Tennessee Constitution

protect s the priv acy

interest of these parentsin their child-rearing decisions, so long as the ir decisions do not substantially endang er the welfare of their children. A bsent some har m to the ch

ild, we find that the

state lac ks a sufficie ntly compelling justifi cation f or interf ering with this fundamental right. When applied to married parents who ha ve maintained continuous custody of their c hildren and have acted as fit par ents, we conclude that cour t interfe rence p ursuant t o T.C.A. § 36-6-301 constitutes an unconstitutional invasion of privacy r ights under the Tennessee Constitution. We therefore-9- reverse both the judgment of the trial court and tha t 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 separ ated 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. I

t is fundamental that upon the death of one parent, the surviving pa rent succeeds to sole control of the children of the pare nts. 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 ha d adopted the child. In the present ca se, the mother of the child has remarried and the ne w husband has adopted t he childr en, but is n ot partic ipating in the pre sent cas e. No re ason occurs to this Court why the rig

hts of the surviving parent should not be enforced without the joinder of the adoptive father. Custody a nd control of children by

a surviving parent should never be denied or interfered with except for the most coge nt 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 p etitioner s was a wa

iver of her right and pow er to con trol visita tion, but th

is Court doe s not find th at such a greem ent waived the cons titutional power of the mothe

r to control the associations of her children as circumstance s from time to time influence her decisions.

For the reasons stated, the judgment of the Tr ial Court is reversed and vacated and the suit of the grandparents is dismissed. All costs including costs of this appeal, are adjudged-10-

agains t the petit

ioners. T he cause is remand

ed for e ntry and enfo rcemen t of a judg

ment in conformity with this opinion.

Reversed, vacated, dismissed and remanded.

_______________________________________ HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

_____________________________________ SAMUEL L . LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL , JUDGE