                                                                 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.




                                              -2-
        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;

                                               -3-
        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



                                      -4-
                 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:

                                                -5-
               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



                                              -6-
               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

                                               -7-
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



                               -8-
               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



                                               -9-
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




                                            -10-
