Removal of Child For Neglect

REMOVAL OF CHILD
FOR ABUSE OR NEGLECT
by Attorney Jes Beard return to Jes Beard's home page

Like many states Tennessee courts in the last couple of decades have begun removing children from parents far more often than ever before. These removals are supposedly for abuse or neglect, but the increased number of removals correspond closely with federal legislation giving increased funding to states based on the number of abused or neglected children in state care.

Once a caseworker with the Tennessee Department of Children's Services makes an allegation of abuse or neglect, the parent or parents often end up in an unbelievable system where "concerns" become reasons to remove children and rumors become proof.

It is a nightmare for anyone involved, with many attorneys advising clients to simply go along with whatever the caseworker wants, admit you neglected or abused your child and play along with them, going to whatever counseling they want in order to try to speed the return of the child or children.

I say this approach is generally a crock. Admit you neglected or abused your child once and you have a good chance of getting sucked back into the mire on similar baseless accusations later. But if you go into court without being fully prepared you face the prospect of caseworkers literally making up new charges in the middle of trial. Things you have never heard of before, and which are entirely untrue, will come out as new reasons to deny you custody of your children.

There are ways to force full disclosure of all reasons that will be used to argue against return of your children, and to prevent witnesses from even mentioning things you were not informed of before the trial so you can prepare a response to show that the claim has no merit.

There are three keys here — 1st, make sure you have an aggressive lawyer who believes in your case and will take all possible steps to fight for your case; 2nd, NEVER talk with a caseworker or attorney for the other side or investigator or counselor without your attorney being present or without recording the conversation (it's appalling how often one of them will come into court and flat out lie about what you said, claiming you admitted to the abuse or neglect -- because of their shameless winllingness to lie it is important to remember that you have a right to remain silent, just as if you were being questioned by a police officer after an arrest -- for more on how to deal with with such questions, click here, and remember that for purposes of the advice on this link any caseworker or socialworker or attorney or investigator with the Department of Children's Services, or any similar agency, is the same as a police office); and 3rd, make sure the Court is using the proper standard to make its decision.

Since I've argued this issue several times and have prepared a thorough brief on the matter, I'm including the brief below. In a nutshell it points out that under Tennessee law the state cannot legally remove children from their parents to be placed with a non-parent simply because the children would be better off elsewhere or because there is some risk of harm to the children if they remain in their home. Tennessee law requires clear and convincing proof of s substantial risk of substantial and imminent harm if they remain with the parent. While this is a fairly high level of proof for the state to present, most juvenile court judges like to ignore the law and instead make their decisions simply based on what they think is best for the children... which generally means agreeing with the caseworker's recommendation. That's why the brief that follows immediately below is so important — to persuade the judge to actually apply the law.

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BRIEF ON PROPER STANDARD TO DETERMINE CUSTODY

        DeBoer by Darrow v. DeBoer, 114 S.Ct. 1, 125 L.Ed.2d 755 (1993), decision of Justice Stevens, as Circuit Justice in denying an application to stay a decision of the Michigan Supreme Court regarding a widely celebrated judicially aborted adoption,:
        "Neither Iowa law, Michigan law, nor federal law authorizes unrelated persons to retain custody of a child whose natural parents have not been found to be unfit simply because they may be better able to provide for her future and her education. As the Iowa Supreme Court stated: `[C]ourts are not free to take children from parents simply by deciding another home appears more advantageous.' In re B.G.C., 496 N.W.2d 239, 241 (1992) (internal quotation marks and citation omitted)."
        The Mother (or the Father or the Mother and Father), by and through counsel, submits this brief on the proper standard for the Court's decision in ruling on her Motion For Immediate Return Of Children to Custody Of Petitioner.
RELEVANT FACTS:
         The relevant facts are set out in paragraphs numbered 1 through *** of the Motion for Immediate Return Of Children To Custody Of Petitioner.
PROCEDURAL STATUS:
*******************
RELEVANT LAW:
        The relevant law for the case at hand is found less in the Tennessee Code than in recent case law, particularly the progeny of Hawk v. Hawk, 855 S.W.2d 573 (Tenn 1993); the echo of Hawk extends far beyond the grandparent visitation case Tennessee's Supreme Court had before it.
        In Hawk the Supreme Court held that, absent a risk of substantial harm to a child, the Constitutional right to privacy prohibits State interference with parental decisions of an intact nuclear family to keep their children from visiting grandparents.
        In Hawk Tennessee's Supreme Court held conflicts between a parent and non- parent must turn on "the nature of the right at stake." Id at 577. Hawk held "the relations which exist between parent and child are sacred ones." Id at 578. And, relying upon Davis v. Davis, 842 S.W.2d 588 (1992), Hawk held the constitutional right to privacy fully protects "the right of parents to care for their children without unwarranted state intervention."
        As explained in Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) (discussed in greater detail below), "The Court in Hawk.... found that a `compelling state interest' sufficient to overrule the parents' decisions, including those affecting the child's relations with grandparents, is the need to protect the child from a substantial danger of harm."
        Decisions by the Tennessee Supreme Court and Tennessee's Courts of Appeals make clear the right to be free of state interference with child-rearing also applies when the nuclear family is not intact. This means this Court, in ruling on the mother's Petition for Custody, faces only the decision as to whether returning the child to his mother would place the child at substantial risk of substantial harm.
        In the case of O'Daniel v. Messier, 905 S.W.2d 182 (TennApp 1995), relatives sought the custody of a single mother's child, but the Court of appeals held Hawkapplied, even though there was no "intact nuclear family."
         Biological parents have a fundamental liberty interest in the care and custody of their children under both the United States and Tennessee Constitutions. These parental rights are superior to the rights of others and continue without interruption unless a biological parent consents to relinquish them, abandons his or her child, or forfeits his or her parental rights by some conduct that substantially harms the child. (Extensive citations omitted.)
   .........Single unwed parents are less likely to be able to support their children than married couples in more financially secure circumstances. They are parents nonetheless, and the continuation of their relationship with their children should not depend solely on their financial means. A parent should not lose a child because others, including other family members, might be better able to support the child.
O'Daniel v. Messier, 905 S.W.2d 182, 186, 188.
        O'Daniel relied heavily on Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994), which held the "fundamental liberty interest in the care and custody of their children under both the United States and Tennessee Constitutions" extends also to the father of an illegitimate child, meaning there is no need whatsoever for an "intact nuclear family" before the mandate of Hawk, 855 S.W.2d 573 (Tenn. 1993) applies. Nale, Id, 678. "As previously stated, the denial of the privilege of parenthood is based upon termination for unfitness," and on no other basis. Id, 680.
        By the time of Petrosky v. Keene, 898 S.W.2d 726 (Tenn 1995), the Supreme Court held it is "the established law in this state" that "the best interests of the child" are subordinate to "parental rights."
        The case of In Re Adoption of Female Child, 896 S.W.2d 546 (Tenn 1995), involved a conflict between a prospective adoptive couple and the divorced mother of the female child they wished to adopt.
         The adoptive couple insists that the best interest of the child may require that custody be awarded to a non-parent even though the natural parent has not been found to be unfit. As explained in Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) and Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994), that argument is untenable as both a violation of statutory and constitutional law, as well as the common law in Tennessee.
         Tennessee courts have historically 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.
   Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993) (quoting State ex rel. Bethell v. Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898)). In Nale v. Robertson, 871 S.W.2d 674, 680 (Tenn. 1994), the Court stated:
        This Court found in Davis v. Davis, 842 S.W.2d 588, 600 (Tenn. 1992), that "there is a right of individual privacy guaranteed under and protected by the liberty clauses of the Tennessee Declaration of Rights." This constitutional right of privacy includes parental rights.
        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.
       Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993); see also Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994).
       Therefore, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general "best interest of the child" evaluation in making a determination of custody. (Emphasis added.)
In Re Adoption of Female Child, 896 S.W.2d 546, 547, 548.
        Like Hawk, Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995) was conflict between parents and grandparents. Simmons involved a dispute between the natural mother and adoptive father of a child presently five years old and the parents of the child's natural father. The Court of Appeals, found there had been no change in circumstances and refused to terminate the court authorized visitation privileges of the parents of the natural father. Relying on Hawk, the Supreme Court reversed the Court of Appeals, terminating the grandparents' visitation.
           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:

855 S.W.2d at 577.
        The respondents contend that the constitutional principle stated in Hawk is not applicable to the instant case. They insist that the decision in Hawk does not preclude a best interest of the child analysis because the divorce of the child's natural parents justifies the state's interference with parenting decisions by the mother and adoptive father. They insist that the constitutional protection is limited to married, natural parents who have maintained continuous custody of their children and whose fitness as parents has not been challenged. Respondents contend that the constitution does not preclude the state from interfering with parenting decisions where, as in the present case, the child has been adopted by a step-parent. They emphasize that the family in Hawk was intact, the parents were married natural parents whose fitness as parents was unchallenged, the parents had maintained continuous custody of the children, and the children were not subject to any substantial danger of harm.
....The issue... is whether the child... is exposed to a substantial danger of harm, which justifies the intervention of the Court into the parents' child rearing decisions.
       The trial court did not find that the child was in danger of substantial harm. The record contains no evidence 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 v. Simmons, 900 S.W.2d 682, 683, 684.
        The case of Floyd v. McNeely, unpublished (TennApp 1995), as attached, involved a paternal grandmother's petition for visitation with two minor children of her former daughter-in-law and her late son. After the petition was filed, the parties entered into a consent order establishing the grandmother's visitation with the children for a minimum of two hours every other week; the mother of the children broke off the visitation and the parties returned to court. After a hearing, the trial court granted the mother's motion to dismiss the petition. The following excerpt from the Court of Appeals' decision begins with the Court quoting the trial court's reasoning:
            "(T)his court is of the opinion that it cannot constitutionally mandate the manner in which McNeely sees fit to raise her children short of showing that McNeely is not a fit parent or, in this case, that depriving the minors of society with their paternal grandmother will cause substantial danger or harm."
.... Floyd further maintains that this case may be factually distinguished from Hawk because no intact, nuclear family exists. This same argument was posed to our supreme court in Simmons v. Simmons, No. 03S01-9406-CV-00052 (Tenn. May 30, 1995), wherein a mother and adoptive father of a minor child sought to terminate the court ordered visitation privileges of the child's paternal grandparents in response to the grandparents' petition that the mother be held in contempt for failing to abide by the court ordered visitation. Simmons, slip op. at 2-3. Simmonsrelied upon the rationale rendered by the court in Hawk to terminate the grandparents' visitation privileges, but first acknowledged the grandparents' argument that because the child's natural parents were divorced, state interference to conduct a best interests of the child analysis was justified. Id. at 6. Simmons viewed the grandparents' argument as an insistence that state interference is not prohibited, prior to an initial showing of substantial danger of harm to the child, where the child's natural parents are divorced and the child has been adopted by a stepparent.... Simmons concluded that the record before it contained no evidence that a substantial danger of harm threatened the child and, thus, found no compelling state interest justifying court intrusion upon the natural mother's and adoptive father's rights as parents to preclude a relationship between their child and the paternal grandparents. Id. at 8-9....
        The record indicates that McNeely had remarried at the time of trial. There is no indication that her current husband has taken steps to adopt the children. Thus, this case is distinguishable from Simmons in this respect. We, however, do not view the husband's failure to adopt the children as a means to lessen the fundamental privacy interest afforded McNeely in parenting her children. In view of the reasonings extended by our supreme court in Simmons and Hawk, we are convinced that McNeely's right to parent her children as she sees fit, including a decision regarding a relationship between them and their grandmother, is no less greater than the right afforded to the married natural parents under Hawk. We conclude that the rights afforded to the parents in Hawk extend equally to McNeely despite the death of her children's father and her subsequent remarriage. To this end, we do not view the breakup of the nuclear family, in and of itself, to constitute a substantial harm to a child sufficient to justify state interference with a fit parent's decision to preclude a relationship between that child and his/her grandparents.
        In keeping with the Hawk and Simmons decisions, this court may only intervene with McNeely's decision to prevent her children from reestablishing a relationship with their paternal grandmother if the record before us indicates that the children are threatened with a substantial danger of harm. Our review of this record does not lead us to this conclusion. Thus, we find that it is within McNeely's fundamental right as a parent to prevent contact between her children and their grandmother. The holding in Floyd v. McNeely was in spite of the fact that the "record lends itself to no conclusion other than the fact that (the grandmother had) no desire... to manipulate, control or direct the mother's behavior," but was merely sincerely concerned with the welfare of the children and wanted to see them on a regular basis.
        But even long before the Hawk decision gave Constitutional dimension to the position that a child can not be removed from a parent in the absence of neglect, Tennessee's Court of Appeals held exactly that in a published opinion the State Supreme Court refused to hear on a request for permission to appeal. That case was Bush v. Bush, 684 S.W.2d 89 (Tenn.App. M.S. 1984). After reviewing considerable authority on the question, both from Tennessee courts and elsewhere, the Court held that "neither parent is a suitable custodian, it is improper to consider entrusting custody to a non-parent." CONCLUSION:         The Mother, therefore respectfully submits this Court must award custody of the minor children to her unless the Court finds placing the children with her poses a substantial risk of substantial harm to the children.

First Decision
MATTER OF CANOVA v. McKELL, ___ S.W.2d ___ (Tenn.App. 2-25-1999)

Page 2

       MATTER OF CANOVA v. McKELL, ___ S.W.2d ___ (Tenn.App. 2-25-1999)
IN THE MATTER OF: COURTNEY JADE CANOVA, MARY WITT LEVRAEA, LUKE LEVRAEA,
BRENDA CANOVA RIDDLE, Petitioners, v. JENNIFER CRUZ McKELL, Respondent.
                       C.A. No. 01A01-9803-JV-00113.
                     Davidson Juvenile No. 9719-38503.
             In the Court of Appeals of Tennessee at Nashville.
                         Decided February 25, 1999.

HON. ANDREW J. SHOOKHOFF, JUDGE

DISMISSED AND REMANDED

CAROL DOWNTON, ATTORNEY FOR PETITIONERS

ROSEMARY E. PHILLIPS, ATTORNEY FOR RESPONDENT

MEMORANDUM OPINION[fn1]

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 of Davidson County against Jennifer Cruz McKell ("Respondent"), seeking to
establish visitation rights with Courtney Jade Canova. The Levraeas are the
great-grandparents and Ms. Riddle is the grandmother of the minor child.
Respondent is the child's mother and custodial parent. The child was born out of
wedlock to Respondent 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 killed in an automobile accident. Respondent responded and
subsequently filed a motion for summary judgment seeking to have the petition
dismissed. Both sides filed supporting affidavits to their respective pleadings.
The trial judge granted Respondent's motion for summary judgment. 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 has been referred to as the
"Grandparents 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 provisions of these applicable code sections are as follows:

36-6-306. Visitation rights of parents of
deceased or divorced parents. (a) If:

(1) Either the father or mother of an unmarried
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
persons or the parents of the missing person may
be granted reasonable visitation rights to the
child during its minority by a court of competent
jurisdiction upon a finding that such visitation
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 follows:

36-6-307. Visitation rights of parents
adopting relative or stepparent. - (a) If a
relative or a stepparent adopts a child, the
general assembly finds that it is sound public
policy to provide children 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
relationship 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.

A grandparent whose child is the absent
biological parent may petition the court for
reasonable visitation rights if a sufficient
relationship exists between the grandparent and
the child.

(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 rights and neither of the child's
parents were living in the same household;

(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 filing of
the petition for 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 grandparent has had frequent visitation
with the child who is the subject of the suit for a
period of not less than one (1) year during the two
(2) years preceding the filing of the petition for
visitation rights.

(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 existing
relationship, as defined in subsection (c); and

(B) The visitation is in the best interests of the
child.

(2) In determining the best interests of the child
under this 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 emotional ties of the child to
the grandparent;

(D) The effect of hostility between the grandparent
and the parent on the child manifested before the
child, and the willingness of the grandparent,
except in case of abuse, to encourage a close
relationship between the child 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
time-sharing arrangement that exists between the
parents with respect to the child; and

(G) If one (1) parent is deceased or missing, the
fact that the grandparents requesting visitation
are the parents of the deceased or missing person.

On November 4, 1998, a panel of this Court, in an opinion authored by
Presiding Judge W. Frank Crawford, styled Regina Ellison v. Cherri Ellison,
Obion Chancery No. 20,443, C.A. No. 02A01-9803-CH-00054, declared T.C.A. §
36-6-306 to be an unconstitutional invasion of privacy rights under the
Tennessee Constitution in that the statute allows grandparents 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 of the
relationship between grandparents and said minor child. In so ruling, this Court
followed the 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, and dismiss 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 taxed one-half to petitioner and one-half to
respondent, for which execution may issue, if necessary.
________________________________
HEWITT P. TOMLIN, JR., SPECIAL JUDGE

CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE

[fn1] Rule 10 (Court of Appeals). Memorandum Opinion. - (b) The Court, with the
concurrence of all judges participating in the case, may affirm, 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
opinion 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.

Second Decision
        ELLISON v. ELLISON, ___ S.W.2d ___ (Tenn.App. 11-4-1998) REGENIA
ELLISON, Plaintiff-Appellee, v. CHERRI ELLISON, Defendant-Appellant.
                       C.A. No. 02A01-9803-CH-00054.
              In the Court of Appeals of Tennessee at Jackson.
                             November 4, 1998.

Appeal From The Obion County Chancery Court, the Honorable William Michael
Maloan, Chancellor, Obion Chancery No. 20,453.

REVERSED AND REMANDED

Lance E. Webb of Union City, For Appellant.

John Knox Walkup, Attorney General and Reporter

Ronald W. McNutt, Assistant Attorney General

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

This appeal involves a petition for grandparent visitation filed by plaintiff,
Regina Ellison, paternal grandmother of Garrett Ellison and Ethan Wayne Ellison,
minor children of defendant, Cherri Ellison, and Terry Ellison, deceased. After
an evidentiary hearing, the trial court granted visitation. Cherri Ellison
(Mother) has appealed and presents the following issues for review as stated in
her brief:

1. Whether Tenn. Code Ann. § 36-6-306 is
      unconstitutional because it authorizes courts to order
      grandparent visitation upon a finding that such
      visitation is in the "best interest" of the child
      without first requiring the finding of a danger of
      substantial harm to the child.

2. Whether the evidence preponderates against the trial
court's award of visitation rights to the appellee.

T.C.A. § 36-6-306, passed by the legislature in 1997, provides as pertinent to
our inquiry:

36-6-306. Visitation rights of parents of deceased or divorced parents. - (a)
If:

(1) Either the father or mother of an unmarried 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 persons or the
parents of the missing person may be granted reasonable
visitation rights to the child during its minority by a
court of competent jurisdiction upon a finding that such
visitation rights are in the best interests of the minor
child, based on the factors in § 36-6-307(d) (2).

* * *

T.C.A. § 36-6-306 (Supp. 1998).

The factors referred to above in T.C.A. § 36-6-307(d) (2) are:

(2) In determining the best interest of the child under
this 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 emotional ties of the child to the
grandparent;

(D) The effect of hostility between the grandparent and
      the parent on the child manifested before the child, and
      the willingness of the grandparent, except in case of
      abuse, to encourage a close relationship between the
      child 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 time-sharing
arrangement that exists between the parents with
respect to the child; and

(G) If one (1) parent is deceased or missing, the fact
that the grandparents requesting visitation are the
parents of the deceased or missing person.

T.C.A. § 36-6-307(d) (2) (Supp. 1998).

In Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993), our Supreme Court considered a
constitutional challenge to T.C.A. § 36-6-101, a predecessor to the present
grandparent visitation statute, that provided for "reasonable visitation" with
grandparents if it is "in the best interest of the minor child." The issue
involved the constitutionality of the statute as it applies to the decision of
married parents to deny paternal grandparents visitation with their
grandchildren. The Court held 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.

Id. at 582.

In Simmons v. Simmons, 900 S.W.2d 682 (Tenn. 1995), the Supreme Court followed
its decision in Hawk and applied its previous holding to a case where paternal
grandparents were seeking visitation after their son's parental rights had been
terminated. The child's mother had remarried, and her second husband had
adopted the child. The Court noted that in Hawk the need to protect the child
from a substantial danger or harm was a compelling state interest sufficient to
overrule parents' decisions. The Court then defined the issue as "whether the
child in this case is exposed to a substantial danger of harm, which justifies
the intervention of the Court into the parents' child-rearing decisions." Id.
at 684-85. The Court held:

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.

Id. at 685.

In Floyd v. McNeely, No. 02A01-9408-CH-007, 1995 WL 390954 (Tenn.App. W.S.,
July 5, 1995), this Court considered a grandparent visitation case with facts
quite similar to the case at bar. The primary issue before the Court was
whether T.C.A. § 36-6-301 was unconstitutional as applicable to the facts of
that case. The Court ruled:

In keeping with the Hawk and Simmons decisions,
this court may only intervene with McNeely's decision to
prevent her children from reestablishing a relationship
with their paternal grandmother if the record before us
indicates that the children are threatened with a
substantial danger of harm. Our review of this record
does not lead us to this conclusion. Thus, we find that
it is within McNeely's fundamental right as a parent to
prevent contact between her children and their
grandmother.

Id. at *4.

In Hilliard v. Hilliard, No. 02A01-9609-CH-00230, 1997 WL 61510 (Tenn.App.
W.S., Feb. 14, 1997) this Court again considered the question of grandparent
visitation in a somewhat different circumstance. At the time the mother and
father were divorced, temporary custody of the minor child was awarded to the
maternal grandmother, with whom the mother was living at the time. The mother
later moved out of the state to live with her present husband, and the father
filed a petition for modification of the decree to award him custody of the
child. The father was awarded custody of the child, and the maternal
grandmother was granted visitation with the child every other weekend. The
father appealed from that part of the order allowing the grandmother
visitation. The Court, following the decisions in Hawk, Simmons, and Floyd,
remanded the case to the trial court for further proceedings to make a threshold
determination of whether there was substantial danger of harm to the child if
there was a cessation of the relationship between the child and the maternal
grandmother. Id. at *4. The Court noted that the underlying holding in all of
the cases relied upon is that parents possess a constitutional right of privacy
in parenting decisions not subject to interference from the state absent a
showing of substantial harm for the child. Id. at *3.

The statutes under consideration in the previous cases referred to, and the
statute under consideration in the case at bar, are essentially the same
inasmuch as they both provide for reasonable visitation rights upon a finding
that the visitation rights are in the best interest of the minor child. Our
Supreme Court in Hawk and in Simmons determined that there must be an initial
showing of harm to a child before the Court may intervene to determine the best
interest of the child. The Court in Hawk specifically held:

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.

855 S.W.2d at 582.

The cases subsequent to Hawk indicate that there is no real difference between
the rights of a single parent, and both parents, under these circumstances. In
view of the almost identical language of the previous statute and the present
statute allowing visitation if in the best interest of the minor child, we are
compelled to follow the holding in Hawk. Therefore, we hold that the language
of T.C.A. § 36-6-306, allowing reasonable visitation rights upon a finding of
the best interest of the minor child, "constitutes an unconstitutional invasion
of privacy rights under the Tennessee Constitution."[fn1]

The judgment of the trial court is reversed, and the case is remanded to the
trial court for such further proceedings as may be necessary. Costs of the
appeal are assessed against the appellee. The second issue is pretermitted.

________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.

CONCUR:

____________________________________ ALAN E. HIGHERS, JUDGE

____________________________________ DAVID R. FARMER, JUDGE

[fn1] The trial court voiced the same opinion but, because
the Attorney General was not properly before the Court,
declined to rule on the constitutionality of the statute.

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