Clark v. Johnson, (Tenn.Ct.App., filed May 29, 2018)
TRIAL COURT: Father and Mother were married in 2006 and had four children either born to them or adopted by them: M.J., who was ten years of age at the time of trial; E.J., who was six years of age; L.J., who was four years of age; and M.M.J., who was two years of age (collectively, “the Children”). Mother’s died on October 21, 2015, following a sudden decline in Mother’s health that had not been expected by the parties.
Grandparents filed a petition in the Sullivan County Juvenile Court in November 2016, approximately thirteen months after the death of their daughter, who was the mother of the four minor children. Grandparents averred that the children were dependent and neglected due to the death of Mother and an allegedly severe reduction in Grandparents’ visitation with the children since December 2015. The case was subsequently transferred to the Sullivan County Chancery Court (“trial court”), with Grandparents having given notice to Father that they were seeking relief in the form of grandparent visitation. The trial court thereafter treated the petition as one for grandparent visitation. Following a hearing, the trial court entered a temporary order directing that Grandparents would enjoy unsupervised visitation with the children on alternate weekends. Following a subsequent bench trial, the trial court granted visitation to Grandparents upon finding that, pursuant to Tennessee Code Annotated §§ 36-6-306 and -307 (2017) (collectively, the “Grandparent Visitation Statute”), their visitation and relationship with the children had been severely reduced over several months prior to the petition’s filing and that such reduction posed a risk of substantial emotional harm to the children. Also finding that it was in the best interest of the children to grant Grandparents a set visitation schedule, the trial court ordered overnight visitation one weekend a month and two additional nights monthly, as well as one week’s uninterrupted visitation in the summer and the sharing of major holidays. Having determined that the evidence preponderates against a finding that the reduction in Grandparents’ visitation and relationship with the children in the months preceding the petition’s filing met the statutory definition of a severe reduction, the Court of Appeals reversed the trial court.
COURT OF APPEALS:
Parents in Tennessee enjoy a fundamental constitutional right to raise their children as they see fit absent a judicial finding of a risk of substantial harm to the children. A 2016 amendment to the Tennessee Grandparent Visitation Statute provided that “grandparent visitation could be ordered not only in situations where a custodial parent opposes visitation, but also where ‘visitation has been severely reduced by the custodial parent. The 2016 Amendment also provided the following statutory definition: For purposes of this section, “severe reduction” or “severely reduced” means reduction to no contact or token visitation as defined in section 36-1-102. The Court of Appeals found there was no severe reduction in the grandparent’s visitation and reversed the trial court.
Upon our careful review of the final order and the record as a whole, we determine that the trial court incorrectly interpreted the statutory definition of “severe reduction” to include what the court termed, “insubstantial contact compared to the previous ‘individual’ relationship between the grandparents and grandchildren.” In this tragic situation, Grandparents were undisputedly of great assistance to Father and to the Children during Mother’s final illness and the weeks following her death. Grandparents had undisputedly established a close relationship with the Children from the time of each child’s birth or adoption into the family. Father also does not dispute that during the relevant time period, Grandparents began to be offered less visitation time with the Children. However, the statutory definition does not describe a reduction in visitation in comparison to any visitation the grandparents may have enjoyed previously. The statutory definition of a severe reduction is “reduction to no contact or token visitation as defined in § 36-1-102.” Tenn. Code Ann. § 36-6-306(f). Noting that no evidence in this case would support a finding of no contact allowed by Father, we further determine that the amount and quality of Grandparents’ visitation with the Children was never reduced to “token” as that term is defined in Tennessee Code Annotated § 36-1-102.
In asserting that the nature of their visits with the Children had changed during the relevant time period, Grandparents are essentially arguing that the visits they enjoyed
with the Children were perfunctory, or superficial in nature, due to their reduced ability to spend individual time with the Children away from public events and activities and in
Grandparents’ home. We recognize the poignancy of Grandparents’ argument and the fact that during the relevant time period, they were no longer able to spend as much individual time with the Children as they had in the past. However, the extent and nature of visits that Grandmother and Grandfather each enjoyed with the Children and their engagement in the Children’s lives during the relevant time period cannot be characterized as perfunctory or superficial. Grandmother testified that “what I was asking for was time with them like I had spent with them prior to. I had been with them every day. I’d read books, I’d rocked, I’d talked, I’d taken them places, I’d shared with them in the car.” Grandfather acknowledged that Father “did a good job of keeping [him] informed of what was going on with the [Children]” but stated that he and Grandmother “just feel like . . . a schedule is better.”
Although the trial court found that Grandparents’ visitation and relationship with the Children had been severely reduced in comparison to what it had been in the past, the statutory definition does not call for a simple comparison of the visitation and relationship during an earlier time period with the visitation and relationship during the relevant time period. We conclude that the evidence preponderates against a finding that Grandparents’ visitation and relationship with the Children during the relevant period were severely reduced to the point of no contact or token visitation. See Tenn. Code Ann. § 36-6-306(f). Inasmuch as no severe reduction in the grandparent-grandchild relationship, as statutorily defined, had been proven by a preponderance of the evidence, the trial court erred in finding a danger of substantial harm to the Children if visitation were not awarded to Grandparents. Having determined that the trial court’s finding of a danger of substantial harm to the Children was not warranted, we further determine that any review of the statutory best interest factors is pretermitted as moot.