FILED
BENNY SMITH, ET UX, GERALDINE ) Jan. 19, 1996
SMITH, )
) Cecil Crowson, Jr.
Appellate Court Clerk
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
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. )
OPINION
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.
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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;
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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
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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:
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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
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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
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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
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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
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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
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